One week following the Appellate Division's Order mandating
that the Council on Affordable Housing (COAH) undertake immediate
action to implement the state Supreme Court's prior directive
that COAH adopt new regulations within five months from September
26, 2013
(see our previous alert), the Supreme Court overruled the
Appellate Division.
The Supreme Court has now required that COAH adopt proposed
regulations for publication no later than May 1, 2014. The court
has directed that COAH's proposed regulations be published in
the New Jersey Register on June 2, 2014. The comment period on
those regulations will last 60 days, to August 1, 2014. During the
period of public comment, a party may request that COAH conduct a
public hearing on the proposed regulations during the comment
period. Regardless of the hearing, COAH is to formally adopt its
new Third Round Rules on or before October 22, 2014, for
publication in the New Jersey Register on November 17, 2014. The
adopted Third Round Rules transmitted to the Office of
Administrative Law (OAL) shall be accompanied by a report prepared
by COAH that recites, addresses and summarizes how COAH responded
to all comments made during the comment period in accordance with
the Administrative Procedure Act.
In the event that COAH fails to meet the November 17, 2014,
deadline, "then this Court will entertain applications for
relief in the form of a motion in aid of litigant's rights,
including but not limited to a request to lift the protection
provided to municipalities through N.J.S.A. 52:27D-313 and, if such
a request is granted, actions may be commenced on a case-by-case
basis before the Law Division or in the form of 'builders
remedy' challenges." The Supreme Court directed that it
would retain jurisdiction for the sole purpose of entertaining any
and all future applications to enforce the scheduling order entered
by the Court on March 14.
The Supreme Court has now provided COAH with a new eight-month time
frame within which to adopt conforming regulations, notwithstanding
the court's unambiguous September 26, 2013, Order directing
COAH to adopt new regulations within five months from the date of
that Order (i.e., February 26, 2014). This extension of time was
based on a last-minute request made by the Attorney General's
Office on behalf of COAH for an extension, based on the DCA
Commissioner's statement that COAH is examining the census data
and working on new numbers, when the prior round regulations and
formula already exist. See N.J.A.C.5:91 and 5:92.
It appears the Supreme Court has abandoned fundamental concepts of
stare decisis and prior precedents established in Mount Laurel I,
Mount Laurel II and Hills Development. By this decision, the
Supreme Court has diminished hope that New Jersey citizens will see
the creation of affordable housing in New Jersey in any foreseeable
future. Instead, the court's Order sanctions the ongoing
municipal practice of exclusionary zoning, which consumes
ever-diminishing land assets and limited infrastructure, limiting
affordable housing opportunity in New Jersey.
One last issue: COAH has never been fully reconstituted to its full complement of required stakeholder members since the Appellate Division invalidated the governor's prior attempt to abolish COAH by the governor's 2011 Reorganization Plan. (See our prior article on this topic). Therefore, a stripped-down COAH Board, without representatives of the protected class and builders, will be adopting the new Third Round regulations.
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