New Jersey Zoning Watch

The Star Ledger is reporting that the Highlands Council has endorsed an agreement with the Department of Community Affairs that allows municipalities which adopt stringent restrictions on development in their communities to obtain reductions to their affordable housing obligations.

According to the Ledger:

Under the agreement, strict environmental constraints like water availability, steep slopes and the proximity of pristine waters would limit the number of affordable housing units in a particular municipality. At the same time, 20 percent of any new residential construction in those communities must be affordable, and projects with affordable housing will receive priority for approvals.

The adoption of the Highland master plan by individual communities before the end of the year, will also allow these communities additional time to submit a housing plan to the Council on Affordable Housing.

Communities that sign on would get an extra year to file their plan for meeting their affordable housing obligation. And the number of affordable housing units they would need to build would be determined through the Highlands Council’s analysis of sustainable development.

Highlands towns that choose not to conform to the regional master plan would have to follow COAH rules like every other town in the state, under the agreement. Those towns must file their affordable housing plan by Dec. 31.

The agreement also notes that there are still 3,000 affordable homes that must be built in the Highlands region as a result of growth that has already taken place.

For the full article, click here.

No Comments »

The New Jersey State League of Municipalities, in a bulletin to all New Jersey mayors dated today, has laid out the briefing schedule for the current challenges to the Council on Affordable Housing’s “third round” regulations. The initial brief of the League will be due on January 4, 2009. The State’s brief is not due until March 5, 2009. No date for oral argument has been set.

For the remainder of the briefing schedule and a discussion of the League’s reaction to the court’s denial of its request for a stay of the December 31st deadline for submission of municipal affordable housing plans, please click here: NJSLOM 10-8-08 Letter Re: COAH Motion for Stay; Briefing Schedule

No Comments »

On Tuesday, a state appeals court denied a motion filed by the New Jersey State League of Municipalities (”League”) to stay (or delay) the requirement under the latest round of regulations from the Council on Affordable Housing (”COAH”) that municipalities must submit a detailed plan to provide affordable housing by December 31, 2008.

According to an on-line report from the Star Ledger, Department of Community Affairs Commissioner Joseph Doria was 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.

The League also reacted predictably:

“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.”

The court did not decide upon the merits of the League’s overall appeal of the validity of the regulations. However, it is highly unlikely that a decision on the merits will be reached prior to the deadline for filing a plan for substantive certification. Should a municipality choose not to file a plan, they will be potentially exposed to “builder’s remedy” litigation in state court, in which a court can mandate development with an affordable housing component.

No Comments »

On Friday, the Appellate Division rejected a request pending since last year from the Fair Share Housing Center to appoint a special master to to facilitate the drafting and implementation of regulations to guide the state’s affordable housing policy. The New Jersey State League of Municipalities had opposed the request for a special master. As a result, litigation challenging the latest iteration of the affordable housing regulations as arbitrary and not backed by sufficient factual data will continue. The appellate panel did not address a similar request for a special master which is being pursued by other litigants in their challenge to COAH’s regulations.

A press release from the Department of Community Affairs hailed the ruling as a “positive step forward”.

For more, information, read the Star Ledger article on nj.com here.

Note: This entry was corrected to clarify that the League has not requested the appointment of a special master, and has actively opposed such an appointment. We thank Michael Cerra, Senior Legislative Analyst at the League, for clarifying this point.

No Comments »

Phil Morin, Special Counsel in Saul Ewing’s Real Estate Department, will participate in a “town hall” meeting in Summit, New Jersey, beginning at 7 p.m. on Thursday, October 16 entitled: “Mount Laurel 2008: What the overhaul of the state’s affordable housing law means to your municipality.”
The meeting is being hosted by the members of State Legislative District 21 - State Senator Tom Kean Jr., Assemblyman Eric Munoz, M.D., and Assemblyman Jon M. Bramnick - and will address the following topics relating to the Fair Housing Act and regulations promulgated by the Council on Affordable Housing:

Does your municipality have the information it needs to submit its 3rd Round Affordable Housing Plan to the Council on Affordable Housing (COAH) by December 31, 2008?

What impact will the pending legal challenges have on the COAH regulations?

The meeting will held in Council Chambers, City Hall in Summit, 512 Springfield Ave., on Thursday, October 16 from 7 p.m. to 8:30 p.m. to discuss the impact and the implementation of the new fair share housing requirements promulgated by the Department of Community Affairs.

The following panel will be on hand to provide information and to also answer your questions on the Council’s interpretation of the new rules and implications of A500 as well as related municipal planning and compliance issues:

Melissa J. Orsen, Esq., Chief Counsel - New Jersey Council on Affordable Housing

Philip J. Morin III, Esq., Special Counsel - Saul Ewing LLP, Zoning, Land Use and Approvals Practice Group

Jeff Janota, AICP, P.P., Senior Associate-Planning - Birdsall Engineering, Municipal Planning Services

Get the information you need to understand the recent changes to the Fair Housing Act and what it means to your community. The event is geared to elected and municipal officials, including zoning and planning board members, counsel and staffs, however, the forum is open to members of the business community and the public at large.

If you would like to attend, please RSVP by October 13 to one of the following legislative offices:

senkean@njleg.org (908) 232-3673
asmmunoz@njleg.org (908) 918-0414
asmbramnick@njleg.org (908) 232-2073

No Comments »

At its meeting on Monday, September 22, the Council on Affordable Housing (”COAH”) voted to adopt several amendments to the affordable housing regulations which were proposed on May 6. These amendments will supplement the current “third round” rules, which were effective as of June 2. Notice of adoption will appear in the next edition of the New Jersey Register and the amendments will be effective as of October 20, 2008.

COAH also voted to propose a new regulation exempting homeowners from fees when rebuilding their home after a fire, flood or natural disaster. The Council also approved a waiver of an affordable housing development fee as a result of the destruction of a home in Franklin Township, an issue that had received substantial publicity and which prompted the proposed amendment.

The New Jersey League of Municipalities has provided a recent update regarding the status of the numerous legal challenges which have been filed opposing the regulations adopted in June which are pending before the appellate division. The League will seek, among other relief, a stay of the December 31, 2008 deadline for municipalities to submit their affordable housing plan to COAH.

One municipality has attempted to attack the regulations requiring the municipal obligation to provide affordable housing as an “unfunded mandate.” The Council on Local Mandates is the latest battleground in which a muncipality is challenging the regulations.

No Comments »

In an effort to encourage municipal buy-in to the Highlands master plan, the Highlands Council has agreed to negotiate extensions of up to one year for a municipality to submit its fair share housing plan under the newly-enacted regulations adopted by the Council on Affordable Housing - so long as the municipality adopts the recommendations contained within the Council’s master plan. However, the Department of Community Affairs has not yet approved the plan, which leaves Highlands municipalities in limbo with three months to the deadline for filing a third round plan.

According to the Daily Record:

The New Jersey Highlands Council on Thursday gave its executive director Eileen Swan the ability to negotiate an agreement with the state Council on Affordable Housing that would give communities that announce their intention to conform to the master plan an additional year to draw up new housing plans to meet their COAH obligations.

For the full article, click here.

However, the Star Ledger is reporting that DCA has not formally approved this agreement.

No Comments »

New Jersey Department of Community Affairs Commissioner Joseph Doria has sent a letter to State Senator Steve Oroho advising that DCA will “review its rules to address this type of unique situation where a family needs to rebuild its home as a result of fire or natural disaster.”

It appears that this action is the result of recent press accounts regarding a Franklin Township family whose home was lost in a fire and, as a result, a demolition fee is generated under the new COAH regulations adopted June 2. While the Township may waive the fee to the homeowners, it would still be responsible for the affordable housing obligations generated by the demolition and “new” construction unless it successfully petitions COAH for a waiver. Senator Oroho represents Franklin Township.

For the full story from the Star Ledger, click here.

For the Star Ledger’s editorial on the issue, click here.

No Comments »

Over the last several weeks, the Senate Republican office has issued a number of press releases that point out some of the anomalies (some might say absurdities) in the Council for Affordable Housing’s (”COAH”) recently-adopted third round regulations and the amendments to the Fair Housing Act involving a new statewide development fee for most non-residential construction of 2.5 percent.

The attached story from the Star Ledger contains a particulary anomalous/absurd application of the new rules. Here, a Franklin Township family whose house burned down triggers the “demolition” requirements of the new COAH rules. As a result, the Township is charging them a development fee. While a COAH spokesman notes that the municipality can waive the fee, the fact is that the municipality still accrues an obligation for affordable housing under the new rules.

Under the new regulations, demolitions are considered a “source of secondary housing demand, as they eliminate housing opportunities for low- and moderate-income households,” according to [State Senator Steven] Oroho. The rules removed a prior exemption for the demolition and replacement of a home, in which a homeowner was not on the hook for a COAH fee.

“The court mandated that we change our methodology and we increase the obligation (of towns to provide affordable housing), and as part of that, all growth is included,” [DCA spokesman Chris] Donnelly said of an appellate ruling.

But Oroho and Franklin Mayor Paul Crowley counter that replacing a home that was lost in a fire is not “growth,” but simply keeping the status quo.

“This is not a redevelopment or a demolition. The Ferraro family is simply trying to rebuild their lives after a fire destroyed their home and killed their dog. The house burned to the ground. This was an act of God,” Oroho said.

For the full story, click here.

For a link to Senator Oroho’s press release and other Senate Republican press releases on the COAH rules and Fair Housing Act amendments, click here.

No Comments »

On Wednesday, August 13, the New Jersey State League of Municipalities’ motion tfor a limited stay of the requirement that municipalities submit a third round affordable housing plan by December 31, 2008, was denied by the Council on Affordable Housing (”COAH”).

According to the League, the denial was expected and the League will file an appeal of COAH’s determination. In a statement from Bill Dressel, the executive director of the League, he notes that the motion, “[i]f granted, [] will allow municipalities to continue to satisfy their affordable housing obligations by imposing obligations on developers. The purpose of the stay is to prevent municipalities from again expending significant financial resources into plans when the regulations are being challenged, already being proposed for change by the agency and further regulations will be required in light of the approval of A-500.”

For the full release by the League, click here.

No Comments »