Published October 21, 2014
By Colleen O'Dea

Council deadlocks on vote despite state Supreme Court order that it must come to a decision today

The New Jersey Council on Affordable Housing's inability yesterday to adopt new rules governing the construction of units for low- and moderate-income people has left all sides involved scratching their heads and asking what's next.

COAH was expected to give final approval to controversial regulations -- now 15 years overdue. The council is under a state Supreme Court order to adopt by tomorrow rules governing where and how much affordable housing municipalities need to build to fulfill their obligations to provide a fair share for the low- and moderate-income families and individuals under the court's Mount Laurel decisions.

Housing advocates have been arguing that the rules, proposed last April, are deeply flawed. They call for the construction of about 53,000 new units statewide -- more than half of which should have been built as long ago as 1987 -- and the refurbishment of some 63,000 existing units.

Yesterday, half of the six members of the council tried to table a vote on the rules to give it time to rewrite them to fix at least some of the flaws pointed out by many of the 3,000 people who submitted written comments. But the other half of the council -- including chairman Richard Constable, who heads the Department of Community Affairs -- balked.

A tie equals a defeat. A few minutes later, when Constable, Anthony Marchetta, executive director of the New Jersey Housing and Mortgage Finance Agency, and Suzanne Waters, president of the New Jersey State League of Municipalities and mayor of Stone Harbor, voted to adopt the rules, the other three members voted no and the rules were not adopted.

And that's where the discussion ended, leaving dozens of housing and municipal representatives in the audience wondering what the lack of action will mean.

Constable refused to comment following the meeting.

"We don't know what happens now," Waters said, adding that the deputy attorney general working with COAH was going to try to figure out the answer to that question.

Unless COAH calls an emergency meeting and is able to break the deadlock and adopt rules by the end of the day on Wednesday, it will be in violation of the Supreme Court's order last March. In its order, the court warned that if COAH did not adopt Third Round rules according to this revised timetable -- the court had initially given the council only until last February 26 -- it "will entertain applications for relief" that include removing the protection against lawsuits from builders that municipalities that follow COAH's rules currently enjoy. The state Supreme Court retained jurisdiction over the case, meaning it could come to an ultimate resolution more quickly than having to go through lower court hearings.

The extreme action of allowing builders to sue municipalities to be able to construct higher-density developments to include four market-priced units for each affordable one -- something the municipalities do not want to see -- is something that the Cherry Hill-based Fair Share Housing Center has suggested in the past as a remedy for the state's stalling on adopting housing rules.

But yesterday Adam Gordon, a Fair Share attorney, was cautious about the group's next move.

"I'm not sure what we're going to do," he said. "We're going to go back and consider our options."

In something of a role reversal, Fair Share -- which has brought numerous suits against COAH seeking the adoption of rules it believes would properly meet the court's Mount Laurel mandates -- cheered COAH's inaction yesterday. He called the proposed rules "not only unconstitutional, they are irrational."

For instance, Gordon said the rules relied on inaccurate mapping that put thousands of properties in Ocean County when they are actually in Monmouth, thus wrongly reducing the housing obligations of some Monmouth communities while increasing those of some Ocean municipalities. They also focused on developing pristine land, while ignoring redevelopment opportunities. And they reduced to 10 percent, from 15 percent or 20 percent, the proportion of homes that would be affordable to those of low and moderate incomes in developments that include homes for a broad range of incomes.

As a result, Fair Share has contended for months that the rules would not have passed the Supreme Court's order of September 2013 that COAH adopt rules substantially similar to those it had in place previously. Those Second Round rules expired in 1999.

"These proposed rules would have hindered, rather than furthered, homes being built," Gordon said.

"You should be giving towns more ways to address their obligations, not less," agreed Arnold Cohen, senior policy coordinator with the Housing and Community Development Network of New Jersey and one of only a handful of housing advocates to address COAH before the vote.

Agreeing with the advocates were John Winterstella, former mayor of Manasquan; Tim Doherty, executive director of Project Freedom; and Theodore King, a resident of Fair Lawn, who voted to table the rules so they could be amended, then, when that motion failed, voted against adopting the rules.

Prior to voting, COAH went into executive session for about 45 minutes on a motion by Winterstella to discuss the rules with the deputy attorney general. When they reconvened, both Winterstella and Doherty argued that the court would be understanding of the need to take a little more time to revise the rules to reflect the 3,000 comments received.

"We understand that by tabling this for 60 days, we will be in violation of the Supreme Court directive, but we hope and ask the court to understand that this board is trying to make a very sincere effort to adopt regulations that meet the needs of this state," said Doherty, who has opposed the new rules as inadequate since their introduction. "We hope that by doing this we can come out with a set of rules that would not only sustain a legal challenge, but also provide a final resolution to this situation regarding affordable housing in the state of New Jersey."

Winterstella said he agreed that some of the aspects of the prior-round rules that had been omitted needed to be put back into the proposal, adding, "This, in my opinion, is not a resolution that meets the requirements of the Supreme Court." He said the additional 60 days were necessary because he had not had time to work with staff on amending the proposed rule.

In rejecting the effort to table the rules and pushing for adoption yesterday, Waters admitted that the rules needed some amendments but said she did not want to violate the court order.

"I, too, believe it is important to adhere to the Supreme Court order," said Constable.

After the court's initial September ruling that COAH adopt rules by February 26 of this year, Constable did not convene any council meetings until the April 30 session at which the rules were proposed. COAH sought an extension of that deadline just minutes before it expired and Constable submitted a sworn statement that work on the rules had progressed to the point where they would be proposed by May 1.

In briefly summarizing COAH's response to the comments, COAH's acting director Sean Thompson addressed four or five points, generally saying the municipalities could seek waivers or adjustments. He said officials still could seek to use such popular devices as accessory apartments or market-to-affordable programs to meet their requirements if necessary. And he answered what Fair Share characterized as inaccurate mapping data by saying the consultant from Rutgers University who worked on the calculation of housing obligations used the most updated geographic information system data available and that "no dataset will be perfect."

Jeff Tittle, director of the New Jersey Sierra Club, praised the deadlock rejection of the rules as a victory because the rules were flawed, targeting housing development for open space and giving developers a greater profit by requiring them to build only one affordable unit out of every 10 homes built.

"This was a big rebuff to Gov. Christie," he said. "Even despite Christie's bullying, sometimes the process works."

Christie has not been shy about his dislike of COAH and its process, trying on more than one occasion to disband the agency. Fair Share has argued that the proposed rules reflected Christie's preferences, rather than the Supreme Court's order that the council adopt rules similar to those it had used in the past.

Michael Cerra, of the New Jersey State League of Municipalities, said the inaction only further emphasizes the need for Christie and the Legislature to agree on a plan to reform the state's affordable-housing process. The governor vetoed the Legislature's last attempt at rewriting the housing rules in early 2011, and he again called for relaxing the laws last month when he vetoed a bill that would have temporarily halted the payment by developers of a fee to fund affordable-housing construction.

"Even if and when regulations are adopted, everyone knows it is going to court and there is going to be another prolonged battle," said Cerra. "The more this gets prolonged, the less direction municipalities have. It should be clear ... plenty of municipalities are willing to act to build housing."