Battle over housing mandates back to N.J. Supreme Court

TRENTON The Christie administration's fight over affordable housing mandates is back before the state Supreme Court, which will consider whether to uphold a lower court's order that a near-dormant state agency resume meeting about the rules this week.

The state responded in legal filings Sunday that the appellate court had overstepped its boundaries and that the Supreme Court should put on hold the lower court's order setting a schedule for the Council on Affordable Housing (COAH).

The appellate court, which issued its decision Friday, ordered COAH to quickly produce new rules determining how many affordable homes municipalities must provide. The agency failed to meet a Feb. 26 deadline set by the Supreme Court to complete the task. That day, the state asked for more time to comply.

The appellate court on Friday set out a schedule for COAH - which has not met since May 2013 - to meet Wednesday, post the rules online by March 21, approve them at a meeting March 26, and accept public comment at another meeting in May.

The court also said that if COAH did not comply, its board members - who include Community Affairs Commissioner Richard Constable - would be ordered into court and subjected to penalties, including fines and detention.

In response, Assistant Attorney General Robert Lougy argued in Sunday's brief that the order should be delayed while the high court considers the state's pending motion to extend the deadline for completing new housing rules.

The brief calls the appellate order "deeply flawed," arguing in part that the court violated the separation of powers.

"Courts do not run executive branch agencies, and the order transgresses all reasonable bounds of judicial involvement in COAH's operations," the brief reads.

On Monday, Fair Share Housing Center, a Cherry Hill nonprofit that took the state to court over the affordable housing deadline, said in a brief that the judiciary had the power to order state agencies to comply with the constitution and statutes.

If the state's argument were to prevail, court opinions "would be unenforceable," Kevin Walsh, the center's associate director, wrote in the brief. "The state continues to argue that it may delay as long as it wishes, without any consequences."

Further delay is not justified, Walsh said in the brief: "The impact on low- and moderate-income families, seniors, and people with special needs is significant."

A Supreme Court spokeswoman said Monday that there was not a defined time frame for the justices to rule.

Spokesmen for Christie and the Department of Community Affairs did not respond Monday to questions about whether the COAH board would meet Wednesday. But a member of the six-member board said a meeting had been scheduled.

The board reportedly has not met regularly for years because Constable has not scheduled meetings.

Last year, the Supreme Court denied an attempt by Christie to disband COAH; the Republican governor responded by attacking what he called the "liberal Supreme Court" and "its failed social experiment in housing."

Requirements that New Jersey municipalities offer a certain amount of affordable housing date to the landmark 1975 Mount Laurel decision, when the Supreme Court ruled that it was unconstitutional for suburban communities to exclude lower-income residents through land-use regulations.

Under the Fair Housing Act the Legislature passed in 1985, COAH was created to set rules determining how many affordable homes each municipality had to make available.

In 2010, the appellate court ordered the agency to produce new rules after striking down the approach at the time, which tied a municipality's affordable housing obligations to how much it grew. Critics said the method let wealthy communities escape their obligations by limiting growth.

The court gave the state five months to produce new rules, but the state appealed to the Supreme Court, which in September upheld the lower court's decision striking down the "growth share" approach.

The Supreme Court ordered the state to produce new rules by Feb. 26. That day, Constable filed a motion seeking an extension.

On Monday, the state League of Municipalities and a group of four towns filed briefs in support of the state, saying it was better not to rush a major policy decision.

The state builders association filed a brief in opposition, arguing that giving COAH more time would "negate the goal" of quickly creating new rules.