Florio Perrucci Steinhardt & Fader

Ruling Does Not Impact Task Force Review of Fair Housing Act, COAH Rules
By Philip J. Morin III

WHAT HAPPENED?
On Friday, February 19, the Appellate Division in In Re Executive Order on the Council on Affordable Housing, Docket No. A-2693-09T3, granted in part the Fair Share Housing Center’s (“FSHC”) motion for emergent relief, ordering that paragraph 5 of Governor Chris Christie’s Executive Order No. 12 (“E.O. 12”), which essentially froze the implementation of the Council on Affordable Housing’s (“COAH”) Third Round regulations for 90 days, is stayed pending the outcome of an accelerated appeal. All other preliminary relief sought by FSHC was denied.

WHAT IS THE RESULT?
As a result of the court’s order, COAH will continue to implement the Third Round regulations and otherwise continue day to day operations such as reviewing of petitions for substantive certification, considering waivers of scarce resource restraints on development in the Highlands, participate in mediation proceedings and ruling on pending motions. The order does not impact the creation of the Housing Opportunity Task Force under E.O. 12 or its charge to critically review the COAH regulations, the Fair Housing Act and State Planning Act.

BACKGROUND ON E.O. 12
On February 9, 2010, Governor Chris Christie issued E.O. 12, which acknowledges the constitutional obligation of municipalities to provide affordable housing but which is designed to address the “burdensome procedures” and regulations developed by COAH which the Governor called “excessively complex and unworkable” and which result in “delays, inefficiencies, litigation and unreasonable costs to municipalities and the private sector.”

To address these concerns, E.O. 12 creates a five-member “Housing Opportunity Task Force” to review the COAH regulations, the Fair Housing Act and the State Planning Act and provide recommendations to the Governor on enumerated issues, including: the determination of a municipality’s affordable housing obligation; whether the regions created by COAH are still appropriate; the inclusion of workforce housing as affordable housing; the use of conflicting data on population and employment growth; the rehabilitation of deteriorating housing in the urban centers; the means of developing efficiencies and savings in the development process; ways to encourage rehabilitation as well as new development in meeting the need for affordable housing; and the appropriateness of methodologies that continue to include prior round need or include retroactive growth as part of a growth share approach.

E.O. 12 also contains a provision which required that COAH refrain for the next 90 days from taking action to process applications for substantive certification or “take any other action to implement the Third Round regulations” absent “good cause shown” and a determination by the Acting Commissioner that action is required to “prevent the loss of affordable housing opportunities.”

Paragraph 5 reads as follows:

For the next 90 days, COAH shall refrain from taking any further action to process applications for substantive certification or to take any other actions to implement the Third Round regulations. The provisions of this Paragraph shall not apply to any action if the applicant, for good cause shown, requests action on a particular item and the Acting Commissioner determines that such action is required within the 90 day period to prevent the loss of affordable housing opportunities.

THE COURT’S RULING ON FSHC’S REQUEST FOR INJUNCTIVE RELIEF
Following the issuance of E.O. 12, FSHC, a non-profit affordable housing advocacy group, challenged the constitutionality of E.O. 12 through an emergent appeal to the Appellate Division. As noted above, the Appellate Division issued a preliminary order which stayed implementation of paragraph 5 of the Governor’s Executive Order. No other aspects of E.O. 12, such as the Governor’s authority to create the task force to review the provision of affordable housing in the state, are affected. Furthermore, the FSHC’s requests for summary disposition and appointment of a special master to implement the COAH regulations were denied. The court ordered an accelerated appeal and briefing schedule. The FSHC’s brief is due on February 26 and the State’s brief is due on March 4. Any reply brief must be filed no later than March 10. Oral argument is scheduled for 12:15pm on March 16.

CONCLUSION
While the Christie Administration’s aggressive approach to reforming the Byzantine methodology to provide affordable housing which various administrations and legislative bodies have foisted upon municipalities and private developers continues in full force, the short-term impact of the Appellate Division’s decision is clear – municipalities and developers will continue to have to comply with the myriad of rules and requirements set forth in the COAH regulations despite the fact that COAH’s days, at least as we know it, are numbered. The Housing Opportunity Task Force will still proceed to address the tasks assigned by Governor Christie and there is little doubt that major reform is ahead. If the long-term goal of reforming the methodology of providing affordable housing in New Jersey and perhaps the definition of what constitutes affordable housing is realized, this initial skirmish will be but a minor setback in a larger campaign of redefining the approach to satisfying the constitutional obligation articulated in the Mt. Laurel decisions.

ABOUT FLORIO PERRUCCI STEINHARDT & FADER, L.L.C.
Many of FPS&F’s attorneys are intimately involved in affordable housing and land use development matters, whether as attorneys on behalf of public entities, private developers and trade associations or in public service as elected or appointed public servants from the highest levels of state government to serving on local governing bodies, planning and zoning boards. As a result, the attorneys in our Redevelopment and Real Estate and Land Use Practice Groups have substantial legal and practical experience dealing with COAH and advising clients on its complex regulatory structure in both administrative and court proceedings. For more information or if you have specific questions about affordable housing issues, please contact Phil Morin at pmorin@florioperrucci.com or Mark Peck at mpeck@florioperrucci.com. For timely updates specific to land use, environmental and affordable housing matters, please register for e-mail updates to our land use blog, www.njzoningwatch.com.