Hoens: Court’s affordable housing decision relies on policies it admits are flawed

TRENTON – In dissenting from today’s ruling regarding affordable housing obligations in New Jersey, one justice wrote that the court is traveling the same pothole-filled path of previous years.

Justice Helen Hoens wrote that she agreed with the majority that the 1975 Mount Laurel decision mandating affirmative action by towns to supply affordable housing and the 1980s Fair Housing Act “should not be viewed as a constitutional straightjacket to legislative innovation.”

But, she said that the “Court needlessly demands, as its remedy, rigid adherence to the very policies of the past that the majority simultaneously denounces as a “straightjacket.”

In its ruling today upholding and amending a lower court ruling, the court recognized problems with the so-called “third round’’ of affordable housing regulations, but recommended a five-month deadline for their reimposition because it said the affordable housing needs of lower-income residents are so great that they can’t be left in limbo while the bureaurcracy formulates new approaches.

Hoens wrote that it would “far wiser’’ for the court to direct the Council on Affordable Housing to “don the old straightjacket and rewrite the regulations to mirror those the Court approved in earlier rounds.”

Hoens wrote that “the conclusion that only the regulations from the prior rounds that this Court has previously approved will suffice, creates a never-ending cycle of forced growth everywhere.”

Further, she wrote that the majority’s opinion is a mingling of the judicial and legislative branches.

“In short, by demanding that COAH adopt regulations that continue on the path followed over the past thirty years, the majority has impermissibly interfered with the authority that the Legislature vested in that administrative agency and has failed to give COAH the deference that we routinely afford the final decisions of every other administrative agency.”

The court majority ruled that the third-round set of rules for affordable housing, to the extent that it is not based on “regional’’ data, is inconsistent with the original 1970s ruling.

But although the court said there is a need for a new approach and regulations, those in need can’t wait in limbo because there is such a need for affordable housing. It said it endorsed the lower court’s five-month deadline for reimposing the third-round rules.

Hoens: Court’s affordable housing decision relies on policies it admits are flawed