COAH: After October 8, 2010

by Jong Sook Nee on October 9, 2010

The State’s favorite punching bag – The Council on Affordable Housing – recently suffered another setback when an Appellate Court invalidated a portion of its third-round rules again on October 8, 2010.  In the Matter of the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing analyzed portions of COAH’s third-round rules relating to the provision of affordable housing and struck down COAH’s build-as-you-grow policy known as “growth share”.  Growth share was a major component of the third-round rules, and the invalidation of the policy will require another overhaul of the COAH rules.  Municipalities can expect to see a return to the projection of affordable housing for the state and an allocation of that projection to each municipality.  Municipalities should also be aware that the court rejected attempts by COAH to accept the good intentions of a municipality to develop 100% affordable housing projects and required actual proof of such development plans in order to be counted.  Further, municipalities will lose any bonus credit for construction completed while the third round rules were being revised by COAH.  The court’s opinion signaled a frustration with the slow pace of affordable housing under the third-round and also a strict view of the municipal obligation to provide for a realistic opportunity for affordable housing.

Municipalities should be aware that the court did not impose a stay on all proceedings.  Any stays must be sought directly with the court or COAH and will be granted on a case-by-case basis.  While the October 8th opinion created a vacuum in the State’s affordable housing policy, municipalities should seek legal and planning advice to determine the best course to meet their constitutional obligation.

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