United States: Op-Ed: Supreme Court's Decision — The Final Battle In The Coah War?

This article originally appeared in NJ Spotlight:  http://www.njspotlight.com/stories/17/02/09/op-ed-supreme-court-s-decision-the-final-battle-in-the-coah-war/

The court's ruling provoked the usual responses. Many towns complained that it would cost them money; others decried it as a usurpation of local authority

Last month, the New Jersey Supreme Court released a unanimous decision, ruling that the state's municipalities have an obligation to provide affordable housing for residents for the period from 1999-2015.  In court, the municipalities argued they had no obligation to provide for affordable housing during this period; developers and housing advocates rejected this analysis as simply wrong.  At a minimum, 300-plus towns are affected by the ruling.

The outcome was not entirely unexpected. On a technical level, the court's decision means towns will have to calculate housing numbers for the intervening years and may obligate them to adopt new plans to provide for this housing, including by rezoning properties not presently approved for residential use.  On a practical level, the court's decision may mark the final battle in a COAH war that has been raging in court without interruption since 2004.

The court's decision provoked the usual responses. Many towns generically complained that this would cost them money; others decried the decision as a usurpation of local authority. Both complaints are baseless.

Towns are regularly reviewing and revising their zoning ordinances. This function is part of normal planning and land-use process. To the extent developers seek rezoning for a particular parcel, there are provisions within the law that enable towns to require that the developer underwrite, by way of an escrow deposit, the costs associated with this extra work.

Additionally, more than 200 New Jersey towns voluntarily participated in COAH. Another 90 used the courts on their affordable housing issues. Regardless of the forum, all these towns proposed plans to accommodate affordable housing within their borders. These plans were publicly noticed, vetted by their planning boards, and adopted by their governing bodies. Many towns executed their plans or at least elements of them, despite the ongoing litigation. Others, however, adopted a "wait and see" approach. To be clear, last month's Supreme Court decision did not require any town to do anything other than recalculate its numbers. However, it unquestionably closed one of the few remaining doors that towns had used as a rationale for their continuing inaction.

In its decision, the Supreme Court invited the Executive and legislative branches to adopt a solution. However, no one should expect a legislative fix any time soon. First, this is an enormously complicated issue and any amendment to the Fair Housing Act, which created COAH, must accommodate 35 years of legal precedent. Second, and perhaps more important, the entire New Jersey Legislature is up for re-election this year. Re-election and complex legislation rarely occur in the same cycle.

That is not to say that all legislators are unwilling to tackle the problem. Assemblyman Jack Cittarelli introduced a bill A-3782 in May 2016 with the goal of providing a solution. Sen. Kip Batemen joined him by introducing a companion bill, S-2216. Neither bill has moved since its introduction; there have been no committee hearings scheduled or conducted.

The pending bills are problematic. The bills propose a 10 percent set-aside in all new development as an affordable-housing solution. Unfortunately, COAH's 2004 rules provided for a 20% percent set-aside, and this amount was struck down as failing to provide enough affordable housing. Additionally, the bills exempt municipalities from obligations during the "gap period"; the issue that the court just opined on. There can be no doubt that a statute is afforded greater weight than a regulation, but whether the Supreme Court would enforce a law that undoes what it has previously required is an open question.

COAH was created so municipalities could avoid the courthouse, but having been forced back there in 2015, towns are now overwhelmingly and promptly resolving their affordable-housing issues by way of negotiation and settlement. Indeed, by necessity, there has been more activity since March 2015 and today than COAH accomplished in reviewing COAH petitions between 2008 and 2012.

Nearly 35 years ago, the Supreme Court recognized a constitutional obligation to create affordable housing and the Legislature codified it in 1985. The very agency designed to implement the obligation struggled mightily and ultimately collapsed. The Legislature similarly struggled with the complexities of the issue and has done nothing since its last failed attempt to address the issue in 2010.

Since there is finally forward momentum, perhaps what was created by the court ought to remain there. For better or worse, under the stewardship of the courts, the parties are finally achieving solutions to their obligations.

Lori Grifa is a partner at Archer and was chair of the New Jersey Council on Affordable Housing from 2010 to 2012.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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