COAH Extension Request Rebuffed

The New Jersey State League of Municipalities (the “League”) issued a press release earlier today stating that Department of Community Affairs Commissioner Joseph Doria denied the League’s request for a special meeting of the Council on Affordable Housing (“COAH”) to authorize an extension of the December 31, 2008 deadline for COAH-participating municipalities to file their Housing Element and Fair Share Plans with COAH.

Below is League Executive Director Bill Dressel’s statement:

Municipalities Told COAH Filing Deadline Extension Denied

We have just received word from Department of Community Affairs Commissioner Joseph Doria that our request for an emergency meeting of the Council on Affordable Housing (COAH) to consider an extension of the December 31 filing deadline has been rejected. COAH, therefore, will not have the opportunity to consider the merits of our request for such an extension.

On Friday, November 14, and again on November 24, the League wrote to Governor Corzine, requesting an Executive Order to extend the current December 31 deadline by a period of six-months. Today, that request was denied.

On Monday, November 17, we learned of an analysis conducted by the nonpartisan Office of Legislative Services (OLS) of funding available to comply with the COAH regulations. The conclusion of the analysis is that, assuming DCA’s contention that there will be over $800 million available annually for the construction of housing to be accurate, that still leaves a “deficit in annual resources for fair share housing obligations” of up to $2 billion annually.

The League has argued since the introduction of the COAH regulations, that the inflated growth projections and limited funding sources would compel municipalities to rely on the property tax. The OLS analysis demonstrates our argument.

On December 18, in a final effort to gain an extension, we wrote to Commissioner Doria, asking that he convene an emergency meting of COAH to consider the need for an extension, in the light of these factors.

Our request for an extension had been supported by Senators Lesniak and Bateman, by Assembly Speaker Roberts, by Assemblyman Green, the Chairman of the Assembly Housing and Local Government Committee, by groups committed to environmental protection, and by many others interested in sound planning principles.

The Commissioner’s decision means that municipalities will need to file revised third round plans by December 31 or face ‘builders’ remedy’ lawsuits.

For a link to the League’s COAH resources page, click here.

For the Star Ledger on-line article, click here.

DCA Commissioner: Council May “Consider” Legislators’ Requests To Extend COAH Filing Deadline But No Meeting Planned; Bateman To Introduce Extension Bill

With pressure mounting on both sides of the issue, Department of Community Affairs Commissioner Joseph Doria announced that the deadline for participating municipalities (i.e., municipalities which had previously filed third round petitions under the old rules and, therefore, subject to COAH’s jurisdiction and protections from Mt. Laurel litigation pursuant to N.J.A.C. 5:96-16) to file their affordable housing plans with the state will not be extended beyond December 31, 2008, unless the Council votes to extend the deadline or legislation is passed requiring an extension. He stated that the council is taking the requests of various legislators under consideration.

According to the Star Ledger:

COAH director Lucy Vanderberg said Sandyston, Frankford, Ewing and Woodcliff Lake have submitted their plans. She provided information that shows the remaining 210 towns have had their plans approved by their councils or planning boards or have them under review by the panels.

Doria, who is also chairman of COAH, said he wanted to clarify a report that appeared on nj.com yesterday that stated he would not grant an extension of the Dec. 31 deadline, something sought by some legislators and local officials.

Doria said he does not have the power to grant an extension and that it would take a vote by the majority of the COAH board at a special meeting before the end of the month to do so.

“I can’t take action by myself,” he said. “It has to be acted on by the board.” At present, no meeting is planned.

Meanwhile, State Senator Christopher “Kip” Bateman issued a press release stating that if the Governor does not act to delay the filing deadline, he will be introducing legislation during the session on Thursday to force a legislative change to the deadline.

According to the release, Senator Bateman is calling upon Governor Corzine to intercede and extend the filing deadline by six months:

This position has bipartisan support in the Senate and is also supported by the State League of Municipalities. If the Corzine Administration fails to act on this request I will attempt to impose the deadline extension by legislation which will be introduced at tomorrow’s Senate quorum.

For a link to the Star Ledger report, click here.
For a link to Sen. Bateman’s press release, click here.

NJ Supreme Court Upholds Highlands Act; Aggrieved Party Must Exhaust Administrative Remedies

The New Jersey Supreme Court upheld the Appellate Division’s ruling in OFP, L.L.C. v. State of New Jersey, which held that the owner of 93-acre parcel in the Highlands preservation area who failed to obtain a required approval from the New Jersey Department of Environmental Protection prior to the date the Highlands Act was first introduced in the Legislature and thus failed to qualify for an exemption under the Act, must first exhaust its administrative remedies, such as applying for a hardship waiver pursuant to the Act, before claiming that a regulatory taking has occurred. The Court also affirmed the consitutionality of the retroactive application of the Highlands Act. According to a report in the Star Ledger on-line:

The New Jersey Supreme Court today upheld the Highlands Act, a landmark land-preservation law that curbs development in northern New Jersey.

Developer OFP has been fighting to build 26 homes on 93 acres in Washington Township in Morris County and has argued that the Highlands Act amounts to an unfair “taking” of their land. The state Supreme Court today upheld an appellate court ruling that the developer needed to make use of the compensation remedies that are built into the 2004 law — such as applying for a waiver — before asking the courts to intercede.
. . . .

In arguments before the Supreme Court in September, OFP attorney Brian Mulligan said a waiver would not make his client whole because it would allow only “minimal” use of the land.

Deputy Attorney General Barbara Conklin, arguing on behalf of the Department of Environmental Protection that day, conceded that the developer probably would not be able to build all 26 homes, but no one knew what they could build because they never applied “to get the relief the act intended them to have.”

For the full article, click here.

For the Supreme Court’s per curiam opinion, click here.

For the Appellate Division’s opinion, click here.

Assembly Leaders Ask For Extension To COAH Deadline

In a letter as symbolic as it is timely, Assembly Speaker Joseph Roberts (D-Camden) and Assembly Housing and Local Government Chairman Jerry Green (D-Union) formally requested that the Council on Affordable Housing delay the deadline for participating municipalities to file their affordable housing plans from December 31, 2008, for “at least 90 days.”

As key sponsors of A-500, the bill signed into law by Governor Corzine in July which amended the Fair Housing Act to effectively eliminate the use of regional contribution agreements and create a uniform statewide non-residential developers’ fee of 2.5 percent of equalized assessed value among many other changes to state affordable housing law, the message being sent by the letter is loud and clear – key legislative leaders are willing to consider modifications to the current requirements of the Fair Housing Act and recently-adopted regulations.

It appears from both published accounts and statehouse chatter that some of the issues that are on the table include “grandfathering” in RCAs which were pending at the time of enactment of A-500 and suspending the non-residential development fee on a temporary basis and/or for projects which achieved significant progress in the development process prior to passage of A-500.

To view a copy of the release and the letter to COAH from Roberts and Green, click here.

Thanks to New Jersey State League of Municipalities Senior Policy Analyst Michael Cerra for forwarding the link to the Assembly Majority Office’s press release on this issue.

With Deadline Approaching, Towns Look For Affordable Housing Options

While there is a movement lead by an ecclectic coalition of legislative leaders, environmental groups and the League of Municipalities to delay the requirement set forth in the Council on Affordable Housing’s (“COAH”) regulations that participating municipalities must file their affordable housing plans by December 31st, many municipalities have spent a significant amount of time and tax dollars to be prepared to file by this date.

An article in Sunday’s New York Times explores some of the issues facing local governments, including the doubling of municipal (and, ultimately, developer) obligations from one affordable unit for every eight market rate units built to the current one of five, and other methods of providing affordable housing under the current rules.

For the full article, click here. (You may have to register – for free – at the NYT site to access this article.)

Will the Economic and Political Climate Lead to Compromise on Affordable Housing Laws?

On Thursday, key legislative leaders and their staffers met to discuss potential changes to the current affordable housing laws in New Jersey. Whether driven by the dismal economic climate or the fact that both the Governor and State Assembly are up for election in 2009, and the recent amendments to the Fair Housing Act, along with the newly adopted state affordable housing regulations, are drawing bi-partisan ire from local elected officials, some of the details that have leaked out include the potential for a six-month extension of the December 31, 2008 deadline for municipalities to file their affordable housing plans with the Council on Affordable Housing (“COAH”), approval of regional contribution agreements (“RCA”) which were in the works when legislation signed in July all but abolished the use of RCAs and further changes to the way affordable housing obligations will be addressed by municipalities and builders.

According to the Star Ledger:

Senators Raymond Lesniak (D-Union), who is pushing for the changes, huddled with Gov. Jon Corzine, his aides, and Assembly Speaker Joseph Robert (D-Camden) at the Statehouse on Thursday. He said he is confident there will be compromise to alter a landmark affordable housing law that was signed in July.

“The only thing I can say is we are pushing for a reform law that would actually get affordable housing built and not drag down the economy,” Lesniak said. “Hopefully, we can get something done before the holidays.”

Lesniak and Sen. Christopher “Kip” Bateman (R-Somerset) are preparing legislation that would allow some pending “regional contribution agreements” where cities get paid by suburban towns to take on part of their affordable housing obligations. The agreements in question involve about 17 cities and towns.

Bateman said they want to see Corzine agree to at least a six-month extension on the deadline for towns to come up with new affordable housing plans. Both Corzine and Roberts indicated they are open to an extension.

To view S-2500, introduced by Senator Bateman on October 20 of this year, which includes provisions which may form the basis for several of the reforms which are apparently being discussed, click here.

For the full article from the Saturday Star Ledger click here.