May 23, 2022

Volume XII, Number 143

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May 23, 2022

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The COAH Saga Continues - New Jersey Council on Affordable Housing

On March 7, 2014, the Appellate Division entered yet another Order in the ongoing affordable housing quagmire. On September 26, 2013, the New Jersey Supreme Court directed COAH to promulgate its third set of Round Three regulations — now 14 years overdue — by February 26, 2014. Instead of complying with the Court's Order, COAH sought an extension of time with the Supreme Court on the very same day the regulations were due.

Anticipating that COAH would fail to meet the Court-ordered deadline, Fair Share Housing Center ("FSHC") filed a motion with the Appellate Division on December 17, 2013 seeking to enforce litigant's rights. This past Friday, the Appellate Division ruled on that motion and ordered COAH, among other things, to:

1) Meet on March 12, 2014 to prepare third round regulations;

2) Adopt the proposed regulations on March 26, 2014 for publication in the New Jersey Register; and

3) Consider public comment on May 14, 2014 and adopt final regulations.

In perhaps the strongest statement yet that the court has reached its limit on COAH's failure to act, the Appellate Division warned that each member of the COAH Board could be held in contempt and subject to monetary sanctions, civil detention and other sanctions if he or she failed to comply with its Order.

Within hours of the Appellate Division's March 7, 2014 Order, COAH filed multiple motions with the Appellate Division and the Supreme Court seeking a stay of the March 7, 2014 Order. Among other things, COAH argued that the Appellate Division should not have decided FSHC's motion while COAH's motion for an extension was pending before the Supreme Court. The Appellate Division denied the relief sought by COAH.

On March 11, 2014, the Supreme Court granted a temporary stay of the Appellate Division's March 7, 2014 Order, and ordered the Commissioner of the Department of Community Affairs (who is also the chairman of the COAH Board) to re-file his improperly filed certification.

On March 14, 2014, the Supreme Court finally ruled on COAH's motion for an extension. It granted COAH's motion and gave COAH a May 1, 2014 deadline to complete and formally approve proposed third round regulations so that they are published in the June 2, 2014 edition of the New Jersey Register. The Supreme Court Order also provides for a comment period through August 1, 2014, and requires COAH to adopt the regulations by or before October 22, 2014 for publication in the November 17, 2014 edition of the New Jersey Register. If COAH fails to meet these deadlines, the Court indicated that it will be willing to entertain motions which seek to lift the protections municipalities currently enjoy from builder's remedy lawsuits.

This saga is far from over. At this point, we simply need to wait and see if and when COAH's 14-year delay will come to an end.

© 2022 Giordano, Halleran & Ciesla, P.C. All Rights Reserved National Law Review, Volume IV, Number 76
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About this Author

Donna A. McBarron, Giordano Halleran Law firm, real estate lawyer, redevelopment attorney
Of Counsel

Donna is of-counsel to the Real Estate and Leasing Departments. She has over 20 years of experience dealing with complex commercial real estate matters, negotiating commercial leases, and has represented multiple municipalities in connection with their affordable housing litigation and compliance. Donna received her BA from Rutgers University and her JD from Rutgers University School of Law.

732-741-3900
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