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COAH Votes to Propose New Rules Virtually Sight Unseen

COAH panel
COAH member Suzanne Waters, mayor of Stone Harbor; acting Executive Director Sean Thompson; Chairman and Commissioner of NJ Department of Community Affairs Richard Constable; and COAH members John Winterstella and Timothy Doherty.

It's unclear whether the affordable-housing rules proposed yesterday by the New Jersey Council on Affordable Housing will satisfy the state Supreme Court, which ordered the proposal, but so far, they don't satisfy either housing advocates or municipal officials.

COAH met for the first time in almost a year by order of the courts to promulgate regulations that meet the Mount Laurel rulings that require municipalities to provide their "fair share" of housing affordable to low- and moderate-income residents. It marked the council's third try at the so-called third-round housing rules. Its first two attempts during the past decade were overturned by the courts. The new directive was to have replaced the "second-round" rules, which expired in 1999.

The rules, which span 224 pages and include a complex methodology for determining municipalities' obligations, call for fewer than 31,000 new units of affordable housing by 2024 statewide -- 3,100 a year for a decade. Additionally, they seek the rehabilitation of almost 63,000 existing units. And they direct municipalities to build about 22,000 units that they should have already constructed, with only half of those to be built between 2014 and 2024 and the remainder between 2024 and 2034.

Neither the advocates nor the council members yet fully understand what COAH voted 5-1 to propose. Two council members said they only received a copy of the proposed rules and methodology less than 24 hours before COAH's 9:30 a.m. meeting. COAH staff did not make copies available to advocates or the public until after the council adopted them.

The author of the methodology, Robert W. Burchell of Rutgers University's Center for Urban Policy Research, outlined it without any visual aids during COAH's public meeting, then took questions from Council member Tim Doherty, the only member to vote against proposing the rules. Burchell refused to answer any questions about them following the meeting. A state deputy attorney general who ushered him from the meeting room directed all questions to the press officer for the Department of Community Affairs, where COAH is "in but not of."

"The rules we have before us today were presented to us yesterday," said Doherty during the Wednesday meeting. "I take offense to that . . . I don't know how we can take a vote on rules we've only seen since yesterday."

Advocates and members of the public also were not allowed to comment on the rules. The only public comment session of yesterday's COAH meeting occurred before it had conducted any business. Both Doherty and member John Winterstella complained said that the public should be given the opportunity to speak after they hear the council's business.

Jeff Tittel, director of the New Jersey Sierra Club, called the council's actions "shameful," saying all the important work of writing the rules was done behind closed doors.

“The Council of Affordable Housing voted out the rules without the public ever seeing them or having any comment before they were published," complained Tittel. "They did not have a stakeholder process or open process ahead of time. When the government hides things they are not doing the public business."

Kevin Walsh of the Cherry Hill-based Fair Share Housing Center said that while he needs more time to thoroughly review the rules, at first blush, they do not seem to meet the Supreme Court's September 2013 order that COAH adopt rules using the same methods the council had used in the past. The Supreme Court had ordered COAH to act by February 26, but despite the council's not having met until yesterday, the court extended COAH's deadline.

Cooking the Books

"COAH did not prepare rules that comply with the Supreme Court's order and has gotten the housing-need calculations as low as possible by cooking the books, again," Walsh said. "Dr. Burchell's calculations were discredited in the Appellate Division's 2007 decision, and he's using the same sorts of tricks in what was proposed today. The state is disregarding how hard it is for hundreds of thousands of working families, seniors, and people with special needs to find homes that they can afford. It is really disappointing when the need is so great and the Christie Administration doesn't care."

Christie has been a vocal critic of COAH and tried to abolish the council twice -- the Supreme Court last year ruled the governor did not have the authority to do so. One aspect of the new rules comes close to a policy Christie at one time favored: Municipalities could meet their housing obligations by requiring 10 percent of units in new developments be designated for low- and moderate-income residents. The former rules essentially had set that at 20 percent, according to Doherty.

Sean Thompson, COAH's acting director, said the administration's position is that the rules do comply with the court's order.

In ending his 11-minute presentation, Burchell said his office has been calculating housing obligations for the state for three decades and "the numbers reflect the best procedures available." He called the numbers "fair," then added, "Everyone gets a share, which is the essence of the spirit of affordable housing in the state."

Walsh said the calculation of prospective need is too low. Burchell's report placed the total projected need over the next decade at 61,000, but cut that in half based on caps and limits in areas like the Highlands and Pinelands and on filtering, which occurs when higher-priced new homes are built and existing smaller homes become affordable.

Doherty questioned the validity of Burchell's assumption that filtering would reduce the need for new affordable units by roughly 25,000 through 2024 .

"This is a real critical part of determining how much fair share housing New Jersey really needs," he said. "These rules really can't have any holes in them. I don't think anyone in this room wants to go through litigation again over this."

Tittel called the new rules "the biggest giveaway to developers in state history," saying that the rules use vacant land, but not redevelopment, in determining affordable-housing obligations and that will mean suburban communities with open land will have to add more units while places like Hoboken, with high-end condo redevelopment, will not.

"It lets developers in wealthy urban areas off the hook," he said. " This is going to promote sprawl and overdevelopment while hurting the environment and affordable housing.

Ultimately, Doherty cast the only vote against proposing the rules for publication in the June 2 New Jersey Register, as required by law, because "these regulations do not fully address what we need for affordable housing." None of the five members who voted yes explained their votes.

Many municipal officials abhor COAH because of its role in ordering the rezoning of land for construction. Bill Dressel, executive director of the New Jersey State League of Municipalities, did not so much address the rules he had not had time to read but instead called on the Legislature to enact a replacement for the COAH process.

"We cannot emphasize strongly enough the need to accept the Supreme Court’s invitation for an alternative to our current laws on affordable housing, as set forth in the Fair Housing Act," he said, noting the court's ruling last September left the door for lawmakers to enact different housing rules as long as they meet the Mount Laurel doctrine.

"The Fair Housing Act passed in the mid-1980s, he said. The regulatory program proposed today is based on methodology developed in the mid-1990s. COAH is acting within a box, bound by its previous methodologies, which did not fully consider policies such as the State Plan, environmental constraints, other stat- planning priorities, and those imposed by the courts. It’s time to reform the Fair Housing Act. ”

Lawmakers tried to do that, but Christie vetoed legislation that was a compromise between Senate and Assembly bills, saying it would have created even larger affordable-housing obligations for some municipalities.

Prior to the unveiling of the rules at yesterday's COAH meeting, several advocates urged the council to implement rules that pass constitutional muster to help provide housing for New Jerseyans who can't afford a place today and to meet regularly to conduct the business that will see that units actually get built.

William Scott, a member of the Montclair Housing Commission, said the township has an affordable-housing waiting list of more than 600 people and the lack of regulations has hampered its ability to provide homes for people. Gail Levinson, executive director of the Supportive Housing Association of New Jersey, agreed, saying it has a "long waiting list of people" but that many projects have been in limbo due to COAH being in a "perpetual state of flux."

The Rev. Craig Hirshberg, executive director of the Unitarian Universalist Legislative Ministry of New Jersey, also criticized the council for not meeting regularly to conduct business.

"It's alarming it took a court decision to force COAH to meet and now has only half its members," she said. "This is a moral and ethical failure on the part of the state."

A majority of the council members ignored the pleas and voted to hold only two more meetings this year -- on August 13 and October 21. Doherty, who had urged at least one meeting a month, voted against that schedule. COAH also has scheduled a public meeting on the rules for July 2.

"We used to meet as a board every month," said Doherty, who has been on the council since 2008. "I don't understand why we are now not able to meet as a board."

Walsh, who won court challenges to overturn COAH's last two attempts at writing obligations, did not rule out another lawsuit if his organization determines the rules don't meet the Supreme Court's order.

"What they did today so plainly does not comply with what they have done in the past," he said. "The governor has been a barrier on this issue in the past and I don't expect that to change."

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