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NJ Spotlight, Feb. 27, 2014


Missed deadline for new COAH quotas sets stage for legal showdown as fair-housing and environmental advocates cry foul

The Christie administration has defied the state Supreme Court’s order that new affordable-housing quotas be put in place by yesterday’s deadline, setting the stage for a battle over the rules in appellate court next week.

The inaction by the NJ Council on Affordable Housing was not completely surprising, given Gov. Chris Christie’s attempts to stop the body from doing any work throughout his first term and his animosity toward the court.

But flouting an order from the state’s highest court is nevertheless significant.

"Ignoring a court order is serious business," said Kevin Walsh, the Fair Share Housing Center attorney who has been fighting for years to get COAH back up and functioning to boost the state’s affordable housing stock. "This is a breach of the basic rules by which our government functions."

Jeff Tittle, head of the New Jersey chapter of the Sierra Club, went further, saying the lack of compliance "again shows the arrogance and abuse of power of the Christie administration."

Neither the Department of Community Affairs, in which COAH is located, nor Christie’s office returned requests for comment.

The state acknowledged the deadline in papers the attorney general filed in the Appellate Division of Superior Court in advance of next Wednesday’s hearing on Fair Share’s motion asking the court to appoint a special master to do the work the state has refused to do.

In its papers, the state does not argue with the date or the requirement, but merely states that "any claim that COAH is acting in violation of that (Feb. 26) deadline must be brought before the Supreme Court."

Last September, the Supreme Court struck down the state’s most recent affordable- housing regulations and, barring any legislative action, gave COAH five months to establish new quotas using a method similar to the one it had used in the 1980s and 1990s to ensure that municipalities provide their fair share of low- and moderate-income housing.

In its decision, the highest court affirmed a nearly three-year old appellate decision that had invalidated COAH’s third-round rules, which were based on future municipal growth.

Despite the order, COAH has not met once since that decision was handed down. In fact, it has only met once in the last several years — despite another Supreme Court ruling that Christie had no right to dismantle the council — and that was last May, when the administration was seeking to take some $160 million in municipal affordable housing funds to help balance the state budget.

Anticipating that the administration would not act by the deadline, Fair Share filed a motion in the appellate division two months ago, seeking enforcement of the Supreme Court order.

Walsh noted that state agency rules must be proposed, published for public comment, and then adopted by a state agency, a process that takes at minimum three months. COAH has not taken even the first step in that process. He said the agency’s attorney told the Supreme Court at oral argument that it would take 30 days to prepare regulations.

"The Christie Administration is blocking thousands of new homes from moving forward — which is especially critical after Hurricane Sandy destroyed so many houses and made housing even more expensive in New Jersey," Walsh said

Tittle expressed concern that since there are currently no valid rules governing affordable housing in the state, builders could go to court to seek permission to build high-density complexes that include lower-cost units and higher-priced ones to help offset the builders’ costs.

“The failure of the Christie administration to adopt appropriate and legal third round rules for COAH puts every town in New Jersey in jeopardy," he said. "This is a cynical game where he on one hand attacks COAH, but at the same time wants to open New Jersey to developer lawsuits … Since there are no rules in place, the courts could strike down every COAH plan that has been adopted or just allow for builder remedy lawsuits for every town in the state. Developers can declare open season in every town in New Jersey.”

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