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.
This time, 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.
miriam pickett
8:52 am on Monday, July 9, 2012
Never thought I would root for Christie to win on anything. Fingers crossed.
Chris Peters
9:39 am on Monday, July 9, 2012
Thank you Colleen for this status update on this heated topic in NJ. As a mother of a child with high functioning Autism, I have been a fan of COAH not just to meet the need of affordable housing for low income people, but because it also meets the need for housing for developmentally diabled (and all disabled) people. NJ has one of the highest rates of Autism in the US, within in the next 10 years, a 'huge wave' of Adults with Autism will be living in NJ, and they will need housing. If COAH is broken, the Governor should fix it.
Martha
5:44 pm on Monday, July 9, 2012
COAH is not the vehicle for building for the developmentally disabled. Are you going to place a developmentally disabled person in a 4 story apartment complex of 220 units? Private homes with individualized care would be better suited for the developmentally disabled, just as was done in Allendale. COAH is not for the truly poor members of our society. Most of the rents of the COAH units are not much less than the standard rents in NJ. Some of the COAH rents are even higher than the standard rents. Who do you think is profiting from this?
As I stated in another comment, please start attending the town meetings, board of adjustment meetings, to see first-hand, without any prejudice from the press, or, any individuals, the real workings of COAH, & how it is really used.
Chris Peters
9:59 pm on Tuesday, July 17, 2012
AML - Orchard Commons in Allendale is not individualized care, it is supportive housing, which is much different. most developmentally disabled people can thrive with proper supports and contribute within their community, not all people need individualized care. also Orchard Commons was built by United Way, who does not answer to COAH or DDD but works directly with the town. The mayor and council of Allendale loved the project so much, they are building a second unit. COAH could be one of many vehicles used to build affordable housing for disabled people, if properly organized to do so. and I have attended many meetings of this nature, since I worked for the local press for the past 8 years.
jp1
9:52 am on Monday, July 9, 2012
Not a fan of the governor but coah has got to go.
Michael Roney
10:11 am on Monday, July 9, 2012
What is usually missed in articles about COAH is that it is widely used by developers to force MARKET RATE housing on towns that already have too much development and don't want any more -- often on open space or in environmentally sensitive areas. if a town was not 100% up-to-date in its compliance with COAH, the developer could sue them on that basis and get a court order (the "builder's remedy") to build a 200-unit development, with maybe 20% set aside for affordable housing. The object is to force the market-rate units, of course. Affordable housing is a worthy cause, but COAH has been grossly mis-sused by developers in NJ and already has caused destruction. It needs to be fixed.
Townie
12:01 pm on Monday, July 9, 2012
There is nothing sacrosanct about COAH. It is extractive (something for nothing, a public good without public investment) and history shows that extractive policies are short-lived and have unintended consequences, as Michael Roney notes above. We cannot simply decommodify housing by waving a utopian wand.
Montclair is an ideal laboratory to try pilots for a way forward but seems to lack thought leaders. The township's last two efforts to promote this issue (ignoring Wildwood which at least included an opportunity cost investment and, if successful, would produce all of 2 units) were an unusually extractive IZO and an ADU proposal that is nonsensical in its initial form.
miriam pickett
2:40 pm on Monday, July 9, 2012
Developers use COAH as a way of sneaking past local zoning boards. By throwing in affordable housing in development plans that feature large big box stores, they get around local objections when and if they go to court. It is disgraceful that they can use this tactic in areas where there are legitimate environmental concerns for large mixed use developments. In New Milford a developer is currentlty trying to get variances for a huge project and is using COAH for just this reason. Building on an adjacent flood plain, in a community with already overcrowded schools, in the middle of a residential area should be called "inherently beneficial" because of the addition of affordable housing units.
Chris Cortazzo
4:17 pm on Monday, July 9, 2012
COAH has destroyed the character of many of the rural towns in NJ. By forcing rural towns to heavily develop, it takes resources out of developed towns where the housing stock would have otherwise been renewed. Heavily development in towns not planned for it requires equally heavy spending on infrastructure, which in turn requires heavy taxation...
Martha
5:30 pm on Monday, July 9, 2012
COAH HAS BEEN MIS-USED BY PEOPLE, & DEVELOPERS, & IT CERTAINLY DOES NOT AID THE TRULY POOR.
99.9% of people in society today do not like, or, want COAH for the simple reason that their taxes support way too many programs for folks (mostly non-poor), & wealthy developers, at the expense of many middle class people who are struggling to get by. In a perfect world, if there was a surplus of money, most people would have no problem with COAH.FOR DESERVING INDIVIDUALS; however, in today's world, it does not make sense to bleed people dry, especially for people who are not poor and simply want to take advantage of a system, the way that most developers throw COAH into their plans as an excuse to get zoning approvals/variances FOR THEIR DEVELOPMENT, as is the case with Hekemian & the United Water Property in New Milford.
TO BE CONTINUED-RAN OUT OF SPACE
Martha
5:31 pm on Monday, July 9, 2012
CONTINUED FROM PRIOR COMMENT
Bryan Hekemian, (of Hekemian) was quoted as saying earlier this year at a Board meeting in Wyckoff that the affordable housing units in Boulder Run (his development) ‘WAS HIS CROSS TO BEAR.” He whined that his family had to put up extra millions of dollars for the affordable housing units that his family would not recoup the money for the next 30 years.” His statement is a blatant disregard for the true poor people of our society. To equate affordable housing units as “his cross” speaks volumes of the hypocrisy of Hekemian, the developer. The developer does not care about the poor, but only what goes into his pockets. IN NM, Hekemian is USING COAH as a pawn because he needs it for the mixed use development. For those people who believe that COAH is for the poor, please get involved and attend your town meetings, & board of adjustment meetings to see what really goes on, & I would guarantee that you would quickly change your mind about COAH in a hearbeat! Seeing is believing!
Gary Rabinowitz
5:45 pm on Monday, July 9, 2012
@ Chris Cortazzo, @ miriam pickett -- great points, the disgusting real estate lobby runs circles around municipalities using COAH and other rigged laws as a crow bar to jam unwieldy developments down small towns' throats. In practical terms, COAH is an utter failure. Even its utopian, theoretical intent is an abomination and a failed attempt at social engineering. What most galls me about COAH is that its authors -- clueless judges and corrupt lawmakers -- are typically thoroughly isolated from COAH's harmful effects. It's like presidents Clinton, OBama or W singing the praises of public schools, though their children wouldn't be caught dead in DC's horrendous public school system (that's why the first familys' kids go to Sidwell Friends or similar elite private schools).
While I applaud Christie's words and actions to date fighting COAH, I'm dubious he will accomplish anything meaningful. He never does. To be sure, he's a friend to the real estate lobby, as seen by his relaxing development rules in the Jersey Highlands.
At what point do our towns, state and country formally recognize and abide by the millions of decisions made by families to preserve or even shrink the size of our population? The residential homebuilding sector needs to shrink -- especially flim flam companies like penny stock Hovnanian. We have enough people in our towns, state & country. GXR
Martha
6:09 pm on Monday, July 9, 2012
Ditto 1000%. You summed it up beautifully and truthfully!
P.S. I admire your well worded comments, especially in the Wyckoff Patch. At times I forward them to members of our grass-roots organization, SOD (Stop Over-Development) in New Milford as there are many parallels between what is going on in Wyckoff and in New Milford with Hekemian.
Bottom line, we all have a monumental task as we fight the maze of favoritism/political connections with our local, county, & state politicians, the developers, the DEP, the powerful utility companies, & all of the underhanded tactics that all of these groups employ. We would not be where we are today if these groups had a shred of integrity, & all worked for the common good instead of lining their pockets!
Hopefully, we can all reach
Gary Rabinowitz
3:02 pm on Tuesday, July 10, 2012
@ AML -- thanks for the kind words. If there's a New Milford SOD website, please let me know, I would like to check it out. LIke you, I wish our local & state officials would provide more competent adult supervision of commercial & residential RE development interests. I won't hold my breath though -- the best we can do for now is hold accountable the folks who wish to directly or indirectly benefit from their relationships with RE interests though (I'm looking at you, appliance retailers, bank directors, Hackensack area RE agents, lawyers who do work with big NJ companies, tree cutters......)
I laugh that many of these folks would profess to be "conservative" -- really, what are they trying to "conserve"?
Keep fighting the good fight, AML. Cheers! GXR
Martha
6:11 pm on Monday, July 9, 2012
oopsie.....last sentence got cut off
Hopefully, we can all reach our goals!
Lori Barton
7:35 pm on Monday, July 9, 2012
I still don't get why communities that have pre-existing affordable housing and have little or no land left to be developed must still find a way to build more affordable housing. Why aren't older properties grandfathered in? Many communities have significant developments that should qualify but don't because they were built prior to the Mount Laurel decision.
Martha
3:50 pm on Tuesday, July 10, 2012
Hi GXR...
We are currently working on a SOD website, & hope to have it running soon! We do have a FaceBook Page as follows:
S-O-D (Stop Over Development) of New Milford | Facebook
www.facebook.com/SODofNewMilford
We welcome you to check us out! When the website is ready, I will let you know.
Thanks for your encouragement. Perhaps, I will run into you one day at the Board of Adjustment meeting in Wyckoff. I did go to the last one, as I wanted to see Bryan Hekemian, and Larry Inserra, Jr., but both were not there. I planned on stopping them after the meeting to say my piece, but the meeting was adjourned to another date. Tonight, we have our Zoning Board meeting in NM, and the very "Special Hekemian meeting" will be on July 30. We really have our work cut out for us, but we have the determination to see this through to the very end!
Have a great day!
AML
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