Local towns poised to join COAH lawsuit
NJLM asks towns to support litigation challenging new regs
BY JENNA O'DONNELL & JAMIE ROMM Staff Writers
The New Jersey League of Municipalities (NJLM), with the support of local towns, is gearing up for legal action challenging new affordable housing quotas set by the state Council on Affordable Housing (COAH).

Tinton Falls, Sea Bright and Oceanport have joined the list of municipalities that have pledged their support should the league challenge COAH's latest round of affordable housing obligations in court.

In a July 1 letter sent to mayors throughout the state from NJLM Executive Director William G. Dressel Jr., the league calls for pledges to support the planned litigation.

"As you know, the state Legislature, despite opposition from the league and the Urban Mayors Association, passed A- 500/S-1783," the letter states. "This was … done in spite of the fact that the legislation eliminated a compliance mechanism, Regional Contribution Agreements (RCA), but failed to put in place any new mechanisms or financial incentives to facilitate the construction of affordable housing."

The NJLM was founded in 1915 to help communities do a better job of selfgovernment through pooling information resources. All 566 of the state's municipalities are members of the league.

NJLM Senior Legislative Analyst Michael Cerra said Monday that area towns including Sea Bright, Tinton Falls, Eatontown and West Long Branch have already pledged their support. Middletown Mayor Gerard Scharfenberger said at a press conference last week the township is weighing joining legal action should the league institute a lawsuit.

"We are challenging the legality of the third-round regulations," Cerra said Monday. "We are coming up with a substantial affordable housing policy correction."

COAH's third round of affordable housing quotas calls for significant increases in the number of units towns must create.

Proposed amendments to the round-three regulations call for one unit of affordable housing to be developed for every four units of market-value housing and one unit of affordable housing for every 16 jobs created in a municipality.

For Tinton Falls, meeting the ever-changing COAH requirements has become like taking aim at a moving target, according to Council President Brendan Tobin.

"Tinton Falls is a rarity," Tobin said. "We met the first- and second-round obligation and we have followed every rule and regulation."

Consultants reported to the council in March that the borough's affordable housing obligation would triple under the new third-round rules. The consultants had a number of objections to the rules and the council later resolved to support the NJLM.

"They didn't seem to care about the municipalities," Tobin said. Despite that, the borough is aiming to meet the third-round obligation, according to Tobin.

The Sea Bright council recently passed a resolution that stated the borough would support the league should it challenge the third-round COAH quotas.

"We all have to protect ourselves in this," said Sea Bright Mayor Maria Fernandes. "We just need to make sure that our legislators are doing what's right for the municipality. In this particular case [with COAH], I feel that they may not be."

Fernandes said there is very little room in the borough to build additional housing unless something is going to be torn down to make room.

For Oceanport, currently in the midst of an expensive builder's remedy lawsuit, the concern is finding out exactly what the number is, said Councilman Joseph Irace.

"It's convoluted and burdensome," said Irace, a member of the borough's COAH committee, which was established to stay on top of the changing obligations. "We're all more than willing to meet our obligation, but no one can tell us exactly what it is."

Irace said that the COAH obligations could place a burden on a small town, forcing a smaller percentage of the population to bear an increased tax burden.

"It's something that needs to be done," Irace said of the NJLM suit. "These numbers really need to be looked at so it can be determined if they are a benefit or a liability. People need to look at the burden it puts on towns."

Last month, the Legislature approved bills eliminating RCAs, an option used by municipalities to provide their mandated fair share of affordable housing.

The bills had the support of the New Jersey Regional Coalition, a grassroots, faithbased group that works through community organizing.

The bills eliminate RCAs as a method to address affordable housing needs under the Fair Housing Act. According to the bills, the transfer of affordable housing units from one municipality to another is not consistent with the intent of the Mount Laurel doctrine.

The New Jersey Supreme Court, in its Mount Laurel decisions, ruled that every municipality must provide a realistic opportunity through local zoning to accommodate its fair share of low- and moderate-income housing. The Fair Housing Act established the Council on Affordable Housing to calculate housing need, assign affordable housing obligations and make sure local governments meet those obligations.

Under an RCA, a sending community may transfer up to half of its share of affordable housing units and funds to build the units to a receiving community within the same housing region.

Oceanport had three RCAs with Lakewood, according to Irace.

In the NJLM letter, Dressel points out what he believes are flaws in the new legislation, which is expected to be signed by Gov. Jon Corzine.

"While we have asked the governor to veto, or at least conditionally veto this legislation, prudence demands us to prepare in the event the governor signs the bill as the Legislature passed."

The letter asks for support from all of the

state's municipalities.

"Therefore, it is of the utmost importance that the concerns of local leaders be heard as the Legislature seeks reform," the letter states. "While it is unlikely we can reinstate RCA agreements, we can push for new ways for local governments to comply with their housing obligations, and we can push for new incentives to accommodate such housing."

The NJLM will also reconstitute a standing committee to deal with affordable housing issues.

"League President Robert Bowser has directed us to reformulate our special RCA committee

as a new Mayors' Housing Policy Committee and to designate our existing COAH committee as a subcommittee of the new Mayor's Committee," the letter states. "The purpose of this committee will be to advocate a new housing policy for the state, reviewing the principles of the Mount Laurel decision, the intent of the Fair Housing Act, the State Plan and the principles of home rule and sound planning."

Attorney Jeffrey Surenian, who is special Mount Laurel counsel for Oceanport, Middletown and several other municipalities, said that he sees litigation coming not just from the NJLM but also from other groups.

"I anticipate significant litigation," Surenian said. "From the builders' association, from the League of Municipalities, nonprofits and municipalities because there are many flaws in this and one of the problems is that this is a moving target."

Surenian currently works with more than 40 municipalities in the state with affordable housing issues.

Surenian said the governor needs to carefully read over the legislation before signing it

"I challenge the governor to take a look at this legislation and to really analyze the economic ramifications of this legislation before he signs it," Surenian said.

"I submit to you that this will be an economic disaster for this state. The reason that I say it is because when you look at the tools available for you to meet your constitutional responsibility COAH has a laundry list."

He said that RCAs are a very useful tool to fulfill affordable housing responsibilities and legislation banning them will hurt municipalities.

"These are all ticking time bombs," Surenian said. "The days are going to come where the builders are going to try to get funding for these projects and it was very competitive before these regulations. It's clear that the majority will not get funded."

Surenian said that he sees COAH as a sinking ship.

"We all need to wake up now before it's too late," Surenian said. "Before the Titanic sails off into the ocean."

Staff writer Melissa Karsh contributed to this story