January 26, 2007
Strong Court Ruling Favors Planning And Affordable Housing Over Bogus "Growth Share" Approach
The Regional Planning Partnership (RPP) is one of many organizations pleased with this week's Court ruling, which overturned rules of the Council on Affordable Housing (COAH). RPP is a founding member of the New Jersey Regional Coalition a partner of Fair Share Housing, the lead litigant against the COAH rules. RPP is also a founding member of the Coalition for Affordable Housing and the Environment, another litigant.
RPP has been a leader in the fight to promote the twin goals of economic growth and environmental protection, both of which are advanced through a sound affordable housing plan.
For this reason, we are particularly pleased that the Court said that towns cannot simply pass on their entire housing obligation to private developers, nor can they restrict housing only to seniors, when it is housing for families that is needed.
In addition, the Court overturned the application of the so-called "growth share" methodology, which was first suggested when I was a member of COAH in the early 1990s. COAH rejected "growth share" then for the very reasons the Court rejected it this week.
The Appellate Division ruled that COAH's "growth share" allowed New Jersey's municipalities to manipulate their growth to avoid their Constitutional obligation to provide a reasonable opportunity for a fair share of the region's low and moderate income households to find sound affordable housing in their town. This obligation is articulated in New Jersey's Mt. Laurel Doctrine, from the famous 1975 case.
RPP has long held that unless build-out of zoning was the starting point for developing a regional housing plan, "growth share" would diminish, not enhance, the Mt. Laurel Doctrine. It would also undermine the economic and environmental goals envisioned in the State Planning Act.
I also believe that one of the reasons that COAH produced rules that were so off-base as to be found to be unconstitutional, can be found in the structure of COAH, which has changed greatly since it was established in the Fair Housing Act in 1985.
The Act gave COAH some power, albeit limited power, to overcome many suburban municipalities' reluctance to comply with the Mt. Laurel Doctrine. This power was significantly diminished when Governor Whitman succeeded in re-structuring COAH in 1993. During her tenure, the Act was amended to allow the Commissioner of DCA, who is often a former Mayor, to be the Chairman of COAH. Changes also increased the number of places on COAH, upsetting the original balance between municipal, developer and housing advocates.
I can testify from my own experience as a former member of COAH as to how significant the loss of independence and balance has been. In 1991, the Court gave COAH the responsibility to create an impact fee rule. We created a rule that required a town to have their housing plan certified by COAH before they could adopt a fee ordinance. The Commissioner at the time, a former Mayor, felt that such a requirement was onerous to towns, and he asked COAH to eliminate that restriction from its rules.
COAH said "no"to the Commissioner in the interest of planning and affordable housing. At that time, the Commissioner was not on COAH and did not control its proceedings, as the Commissioner does now.
The first round rules of 1987 and second round rules of 1993, both developed by the same academic consultant, but adopted by COAH under the original structure, were upheld by the Court in countless challenges. The third round rules, promulgated under Governor McGreevey and Commissioner Susan Bass Levin, both former mayors, were influenced unduly by a misguided support for "Home Rule."
Affordable housing obligations do not have to be opposed on Home Rule grounds, as demonstrated, for example, by the successful affordable housing program in Plainsboro, a wealthy suburb in Middlesex County.
Instead, it should be seen as a statewide equity issue - local government is given the power to zone only if they exercise it in pursuit of the general welfare. In a state that has become one of the most racially and economically segregated in the country, we cannot honestly say that limiting affordable housing in the suburbs is in the general welfare.
It is a statewide economic issue - we are losing our work force to housing in Pennsylvania and other places out of state. As the workforce seeks affordable housing out of state, many of the jobs are certain to follow.
And it is a statewide environmental issue - in the 1983 Mt. Laurel II decision, the Supreme Court that said that in order for the need for housing to be balanced with natural resource protection, growth should be guided by a statewide plan. But the State Planning Commission has suffered from the same politicization and over-influence of suburban politics and has slid away from its legislative mandates.
Governor Corzine has stated that it is his intention to add 100,000 more affordable housing units over the next ten years. If he is to be successful, as New Jersey needs him to be, the Governor must release COAH and its rule-making from the undue influence of some local suburban politics that have power in the structure that he inherited. There is too much at stake for such a narrow position to prevail.