COAH Signs Memorandum of Understanding With New Jersey Highlands Council and Imposes Indefinite Moratorium Against Building in the Highlands
By: Henry T. Chou, Esq.
On November 12, 2008, the New Jersey Council on Affordable Housing (COAH) issued a Resolution imposing scarce resource restraints, indefinitely barring development in Highlands towns that are within COAH’s jurisdiction, with the exception of single-family or duplex homes on existing lots, residential housing that includes a 20 percent set-aside for affordable housing, or projects that are exempt or have obtained a waiver under the Highlands Act. COAH’s stated purpose for the moratorium was to “preserve scarce land, water and sewer resources” that might be needed for the future development of affordable housing in the Highlands.
Additionally, the Resolution extended the deadline for Highlands towns to file new affordable housing plans from December 31, 2008 to December 8, 2009. COAH’s rationale for granting the extension of nearly one year was that Highlands towns that wished to remain in the COAH process needed more time to prepare their plans because the Highlands Council and COAH had not yet formulated “adjusted,” i.e., lower affordable housing numbers for those towns. Within this framework, it is anticipated that the scarce resource restraints will remain in place for at least one year.
COAH’s Resolution came on the heels of an October 29, 2008 Memorandum of Understanding (MOU) between New Jersey Highlands Council (Highlands Council) concerning the future development of affordable housing in the Highlands. The MOU announced that COAH and the Highlands Council intended to work together to reduce the affordable housing obligations of towns that are within the Highlands Preservation Area, as well as towns in the Highlands Planning Area that wish to voluntarily conform to the development restrictions of the Highlands Regional Master Plan (Highlands Plan).
The MOU was the direct result of an Executive Order (#114), recently issued by Governor Corzine, which gave the Highlands Council the purported authority to review COAH’s calculation of affordable housing obligations of towns located in the Highlands, and to adjust them downwards as necessary to ensure consistency with the Highlands Plan. Extraordinarily, the Executive Order also gave the New Jersey Department of Environmental Protection (NJDEP) the purported authority to withhold or deny NJDEP permits for development in the Highlands that is inconsistent with the restrictions of the Highlands Plan, even if those regions are located within the Highlands Planning Area, where compliance with the Highlands Plan is supposed to be voluntary.
The recent measures taken by the State have completely halted development in the Highlands. Numerous property owners and developers have filed legal challenges challenging the State’s actions concerning the Highlands. It remains to be seen whether the courts will strike down the onerous restrictions, but the development community is optimistic about the merits of their claims.