The Garden State Has a Tell, and Towns Are Calling the Bluff

New Jersey is set to go all 12 rounds in its battle to achieve a plan for an affordable-housing mandate, but at this point, it’s looking more and more like the state, with its aging housing stock, misguided property-tax system, and ongoing need for housing for seniors and low-income residents, is headed right for a no-decision, and in the best-case-immediate scenario, a TKO.

Once upon a time, the Garden State brandished what was considered at the time a bold plan, a progressive plan. By passing the Fair Housing Act of 1985, the state Legislature created the Council on Affordable Housing that would determine a municipality’s affordable-housing need. Towns that opted into the COAH way could fulfill their needs through zoning, sending the housing to nearby urban centers (Regional Contribution Agreements or RCA), and through rehabilitation and rentals.

The 1985 act came a decade after the 1975 state Supreme Court case where a local NAACP chapter successfully challenged Mount Laurel Township zoning laws, saying that the zoning code excluded low- and moderate-income residents from finding housing within town borders.

To be sure, the state government wasn’t draconian in its legislation: Towns got to feel good about affordable housing by maybe providing some units in some remote corner of their municipality, or, if it couldn’t provide there, it could send an RCA to some nearby poor community.

For a while, COAH was a force to be reckoned with. You stuck with COAH, and if you didn’t, your town could face dreaded builder’s remedy and exclusionary-zoning lawsuits.

Well, with the economy what it is and developers not jumping willingly into the affordable and senior housing market, it turns out that some towns are feeling pretty empowered, and are starting to call what I hereby dub the “COAH Bluff.”

After being struck down by the courts in early 2007 for faulty formula, COAH came back in December 2007 with another round of revised requirements, this time factoring in job growth and square footage into determining a town’s affordable-housing requirement.

But more and more towns are standing up to COAH, an arm of the state’s Department of Community Affairs, and risking lawsuit, betting against litigious consequence, opting to just say no.

It’s not that towns are anti-affordable housing, though some probably are. It’s that the COAH regulations are so generic that there’s no way they could possibly be applied across the board to New Jersey’s 566 municipalities (a problem in and of itself for the third smallest state in the country).

Small, semi-urban towns with little developable land that are committed to maintaining urban centers are essentially penalized by COAH because the requirements from increasing density — normally a good thing — is too much for the town to handle.

Conversely, more rural areas worry about losing open space. While the typical picture of New Jersey is that of industrialized interstates, the landscape is varied for such a tiny state, and COAH needs to better consider that.

Of course the goal is the right one, but while COAH entertained a “listening period” that recently expired where towns were able to weigh in on the latest recommendations, it appears that more and more municipalities are balking because while the goal is admirable, more often than not, it just does not make sense for towns to undergo a set of obligations that would run through 2018. If COAH does not get aggressive about establishing viable means of achieving its impressive housing plans, the agency and its regulations will be viewed as pesky, but unnecessary distractions.

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