After almost a decade of uncertainty in the affordable housing field, a five-member Supreme Court invalidated the third-round affordable housing regulations adopted by the New Jersey Council on Affordable Housing (COAH) and ordered COAH to develop new regulations within five months of their Sept. 26 ruling. In the Matter of the Adoption of N.J. A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing, 215 N.J. 578 (2013). In doing so, the 3-2 majority directed that COAH follow the methodology utilized in the first- and second-round affordable housing regulations and not the growth-share approach which underlaid the third-round regulations. Although the third-round regulations had been refined in a total of three iterations, their underpinning remained a growth-share model, which was stricken by the Supreme Court as being inconsistent with the Fair Housing Act of 1985 (N.J.S.A. 52:27D-301) (FHA) and thus ultra vires.
Despite this definitive ruling, it is likely that controversy will continue to surround affordable housing in this state because the Supreme Court, in finding the regulations inconsistent with the current FHA, left a wide-open door for the legislature to modify the current FHA in a way that could support a growth-share model. The question at this time remains whether the legislature will do so.
