On Friday, February 19, the Appellate Division ruled on the Fair Share Housing Center’s (“FSHC”) motion for emergent relief ordering that paragraph 5 of Governor Chris Christie’s Executive Order No. 12 is stayed pending the outcome of an accelerated appeal.   All other preliminary relief sought by FSHC was denied.  As a result of the court’s order, the Council on Affordable Housing may continue to implement the Third Round regulations and otherwise continue day to day operations such as reviewing of petitions for substantive certification, considering exceptions for development in the Highlands, holding mediation proceedings and ruling on motions before the Council.  The order does not impact the creation of the Housing Opportunity Task Force or its charge to critically review the COAH regulations, the Fair Housing Act and other related legislation.

Paragraph 5 reads as follows:

For the next 90 days, COAH shall refrain from taking any further action to process applications for substantive certification or to take any other actions to implement the Third Round regulations. The provisions of this Paragraph shall not apply to any action if the applicant, for good cause shown, requests action on a particular item and the Acting Commissioner determines that such action is required within the 90 day period to prevent the loss of affordable housing opportunities.

The Appellate Division has fast-tracked this appeal.  The FSHC’s brief is due on February 26 and the State’s brief is due on March 4.  Any reply brief must be filed no later than March 10.  Oral argument is scheduled for 12:15pm on March 16.

Update: For a link to the Star Ledger’s coverage, click here.  For a link to the Fair Share Housing Center’s commentary on the Appellate Division’s order, click here.

Earlier today, Governor Christie announced the appointment of the four remaining members of the Housing Opportunity Task Force created in Executive Order 12.  Rutgers University Professor James Hughes, Perth Amboy Mayor Wilda Diaz, Morris Plains Mayor Frank Druetzler, and former Executive Director of the Housing and Mortgage Finance Agency Ira Ostrowsky will serve with former senator and Task Force Chairman Marcia Karrow as the five member panel.

The New Jersey State League of Municipalities has issued an advisory on some of the questions they have received regarding the implications of Governor Chris Christie’s Executive Order No. 12 which relates to the 90 day review period of the Third Round rules during which the Council on Affordable Housing may not take action without authorization from the DCA Commissioner. 

According to League Executive Director William G. Dressel Jr.:

[The League has] received numerous inquiries and questions regarding the impact of the Executive Order, the status of COAH and affordable housing in general.   We note that the Executive Order prohibits COAH from acting on its regulations, unless authorized by DCA Commissioner-Designee Lori Grifa, but it does not prevent municipalities from submitting documentation to the agency.  

Below we address some of the questions that have arisen as a result of the Executive Order.   Specific questions related to individual components of your plan or the allocation of dollars are best directed to your attorneys and planners. 

• A number of Highlands municipalities are/were operating under a deadline of June 8, 2010 to file a housing plan with COAH.      Even with the uncertainly surrounding the agency, it may still be in your best interests to continue that process.   The June 8 deadline is after the 90-day window of the Executive Order, so we cannot be certain what the landscape will be at the end of this window. 

• A number of these Highlands communities have also asked if the June 8 deadline could or should be reconsidered in light of recent developments. We are considering making such a request to the Administration. 

• Any municipality that was preparing to submit a petition for substantive certification to either COAH, through the Courts or preparing any additional documentation as part of your submitted petition may do so.

• It is our opinion that the Executive Order freezes any mediation efforts on submitted petitions.

• A-4048/S-2299, “the Economic Stimulus Act of 2009.” signed last summer,  included a suspension of the 2.5% non-residential development fee.    Municipalities are under a March 30 deadline to request reimbursement for any funding returned to developers.   If the State is unable to reimburse the municipality then your housing obligation is to be reduced accordingly.    This is not impacted by the Executive Order, so we urge you to file your reimbursement documentation with COAH by March 30.      

  For more on the 2.5% fee moratorium, please see our Dear Mayor letter of August 19, 2009 as well as the FAQ on the COAH website at: http://www.nj.gov/dca/affiliates/coah/regulations/nrdf/moratoriumfaq.pdf

Residential development fees should be continued to be  collected.

For a link to the full advisory, click here.