The failure of New Jersey’s Council on Affordable Housing (COAH) to reach an agreement on new third-round regulations for the state Supreme Court-mandated construction of housing for lowincome residents has created confusion for municipalities now facing dramatic increases in litigation which would force towns to accept affordable housing projects.
On Oct. 20, the COAH board was set to take action on the third-round regulations which would have provided new rules for municipalities, but the board deadlocked at 3-3 and did not advance any regulations.
First a motion was made to table the regulations for 60 days, but that failed after a 3-3 vote. Next, a motion to adopt the regulations failed by another 3-3 vote.
Essentially, the council is separated by ideology. The members who voted in favor of the new rules were opposed by members who share the view expressed by affordable housing proponents, namely that the current rules do not go far enough and that towns should be obligated to provide approvals for even more affordable housing units.
COAH’s inability to set definitive housing obligations for towns may open the door for an onslaught of expensive litigation from developers called builders remedy lawsuits. Developers can file builders remedy lawsuits in which they bring litigation against a town to change zoning of a property.
These lawsuits are successful in cases where a developer can show that the municipality is not in compliance with the number of obligated units and the developer plans to include 20 percent of affordable housing in the planned development.
Property taxpayers will pay the price of the legal battles and they may end up paying the price for unchecked local development.
Earlier this year, the state Supreme Court ordered the state to adopt new regulations, comparable to the COAH rules that expired more than 15 years ago. The new standards were to be in place by Nov. 17.
This latest action, or lack thereof, by COAH is reckless and further complicates a bad situation. For instance, the third-round requirements as proposed for Wall Township call for an additional 155 affordable housing units. Howell would be required to build more than 600 units and Manasquan would be required to build seven units.
The failure of the council to act affirmatively on the new rules means these municipalities could be obligated to grant approvals for even more units than the proposed rules require.
Municipalities responsible for meeting minimum affordable obligations as dictated by COAH and the courts now face a perplexing dilemma: How can a town be expected to create a reasonable, workable master plan to satisfy housing quotas that do not exist?
Historically, municipalities have been able to achieve protection from builders remedy lawsuits by taking affirmative steps to include affordable housing in plans for future developments. These towns were beneficiaries of protective court orders in cases where courts deemed municipalities to be COAH-compliant.
Now, with the impasse on the council, the state Supreme Court has already suggested that lifting the protection against lawsuits by developers against COAH-compliant municipalities may be required.
Lifting these protective orders undoubtedly would increase the number of units that municipalities would be required to approve.
All of the hard work and compromise to slow the constant growth of property taxes in our state — where they remain among the highest in the nation — is now jeopardized by this stalemate over ideology. Taxpayers cannot afford a step in the wrong direction.
All New Jersey residents would benefit from a COAH decision that clarifies municipal housing responsibilities and facilitates reliable budgeting that does not burden property taxpayers with skyrocketing legal bills.
State Assemblyman Sean Kean represents the 30th Legislative District, which includes parts of Monmouth and Ocean counties.