On March 10th the NJ Supreme Court ruled to remove the administration of municipal affordable housing obligations from COAH. This decision came as a result of the embattled agency’s failure to comply with the court’s order to established Revised Third Round Rules and a subsequent motion by the Fair Share Housing Center for the courts take over (EOR, Dec 27, 2014)
Ironically, Governor Christie tried to abolish the agency for the exact same reasons nearly 2 years ago (NJ.com, Jul 10, 2013). The courts blocked him from doing so and, in effect, delayed solving the affordable housing conundrum. The NJ Legislature also tried to come up with an alternative to COAH but could not come up with something that the Governor would approve.
The ruling, that will not go in effect for 90 days, will be rolled out in stages. For the first 30 days after enactment, municipalities like Riverdale, who have submitted affordable housing plans to Riverdale can present their case to continue to receive immunity against potential Builder’s Remedy Lawsuits. At the March 11th Council Meeting, it was decided that Borough Attorney Robert Oostdyk would contact our COAH consultant Robert Michaels and they will investigate what is involved with the process.
One thing’s for sure, in the case of NJ Affordable Housing legislation, the only thing that remains constant is change. In their ruling, the courts have left the door open and, in fact, are encouraging the Governor and Legislature to come up with an administrative solution for municipalities willing to comply with the Fair Housing Act of 1985. Here’s the real problem.
The main reason that the Third Round Rules were thrown out in the first place was continuous lawsuits. Inevitably this would have been the fate of the Revised Third Round Rules as well. Regardless of what formulas are used to determine need, what exemptions are allowed, and what types of property are eligible for affordable housing credits, you can be sure that the resulting numbers will be too few for affordable housing advocates and too many for most municipalities. By entertaining such lawsuits, the courts in fact played a role in delaying the construction of thousands of affordable homes. It will be interesting to see how they react when they get a taste of their own medicine.
The last valid rules for determining municipal obligations expired in 1999. With nothing else to look to, it is expected that the courts will closely follow this methodology. The problem is that New Jersey is a very different place than it was 15 years ago. The legislators who created the Fair Housing Act of 1985 recognized the need for regular updates. The law calls for review and revision every 6 years so, in essence, we should be complying with Fifth Round Rules today. Don’t feel bad, I am sure these would have ended up in court as well.