A divided New Jersey Supreme Court on Thursday turned back Gov. Chris Christie’s attempt to rewrite the way the state and local governments decide how much affordable housing should be built.
The court, by a 3-2 vote, rejected proposed Council on Affordable Housing rules employing a “growth share” methodology, by which low- and moderate-priced housing is based on projected population and commercial growth within a municipality.
The court gave COAH five months to come up with a new plan.
The majority held that the methodology was too imprecise to comport with the court’s Mount Laurel doctrine or the Fair Housing Act that it spawned. Unless and until the Legislature rewrites the FHA, affordable housing regulations must be drafted within existing guidelines, the court said.
However, Justice Jaynee LaVecchia said the original Mount Laurel rulings “should not now be viewed as a constitutional straightjacket to legislative innovation.
“Having had three decades of experience with the current affordable housing remedy, we cannot say that there may not be other remedies that may be successful at producing significant numbers of low- and moderate-income housing,” she said.
“The policymaking branches may arrive at another approach to fulfill the constitutional obligation to promote ample affordable housing to address the needs of the people of this state and, at the same time, deter exclusionary zoning practices.”
Justice Helen Hoens, in a dissent joined by Justice Anne Patterson, said the COAH proposals did fit within the Mount Laurel and FHA dictates. She chided the majority for not providing the Legislature with more of an idea of what would be acceptable. “That lack of guidance, perhaps unintentionally, will greatly diminish the likelihood that the Legislature will attempt a future change of course,” Hoens said.
Justice Barry Albin and Appellate Division Judge Ariel Rodriguez, temporarily assigned, joined in LaVecchia’s ruling.
Chief Justice Stuart Rabner and Appellate Division Judge Mary Cuff, also temporarily assigned, recused.
“Today’s ruling means that more homes will be built for working families and people with special needs,” says Kevin Walsh, executive director of the Cherry Hill-based Fair Share Housing Center, which was the lead opponent of COAH’s proposed rules.
“The Christie administration has done everything it can to delay and block Mount Laurel from promoting development of affordable housing in New Jersey. … History has shown that many New Jersey municipalities abuse their home rule powers by discouraging the development of housing while encouraging other kinds of development.”
The Housing and Community Development Network of New Jersey also challenged the proposed methodology.
“Our long statewide nightmare is over,” says the network’s executive director, Staci Berger. “This decision will create a more vibrant housing market — especially for rental and starter homes and enable New Jersey residents in dire need of more affordable home options to have more choices in the housing marketplace.”
Stephen Eisdorfer, representing the New Jersey Builders Association, says the state has had what amounts to a moratorium on affordable housing without rules in place.
“Hopefully, this decision will bring an end to that moratorium and will put us on the road to having a set of regulations that actually implement the Constitution,” says Eisdorfer, of Princeton’s Hill Wallack.
Officials from the Christie administration declined to comment.
On prior occasions, Christie has labeled the current rules an “abomination” and has said changing how the state provides affordable housing is a centerpiece of his administration. Indeed, he has said one of his goals is to change the makeup of the court itself to reflect his desire to rid the state of its current system. Christie also has tried, in another move also rebuffed by the court, to get rid of COAH altogether.