Affordable Housing Fight Goes Back to the Courts

Housing advocate and municipalities try to prevent the state from taking their funds.

The battle between the Christie administration and the Fair Share Housing Center continues.

The two sides are going to court Friday over as much as $200 million in local affordable housing trust funds.

So far, the Appellate Division of Superior Court has been kind to the Cherry Hill-based housing advocates, but this case could be a different story.

To help balance the budget, Gov. Chris Christie recommended the state use the trust fund money. The administration appears to be within its legal right to do so, as the law creating the funds—and the developer fees that municipalities levy to subsidize them—specified municipalities had to “commit to spend” the money within four years. The clock strikes midnight on July 17.

But as always, there are caveats.

Last Friday, the New Jersey State League of Municipalities filed a brief in support of the Fair Share case, averring that the state has never defined what “commit to spend” means.

“It is patently unfair to take this money from towns without first giving them the rules of the game,” League Executive Director Bill Dressel said. “Towns have asked the state time and again what they need to do to protect these funds that are dedicated to affordable housing. The state has consistently refused to tell them.”

That statement gets to the bigger problem: With the abolition of the state Council on Affordable Housing—ruled improper by the court—affordable housing is at a standstill.

Christie has made no bones about his feelings for COAH. Neither have just about every other municipal official and state legislator.

The state Supreme Court’s Mount Laurel decisions, which led to the creation of COAH in 1985 to oversee the process by which all municipalities would provide their “fair share” of affordable housing for the state, continue to be politically unpopular.

Some communities refused to buy into the COAH process and took their chances in the courts, often winding up having to take huge housing developments with smaller amounts of low- and moderate-income units under the so-called “builder’s remedy.”

But more than 300 did follow the council’s process and were in various stages of conformance when COAH went kaput.

Christie sought early on to stop COAH for 90 days through an executive order, but Fair Share went to court. The appellate division ruled the governor isn’t that powerful and Christie withdrew his order.

A year later, the governor issued a reorganization plan abolishing COAH. That drew the same court action from Fair Share and met the same reaction from the appellate division.

The Legislature feels the same way as the governor and passed legislation getting rid of COAH and setting up different housing rules, but Christie conditionally vetoed it and Democratic lawmakers did not agree with his terms.

So while COAH should exist, it remains division non grata.

Much of the problem was politically created, driven by municipalities that did not want to let affordable housing into their communities. The Legislature created COAH in reaction to the court’s rulings, and at one time or another, its rules included all sorts of work-arounds, including provisions for municipalities to pay other communities to take their low-income housing obligations.

With new rules proposed, and challenged in court, twice since its creation, COAH’s regulations rival those of the IRS. Chatham’s last housing plan filed with the council totaled 79 pages.

It’s hard to argue with the language in Christie’s first, rescinded, executive order: “the burdensome procedures governing the provision of affordable housing in New Jersey for those with low and moderate income developed by COAH are excessively complex and unworkable, resulting in delays, inefficiencies, litigation and unreasonable costs to municipalities and the private sector without appreciable progress being made for our citizens.”

But it’s also hard to argue that there is a critical need for affordable housing in a state with a high cost of living, high cost of housing and the high property taxes.

Taking away municipal affordable housing funds without a statewide plan to spend the money to build low-cost housing is not going to solve the problem.

Colleen O'Dea is a writer, editor, researcher, data analyst, web page designer and mapper with nearly three decades in the news business. Her column appears weekly.

John L. Winterstella July 11, 2012 at 06:42 PM
While I would agree that the COAH rules are extensive, they are for a good reason. First, they have to cover all of the State's municipalities, big and small, urban, suburban and rural, as well as recognize environmental issues. The part of the third round rules that are the most challenged were "growth share concept" rules. These rules (growth share) were prompted by many local government leaders and basically say that growth towns have a higher share. It would be great if the critics would also look at COAH's successes, a couple hundred of thousand affordable homes for seniors, the working poor and middle class. John L. Winterstella, First Vice-Chair
a tonti July 17, 2012 at 02:24 PM
I feel that the State should not pull the budgetary allowance for COAH, but should impose a deadline for the municipalities to submit their intentions to utilize these funds, by that I mean preliminary building site plans and evidence that developers have been signed on to begin construction. If such proof is not forthcoming, then the share of these funds should be withdrawn.
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