Hill Wallack LLP Attorneys Obtain Key Appellate Opinion Striking Down Affordable Housing Regulations
Princeton, NJ -- In a case brought by Hill Wallack LLP on behalf of the New Jersey Builders Association, the Appellate Division of the New Jersey Superior Court today struck down key provisions of the affordable housing regulations promulgated by the New Jersey Council on Affordable Housing (COAH). The Appellate Division ruled that the regulations would impede construction of affordable housing by private builders in New Jersey. The court also held that the regulations improperly permitted municipalities to reduce or avoid their constitutional obligations to provide for affordable housing.
The decision strikes down regulations promulgated in 2008, and affects housing construction in all of New Jersey’s 566 municipalities.
The 72-page opinion declared that regulations requiring builders to set aside 25 percent of new housing units for low and moderate income households are invalid. It found that this requirement, coupled with standards that would set minimum densities only at four, six, or eight units per acre, did not create sufficient incentives for the construction of affordable housing.
The court also struck down regulations that would have permitted towns to receive credit against their housing obligations for non profit or municipal housing projects for which no site has been selected, no funding has been secured, or no developer has been designated. It held that these speculative proposals would not create realistic housing opportunities for low and moderate income families. This regulation would have permitted municipalities to propose speculative projects instead of rezoning for privately constructed inclusionary projects.
The court also rejected the so-called “growth share” methodology used by COAH to determine municipal affordable housing obligations. It held that the growth share regulations would have permitted municipalities to reduce or avoid their affordable housing obligations by engaging in exclusionary zoning.
The court also invalidated a number of other regulations that would have permitted municipalities to receive “bonus” credits against their housing obligations for activities that do not create additional housing.
The court ordered COAH to adopt compliant regulations within five months. It left the impact of its decision on individual towns to be determined on a case-by-case basis.
Hill Wallack LLP partners Thomas F. Carroll, III, Stephen Eisdorfer and Henry T. Chou prepared the briefs in this matter. Mr. Eisdorfer made the oral arguments before the three-judge court. This is the second case brought by Hill Wallack LLP on behalf of the New Jersey Builders Association in which the Appellate Division struck down versions of COAH’s “third round” regulations. The previous decision invalidated an earlier version of the regulations promulgated in 2004.