New Jersey has been a national leader in affordable housing since the first “Mount Laurel” decision in 1975. In response to the Mount Laurel decision and its progeny, the Legislature has formed the Council on Affordable Housing (COAH). Municipalities wishing to avoid a possible “builder’s remedy” of judicially imposed affordable housing at high densities can obtain protection by accepting COAH jurisdiction and submitting an affordable housing plan for COAH approval.
While this may sound simple and straight forward, that is not the case. There have been three “rounds” of COAH regulations. The Third Round requires the municipality to calculate its likely “growth share” based on expected development and to provide affordable housing for that growth. The municipality can then pass all or some of that affordable housing obligation onto residential developers. The regulations, which are extremely complex, were overturned by the new Jersey Appellate Division on one occasion. COAH recently amended its' rules to address that decision, and those amended rules currently are under appeal. Additionally, COAH recently proposed further amendments to the third round rules. Plus, The State Legislature recently stepped in and amended the legislation that authorizes COAH.
This maze of regulations frustrates residential developers and municipalities alike. The matter is somewhat simpler for non-residential developers because the recent State legislation imposes a flat 2.5% impact fee - - which at least provides predictability, if not fairness, to developers of non-residential projects.
We have the experience and expertise to counsel and represent clients in this important and rapidly changing area of the law.
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