New Jersey Zoning Watch

The Public Advocate issued a report on October 25, 2007, calling for the Council on Affordable Housing (COAH) to issue “meaningful rules that will deliver on the promise of the state constitution’s affordable housing mandate.” 

COAH is under court order to adopt new rules by December 31, 2007, that comply with the constitutional mandate first set forth in the New Jersey Supreme Court’s initial Mt. Laurel decision in 1975.  The new rules will replace the “third round rules” for affordable housing adopted in 2004.  Earlier this year, the Appellate Division invalidated key provisions of those rules.  The rules are supposed to estimate and provide guidance to address the state’s affordable housing needs through 2014.

The Public Advocate’s report makes the following recommendations:

1.   The COAH rules must address the housing needs of those with very low incomes, and must require municipalities to meet the needs of these families in their affordable housing plans.  COAH defines low-income households as those earning less than 50 percent of median income, or approximately  $32,000 per year.  Actual COAH income eligibility limits vary considerably based on region and family size. The report states that the 2004 COAH rules will not create significant housing for families that earn less than 40 percent of median income because the rules allow towns to meet their affordable housing obligation while still excluding most of New Jersey’s low-income families.  About 580,000 households in the state have incomes less than 40 percent of the median income. 

2.   The report urges COAH to consider “cost-burdened” families in calculating New Jersey’s affordable housing needs.  Cost-burdened families are those who spend 30 percent or more of their pre-tax income on housing.  Nearly 700,000 families – or 60 percent of the low- and moderate-income families in the state – spend more than 30 percent of their pre-tax income on housing.  Roughly 325,000 of these households pay more than 50% of their pre-tax income toward housing.  Under COAH’s methodology, most of them are excluded from the calculation of New Jersey’s affordable housing need. 

3.   COAH should support its estimate of the state’s affordable housing need with current and reliable information.  The report explains how COAH’s “filtering” projections in its third round rules relied on questionable assumptions and outdated data.  Filtering refers to a process by which homes occupied by middle- and upper-income families are vacated and then become affordable to low- and moderate-income families.  In other words, the cost of the home decreases relative to the incomes of COAH-eligible families, making a once unaffordable unit affordable.

The Appellate Division struck down COAH’s projection that filtering would address the affordable housing needs of more than 59,000 families.  The report purports to confirm the court’s conclusion that COAH offered no compelling data to support its filtering claim.  According to the report, recent reports from COAH indicate that it is recalculating its filtering projection using “more precise and reliable data.”

For an article discussing the report, see Affordable Housing Guidelines Urged (Star Ledger).  The article notes that newly-appointed Department of Community Affairs Commissioner Joseph Doria is seeking support from affordable housing advocates to “possibly” approach the court to request an extension to the December 31 deadline for promulgation of new rules.

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In an environmental enforcement action under the Water Pollution Control Act, N.J.S.A. 58:10A-1 to -35, the Appellate Division upheld a civil administrative penalty of $604,110 against a developer for not securing a NJDEP permit for sewer hookup prior to the construction of a major residential development, notwithstanding the fact that there was no discharge of pollutants.  New Jersey Dep’t of Env. Prot. v. Town & Country Developers, Inc., Docket No. A-5940-05T1, (App. Div. Oct. 19, 2007) (Approved for Publication).  In Town & Country,  the court rejected the defendant’s argument that the violation was “minor” and exempted under the Grace Period Law, N.J.S.A. 12:1D-125 to -133, finding that the violation was purposeful, irremediable, and undermined the very purpose of the dry-sewer law prohibitions under the WPCA.  The court concluded that the defendant’s failure to obtain pre-approval deprived the NJDEP of its authority to decide whether the project may adversely affect sewer infrastructure and statewide water quality.

This decision is another cautionary reminder of how all-encompassing NJDEP’s role is in land use and development and how deferential to this agency the courts have been and will continue to be in the enforcement of substantial civil penalties, particularly when it comes to the more subjective criteria under the Grace Period Law.  Additionally, on questions of discretion as to the seriousness of the offense (and the resultant increase in the penalty amount),  litigants will have to meet a heavy burden to overcome an agency determination.

Finally, in considering how the Grace Period Law will be applied in future similar matters, note that the court included a statement in a footnote that the NJDEP has promulgated regulations in 2007 which now classify the violations of the WPCA alleged here as “non-minor” for purposes of the Grace Period Law.

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In a a recent poll commissioned by Gannett/Monmouth University, and reported on by the Associated Press, 49 percent of New Jersey adults said they would consider moving out of state.  This poll comes on the heels of a Rutgers University study which showed that New Jersey’s ever increasing population exodus is starting to have significant fiscal and economic consequences on the New Jersey economy.

 ”The poll points to a real possibility that active working adults and higher-earning retirees will leave the state in greater numbers, leaving behind a generally low-income senior population,” said Patrick Murray, director of the Monmouth University Polling Institute. “This could put added demand on public services, but with a diminished tax base to carry the costs.”

The [Gannett/Monmouth] poll found 28 percent of people wanting to leave citing America’s highest property taxes as the leading reason; 19 percent mentioned the state’s generally high cost-of-living, with 6 percent citing housing costs and 5 percent citing state taxes.

Other top reasons for wanting to leave New Jersey include the weather, environment, longing for a change of scenery, overdevelopment, congestion and government corruption.

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