The (Not So) Sudden Push Against New Jersey’s Fair Share Affordable Housing Policy

Pressure has been building for a long time against the red tape and inflexibility of the agency that implements New Jersey’s landmark fair share housing policy. Can the spirit of Mount Laurel survive the backlash against the details?

New Jersey Gov. Chris Christie, while campaigning in 2009, promised to “gut” the Council on Affordable Housing (COAH), the body that oversees implementation of the state’s “fair share” affordable housing mandate. His language was gruesome, to be sure, but it was hardly a surprise.

For years, the policy implemented by COAH, which requires every municipality to pitch in with its share of affordable housing, had been considered by many to be a necessary, and even successful, way to address the paucity of affordable housing (and the social effects of a growing disparity between income levels) in the state. The State Supreme Court first established COAH in 1985, 10 years after it ruled in its landmark Mount Laurel decision that towns must use the power of zoning to provide a realistic opportunity for low- and moderate-income affordable housing production. Since then, New Jersey has created more affordable housing than any other state except California.

But COAH was also considered flawed in that it didn’t necessarily look at capacity of individual towns. Nor did COAH consider the fiscal realities, how the towns were going to generate the income necessary to create the housing. Some towns, to be sure, were not interested in developing moderate- and low-income housing, but even for towns that were eager to fulfill their housing obligations, COAH’s requirements imposed a cost, as towns often assess affordable units at lower levels, lowering the property tax receipts they could raise to offset the costs of development. It was also costly to developers, who often absorbed the costs of building affordable units as part of market-rate developments. And affordable housing mandates also created problems for towns that did not have an abundance of developable land, forcing choices between development uses or creating pressure on environmentally sensitive land. Moreover, according to New Jersey Future, a statewide smart growth organization, planning boards would sometimes approve over-development simply to be sure of avoiding the costs of builders’ remedy lawsuits, where builders could (and did) sue towns that hadn’t fulfilled their obligations to force permit approval.

The state, however, continued to push COAH’s model. Most recently, in February 2009, then-COAH Commissioner Joe Doria, a former mayor of the northern New Jersey city of Bayonne, one-time state assemblyman, and later state senator, sat on a panel defending the state’s formula for allocating affordable housing requirements at a conference hosted by New Jersey Future. But even at the time, most people in the room recognized that, at this point, his defense of the affordable housing formula was rote, because, as New Jersey Future Executive Director Peter Kasabach wrote just a few months later in an op-ed in The Bergen Record, “there is by no means universal agreement on the means we should use to achieve the end of providing housing opportunities for people with low and moderate incomes throughout New Jersey.”

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