Fixing the Council on Affordable Housing (COAH): Saving the baby while throwing out the bathwater

Feb 4, 2010   //   by PlanSmart NJ   //   Speaks Out Blog  //  Comments Off on Fixing the Council on Affordable Housing (COAH): Saving the baby while throwing out the bathwater

What is the most effective way to stop the damage to our economy and our communities caused by a dysfunctional COAH? This question sparked a passionate debate in a Senate hearing on S-1, a bill that proposes to eliminate COAH and approach the “problem” of affordable housing in a completely different way.

How could a program that was given the goal of implementing something as positive as the American Dream – the dream that equal access to opportunity will be protected by our government – come to be seen as such a problem that lawmakers are discussing how to get rid of it?

The answer lies somewhere in the morass that public officials create when they get caught up in tactics and lose sight of the goal. Over the last 10 years, COAH has changed its tactics so dramatically, that they are no longer aligned with the goal. But how will the Legislature know which is the “baby” and which is the “bathwater” when they are trying to start over?

One problem they will have is that all those caught in COAH’s morass — urban, suburban, and rural municipalities, employers, developers and people in need of affordable housing – all have different problems with the system. Some of the solutions suggested so far might relieve one group’s problems, while causing other groups to have more.

PlanSmart NJ agrees wholeheartedly that the system needs fixing. We hope to help by suggesting that solutions can be found by embracing the original goal – that government can and will ensure equal access to opportunity for all citizens.

Of course, this immediately raises questions about what is meant by equal (the idea of fairness is there, but so is the idea of sameness); what is meant by access (housing or transportation); and what kind of opportunity (jobs, housing, education, transportation).

Most of these questions have been answered by New Jersey’s Supreme Court in a number of decisions made since 1975. Those decisions came to be known as the Mt. Laurel Doctrine, which interprets New Jersey’s Constitution to mean that zoning is a police power, like eminent domain.

Since zoning is like eminent domain, municipalities can’t apply it any way they want. They can only apply it to promote the general welfare. Surely every citizen wants this protection from government power abuse.

Going further, the Courts determined that the “general welfare” means a municipality must consider the welfare of those who do not yet live in their town, but who may wish to do so. The Courts found that many municipalities had failed to apply their zoning this way. They called it “exclusionary zoning”, and they acknowledged that it had been going on for so long that an unhealthy – and unconstitutional – pattern of racial and economic segregation had emerged.

This is where controversy arose over Mt.Laurel and has never settled.

Problem # 1: Understanding the “general welfare” this way sets up a tension between the municipality and the region – something that has not yet been resolved to anyone’s satisfaction. What are the regions? How much accommodation to the region’s need is enough? Now is the time to settle this issue, but not just for affordable housing.

Solution: Integrate COAH and State Planning: Many of New Jersey’s economic and environmental problems will be served by introducing stronger state and regional planning to provide the context within which local actions can be evaluated. The Mt.Laurel Doctrine strongly supports this: it is the reason that New Jersey passed one of the nation’s first State Planning Act in 1985. Fix the State Plan as you fix COAH.

Problem #2; The need to answer the questions about “how much is enough” leads to the need for a target. Targets have always been controversial, but COAH, and the Courts before it, have always felt that targets were necessary.

When COAH adopted its Third Round rules in 2004, however, the targets had been so transparently manipulated to reduce them to half the size they had ever been, the Court threw them out in 2007. The redraft adopted in 2008 has sparked 24 law suits that have yet to be settled. The COAH-created policy vacuum has led to the call to abolish it.

Solution: In COAH’s First and Second Rounds of target-setting, municipalities grumbled, but they knew what they had to do and how they would be judged. They went on to create 45,000 affordable housing units – more than any other state in the country during that time period! Until the Third Round rules, COAH functioned. We must not forget that.

Problem # 3: COAH’s Round Three rules may have forever tarnished the notion that targets will ever be seen to be legitimate again. But if targets are taken off the table, what alternatives can be used to determine which towns have an unmet obligation?

Solution: PlanSmart NJ supports targets as one of the most useful tools in policy-making, particularly in planning. To paraphrase New Jersey’s own Yogi Berra, if we don’t know where we are going, we might not get there! What needs to be thrown out is the methodology for determining the targets.

To correct the methodology, we propose going back to the first solution – fix the State Plan, fix COAH. The target for affordable housing should not be separated from the other goals and objectives that the State has – a stronger economic base; less auto-dependency and air pollution; protected water resources, critical habitats and farmland; and elimination of concentrated poverty and segregation.

Clearly, the varying conditions in each municipality on all these policy fronts demand a planned approach to the targets – not a cookie cutter “growth share” that treats all municipalities the same.

Government programs can connect housing targets to jobs – those here and those sought. Locations for these new jobs and housing would be selected to meet the needs of the economy (economic clusters, special infrastructure needs, etc,) and the need to create vibrant living and working environments out of distressed communities and suburban sprawl.

We can make sure that policy targets, regulations and investments work together to optimize results. It is what government is supposed to do for all of us.

Although this means changing so many things about the way we do things today, it is doable – especially when compared to the costly, misguided, broken system that is currently obstructing economic growth, failing to restore and protect the environment and failing to create the quality of life we want.

These solutions are not only doable, they are essential to our future.


Dianne Brake is currently President of PlanSmart NJ, Founded in 1968, PlanSmartNJ is a Trenton-based statewide not-for-profit research and advocacy organization that advances the quality of community life through sound land use planning and regional cooperation. PlanSmart NJ aims to renew the landscape so that communities in the future will have a sustainable economy and environment, based on strategic approaches for resource efficiency and social equity. Email her at

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