The Senate and Assembly approved Senate Bill No. 1 (S1) proposing to eliminate the Council on Affordable Housing (COAH). By requirement of the New Jersey Supreme Court dating to 1975, municipalities are required to zone in a manner providing for a reasonable opportunity for development of affordable housing (also commonly known as Mt. Laurel housing). S1 proposes to replace the existing procedures for providing for affordable housing, largely eliminating COAH and the State’s responsibility in ensuring that municipalities satisfy their Mt. Laurel obligation. Governor Christie has publicly vowed to conditionally veto S1 for various reasons, including that it contains municipal requirements or "quotas" for satisfying its Mt. Laurel obligation. However, New Jersey Courts have thus far consistently held that without so-called quotas, municipalities can skirt their obligations to provide for reasonable opportunities for affordable housing by simply eliminating residential zoning or otherwise frustrating residential development. Accordingly, the conditional veto anticipated from the Governor is likely to be deemed to be unconstitutional should it be enacted into law.
While the law proposes to eliminate COAH, as of now that body is the functioning agency responsible for overseeing municipal affordable housing obligations. However, the Courts previously declared, for the 2nd time that COAH’s long delayed regulations are unconstitutional and required COAH to adopt constitutional regulations under a fast approaching deadline. As of yet, it is understood that COAH has not even begun to draft the Court ordered regulations at least in part due to the pending legislation proposed to end COAH’s role in the process.
It has now been over a decade since New Jersey and its respective municipalities have been in compliance with their constitutional obligations to provide for a reasonable opportunity for affordable housing. COAH, the Legislature, the Governor and the Courts are on a collision course with regard to these obligations. Various interest groups are geared up to legally challenge any affordable housing regulation or legislation. At a minimum, the next several months or more will continue to be rocky until the issue is settled, at least with some likely action by the Courts.