COAH in 90 seconds: Making housing accessible, or Affordabullsh*t?

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New Jersey is a tricky place with many competing needs, problems and challenges.  Growth vs. conservation.  Development vs. open space.  Gentrification vs. affordability.  Regional obligations vs. local control.  Affordable housing vs. well… all of these. has been covering several stories that are affected, in one way or another, by affordable housing, including Hopewell Valley’s declining enrollment and the potential Merrill Lynch rezoning.  While not meant to be the end-all resource of this complicated and evolving topic, we wanted to try to put some of the many affordable housing resources in one place, especially in light of the newly published (as of June 2) regulations detailing the latest methods for determining each New Jersey town’s affordable housing obligations.

Background of Affordable Housing in NJ

Known either as the “Mount Laurel Doctrine” (after the 1983 case where the NJ Supreme Court determined that Mount Laurel Township’s zoning requirements unconstitutionally precluded the development of affordable housing within its borders) or “COAH” (after the “Council on Affordable Housing” created by the State legislature by the 1985 “Fair Housing Act”, to administer the requirement in response to the Mount Laurel cases), every municipality in New Jersey is constitutionally required to accommodate its “fair share” of affordable housing within its borders.

In the 1983 Mount Laurel case, the New Jersey Supreme Court declared that municipal land use regulations that prevent affordable housing opportunities for the poor are unconstitutional and ordered all New Jersey municipalities to plan, zone for, and take affirmative actions to provide realistic opportunities for their “fair share” of the region’s need for affordable housing for low and moderate-income people.

The how, when, where and how much of a town’s “share” of affordable housing are details that have been in flux for the past three decades – as has have the repercussions of any municipality not allowing that “fair share”.

How much is “Fair”?

The New Jersey Council on Affordable Housing (“COAH”) was created by the 1985 Fair Housing Act to put regulations into effect that would allow municipalities to know exactly what their fair share obligation is.  COAH developed various methods over the years for determining this share, as well as different systems for towns to satisfy their obligations.

These regulations are split into “rounds” covering housing obligations for periods of time.  The current “round” (which is the third round of these regulations) will cover quite a large period of time – from 1999 (the end of the “second round”) all the way to 2024.  The current proposal for this third round (formally published for comment and review on June 2)  is only the latest attempt by COAH to issue regulations for calculating each town’s share – each set of COAH’s “third round” regulations proposed in the past decade have been rejected by the courts as being unconstitutional or non-compliant with the Fair Housing Act.

The newly-proposed “fair share” obligation figures are, for the most part, substantially lower than the figures generated under the last set of third round regulations proposed by COAH in 2008.  The numbers are also low given that the “fair share period” addressed by the new rules is the period of time from 1999 to 2024 – a 25-year span. Fair share numbers in the past were larger even though they addressed fair share need for six-year periods. Due to a number of credits, deductions and adjustments, the newly-proposed “net” fair share numbers are even smaller than they appear on a gross basis.

Under the newly proposed rules, each town’s obligation is broken into three categories:  (1) rehabilitation (“affordable” units that are now occupied, but that are physically deficient), (2) unmet housing needs from prior “rounds” (i.e., before 1999) and (2) the current “fair share” for the third round 1999-2024 period.  It also purports to factor in the availability of developable land in each town, which in certain municipalities acts as a credit or discount from the raw obligation.

How did Mercer County “fare” with each town’s new “Fair Share”?

The new regulations list – town by town – how far behind COAH considers everyone to date and how much will be needed going forward through 2024.  A few examples:

  • Hopewell Township – 982 units.
  • Hamilton Township – 1,065 units.
  • Lawrence Township – 502 units.
  • Pennington – 81 units
  • Hopewell Borough – 18 units

What happens if a municipality does not allow its “Fair Share”?

Generally, each town is free to create its own zoning regulations and approve what (and how much of it) is built where.  The number of units per acre, the amount of surface coverage permitted, sizes of setbacks (buildings must be set back x feet from the street, y feet from neighboring properties, etc.) and “floor area ratios” (“FAR” – the amount of developed square footage compared to the size of the land of a lot) are common parameters of a zoning ordinance that give a municipality control over the use of land in the area.  Changes from those rules would require either a rezoning by the town’s governing body, or a variance granted by the town’s zoning board.

However, if a town does not provide the zoning necessary to satisfy its “fair share” of affordable housing, COAH will dismiss the town from its jurisdiction and the town would be left vulnerable to a “builder’s remedy lawsuit.”  In those suits, a developer denied the variances or rezoning needed to construct a housing development that includes affordable housing could be allowed by the courts to side-step the restrictions imposed in a town’s master plan and zoning ordinance.  In towns that have met their obligation and have a “fair share” of affordable housing in the eyes of COAH, developers do not have the ability to file builder’s remedy lawsuits.

Want to know more?  

Cancel your 4th of July plans and read the proposed rules here or review the history of COAH from the advocacy group Fair Share Housing Center.  Interestingly, some of the information behind the new numbers has not yet been made available – resulting in an Open Public Records Act lawsuit for the additional data.

Since the new “third round” rules were only just published, COAH will now entertain comments and public hearings on their proposal.  Based on the current schedule, COAH would be in a position to adopt the rules as final in the fall, with or without revisions based on public comments.  It’s also a good assumption that the latest rules will wind up before our State’s courts again. Advocacy and trade groups have already begun pointing out many of the flaws in the new methods.  Whether or not the exact numbers and methods in the proposed rules live on as currently proposed, it is abundantly clear that the requirement in New Jersey to accommodate some amount of affordable housing is here to stay, as is the developer’s remedy to judicially side-step zoning restrictions in municipalities that do not comply.

Special thanks to Henry Chou, Esq. – a land use attorney and partner in Hill Wallack LLP’s Princeton office, who contributed to this post.  The post was updated with revised example figures subsequent to the original publication.  

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