Change Zoning, Change the Future

Mar 3, 2009   //   by PlanSmart NJ   //   Speaks Out Blog  //  Comments Off on Change Zoning, Change the Future

Although always awkward, acronyms sometimes become widely known. The acronym for the NJ Council for Affordable Housing (COAH) is a case in point. Declarations of “I want to put a stake through the heart of COAH!” and “I come here not to praise COAH, but to bury it!” have become rallying cries all around the state. COAH, a quiet state agency that carries a big stick over municipal zoning, has triggered an all-out revolt against what is seen as the unfairness of its latest rules.

More than 250 towns met COAH’s December deadline to submit affordable housing plans. But they did so under protest. And their bitterness is spreading: the Legislature is considering a number of new COAH “remedies” and some early gubernatorial candidates are staking out their credentials as the best man to slay COAH.

Having advocated for affordable housing for the last 40 years, PlanSmart NJ agrees that COAH’s regulations need to be thrown out — but only to start over and make them more effective.

Having affordable, workforce housing would be such a boost to the State’s economy, that the Governor should consider ways to use Economic Stimulus Package to support its construction. But first, he should appoint informed and dedicated people to the Housing Commission, established by legislation adopted last summer with PlanSmart NJ support, to develop a comprehensive and effective housing plan for New Jersey.

Meanwhile, COAH should throw out the regulatory mess it created and get back to the basic principles established almost 35 years ago by the NJ Supreme Court and almost 25 years ago by the Legislature. The mandate is:

Develop an agreement among state agencies and local government – an agreement among themselves and with each other – to work with the same set of goals about where growth should go and where it shouldn’t.

Develop a strong State Plan to reflect the agreement and then changing zoning accordingly. The result for housing will be more of it in the right places, for more income groups.

It’s all about planning and zoning. In 1975, citing the “general welfare” clause in the State’s constitution, the NJ Supreme Court told municipal officials that if they were going to use zoning, which is a police power just like eminent domain, they could not use it to “exclude” low and moderate income households. Instead, their zoning should provide a “reasonable opportunity” for developers to construct enough housing to meet “a fair share” of the “regional need” for affordable housing.

Sounds fair enough. But many towns ignored that ruling and the lawsuits continued. In 1983, the Court upheld its original position, but added that a “fair share” may not necessarily be the same in each municipality. The Court acknowledged that responsible planning principles, including environmental concerns, could be used to identify regions where growth should be encouraged and where it should not. (Along with the NJ Chapter of the American Planning Association, PlanSmart NJ had filed a “friend of the Court” petition asking for the Court to take this position.)

Following the Court’s second decision, the Legislature passed the Fair Housing Act in 1985, which set up COAH to define the need, and to insure that towns were satisfying this need. The State Planning Act in 1986, which established the State Planning Commission, required that areas be designated for growth and conservation and encouraged towns and state agencies to work together on applicable planning principles including affordable housing.

After showing initial promise, it is widely held that both agencies are now seriously off-track.

COAH has manipulated the housing targets so much that they have lost legitimacy. No one expects much housing to be built as a result of the 250 plans that were just submitted, because twenty four more lawsuits have been filed against COAH challenging its regulations — again. Instead of changing their zoning to produce more affordable housing opportunities, towns are just waiting for the dust to settle.

The State Plan, last re-adopted in 2001, has been set aside and a new one has not replaced it. This is due in large measure to the NJ DEP replacing the adopted State Plan Policy Map in 2003 with a map of its own, and steadfastly working since then with that mapping as the basis for their rules. This action has put the State Planning Commission at loggerheads with DEP and has encouraged every other State agency to go their own way – the opposite of “state agency cooperation” and the integration of policies called for by the State Planning Act.

Instead of changing their zoning to implement the vision for a better New Jersey in the State Plan, towns are just waiting it out.

Meanwhile, the zoning that is currently in place in many parts of New Jersey, is not that different from what it was in 1975. It was zoning originally designed to address 19th century public health concerns with overcrowded tenements and noxious industries. It continued to serve throughout the 20th century during the rise and dominance of the automobile. It didn’t bother most public officials – or most planning practitioners, for that matter – that this land use pattern was inaccessible to people without the means to own a home or keep an automobile.

The fact that those left behind in poverty were primarily people of color was rarely mentioned in relation to zoning – until the Court said it was wrong.

Changing zoning to suit the needs of the 21st century, supported by state agency cooperation, which includes the need for far more affordable housing in the right places, is one of the most difficult challenges we face. PlanSmart NJ has developed tools and strategies that will help.

Keeping the current zoning in place will speed the loss of jobs, increase the disparities among communities, traffic congestion and environmental degradation. In spite of this clear and present danger, it will not be easy.

Change will take leadership from the Governor and the cooperation of every State agency, some of which have rules in place that encourage the outmoded zoning. But taking on this problem directly will show our neighbors and the country at large that New Jersey is taking the lead into a prosperous 21st century.

Dianne Brake is the President of PlanSmart NJ. She was on COAH from 1990 to 1995, serving as Vice Chair, and she was on the State Planning Commission from 1996 to 2001, serving as the Chair of the Plan Implementation Committee.

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