Court says COAH plans due this year

Appeals court denies motion; towns to submit affordable housing plans in December

BY DANIEL HOWLEY Staff Writer

The state appeals court has denied a motion filed by the New Jersey League of Municipalities (NJLM) to postpone a deadline for municipalities to prepare their affordable housing plans.

The ruling, made in the Appellate Division of the state’s Superior Court, enforces a deadline set by the state’s Council on Affordable Housing (COAH) that calls for municipalities to submit their Round III affordable housing plans before Dec. 31.

"We are disappointed, but not surprised by the court’s action," NJLM Executive Director William Dressel said in a press release.

"Unfortunately, the end result will be towns seeking COAH substantive certification will have to prepare plans based on a faulty methodology, a discredited vacant land analysis and the knowledge that further amendments, which will require adjustments to plans, are to be proposed in the upcoming months," Dressel added.

In response to the court’s decision, Department of Community Affairs (DCA) Commissioner Joseph Doria called the denial of the League’s appeal a validation of COAH’s Round III guidelines.

"By denying a stay of the Dec. 31 deadline, the court has not only validated COAH, but also paved the way, yet, again, for us to move forward in our efforts to provide New Jersey residents with the affordable housing opportunities they need," Doria said.

"Again, I express my sincere hope that all of the interested stakeholders, including the municipalities, housing advocates, the developers and the state agencies, can now come together and work towards accomplishing both our moral and Constitutional obligation to provide affordable housing for the citizens of our state," Doria added.

The NJLM’s appeal was filed in response to the establishment of COAH’s updated Round III rules, which the agency approved in June.

In its appeal, the League was seeking to delay a deadline that required state municipalities to submit their Round III housing plans to COAH by Dec. 31.

Under COAH regulations, a municipality must provide the agency with an affordable housing plan that indicates how and where the town will develop their fair required amount of affordable housing units.

Should municipalities not provide the agency with their COAH plans by the deadline, the towns can be open to builder’s remedy lawsuits.

A builder’s remedy lawsuit is a lawsuit filed by or on the behalf of a developer, claiming that a town is not complying with COAH’s affordable housing regulations.

When a project is approved as the result of a builder’s remedy lawsuit, the developer must designate 15 to 20 percent of the units in the development as affordable housing, according to COAH guidelines.

Municipalities that file an affordable housing plan with COAH are immune from builder’s remedy suits.

The League initially filed its motion for a stay in response to COAH passing amendments to its Round III housing guidelines.

Those guidelines, League officials contend, put an unfair burden on municipalities, requiring them in some cases to provide up to four times the number of affordable housing units previous COAH guidelines had called for.

League officials have stated that the new Round III guidelines, which call for an increase in the state’s affordable housing obligation from 52,000 units up to 115,000 units, were established using inaccurate information.

In a challenge filed in state Superior Court in July, the League claimed that COAH developed its new housing obligation using a "flawed methodology."

The methodology, League officials say, failed to take into account property boundary lines when it was conducted.

As a result, League officials claim, COAH is calling for state municipalities to build affordable housing on land that is unfit for development, such as cemeteries, schoolyards, private property and highway medians.

In addition to denying the League’s request for a stay on the deadline, Dressel explained that the court also ruled on a number of other motions regarding 24 current appeals to COAH’s regulations.

The most significant ruling was the court’s decision to establish the League’s challenge to was it is calling COAH’s "flawed methodology," by which it established its new Round III regulations, as the lead case among other challenges to the agency’s regulations.

"In general, the court accepted the procedure and proposed calendar set forth by the League and municipalities and established the League’s appeal as the lead case," Dressel said.

"To date, 237 municipalities have pledged towards our challenge seeking to invalidate COAH’s methodology and to replace it with a sustainable housing strategy," he said. "While the League’s motion was denied, the League’s motion to the court skillfully laid out the hardships imposed on local governments and taxpayers by the arbitrary Dec. 31 deadline.

"While we respectfully disagree with the court’s actions, we understand its concern not to be seen as obstructing affordable housing.

"As the events of the upcoming months unfold, we believe it will be demonstrated that the frustration of housing in the state is the result of the state’s housing policy and an invalid methodology put forth by COAH," Dressel added.

Contact Daniel Howley at dhowley@gmnews.com.