New Jersey Affordable Housing Law

Guidance Document Issued On Non-Residential Development Fee Act Suspension

2009-07-28T13:11:00.001-07:00

The Division of Local Government Services issued guidance today regarding the application of the temporary suspension of the Statewide Non-Residential Development Fee Act contained within the NJ Economic Stimulus Act of 2009 (P.L. 2009, c. 90) signed by Governor Jon Corzine on Monday, July 27, 2009.

Projects that receive preliminary or final site plan approval prior to July 1, 2010, and for which a building permit is issued prior to January 1, 2013 will not be subject to any non-residential development fee.

Also, any developer that has paid a non-residential development fee since July 17, 2008 may claim a refund based on certain criteria in writing by November 30, 2009. A municipality, however, may seek reimbursement from the State for any development fee refunds issued, no later than March 30, 2010.

Legislature Moves Rapidly On Non-Residential Development Fee Act Suspension

2009-06-21T22:32:00.000-07:00

The Legislature is rushing to pass omnibus economic stimulus legislation (A4048) that includes a tweaked version of the suspension of the Statewide Non-Residential Development Fee Act ("the Act") proposed earlier this year that was stalled in the Assembly. This legislation is being fast-tracked along with the State budget expected to be passed within the next week.

This new bill would suspend the 2.5% non-residential development fee for projects receiving preliminary or final site plan approvals by July 1, 2010, but adds the condition that building permits must also be issued by July 1, 2011.

Further, while this bill would relieve municipalities of the growth share generated by certain non-residential projects during the fee suspension, COAH will only be permitted to do so on the condition that there are “insufficient funds in the New Jersey Affordable Housing Trust Fund" or where "other State or federal housing subsidies" are not "available to a municipality to assist in the production of such housing units.” It is pretty clear that there are not sufficient monies in the State Affordable Housing Trust Fund, which has collected less than $1 million, compared to about $12 million in the aggregate by municipalities. This legislation does not, however, provide clear guidance regarding how such determinations will be made by COAH, especially in relation to the availability of other sources of funding that could keep a municipality on the hook for growth share while collecting no development fees.

Finally, this legislation also requires the refund of non-residential development fees collected under the Act to developers who file requests within 120 days, but the State will reimburse municipalities for refunds required to be made to developers if the funds are “already expended or legally committed by binding contract to spend.” The bill dedicates $15 million for this purpose.

Third Round Litigation Continues As COAH Begins To Grant Substantive Certifications

2009-04-14T12:40:00.000-07:00

On April 9, 2009, the New Jersey League of Municipalities filed and has now posted its reply brief and an executive summary of the same as prepared by Edward J. Buzak, Esq. on behalf of the League.

On April 8, 2009, COAH granted substantive certification to the Lawrence Township and Pine Hill, the first municipalities to receive substantive certification under COAH's revised third round rules. That leaves more than 300 municipalities who have filed for protection from builder's remedy suits to go.

Details Emerge On Non-Residential Development Fee Act Suspension

2009-02-04T18:39:00.000-08:00

In his annual State of the State speech, Governor Jon Corzine called for a one year suspension of New Jersey’s 2.5% non-residential development fee imposed under the Statewide Non Residential Development Fee Act (“the Act”) he signed into law just six months earlier on July 17, 2008.

This fee, imposed upon the calculated increase in assessed valuation at the time of issuance of a certificate of occupancy, was supposed to provide one of the few viable sources of financing for the development of affordable housing by municipalities. Due to current economic distress, however, not even $10 million of a projected $80 million was collected in the first six months of its imposition. Many argue, that this fee, in addition to other burdensome regulations, has contributed to New Jersey’s rapid economic decline.

Now, legislation (S2485) proposed by Senator Ray Lesniak (D-Union), would establish an 18 month suspension of the Act on any projects that receive preliminary or final site plan approval prior to July 1, 2010. This moratorium also applies to projects referred to a planning board by the state, a governing body, or other public agency for review.

Further, on January 26, 2009, the bill was amended by the Senate Economic Growth Committee to suspend affordable housing fair share obligations that are attributable to the non-residential development that would be exempted from imposition of the fee if this legislation is enacted. To effectuate such adjustments, municipalities may petition COAH, which will make adjustments pursuant to a methodology that is not defined in the legislation at this time.

The bill, however, provides that if the state supplies municipalities monies that would have been generated by the suspension of this fee, the fair share obligation attributable to development exempted under the bill would be restored. Accordingly, municipalities would only be obligated to provide for the housing generated by commercial development during the 18 month suspension period if the state provided the funding for its construction.

Finally, the bill provides a reimbursement mechanism for those developers who have paid the development fee, but would be exempted by these changes. This allows developers to request refunds of fees paid within 120 days of the bill’s effective date, which will be immediately upon its signing by the Governor.

This legislation should not require any new amendments to recently adopted development fee ordinances approved pursuant to the Act that will remain effective with respect to the non-residential component upon the sun setting of the proposed 18 month moratorium.

The moratorium as originally proposed by Governor Corzine is clearly supported by State Assembly Speaker Joseph Roberts (D-Camden) and Senate President Richard Codey (D-Essex). It is unclear, however, whether they have lent their full support to the amended, more expansive, version of this legislation, but there is little doubt that some form of it will receive final passage in the near future. This legislation has not yet been considered in the Assembly and is currently before the Senate Budget and Appropriations Committee for consideration while at second reading in the Senate.

No Extension of COAH Deadline

2008-12-23T12:39:00.000-08:00

We are told that Governor Jon Corzine has declined ordering an extension of COAH's December 31, 2008 filing deadline for municipalities filing their third round Housing Element & Fair Share Plans.

2008-12-17T18:17:00.000-08:00

With less than two weeks to go, the Star-Ledger is reporting that Governor Corzine is still considering ordering COAH to extend its December 31, 2008 deadline for municipalities to file their Housing Element & Fair Share Plans. . . .

The governor said today his aides are studying the legal ramifications of extending the deadline, something sought by legislators and many municipal officials.

"We're reviewing legislation that is in the Legislature to see what impact that would have in terms of legal responsibilities we have to fulfill," Corzine said.

Corzine was referring to a measure introduced by Sen. Christopher "Kip" Bateman (R-Somerset) that would extend the deadline to June 30. Bateman said an extension would "provide the Legislature with time to fix the substantive errors in the COAH regulations and laws."

The governor would have to ask the COAH board to hold a special meeting before the end of the month to approve an extension.

All Eyes On Trenton For An Extension

2008-12-11T06:57:00.000-08:00

Today is the second to last legislative session day in Trenton prior to COAH's December 31 deadline for municipalities to file their Housing Element & Fair Share Plans. Word on West State Street is that an extension anywhere from 6 to 18 months will be forthcoming, possibly by executive order.

After COAH's meeting yesterday morning, DCA Commissioner Joe Doria said he could not act independently on a request from Speaker Roberts and other legislators to extend the filing deadline at least 90 days without formal action by the entire COAH board, which he chairs, or the legislature. According to the Star-Ledger:

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.

Doria said extension requests by Assembly Speaker Joseph Roberts (D-Camden) and Sens. Raymond Lesniak (D-Union) and Christopher "Kip" Bateman (R- Somerset) are under consideration. The lawmakers are seeking three- to six-month extensions. They argue that the towns need more time to present solid plans.

Asked if he would support an extension, Doria said the board could be forced to consider one if legislation were introduced calling for one.

Speaker Roberts Requests COAH Extension But Questions Stated Costs of Providing Housing

2008-12-09T10:46:00.001-08:00

Assembly Speaker Joe Roberts has formally requested that COAH extend its December 31, 2008 filing deadline for municipalities to submit their Housing Element and Fair Share Plans. Roberts is seeking at least a 90 day extension while the League of Municipalities is seeking at least a 6 month extension.

Citing a newly released December 5, 2008 OLS letter, however, Speaker Roberts called for a more responsible debate by questioning the use and interpretation of OLS's November 14, 2008 letter that proliferated in the press the last two weeks stating that there is a $2 billion per year short fall in providing funding for municipalities to develop affordable housing.

Specifically, Roberts contends that OLS has conceded that its "previous study didn’t account for the many ways municipalities can provide affordable housing" such as through inclusionary zoning. As cited by Roberts, OLS's December 5 letter specifically states that its November 14 letter "was intended to be illustrative, not analytical" and "contrary to characterizations in the press, OLS was not asked to calculate the financial impact of COAH's revised third round regulations on municipalities. . . ."

The truth, as usual, lies somewhere in between. It is technically true that the Fair Housing Act and inclusionary zoning mechanisms, for example, do not cost municipalities anything aside from professional fees. In fact, most affordable housing is subsidized by private developers, not municipalities. The new COAH rules are structured to help encourage such private subsidy through density bonuses. It does not, however, follow that there are no costs to municipalities when such dense development takes place.

When buildable land in marketable neighborhoods is scarce, which it is in the State of New Jersey, it is difficult to provide a realistic opportunity for the development of affordable housing as required under the Mt. Laurel Doctrine. The only way to do so is through the provision of extraordinarily high density inlcusuionary development. Even with a presumptive density of 8 units per acre for most buildable acreage in the State, a private subsidy of even a 20% set aside is difficult in most areas, especially under current market conditions.

Such high density development, in turn, costs municipalities significantly. Most significantly is the cost of additional children in the schools. Then, there is the provision of public utilities, such as, sewer service, which is maxed out in many areas of the State and will require significant new off-site infrastructure to expand. Finally, new fire apparatus suitable for high density units that will usually exceed normal height limitations and other emergency service demands simply due to the increase in population which will, in most cases, be more than four times whatever the municipality's affordable housing obligation is unless and until the COAH rules are changed.

Pressure Mounts For Extension & Amendments

2008-12-06T10:44:00.001-08:00

The Star-Ledger reports that Governor Corzine and Speaker Roberts may finally be hearing the outcry from municipal officials and developers regarding the impact that the third round COAH rules, the elimination of RCAs and the Statewide Non-Residential Development Fee Act are having on the State's economy. Accordingly, an extension of the December 31, 2008 filing deadline for municipal Housing Element & Fair Share Plans appears to be forthcoming and changes to the law banning RCAs and assessing a 2.5% fee on non-residential development signed by Governor Corzine in July is on the table.

Since issuing his November 10, 2008 statement that the current rules are creating economic peril by "[f]orcing the subsidy of low income housing by the private sector," Senator Ray Lesniak has been pushing aggressively for at least a 6 month extension and changes to the law before the end of the year. In the same statement last month, Lesniak projected that that the current rules "will not only fail to spur low income housing development, it will stifle moderate income housing development and dampen New Jersey's chances for an economic rebound."

Senator Lesniak is currently working with Senator Christopher "Kip" Bateman on legislation that would allow for some pending RCAs between approximately 17 municipalities to move forward while Governor Corzine grants a filing extension by at least 6 months. Speaker Roberts also comments in the Star-Ledger article that the Legislature needs "to completely rethink" the source of funding provided for through the 2.5% non-residential development fee.

Draft Fort Monmouth Memorandum of Understanding Presented By COAH

2008-12-05T12:50:00.000-08:00

COAH has released a draft memorandum of understanding (MOU) with the Fort Monmouth Economic Revitalization Planning Authority (FMERPA) regarding the provision of affordable housing upon the Fort's planned closure in 2011. The MOU will be on COAH's agenda for public review and discussion at its December 10, 2008 meeting.

The Fort property is specifically enumerated as one of five special regional planning zones in P.L. 2008, c.46, but the law failed to define the obligation to be imposed upon the host towns with the future redevelopment of the Fort's property. Accordingly, this MOU had to be developed.

Most significantly, the MOU establishes a special mechanism for the counting growth share due to the immense job loss taking place at the Fort and the square footage of vacant non-residential facilities present, specifically providing that:

[COAH] acknowledges that non-residential growth share will not begin to accrue until sufficient new jobs have been created to replace the jobs lost to the base closing. The Department of Defense has documented that 5,143 civilian jobs will be lost on the base by the closing of Fort Monmouth. . . . Jobs lost shall not be credited against the residential growth share obligation. COAH shall only credit job loss against job gain that happens within the Fort Monmouth Reuse and Redevelopment Area.* * * [COAH] maintains that the existing structures earmarked for retention and reuse, for the most part, all have large open spaces, such as the McAfee Center (97,000 SF), the Meyer Center (445,000 SF), and the CECOM building (295,100), with relatively few jobs compared to the square footage. The Authority will count new hires, which is positive job growth. * * * [FMERPA] shall track job growth on new construction based on square footage pursuant to COAH’s regulations at N.J.A.C. 5:97-1 et seq. [FMERPA] will report to the Council actual job gain for the reuse of existing structures, within the Fort Monmouth Reuse and Redevelopment Area on a biennial basis. [FMERPA] will count new hires (positive job growth) using data collected from new tenants and/or owners of redeveloped existing structures. [FMERPA] shall track job growth for new construction based on square footage pursuant to COAH’s regulations at N.J.A.C. 5:97-1 et seq. [COAH] shall incorporate the unique methodology for counting job gain in the Fort Monmouth Reuse and Redevelopment Area into its biennial monitoring.

Certain COAH credits will also be provided for the HUD-related affordable housing on the Fort and the MOU acknowledges that the Fort's redevelopment, of course, will extend beyond the time frame (until 2018) allotted for satisfying COAH's third round obligations. Aside from the aforementioned provisions, the MOU generally recites provisions of P.L. 2008, c. 46 calling for 20% affordable set-asides as economically feasible, which is the general rule of thumb for all redevelopment areas under the new law.

Filed with the federal government on September 3, 2008, the Fort's redevelopment plan calls for the creation of about 400 units of affordable housing on the Fort property. As previously reported on this blog, at COAH's September 22, 2008 meeting, Frank Cosentino, the Executive Director of the FMERPA, read a letter from Monmouth County Freeholder Director Lillian Burry regarding its work with COAH to draft the MOU. Burry's letter stated that she only voted for adoption of the plan based on certain assurances provided by COAH relating to the Fort's housing obligations.

Affordable housing advocates, however, claim that the plan falls far short of the need for affordable units in Monmouth County, but the Fort's host towns are concerned about assuming more than their fair share of affordable housing from the redevelopment of the Fort.

A Tough Month For COAH & New Calls For An Extension of December 31 Deadline

2008-11-25T21:40:00.001-08:00

As the State's economy tanks at a pace more rapid than anyone could have anticipated and nearly all non-residential and residential construction comes to a stand still, pressure is mounting to stop the clock and make changes to the third round COAH rules.

On November 10, 2008, Raymond J. Lesniak (D-Union) issued a surprisingly stinging rebuke of COAH's efforts, stating that the current rules are creating economic peril by "[f]orcing the subsidy of low income housing by the private sector." Lesniak also projected that the current rules "will not only fail to spur low income housing development, it will stifle moderate income housing development and dampen New Jersey's chances for an economic rebound."

Then, on November 14, 2008, the nonpartisan Office of Legislative Services (OLS) issued an analysis of available funding sources for municipalities to satisfy COAH's third round rules. The OLS analysis concluded that "the resources identified by [COAH] will not be sufficient to fulfill the fair share housing obligations of many municipalities as estimated in accordance with the requirements set forth in the rules. . . ." OLS estimated the "deficit in annual resources for fair share housing obligations" for municipalities to be approximately $2 billion that would otherwise have to be raised through local revenue streams (property taxes or bonding) or be satisfied through inclusionary zoning if suitable lands are available.

Accordingly, Senator Christopher "Kip" Bateman (R-Somerset) quickly blasted COAH with OLS's findings that it is, in fact, burdening municipalities with at least a $2 billion per year unfunded mandate for the provision of affordable housing. In addition to calling for an extension of the December 31, 2008 filing deadline, Senator Bateman pushed for movement on a Republican-sponsored bill introduced on October 20, 2008 (S2292), that would reestablish the use of Regional Contribution Agreements and eliminate the Statewide Non-Residential Development Fee Act. This legislation would also remove non-residential properties from affecting a municipality's growth share.

After tense exchanges between mayors and administration officials at last week's League of Municipalities Convention in Atlantic City, on November 24, 2008, the League's President made an attempt at toning down the rhetoric and provided Governor Corzine with a letter pleading for an extension of the December 31, 2008 filing deadline by executive order.

COAH Provides Some Guidance On Imposition of Scare Resource Restraints in the Highlands

2008-11-21T13:58:00.000-08:00

By a letter dated November 14, 2008, COAH has provided some guidance in relation to the application of the scare resource restraints it has ordered in the Highlands Region as part of its implementation of the Memorandum of Understanding between COAH and the Highlands Council.

COAH Revamps Its Website

2008-11-10T20:05:00.000-08:00

Making a huge improvement, COAH revamped its former out-dated website into a clean a manageable portal with additional easy-to-find resources for COAH planning, financing and legal research. Presumably, COAH has been getting a lot more hits these days, with more to come as the December 31, 2008 filing deadline for the third round fast approaches without reprieve. Only problem is, I had to update all my links and bookmarks.

Draft Highlands Memorandum of Understanding Available

2008-10-29T08:47:00.000-07:00

COAH has posted a copy of the Memorandum of Understanding between it and the Highlands Council that is to be acted on by COAH today, October 29, 2008. This action is required by Governor Corzine's Executive Order 114 with a deadline of November 4, 2008.

The Fair Share Housing Center has, however, already filed two court appeals claiming state agencies responsible for adopting the master plans for the seven-county Highlands Region and Fort Monmouth in Monmouth County have adopted invalid, unconstitutional plans that do not provide sufficient opportunities for affordable housing.

Supreme Court Declines To Hear Galloway RCA Appeal, But Another May Be Pending

2008-10-28T14:39:00.000-07:00

The Press of Atlantic City is reporting that the New Jersey Supreme Court has declined to hear Galloway Township's appeal of its rejected RCA with Bridgeton.

This matter arises from a July 7, 2008 decision, In Re Approval of Amended Second Round Plan, Regional Contribution Agreement and Mediation Report of Galloway Township, where the Appellate Division rescinded a previously approved RCA for Galloway Township that was challenged by the Fair Share Housing Center. Specifically, the Court held that COAH "failed to articulate any specific findings of fact to support its conclusions and approvals" and remanded the matter back to COAH to provide a findings of fact in support of its conclusion that the RCA "is feasible and provides a realistic opportunity" for the development of affordable housing via rehabilitation activities in Bridgeton.

Galloway, however, may have one more appeal pending to compel COAH to re-approve the RCA with the requisite criteria sought by the Appellate Division just ten (10) days prior to Governor Corzine's signing of P.L. 2008, c.46 amending the Fair Housing Act to eliminate the use RCAs. As previously reported on this blog, on September 22, 2008, despite an order for remand from the Appellate Division that exsited prior to the elimination of RCAs, COAH denied Galloway's motion for reconsideration based on the advice of the Attorney General's office that such action would now be in violation of P.L. 2008, c.46.

This raises many interesting questions regarding the retrospective application of P.L. 2008, c.46 to previously approved or court-ordered RCAs pending COAH's approval. This issue was discussed in haste (near end of testimony) on June 12, 2008, prior to the passage of A500 before the Assembly State Government Affairs Committee. Committee members seemed to indicate that the bill would not impact, at least, court ordered RCAs.

Rather than amend the bill, however--so that it could still be passed prior to the budget recess--the committee added a somewhat contradictory paragraph to the bill statement providing that "is also the understanding of the committee that, because of the removal of the retroactive limitations on the approvals of regional contribution agreements, the Council on Affordable Housing is now free to review and approve those pending regional contribution agreements before it before the effective date of the bill."

COAH Agenda - October 29th & Letter To Mayors

2008-10-25T12:43:00.001-07:00

COAH has posted its agenda for October 29, 2008, which includes consideration of the Memorandum of Understanding ("MOU") between COAH and the Highlands Council pursuant to Executive Order 114.

On October 23, 2008, COAH issued a new letter to mayors regarding planning for the December 31 deadline for the filing of plans for the third round.

Fair Share Housing Center Sues Over Housing Obligations In Highlands Region & Fort Monmouth

2008-10-20T12:40:00.000-07:00

Tom Hester at the Star-Ledger is reporting that the Fair Share Housing Center has "filed two court appeals today claiming state agencies responsible for adopting the master plans for the seven-county Highlands Region and Fort Monmouth in Monmouth County have adopted invalid, unconstitutional plans that do not provide sufficient opportunities for affordable housing."

As previously reported on this blog, representatives of both of these entities addressed COAH at its September 22, 2008 meeting regarding completing Memorandums of Understanding ("MOU")s with COAH relating to the obligations in these special regions. Both of these areas are specifically segregated for special consideration relating to the need for regional planning in the recent legislative amendments to the Fair Housing Act signed into law by Governor Corzine this July (P.L. 2008, c. 46).

Further, in the case of the Highlands Region, Governor Corzine's Executive Order 114 requires that the Highlands Council and COAH craft a MOU by November 4, 2008. Accordingly, it is anticipated that COAH will consider the Highlands Council MOU at its October 29, 2008 meeting.

Substantive Certification Applications & Other Materials Now Available Online

2008-10-13T11:17:00.000-07:00

COAH has posted electronic versions of substantive certification applications online along with affordable housing mechanism check lists for fair share housing plans. These applications reflect the changes to the procedural and substantive rules through September 22, 2008 when COAH last met to adopt the amendments to the newly revised third round rules.

Other Third Round Documents:

Model Development Fee Ordinance
Model Governing Body Resolution for Approval of Development Fee Ordinance

Model Housing Trust Fund Spending Plan
Model Governing Body Resolution for Approval of Spending Plan

Model Escrow Agreement
Model Escrow Agreement for Accounts Affiliated With NJ Cash Management Fund

December 31 Deadline Stands

2008-10-07T18:38:00.000-07:00

Court denies League of Municipalities' motion in housing dispute
by Tom Hester/The Star-Ledger
Tuesday October 07, 2008, 6:57 PM

A state appeals court today denied a motion by the New Jersey State League of Municipalities to stay the Dec. 31 deadline for towns to submit to the state plans for providing affordable housing.
But the lawsuit by the League and similar suits filed by 33 towns, builders and housing advocates who charge the new state-imposed housing guidelines are invalid remain alive in the court.

"We are disappointed, but not surprised by the court's action," said league Director William Dressel. "Unfortunately the end result will be towns seeking Council on Affordable Housing 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."

State Community Affairs Commissioner Joseph Doria is pleased with the ruling.

"By denying a stay of the December 31st 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," he said.

No Special Master -- For Now

2008-09-30T07:20:00.001-07:00

As reported by the Star-Ledger this weekend, the Appellate Division decided that it would not yet appoint a special master to oversee COAH's implementation of the newly revised third round rules that are pending numerous challenges. Judge Mary Catherine Cuff said the issue can be renewed when the court hears pending appeals by 37 towns and the New Jersey State League of Municipalities.

COAH Actions From Sept. 22nd Meeting

2008-09-23T10:01:00.000-07:00

Adoption of Amendments To Third Round Rules
At its September 22, 2008 meeting, COAH voted to adopt its June 16, 2008 amendments to the third round procedural and substantive rules that will become effective upon publication in the NJ Register on October 20, 2008. The adopted versions (procedural/substantive) vary little from the proposed versions.

Rule Proposal Subtracting Residential Demolitions From Growth Share
COAH also proposed a new rule that would exempt certificates of occupancy from being included as part of a municipality's actual growth share (N.J.A.C. 5:97-2.5) when issued for owner-occupied residences. Development fees, however, would be assessed for any increase in equalized assessed valuation. Reconstruction that results from fire, flood or natural disasters would, however, be exempt from the imposition of development fees.

Highlands Memorandum of Understanding In The Works
COAH discussed its progress in crafting a Memorandum of Understanding (MOU) with the Highlands Council pursuant to Gov. Corzine's E.O. 114, which requires the development of adjusted growth share projections for the Highlands Region consistent with the Highlands Act. The deadline set by E.O. 114 is November 5th. COAH anticipates consideration of a draft MOU at its October meeting for adoption of the MOU on or about November 4th.

Fort Monmouth Planning Discussed
Frank Cosentino, the Executive Director of the Fort Monmouth Economic Revitalization Planning Authority (FMERPA), read a letter from Monmouth County Freeholder Director Lillian Burry regarding its work with COAH to draft a Memorandum of Understanding relating to the provision of affordable housing on the Fort's property upon its closure and redevelopment. The Fort's redevelopment plan filed with the federal government earlier this month, adopted with Burry's tie-breaking vote, calls for the creation of about 400 units of affordable housing. Burry's letter stated that she only voted for adoption of the plan based on certain assurances provided by COAH relating to the Fort's housing obligations. Affordable housing advocates, however, claim that the plan falls far short of the need for affordable units in Monmouth County, but the Fort's host towns are concerned about assuming more than their fair share of affordable housing from the redevelopment of the Fort. The Fort property is specifically enumerated as one of five special regional planning zones in P.L. 2008, c.46, but the law failed to define the obligation to be imposed upon the host towns with the future redevelopment of the Fort's property.

COAH Declines To Reconsider Galloway RCA
Despite an order for remand from the Appellate Division, COAH denied Galloway Township reconsideration of a previously approved RCA based on the advice of the Attorney General's office that such action would now be in violation of P.L. 2008, c.46 amending the Fair Housing Act to eliminate the use RCAs.

On July 7, 2008, ten days prior to the enactment of P.L. 2008, c.46, In Re Approval of Amended Second Round Plan, Regional Contribution Agreement and Mediation Report of Galloway Township, the Appellate Division rescinded a previously approved RCA for Galloway Township that was challenged by the Fair Share Housing Center. The Court held that COAH "failed to articulate any specific findings of fact to support its conclusions and approvals" and remanded the matter back to COAH to provide a findings of fact in support of its conclusion that the RCA "is feasible and provides a realistic opportunity" for the development of affordable housing via rehabilitation activities in Bridgeton.

This raises many interesting questions regarding the retrospective application of P.L. 2008, c.46 to previously approved or court-ordered RCAs pending COAH's approval. This issue was discussed in haste (near end of testimony) on June 12, 2008, prior to the passage of A500 before the Assembly State Government Affairs Committee. Committee members seemed to indicate that the bill would not impact, at least, court ordered RCAs. Rather than amend the bill, however--so that it could still be passed prior to the budget recess--the committee added a somewhat contradictory paragraph to the bill statement providing that "is also the understanding of the committee that, because of the removal of the retroactive limitations on the approvals of regional contribution agreements, the Council on Affordable Housing is now free to review and approve those pending regional contribution agreements before it before the effective date of the bill."

This one is likely headed to the Supreme Court.

COAH To Vote To Adopt Proposed Third Round Amendments On Sept. 22nd

2008-09-18T07:41:00.000-07:00

COAH has posted its September 22nd agenda, which includes a vote on its proposed amendments to the substantive and procedural rules for the third round.

Council On Local Mandates To Consider Challenge To Third Round Obligations

2008-09-16T07:52:00.001-07:00

According a report in the Star-Ledger and as previously reported on this blog, the New Jersey Council on Local Mandates will consider a challenge brought by Medford to the new third round obligations alleging that they are an unfunded state mandate on municipalities. Housing advocates, however, contend that the new rules and law only require municipalities to zone for affordable housing.

GOP Legislators Seek To Reform COAH Law and Rules

2008-09-10T07:35:00.000-07:00

The Asbury Park Press reports that members of the Assembly Republican Policy Committee are seeking to make changes to the recently enacted amendments to the Fair Housing Act, Uniform Statewide Non-Residential Development Fee Act under P.L. 2008, c. 46, and to the newly revised third round COAH rules.

Most significantly, Republicans expressed concerns over density bonus provisions providing incentives for developers to cram more housing on smaller plats of land than would otherwise be permitted and that exemptions should be provided for communities with little or no remaining vacant land. They also argued that the 2.5% non-residential development fee will harm the state's economic development and panned the loss of Regional Contribution Agreements (RCAs).

In a prepared statement, however, Democratic Assembly Speaker Joe Roberts contested their assertions, claiming that many of the changes being sought are already part of the law. Speaker Roberts, for example, notes that the new law allows for vacant land adjustments where a municipality has little or no vacant land. Roberts also asserts that foreclosed and preexisting homes can be used to help satisfy a municipalities housing obligations. Calling them "unfair and discriminatory," Roberts would not concede any ground on the elimination of RCAs.

There are obviously huge policy differences on RCAs that will not be resolved and many commercial developers supported the uniformity of the Statewide Non-Residential Development Fee Act. Neither is likely to change anytime soon.

There are more mechanisms permitted for the creation of affordable housing under the new law and rules, but there are many practical limitations to their use--the most significant being the cost of land and development in New Jersey. Other permitted mechanisms for the creation of affordable housing could only nip around the edges of some municipalities enormous obligations that can only possibly be satisfied through the construction of thousands of units of market rate housing to get a few hundred affordable units.

While it is factually correct that adjustments are permitted for a lack of vacant land, it is a huge burden for municipalities to bear to seek such adjustments from the state's seemingly unrealistic data. The state claims that environmental and other considerations were taken into account, but municipalities evaluating the data have found it to be a far cry from the reality on the ground. Also, accurately gathering and analyzing the data required for vacant land adjustments in time for filing by December 31, 2008 is no cheap or easy task. If planning takes place which relies upon such adjustments that may be rejected or challenged, municipalities may be put at risk of not receiving substantive certification and the protection from builder's remedy litigation that comes therewith.

COAH Releases Growth Share Calculators

2008-08-28T06:12:00.000-07:00

COAH today posted its third round growth share calculator, which consists of Excel spreadsheets that are downloadable for use. These are essential tools for municipalities seeking a downward adjustment of their COAH-generated growth projections based on a lack of vacant developable land capacity. See Workbook C. Note, however, that growth projections may only be reduced if the resulting growth share obligation results in a figure that is at least 10 percent lower than the growth share obligation calculated by COAH.

Medford Appeals To Council On Local Mandates

2008-08-19T08:42:00.000-07:00

According to a report in the Burlington County Times, the Medford Township Council voted to challenge the third round COAH rules as an unfunded mandate before the State's Council On Local Mandates.

The Council On Local Mandates has the exclusive constitutional authority to rule that a State law, rule, or regulation imposes an unconstitutional "unfunded mandate" on boards of education, counties, or municipalities. Under the Constitution, if the Council so rules, the "unfunded mandate" in the law, rule or regulation ceases to be mandatory in effect and "expires."

While this mandate is broad, the Council has not proven itself terribly effective in achieving its intended objective.

COAH Declines To Extend Filing Deadline

2008-08-14T05:40:00.000-07:00

The Asbury Park Press reports that at its August meeting, COAH rejected pleas from the League of Municipalities and others to delay the deadline for filing Housing Element and Fair Share Plans. The December 31, 2008 deadline stands while legal challenges continue.

Stay of December 31 Deadline To Be Considered By COAH

2008-08-11T09:33:00.000-07:00

On August 13, 2008, COAH will consider the League of Municipalities request for a stay of the December 31, 2008 deadline for the submission of Housing Element and Fair Share Plans.

Did New COAH Rules Kill $50M Redevelopment Project?

2008-08-07T09:16:00.000-07:00

According to a report in the Burlington County Times, local officials in Evesham Township (Marlton), credit the new COAH rules with killing a local redevelopment project in the municipality.

More Challenges In Complying With New COAH Law and Rules

2008-08-05T08:21:00.000-07:00

The Star-Ledger reports on how municipalities in the highlands region are attempting to balance environmental regulations while complying with the new COAH rules.

The Asbury Park Press reports that Wall Township in Monmouth County may be facing stiff property tax increases in order to comply with the new COAH rules.

More COAH-Related News

2008-07-31T13:59:00.001-07:00

The Atlanticville reports that Eatontown and West Long Branch have pledged their support to the League's challenge of what the group is calling the "flawed methodology" by which COAH determines a town's affordable housing obligation.

The Asbury Park Press reports on how Middletown Township intends to prepare to handle its third round obligations.

The Medford Central Record reports on Medford's objections to the new rules and A500.

Questions Surrounding Recreational Amenities Exemption

2008-07-30T10:45:00.000-07:00

The Press of Atlantic City reports that officials in Millville are concerned about the impact of the Statewide Non-Residential Development Fee Act on the long-planned New Jersey Motorsports Park being developed there.

The local tax assessor is attempting to determine whether to apply the Act's exemption for recreational facilities, which applies when "any non-residential development which is an amenity to be made available to the public, including, but not limited to, recreational facilities, community centers, and senior centers, which are developed in conjunction with or funded by a non-residential developer." The Act further defines these exempt facilities as being: "any indoor or outdoor buildings, spaces, structures, or improvements intended for active or passive recreation, including but not limited to ball fields, meeting halls and classrooms, accommodating either organized or informal activity. . .."

This was not an area of detailed discussion during legislative hearings on A500 that took place in haste while the Legislature was focused on passing this year's state budget. Further, COAH has yet to conduct any rule making implementing the provisions of the Act. It seems, however, that this exemption may have been intended to relate to public playgrounds and community centers commonly developed as part of larger mixed use or redevelopment projects, not necessarily primarily privately funded, developed and owned parks that will charge admission to the public. It is certainly ambiguous and open to interpretation.

There are a number of specific carve outs made for certain areas of extensive planned development, such as, urban transit hubs and at Fort Monmouth. The fact that such specific carve outs were made may not be helpful in this case.

COAH Litigation News

2008-07-28T06:54:00.001-07:00

In addition to the League of Municipality's challenge to the new COAH rules with the support of nearly 200 municipalities, a number of individual groups of counties and municipalities have been filing challenges too. The League is challenging COAH's methodology utilized for its vacant land analysis and seeking a stay of the December 31, 2008 deadline for filing new third round plans. Some recent articles relating to other cases filed are linked below.

Nineteen municipalities have teamed-up to challenge the third round rules on the basis that they have already met their affordable housing obligations and that the new obligations established are unrealistic.
Three Ocean County municipalities have filed a challenge on the basis that COAH did not follow proper legal procedures in the adoption of the new rules and that there are only limited vacant lands available for development in their municipalities.
Hillsborough Township, while under the jurisdiction of the courts, has been granted an extension to determine whether to file a third round plan by the December 31, 2008 deadline.

COAH Letter To Municipalities On Implementation of New Housing Legislation

2008-07-25T09:41:00.000-07:00

Over the next week, mayors and municipal housing officials should be receiving a letter regarding the implementation of P.L. 2008, c.46 (formerly A500). It provides a basic outline of the new law which amends the Fair Housing Act to eliminate RCAs and creates the Statewide Non-Residential Development Fee Act.

It is important for municipalities to ensure that non-residential development fee ordinances and housing trust fund accounts are in order and approved by COAH so non-residential development fees may be retained by the municipality, rather than being deposited with the State as required under this new law.

COAH Presents Draft Third Round Petition Application

2008-07-25T09:24:00.000-07:00

During a July 22, 2008 technical training session held in Monmouth County, COAH officials provided participants with a draft third round Housing Element and Fair Share Plan petition application that should become available on the COAH website in electronic form in August 2008.

Under the new third round rules (substantive/procedural) and pending amendments (substantive/procedural), all municipalities wishing to participate in the new third round must file petitions by December 31, 2008 to be protected from exclusionary zoning litigation, otherwise generally known as builder's remedy lawsuits. The previous staggered petition schedule has been disregarded.

August 15, 2008 is the deadline for comments on the aforementioned proposed amendments (substantive/procedural), that were published in the June 16, 2008 NJ Register. COAH anticipates voting to adopt these amendments at its September 2008 meeting, with an effective publication date in October 2008.