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Wolff & Samson PC
Counsellors At Law Real Estate  In a decision issued so quietly that it virtually escaped notice, on June 15, 2007, the New Jersey Supreme Court denied COAH's petition for certification, meaning the State's highest court denied COAH the opportunity to have the intermediate appellate court's January 25, 2007 decision eviscerating COAH's Third Round regulations reconsidered. Given what some might consider the Supreme Court's liberal predisposition, and more importantly, its long history of upholding affordable housing, the decision to deny COAH an additional opportunity for review came as a surprise to the parties on both sides of this issue. As a result of this unexpected denial, it is the Appellate Division that has shaped the issue for the next legal battle-likely to take place early next year. In June, the Appellate Division entered six different court orders. Of these, the most important was the extension it granted to COAH so that it could re-write its regulations, extending the original six-month deadline set forth in its January order from Juiy to December 31, 2007, so that COAH could finish the court-ordered re-write. Although virtually all of the parties in the case opposed COAH's request for this extension, in granting COAH's request, the appellate court looked past the collective opposition without comment. Six new parties-four developers and two municipalities-made motions to the Appellate Division seeking permission to enter the case. The Court granted ail of these motions, also without comment. As these motions were all made before the Supreme Court declined to consider the appeal, we are left to assume that the newcomers hoped to participate in the argument that would ultimateiy decide the viability of the Third Round regulations. The Supreme Court's decision to end the case without further review closed the book on Third Round regulations and clearly indicated that the Court is looking forward to examining COAH's rewrite of the same. For the original parties and the newcomers as well, December 31, 2007 is the next critical date. By order of the Appellate Division, COAH is to publish and adopt its proposed new rules by no later than that date. Accordingly, the new regulations can be expected any day. Once proposed, a 60-day public comment period will follow and COAH may elect to conduct public hearings, as it did in 2004 on the eve of the adoption of the Third Round regulations. Following these proceedings and in keeping with the Court's June 19 order, the new regulations would be scheduled for adoption at or just before year's end. Because the Appellate Division's January 2007 decision struck down most of the operative parts of the Third Round regulations, and specifically the Growth Share formula, it is hard to predict what the re-written version of the regulations will look like. Some elements of the former regulations, such as payment in lieu ordinances, were struck down as written, but the concepts previously have been upheld as constitutional. The same is true for developer's fee ordinances. Accordingly, some semblance of these ordinancesis likely to reappear in the new regulations. The form in which they appear, and whether that revised form can survive a subsequent legal challenge, remains to be seen. In the advent of the Third Round, the parties came out swinging-filing a lawsuit to strike down the regulations on the very day they were adopted. It is not clear whether the original parties or the newcomers will be as aggressive this time around. Given that the parties now number a baker's dozen and COAH regulations historically have been a flash point for both developers and Municipalities, it seems unimaginable that there will not be a new legal challenge following the adoption of the new regulations. In the meantime, both sides must wait the publication of the proposed regulations and then for the December adoption date, making this the proverbial quiet before the storm. This article is reprinted with permission from Real Estate New Jersey, September, 2007. The views expressed here are those of the author and not of Real Estate Media or its publications. Copyright @ 2007 ALM Properties, Inc. All rights reserved. © |