New Jersey to Battle COAH Mandates

Below is an announcement from Americans for Prosperity New Jersey (AFP-NJ).  I have been a member of AFP since 2006 and it is one great organization.

AFP-NJ announces our voter education initiative, beginning in March, focused on combating the state’s Council on Affordable Housing (COAH). COAH’s heavy handed social engineering mandates that 100,000 low income housing units be forced into towns across our state causing increased crime, overcrowding schools, high density housing and lowered property values. These negative effects will eventually lead to increased property taxes on top of those already paid by New Jersey homeowners.
COAH spotlights the damaging legacy of an activist Supreme Court in New Jersey. We see the reappointment of two justices during 2009/2010 as an opportunity to end the court’s activism and allow the free market to determine the state’s housing need.
The battle against COAH will spread throughout the state with citizen education, petitions, and presentations to local organizations. Please visit the AFP New Jersey website to find a taxpayer seminar near you.

We hope you’ll join us at one of Americans for Prosperity Foundation’s special “Taxpayer Action Seminars,” where you will learn the tactics, facts, and figures you’ll need to make a difference for the principles of limited government, lower taxes, and individual liberty.
This is our current schedule for seminars across New Jersey where our goal is to educate thousands of taxpayers. If you’d like more information or details about any of these events, please call us at 201-487-8844.

March 11, 2009 7:30 p.m.
Taxpayer Seminar
Ambulance corp Building
14 Sparta Ave
Sparta, NJ 07871

The real issues in New Jersey

Overshadowed by the media coverage of Governor Corzine’s State of the State Address on January 13, a group concerned with the direction of NJ presented another side of the state of the state.  An overview of the major issues facing New Jersey took place at 11AM, across from where Corzine spoke.  Against a backdrop of the condensed 44-foot wall that comprises our NJ bureaucracy, important topics were covered.

Present to speak were two Republican candidates.  Steve Lonegan discussed how much citizens in NJ are being taxed, regulated, and manipulated.  His two part comment on the state of the state can be viewed from this link to his campaign site.  This is especially true of the NJ Department of Environmental Protection, where the regulations and enforcement authority places the DEP in the position of being “judge, jury, and executioners” by virtue of the powers they have been given.

Assemblyman Rick Merkt was present with his insights. “One in six in New Jersey are working for government at some level.”  “We need to peel our state government like an onion”.  He also said the next governor of NJ will redefine the Supreme Court.

Former State Senator Dick LaRossa, now Chairman of Solutions for New Jersey discussed Charity Care and the inability of a number of hospitals to economically survive.  As a result of the major strain on the finances of hospitals, many have closed.  LaRossa also discussed school funding.  He states, “Over the last 10 years, we have seen over $20 Billion poured into all the special needs districts.  Yet, students in special needs districts continue to fail at alarming rates.”  The current school funding formula is rewarding schools for failing, instead of rewarding for success.

The New Jersey Supreme Court was discussed at great length.  Our  State Constitution  calls for a balance of powers between the Executive, Judicial, and Legislative Branches.  The NJ Supreme Court interferes with this balance when they overstep their boundary.  It was this court that dictated that, “the state must equalize funding in the poorest districts to match spending that occurs in the highest spending school districts”.  Thirty districts now receive a disproportionate amount of school aid from the State of NJ.

Another decision of the NJ Supreme Court resulted in the formation of the Council on Affordable Housing (COAH).  It all started in 1975 when the National Association for the Advancement of Colored People (NAACP) challenged the zoning ordinance of Mount Laurel Township. This decision has ultimately resulted in costing taxpayers billions of dollars, with no end in sight.

Kellyanne Conway from the polling companyTM, inc/WomanTrend discussed judicial operational philosophies.

“Judicial activism is a term used to describe when a judge feels that his or her role is not simply to review the law as written, but is instead to allow for new or evolving meaning of the law over time.”

“Judicial restraint is a term used to describe when a judge views his or her role solely as an evaluator of whether a low or lower court ruling is in line with the state constitution.”

In a pole the company conducted, 46% favored judicial restraint compared to 37% favoring judicial activism.  Of the remainder of those polled: 7% choose both, 1% neither, 8% did not know, 1% refused.

Another poll by the same group asked, “Can you name any of the Justices currently serving on the Supreme Court of New Jersey?”  Ninety four percent could not name any, so here they are:

Chief Justice Stuart Rabner
Justice Helen E. Hoens
Justice Jaynee Lavecchia
Justice Virginia Long
Justice John E. Wallace, Jr.
Justice Barry T. Albin
Justice Roberto A. Rivera-Soto

The NJ Supreme Court is the highest court in our state. Hence it is called the court of last resort in NJ.  Justices are not elected, but appointed by the Governor and after seven years may be recommended for tenure with the advice and consent of the Senate.

Assemblyman Gary Chiusano over-viewed some ideas on reforming NJ’s Supreme Court.

“Right now, when a political appointment to the Court receives tenure, he’s there forever.

The court has all the power and none of the responsibility.

Other states, more efficiently run and less politically corrupt, have something called judicial retention elections.  They provide a kind of checks and balances to keep the judiciary accountable to the people.  Every six or ten years a judge comes before the people, who get to decide if they think he is worthy of another six or ten years.”

John Galandak, President of the Commerce and Industry Association of New Jersey discussed the economic impact on NJ’s business community.  He pointed out that, “There are fewer private-sector jobs now than there were in December 2000.”  He is requesting that the government stand aside and allow the private-sector businesses to rebuild.  In order for this to occur there must be minimal government interference.  He noted that one sign that the economy is on the way out of recession, will be an increase in private-sector jobs.

The current administration headed by Jon Corzine has failed to do even some of the things necessary to trim the state’s budget and make New Jersey attractive to business.  Jobs in the private sector continue to slide, while taxes and fees rise to meet state obligations such as salaries, pensions, benefits, and pork that have put an unbearable burden on the private sector. New Jersey’s legislature, courts, and unions have created a monster that is impossible to feed, and now they are scrambling to assemble a budget to plug the holes.

While the private sector struggles and conserves to survive the economic downturn, the state has operated mostly “Status Quo”, and programs to conserve are few and mostly ineffective. Revenues continue to fall due to shortages in tax collections, tolls, and casino revenues.

Corzine blames some of the downturn in our state on the economic situation in the country as a whole, but citizens of New Jersey have been feeling this for some time, and the effect here is hard because of the high taxes and loss of business and people in the last 4 years.

While Mr. Corzine spoke about the woes in our state, and called himself a “Progressive”, conservative Republican candidates met and spoke about the real problems we face as a state, and ways to solve them.  New Jersey needs action not talk, and a Governor not afraid to take on the big issues mentioned above that are slowly bleeding us into bankruptcy and beyond while waiting for a federal bailout.

COAH Petition

Thanks to Mike from Garden State Patriot for alerting that there is a COAH petition available to sign.  Here is the link to sign the petition.

On COAH and COAH in the Highlands Region

Assemblywoman Marcia Karrow hosted an informative meeting on Thursday December 11.  Lucy Vandenberg, COAH Executive Director and Highlands Council Executive Director Eileen Swan were both present to answer questions.

The meeting was standing room only with many town representatives present with lots of questions.  Highlands town officials must make the decision whether to sign on to the state mandates to submit affordable housing plans and conform with the Highlands Regional Master Plan, by December 31.  The last action towns were waiting for just took place on October 30, a Memorandum of Understanding (MOU) between COAH and the Highlands.

According to the Star-Ledger Joseph Doria, Commissioner of the Department of Community Affairs would not extend the deadline, which applies to all towns in NJ.  The state took years to come up with the Third Round COAH Rules.  The timeline of the Third Round Rules prepared by Fair Housing Center states they were due in 1999.

A brief on COAH and the Highlands Region before I continue:

1983 - NJ Supreme Court Mount Laurel decision for every municipality to provide lower income housing.

1985 – NJ Legislative response to Supreme Court decision was the Fair Housing Act and formation of the Council on Affordable Housing (COAH) and the State Planning Act.

1986 - From the State Planning Act the State Planning Commission was spawned and the State Development & Redevelopment Plan (State Plan).

1987 – First round COAH rules.

1993 – Second round COAH rules.

2001 – The State Plan designated the NJ Highlands Region as a Special Resource Area.

2004 – The Legislature enacted the Highlands Act creating a Preservation Area and a Planning Area.  The Act also created the Highlands Council to formulate a Regional Master Plan (RMP) and a Transfer of Development Rights Program (TDR).

2008 – COAH Third Round Rules adopted with revisions.  New goal is to build 115,000 ‘affordable units’ in NJ.  This is on top of any that have been mandated in rounds 1 and 2 not yet built.

2008 - Elimination of Regional Contribution Agreements (RCAs), where a town could pay out to another town to take on their share of affordable units.

2008 – Highlands Council formulates and adopts the RMP.

2008 – Governor Corzine signs Executive Order 114.  This order required the Highlands Council, the Department of Community Affairs, the Department of Environmental Protection (DEP), and COAH to review the COAH Third Round Rules as it relates to the Highlands Plan.

2008 – COAH and the Highlands Council sign a Memorandum of Understanding (MOU) on October 30.  Corzine in Executive Order 114 requested this ‘understanding’ for municipalities that fall under both jurisdictions.

2008 – COAH Scarce Resource Restraint Order forbidding development unless there is sufficient water to first meet affordable development. Adopted by COAH on November 12.

The Highlands Region has added complications because additional building and resource preservation are not very compatible ideas.  There are more documents and plans, more reviews and submissions. The MOU and the Scarce Resource Restraint Order have been recently adopted in the past few months.  Assemblywoman Karrow, who represents a number of Highlands Region municipalities, is furious.

“It seems only fair that the 88 Highlands municipalities be given every bit of latitude to digest the information in the MOU and put it in perspective with the impact the new affordable housing law (A-500) before making such a monumental decision that will permanently affect current and future residents.”

“In today’s economic climate it is critical to not forget about the 60 percent of the middle class that are struggling to make ends meet each month.  This ‘scarce restraint order’ does completely the opposite.  It puts the needs of everyone else above the needs of the people who actually live and work in the Highlands.  That is totally unacceptable.”

Municipalities in the Highlands can request an extension of the deadline if they send a COAH Intent to Petition seeking an extension of the deadline, and a Highlands Council Notice of Intent to conform to the RMP.  These two resolutions will give Highlands communities an extension to December 8, 2009 for submission of COAH third round plans.  It was announced at the meeting that 47 of 88 municipalities had already signed.  There are numerous considerations for town officials to examine.  This all sounds like loss of local control, and passing away of municipal planning.

The audience was restless in their quest for answers to the dozens of questions and there was a great effort to understand the complexities.  Stated at the meeting was that for towns that conform to the RMP, growth will be dictated by the Highlands Council, not COAH.  Opting in would offer protections against a ‘builder’s remedy lawsuit’ in the Planning Area, where a builder is often given the option to put in a high-rise complex.  I have concerns that the state would cover all costs associated with such a lawsuit.

I questioned the ‘panel’ on the fairness of the many residents living in homes valued at less than the ‘affordable units’.  Many have incomes less than the qualifying incomes for an ‘affordable unit’, but will pay for others.  Many homes are in need of repair yet these owners are also paying a share toward affordable housing for others who are getting living quarters that are new or refurbished.

The number of ‘affordable units’ due to be built from rounds one and two shortfalls plus the new round three mandates could be as high as 190,000.  That’s a possible 950,000 in new development if 20% of all development is required to be ‘affordable’.  Where is all the water going to come from to service all of this construction?

Although the meeting was quite informative and certainly appreciated, many questions, including mine, were left unanswered.  Especially those regarding what the program would cost and how it was economically feasible to come up with all the money.  Many questioned the need and constitutionality of such a centrally structured social plan.

Realities of the Highlands Act

Governor James McGreevey signed the Highlands Water Protection and Planning Act on August 10, 2004. This Act should be the concern of every New Jersey citizen.   Some say the Act was signed to protect water resources for 5.4 million people and also the environment in the 860,000-acre Highlands region.  But, there are many conflicts and mixed messages that have come to light, degrading this utopian concept.  I hope to portray the realities of the Highlands Act and in doing so also clarify some major issues. 

Governor Corzine is now reviewing the 490-page Regional Master Plan (RMP). The Highlands Council, an entity in the Department of Environmental Protection, approved the plan on July 17, 2008. The RMP will determine what will be the future ambiance of the Highlands area, its landowners, and constitutional property rights.  As I position Corzine as a centralized government planner, this would put the Highlands Act and the RMP right up his alley, but he does need to be concerned about votes for the gubernatorial election in 2009.

The RMP mapping splits the Highlands into two major areas.  There are also 53 ‘layers’, ‘sub-zones’ or ‘overlays’ within the Highlands.  The lines have been drawn, at great taxpayer expense from data submitted by geologists, engineers, and other professionals.

The Preservation Area, that comprises approximately half of the Highlands, is labeled as the most environmentally sensitive.  Land activity will be very restrictive, which will mostly cease any building and constrain many other land uses.  DEP Highlands’ specific rules apply to the Preservation Area.  Municipalities in the Preservation Area are required to revise their master plans and development regulations to conform to the RMP and submit them for approval by the Council.  Here is a taste of the bureaucracy this plan encompasses.

“The Highlands regional master plan will include a resource assessment that establishes sustainable development considering ecosystem resources, a financial element to determine cost of implementation, and assessment of smart growth opportunities. There are to be maximized opportunities for government and public input, methods for coordination and consistency with local, State and Federal programs and policies, and a detailed approach to preserving transportation systems. In addition, the master plan will include a land use capability map and comprehensive statement of policies for planning and managing the development and use of land in the Preservation Area, which shall be based upon, comply with, and implement the environmental standards adopted by the Department of Environmental Protection. Preservation zones are to be identified in a preservation zone element where development shall not occur in order to protect water resources and environmentally sensitive lands and which are to be permanently preserved through use of a variety of tools, including but not limited to land acquisition and transfer of development rights. The master plan will also include minimum preservation area standards for municipalities and counties.”

The second major area is the Planning Area.  DEP Highlands’ specific rules do not apply to the Planning Area.  Municipalities in the Planning Area have the option to revise their master plan and development regulations or retain the ones they have.  Municipalities are enticed to ‘opt in’ by the offer of incentives or financial assistance.

It appears that all the landowners and municipalities in the Highlands will be under regulations of the Act imposed by the state, excepting the state itself.  It is Corzine’s goal to provide 115,000 affordable housing units.  A very interesting article written by the New York Times states that his office reported the “plan was under a review that would include a study of an apparent conflict between the Highlands plan and recent state legislation requiring affordable housing”.  The Council on Affordable Housing (COAH), in the Department of Community Affairs has announced the number of units each municipality needs to build to comply.  An email received by the Star-Ledger from COAH  states their position on this goal as it pertains to the Highlands.  Officials there “look forward to working cooperatively with the Highlands Council to create affordable housing opportunities in the Highlands Region as required by (law) and in keeping with the region’s ongoing municipal constitutional affordable-housing obligations.”

Environmental groups, farmers, municipalities, and builders, and a number of legislative representatives are opposed to the RMP.  Some eighty-four environmental groups such as the powerful Sierra Club belong to the New Jersey Highlands Coalition. The environmentalists want more control over pollution levels and clustering of housing allowable under the plan and support the minimum ‘lot’ regulation.

Farmers are overwhelmed by the loss of land value and building regulations.  The Farm Bureau recently challenged the minimum ‘lot’ requirements.  In the Preservation Area one would need 88 acres if forested for one unit and 25 acres in non-forested.

The State of New Jersey has no money to compensate landowners for the loss of value from the mandates of the Highlands Act.  There is some talk of a water tax but that has not come to fruition.  A Transfer of Development Rights (TDRs) approach: by which developers can purchase certificates from a Preservation Area property owner to place developments in the Planning Area has been in focus as a way of fulfilling the long ago promise to compensate landowners.  The Highlands Council set up the Highlands Development Credit Bank the end of June 2008 for the TDR program, but the state is broke and the account needs money.  Also stated by the Daily Record is that there is only a total of 12,000 acres proposed to receive TDRs in the Planning Area.  Page 353 of the RMP states,

“The Highlands Act establishes a goal of identifying at least 4% of the Planning Area for potential TDR receiving areas, unless environmental constraints limit such areas to below that goal.  Accordingly, the goal of the Highlands Act through the implementation of the RMP is to identify 17,776 acres of the Planning Area’s 444,398 acres.”

I’d say the RMP is a bit short, by 5,776 acres.  Receiving areas, which are voluntary, have also not yet been specifically identified by the Council as per the statement on page 125 of the RMP.  It has already been four years since McGreevy signed the Highlands Act and it will take years more for any TDR program to even get off the ground.  In the mean time, farmers and other landowners suffer the ramifications of the Act.

There have been a number of specific cases where the Highlands Act has spawned lawsuits.  In an Analysis of Highlands Act Exemptions Holzhauer & Holenstein, LLC  estimate the impact at “$80 Billion Dollars of lost development having a gross economic impact of $160 Billion Dollars”.  Some builders have filed suit and a few of these projects have been in the works for a decade as they have been in the process of first getting the required permits from the towns and state pre Highlands, then had to meet new requirements as a result of the Act.  The New Jersey Builders Association has submitted comments about the Act that can be viewed on their site.

Yet more landowners have filed suits because of the onerous regulations that infringe on their ability to farm or continue to have the same rights of property ownership as those outside the Preservation Area.

Here is the municipal brochure that gives some generalized information on land regulations under the Act.  Municipalities in the Highlands are under many state mandates that cost taxpayers additional money.  These regulations will also cost Highland taxpayers for towns to adopt new master plans and create new ordinances.

The Highlands Council touts that there are 17 exemptions.  The dictionary defines exempt as free from an obligation, a duty, or a liability required of others.  But an exemption as listed by the Council must be applied for, and that can be costly.  Don’t forget to send your fee payable to “Treasurer, State of New Jersey” with the Consistency Determination Application Form to receive you Highlands Applicability Determination.  Sounds like an Abbott & Costello game of “who’s on first”.

The DEP definition of “impervious and pervious surfaces” do not match the Highlands Council definitions.

“An impervious surface does not allow water to drain through it into the soil.  Roads and parking lots made of concrete or asphalt, as well as rooftops and swimming pools, are examples of impervious surfaces.  A pervious surface is porous and allows water to pass through.  Such surfaces include sand, soil, gravel or stones, grass and other types of vegetation.”

Here is the definition of “impervious surface “ from page 24 of the Highlands Land Use Management report, and is also under the definitions in the Highlands Act (13:20-3).

“Impervious surface” means any structure, surface, or improvement that reduces or
prevents absorption of storm water into land, and includes porous paving, paver blocks, gravel, crushed stone, decks, patios, elevated structures, and other similar structures, surfaces, or improvements.

Even churches, fire companies, emergency squads, and road projects are affected by the regulations.  They are virtually reduced to begging for their projects to be accepted, or exempted.

Indeed there is a ‘river of money’ flowing out of the Highlands.  Increasing financial and social burdens are being placed on the Highlands landowners and the water resources.  Cities have fowled their own nest and want increasing amounts of the Highlands water, at no additional cost to them.  Certainly, urban and other downstream users could do much better then they are at setting up their own water systems, curtailing usage, and increasing purity standards.

Some have proclaimed the Highlands region is in a water deficit.  An oxymoron when you consider that half the population of New Jersey is draining the water supply.  Water is not only supplied as sustenance to people but also industries, especially for food processing, pharmaceuticals, and tourism.  I have seen what tourism can bring on my one and only visit to the beach at Spruce Run Reservoir.  My short visit ended abruptly when the dirty diaper floated by.  It was heading down stream toward home.

Not included in the RMP is a discussion of the United States Riparian Doctrine and how it applies to the Highlands Act.  This doctrine was adopted from English Common Law and applied to the eastern humid states.

“Over the last two centuries the English common law system that originally applied to New Jersey waters has been incrementally modified to meet the increasing demand for water and reflect the changing value society has placed on water. In New Jersey the most recent changes have been to incorporate the concept of the public trust doctrine.  Under this doctrine, the waters of New Jersey are viewed as the property of the State, which acts as the trustees of the people.”

Source for above - “Water Supply Availability in the Raritan River Basin” - page 2.  It applies to all surface and ground water and also to all users in New Jersey.

All property owners can find support through the Highlands Conservation Association.

“The mission of HCA is to restore and protect the constitutional rights of citizens to own and use private property in the New Jersey Highlands Area and to prevent the loss of these rights from actions of government under the guise of public benefit without appropriate compensation.”

What this plan means to me it that we are living under a governance that no longer supports the principle that Abraham Lincoln so eloquently espoused in his 1863 Gettysburg Address; to ensure that “government of the people, by the people, for the people, shall not perish from the earth”.  Some would call it a conflict of home rule vs. the common good.  This may be one of the last frontiers for a battle to retain principles that were the democratic foundations of our great country.  My belief is that the importance of the ramifications of the Highlands Act is severely underestimated.

I call it government planning in the name of common good, at the expense of individual rights.  A violation of the Fifth Amendment of the US Constitution, “nor shall private property be taken for public use, without just compensation”.

There are those that say the ‘property’ is not being taken.  I will end leaving you with pondering the realities of this quote, “Scholars in the social sciences frequently conceive of property as a bundle of rights. They stress that property is not a relationship between people and things, but a relationship between people with regard to things.”

NJ shakes down businesses

Businesses are a major source of revenue for New Jersey.  Through sales tax, employee taxes, registrations, licenses, and oh yes fines.  Businesses are major private employers. Here is an overview of the NJ business taxes, located in the Department of Treasury, Division of Taxation.  Collection of these taxes is a business responsibility imposed by the will of the state, with no compensation received for the work and costs incurred or direct training.  Not understanding the rules and missing or miscalculating payments will result in penalties and interest. The state collects these funds at no risk on their part, but don’t be late.  Some taxes are collected twice or more times as in the sale of a vehicle each time, or cigarettes where there is a tax of over $2.60 on each pack, then sales tax is charged at the point of sale effectively taxing the tax. NJ is biting the hands that feed their mouth.

Last year there was the ‘raid’ on businesses that did not have the required disability posters displayed.  These are not mailed to businesses, therefore many did not even know of their existence.  Here is where you can print the Civil Rights Posters and other required posters.

This year it was the turn for gas stations.  The Office of Weights and Measures in the Division of Consumer Affairs under the Department of Law and Public Safety checked the pumps, signage postings, and paperwork.   A list of 350 gas stations was made public giving the appearance that all the stations were gouging consumers.  Many of the infractions were actually minor but now all these businesses have a mark on their name.

Recently, Governor Corzine signed a comprehensive affordable housing bill into law (A-500).  This bill is an epitome of centralized government planning and money redistribution.  It covers a wide range of authority such as municipal mandates, loan appropriations, development fees, and urban housing assistance.  Included in this plan is the Statewide Non-Residential Development Fee Act.  Most business will be assessed a fee of 2.5% on non-residential construction additions and new construction.

Farmers are not listed as one of the exemptions from the 2.5% fee.  Here is a quote from the Politickernj.com by Senator Steve Oroho.

“The politicians in Trenton seem bound and determined to take the garden out of the Garden State,” Oroho stated. “If the DEP, the Highlands Commission and the COAH have their way, farms in this state will soon be nothing more than a bittersweet memory. In order for New Jersey’s economy to grow, we must promote business development and not penalize job growth, in all aspects of our economy, including agriculture.”

 Again on Politickernj.com is a press release by Senator Phil Haines requesting that power plants and renewable energy be exempt from paying the 2.5% development tax.

“Given the language that was used in this legislation, it would appear that the 2.5% non-residential development fee must be imposed upon the public utilities that attempt to construct new power plants, as well as any person who intends to construct any structure to produce energy from renewable sources such as solar technology, photovoltaic technology, wind energy, fuel cells, and geothermal technology.”

“The imposition of a 2.5% affordable housing fee on the value of a multi-billion power plant project could have a damaging effect on the energy bills of New Jersey ratepayers, who will be forced to pay for this new affordable housing mandate every time they turn on a light switch or touch their thermostat.”

Call it a fee, a registration, license, or a regulation.  I call them all a tax.   Even the sunshine and wind in this case will be taxed if a structure is built to take advantage of them. The cost of all of the above will slide to the bottom of the NJ government ‘food chain’, to us the consumers and the taxpayers. They will all be added to the cost of doing business and passed down.