N.J. court orders action on affordable housing rules

Posted: March 09, 2014

A New Jersey appellate court on Friday ordered a state agency to quickly produce new rules governing affordable housing, saying there was no plausible explanation for the agency's failure to meet a state Supreme Court-ordered deadline last month to complete the task.

The appellate court ordered the Council on Affordable Housing (COAH) board to meet Wednesday and direct the preparation of affordable-housing rules to be considered by the board at another meeting March 26. Under Gov. Christie's administration, the board has not met regularly in years.

The state on Friday filed an emergency request asking the court to delay the order, but the court denied the application. Anticipating the rejection, the state made the same request of the Supreme Court, pending that court's decision on a previously filed motion to extend the deadline for preparing new affordable-housing rules.

Arguing that the state would risk irreparable harm by complying with the appellate court order, Assistant Attorney General Robert Lougy wrote in filings that the court had "stepped into the shoes of the agency and is ordering the council members to undertake discretionary action, under the threat of detention and personal liability, on a timetable . . . inconsistent with the separation of powers."

In its decision Friday, the appellate court said if COAH didn't comply with its orders, board members would be ordered to "personally appear before this court" to show why they should not be subject to fines and detention.

Noting past failures by COAH to meet court mandates, the appellate panel issued a warning: "If these measures prove to be ineffective, we may have no other choice but to declare that event to be COAH's third and final strike."

A Department of Community Affairs spokesman did not respond to a request for comment Friday. Department Commissioner Richard Constable is chairman of the COAH board.

The court decision is the latest in a series of battles between the Christie administration and the judiciary over affordable housing.

Christie tried to disband COAH, a move rebuffed by the Supreme Court last year. The Republican governor attacked what he called the "liberal Supreme Court" over the ruling, accusing it of continuing "to blindly perpetuate its failed social experiment in housing."

According to one COAH board member, the panel has not met since May - and has not met regularly since 2010 - because Constable has not called a meeting. Constable declined to comment this week on why he had not scheduled meetings.

Kevin Walsh, associate director of the Fair Share Housing Center, a Cherry Hill advocacy group that filed the motion leading to Friday's court decision, said the ruling was an appropriate response.

"COAH's and the Christie administration's failure to obey the law is startling," Walsh said in a statement. "The governor's bullying and ideological campaign to undo years of civil rights laws will fail because people need homes to live in and raise their families. The rule of law will prevail."

New Jersey's affordable-housing rules stem from the landmark 1975 Mount Laurel decision that suburban municipalities had an obligation to provide housing for lower-income residents.

A decade later, COAH was formed under the Fair Housing Act the Legislature passed. The agency established rules to allocate the need for affordable housing, assigning municipalities their "fair share" of homes that needed to be provided.

The agency was required to come up with new rules periodically but failed to meet the timeline. The latest rules were struck down in 2010 by the appellate court. Critics said the approach, known as "growth share," let wealthy communities skirt their obligations by limiting growth.

The court set a deadline for COAH to produce new rules, but the state appealed the decision.

The Supreme Court in September upheld the decision striking down the growth-share method, setting a Feb. 26 deadline for new regulations to be written.

The day the rules were due, Constable asked the Supreme Court for an extension until May, asserting that progress had been made but more time was needed.

In its decision Friday, the appellate court said COAH had "failed to carry out this court's mandate."

It ordered COAH, after meeting Wednesday, to post new rules online March 21 before meeting again March 26 to adopt the rules.

The board must then meet again in May to take public comment, the court said in its decision.

The six-member board has not met since last year because Constable has sole authority to call meetings, said Timothy Doherty, one of the members.

"I've tried to do what I could do to get the board to meet, but I'm only one board member," said Doherty, who was appointed to the board by Democratic Gov. Jon S, Corzine in 2008.

Doherty said he asked Constable to schedule a meeting before last May, when the panel was convened to vote to take unspent affordable-housing trust funds from municipalities. The appellate court blocked the move.

He said he also had called and e-mailed the agency's acting executive director and had not received a response.

"It's frustrating," said Doherty, executive director of a nonprofit that develops housing for people with disabilities. State law "established COAH, established these obligations. We need in the body politic to understand that and arrive at some sort of understandable solution."

mhanna@phillynews.com609-989-8990 @maddiehanna

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