BY TOM HESTER SR.
The state Supreme Court Thursday decided to review a state appeals court decision that invalidated the state Council on Affordable Housing’s latest housing regulations.
The high court’s decision to get involved comes in response to requests filed by 13 cities and towns and the New Jersey League of Municipalities that want the court to relieve them of the obligation to provide zoning for starter homes for low- and middle-income families. The municipalities have the support of the Christie administration.
In a brief filed with the court, the administration supported policies that will allow towns to exclude low- and middle-income people by prohibiting all housing from being built or only allowing large, expensive housing on large lots in the same towns where significant job growth is expected.
"We are optimistic that the Supreme Court will again hold that municipal zoning may not be used to block the market for starter homes," Fair Share Housing Center Associate Director Kevin D. Walsh said. “For over three decades, New Jersey towns have been required to allow homes for working families, seniors, and people with special needs. Zoning that allows a fair share of starter homes is fair and good for our state and our economy. Wealthy towns should not be allowed to build walls and stifle the economy by abusing their home rule powers."
Walsh said a recent study released by the Christie administration found that over 80 percent of residentially zoned land in Route 1 Corridor towns like Princeton and West Windsor required minimum lots of one-half acre or greater. He said that kind of restrictive zoning means that only one out of every 13 workers would be able to live anywhere in the corridor. He said such exclusionary zoning remains a serious impediment to a stronger economy and a more racially and economically integrated New Jersey.
Bill Dressel, League of Municipalities director, said the organization also welcomes the court's decision to review the case. He said the League asked the court to hear all of the petitions in an effort to get a comprehensive decision that can provide guidance to cities and towns.
"We were disappointed by the Appellate Division ruling that growth share, as a concept, was invalid," Dressel said. "The Appellate Court did invite the Supreme Court, however, to consider the constitutionality of the growth share concept, and the League asked to Supreme Court to do exactly that. Growth share involves providing affordable housing within a community as that community actually grows and new development takes place.
“We are pleased that the court will consider our appeal," Dressel added. "There must be a resolution to the endless disputes that have arisen in recent years over COAH. The court’s actions are of utmost importance, since it appears that a legislative solution is not imminent. We will urge the court to settle on a methodology that is reasonable and rational, which provides for affordable housing and does so in a way consistent with the principles of smart growth and the State Plan and does not compel a financial obligation on our property taxpayers.”
New Jersey NAACP President James Harris said, “Governor Christie and some wealthy towns want to keep working people and African-Americans and Latinos out of their towns. We fought that battle 40 years ago in court, we won, and we're not going to give that up. Government should not be in the business of segregating people, which is what will happen if Governor Christie gets his way.”
In 1971, branches of the New Jersey NAACP filed litigation against the Mount Laurel government, an action that led to the Mount Laurel doctrine, which requires all cities and towns to provide their fair share of the region’s need for affordable housing.
In decisions issued in 1975 and 1983 in litigation against Mount Laurel that was brought by the NAACP, the Supreme Court prohibited New Jersey's wealthiest municipalities from using land use regulations that exclude all but the wealthy. Those decisions were reaffirmed by the Supreme Court in decisions in 1986, 1993, and 2002.
The Legislature complied with the court decisions by passing the Fair Housing Act of 1985, legislation that remains law. The most recent efforts to change this longstanding legislative scheme failed in January when Gov. Chris Christie vetoed a bill that would have implemented a new approach that was opposed by wealthy towns.
An appeals court held on Oct. 8 that COAH had given cities and towns too much leeway, allowing them to avoid their constitutional obligation to provide realistic opportunities for lower-income people to find homes. The decision resulted from appeals by Fair Share Housing Center and major private sector groups including the New Jersey Builders Association and the National Association of Industrial and Office Properties, New Jersey Chapter.
The decision calls for COAH's to end its decade of delay in coming up with constitutional and effective regulations that would provide affordable housing.
The orders issued Thursday granted all petitions and cross-petitions filed by parties to the litigation before the appeals court.
State Community Affairs Commissioner Lori Grifa said, "We are encouraged by today’s news that the Supreme Court will consider this important issue. It is now time to end this hopelessly complex and outdated system. As we’ve said before, we are committed to ensuring compliance with constitutional requirements in a manner that is as efficient and effective as possible, and is not a burden to the taxpayers.”
Housing and Community Development Network of New Jersey Policy Coordinator Arnold Cohen said of the latest court decision, "The Appellate Court ruling that rejected COAH's third round rules was a big step towards giving New Jersey residents more affordable home choices. We are hopeful the Supreme Court will concur with the Appellate Court without creating additional delays. It is unfortunate that the governor was unable to reach agreement with the legislature to balance our housing market, jumpstart our economy and provide people with more options about where to live. Given the state of the economy, unemployment levels and foreclosures, New Jerseyans need our leaders to make progress on this issue urgently.
"With our elected officials unable to resolve this matter, we are glad that the court has decided to step in,” Cohen said. “We are hopeful that their decision will clarify the situation and put our state back on track to create the homes and jobs our residents need. Nonprofits are ready to get their shovels into the ground and provide New Jersey families with decent homes they can afford.”