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Bystanders getting involved as COAH's latest review approaches

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As the New Jersey Supreme Court gets closer to reviewing the constitutionality of affordable housing municipal obligation rules set forth by the Council on Affordable Housing, more interested parties are filing "friend of the court" briefs.

The American Planning Association's New Jersey chapter, along with the national organization; the Housing & Community Development Network of New Jersey; and New Jersey Future were the latest groups to file such briefs, on June 15.

The Supreme Court announced in March it will review the appeal of COAH's third round regulations, which were invalidated in October. The court could consider the constitutionality of just the third-round regulations — which were supposed to be in effect after the second round ended in 1999, but have been thrown out two separate times — or could decide whether the doctrine itself, based off the Mount Laurel decision of 1975 that established affordable-housing obligations, is constitutional.

The APA is requesting the Supreme Court hold up the Appellate Court's decision to invalidate COAH's "growth share" obligation formula, part of the organization's attempts to create third-round regulations. The brief also asks the court to uphold the remedy recommended in the appellate decision; return to the second-round formula.

Jeffrey Kantowitz, attorney for Day Pitney LLP, said a simplified way to look at the differences between the two obligation formulae is that growth share applies the percentage of affordable housing required to actual growth of a town, but the second-round methodology factors other census information — like employment and land availability — and regional need into current and prospective affordable housing obligations.

"Housing is a function, in part, not only what the town itself has to do, but a function of regional obligation because of where jobs are and where employment is," Kantowitz said. "It's trying to correct what was understood as past exclusionary practices."

When it comes to the APA brief, "the underlying feeling is the delivery of this constitutional obligation can't be left in the hands of a municipality to determine on its own," Kantowitz said, by allowing cities and towns to decide how much they want, or do not want, to grow. That's especially true in New Jersey; APA's brief says the "reliance on property taxes … creates strong incentives for local governments to exclude affordable housing."

Kantowitz said the current Supreme Court has been liberal with receiving amicus briefs, which he believes is a sign that the court wants to be "as best and well-informed as it can possibly be" on public policy cases.

Other organizations filing amici curiae briefs to the Supreme Court include the ACLU, the New Jersey State Conference of the NAACP, the Corporation for Supportive Housing, Monarch Housing Association and Disability Rights New Jersey, among others.

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