Citing its Repeated Failure to Act, the New Jersey Supreme Court Strips COAH of Jurisdiction
Most builders and developers are familiar with COAH's long and challenged history; it has gone 15 years without a viable set of administrative rules. The Court's ruling this week struck a simple and logical tone. The Supreme Court held that because COAH, the administrative forum statutorily charged with adjudicating affordable housing issues, has failed to function as intended by the law due to the continuing lack of appropriate rules, it was incumbent upon the court to permit parties seeking their available remedies, the option of doing so in court until such time as the administrative process is restored. For approximately 350 of New Jersey's towns, COAH has been the only forum in which to litigate affordable housing issues - the decision to return these issues to the courthouse is a radical reversal of the process.
There are two matters of interest for builders and developers. First, there will be an opportunity to participate when towns file declaratory judgment actions, since the Supreme Court has required such actions to be on notice to interested parties including all on the COAH service list. Although builder's remedies may not initially be requested, participation at this stage may be a prerequisite for a later builder's remedy.
Second, even towns that previously received COAH approval should not expect the courts to rubber-stamp those approvals. New fair share calculations, made without using the invalidated growth share approach, will have to be reviewed and the previously submitted fair share plans will be measured against these new numbers.
In its closing remarks, the Court reminded COAH and the Legislature that they retained the opportunity to restore or recreate a viable administrative remedy that towns and interested parties could use in connection with deciding affordable housing issues.
Undoubtedly, the summer of 2015 will be a busy one. Many towns will file declaratory judgment actions seeking to affirm their previous affordable housing commitments; perhaps not because of their underlying philosophical acceptance of the concept, but to foreclose the courts from imposing an obligation on them to create more affordable housing opportunities within their midst. The past efforts of some towns will be acknowledged by the courts. Others, with weak histories of providing opportunities for affordable housing, may not fare well in this judicial process. Housing advocates and builders will have an opportunity to press this issue in a way that they have been unable to do for decades. One thing is clear; ten years of litigation on the Third Round Rules have denied all the interested parties certainty on the issue of affordable housing. This decision reminds them all that affordable housing obligations are real and are here to stay.