Complying With COAH Does Not Immunize Municipalities from Suit Over Affordable Housing

     Following the Fair Housing Act (FHA) and the regulations enacted by COAH under the Act, many municipalities believed that they could prevent developers from locating affordable housing in areas not specifically zoned for affordable housing by complying with the FHA and COAH regulations. And that may be true, in part. Municipalities that meet their fair share obligation under the FHA and COAH regulations are immune from builder’s remedy suits. But what about good old fashioned prerogative writ claims? Apparently not.

     In the recent decision of Homes of Hope, Inc. v. Eastampton Township Land Use Planning Board, the appellate court held that affordable housing constitutes an “inherently beneficial use” for the purposes of obtaining a use variance. This is true whether or not the municipality has met its fair share obligation under the FHA and COAH regulations, or not. 

     For practical purposes, if your affordable housing development requires a use variance, you must show that the proposed development satisfies both negative and positive criteria.  The decision in Homes of Hope means that the “positive criteria" requirement for granting a use variance is automatically satisfied, by the very fact that the proposed development is affordable housing. Developers will, of course, still need to satisfy the "negative criteria" requirement, or show that the proposed development would not be detrimental to the municipality in general or to the future residents of the development.

Camden County Property Taxes Highest in the State, 11th in the Nation

     One New Jersey county is on the cusp of cracking a Top 10 List that probably leaves little to be desired. 

     As reported in an article by Jim Walsh published in today's edition of the Courier-Post, (follow link here for online article) a new study published by the Washington D.C. based Tax Foundation has concluded that property taxes in Camden County are the highest in New Jersey and 11th highest in the nation (out of 790 "high population" counties) when measured as a percentage of a home's value.  The national median is nearly 1 percent (0.96%) - Camden County's was estimated at 2.33%. Following close behind were Gloucester County (31st), Salem County (32nd) and Burlington County (46th). 

     Not to be outdone, the North Jersey counties fared even better (or worse...) according to the Foundation's ranking of median property tax paid per owner-occupied home in 2008.  New Jersey had six of the top 10 counties (from 1 to 10, Westchester County, NY ($8,890); Nassau County, NY ($8,628); Hunterdon County, NJ ($8,492); Bergen County, NJ ($8,446); Rockland County, NY ($8,430); Essex County, NJ ($7,924); Somerset County, NJ ($7,743); Morris County, NJ ($7,557); Passaic County, NJ ($7,370); and Putnam County, NY ($7,324). The national median is $1,897.

     According to its website,  Tax Foundation "is a nonpartisan, nonprofit organization that has monitored fiscal policy at the federal, state and local levels since 1937."  Click here to review a copy of the Foundation's press release on the property tax census survey. 

     The question remains - what can be done to fix the problem?  That remains to be seen, but suffice it to say that property taxes are sure to be a hot button issue in the upcoming Gubernatorial elections in New Jersey.  From a practical perspective, the deadline to file an appeal challenging a property's assessment for tax purposes is April 1st annually (unless extended in which case the taxpayer would receive written notice).  It is important to note, however, that pursuant to state statute the property taxes for the 2010 tax year are determined, in part, based upon the fair market value of your property as of October 1, 2009

     October 1, 2009 is a week away.  One can only hope that next week will not mark the start of a top 10 ranking for Camden County, or a blue ribbon for the six North Jersey contenders. 

Constructing Solar Panels On Capped Landfills - Can You Turn a Negative into a Positive?

Several South Jersey communities are exploring the feasibility of solar panel projects on land formerly used as landfills. In a time of economic downturn, the notion of “turning lemons into lemonade” can take on many faces. Although the headlines have been dominated recently with health care related issues, energy issues and the “Green” movement appear to have some staying power. While constructing solar panels is believed to be a viable source of alternative energy, obtaining an approval from the state and local governments for such facilities is not without its challenges. Navigating the extensive regulatory landscape governing solar energy is a delicate balance of public and private concerns. The tightening of the credit markets over the past year has diminished the available capital for such projects; however with care and consideration a project may qualify for grants and incentives from state and federal agencies.

The Borough Council of the Borough of National Park (Gloucester County) recently passed a resolution designating a prospective redeveloper of a closed landfill on property formerly utilized for the disposal of demolition material and local household waste. The parcel is the only undeveloped tract of land in National Park Borough.   As noted by the article published in the August 23, 2009 edition of The Gloucester County Times, although the project is in its infancy stages it appears to have the support of the local community.  According to the proposal submitted by Westfield Energy, the prospective redeveloper, the former landfill could eventually house a 30-acre field of solar panels as well as over 130,000 square feet of office and retail space with an increasing focus on environmentally sustainable buildings.  

It is noteworthy that last fall, Governor Corzine unveiled New Jersey’s latest Energy Master Plan which would provide the blueprint for the state’s energy policies for the next decade. If you need a crash course or even a refresher, follow this link and continue to the bottom of the page for an article by Steven Goldenberg, Esq. of Fox Rothschild LLP which was published in the June 2009 edition of the Mercer Business Journal

 

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New Law Authorizes "Green" Building Code

On August 6, 2009, Governor Jon Corzine signed into law legislation that authorizes the incorporation of “green building” requirements into New Jersey’s Uniform Construction Code

P.L. 2009, Ch. 106 (the “Act”) authorizes the Commissioner of Community Affairs to amend the Uniform Construction Code’s energy subcode to establish enhanced energy-saving construction requirements, which requirements “may exceed the requirements of national model codes.”

While the Act specifically adds the International Energy Conservation Code as one of the model code alternatives to be used as a basis of the energy subcode (thus ensuring that the State’s code will be based on national standards), it also provides that the Commissioner may amend or supplement this energy subcode at any time, although only once, prior to 2012. 

In amending the subcode, the commissioner must rely upon 10-year energy price projections provided by an institution of higher education, and the added costs of such construction requirements must be “reasonably recoverable” through energy conservation over a period of not more than seven (7) years. 

Municipalities May Still Be Charging COAH Fees: Do You Have To Pay?

The New Jersey Council on Affordable Housing recently published a “NRDF Moratorium FAQ” sheet (available here), advising municipalities that “if a preliminary or final site plan approval was granted prior to July 17, 2008, and said approval includes a requirement for a non-residential development fee under a COAH or Court approved development fee ordinance, that fee can still be collected (i.e. 1% or 2%), provided building permits are issued for the development prior to January 1, 2013.”

At least one municipality is acting on such advice, and refusing to release building permits and/or certificates of occupancy until the previously required ordinance fee is paid. 

But is COAH’s advice consistent with the Stimulus Act? Probably not.

While the statute has yet to be interpreted by the courts, Section 36 (e) of the Stimulus Act states as follows: “The [NRDF Act] prohibits municipalities from imposing their own fees to fund affordable housing on non-residential development, and [the Stimulus Act] is not intended to alter this underlying policy.” (emphasis added).

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