Will COAH’s New Ground Rules Mean Less Affordable Housing?

Colleen O'Dea | July 3, 2014 | Housing
Advocates argue regulations do not meet Supreme Court requirements, differ from rules adopted by council earlier in year

Staci Berger, president and CEO of Housing and Community Development Network of New Jersey.
What some advocates describe as a crisis in affordable housing in the state is not likely to be solved anytime soon, as evidenced by the storm of protest during a public hearing yesterday over the latest regulations under consideration by the New Jersey Council on Affordable Housing.

According to a number of lawyers and housing advocates, the new affordable housing rules
do not meet a New Jersey Supreme Court’s order and aren’t even the same as those the Council on Affordable Housing proposed two months ago.

Most of the 19 people who testified at the hearing in Trenton told COAH members that the rules are substantially different from those that expired in 1999 and will lead to the construction of far fewer affordable units. The Supreme Court last September ordered the state to adopt rules substantially similar to its old regulations, which are now 15 years overdue. Several advocates accused the council of intentionally trying to thwart the provision of affordable units.

The rules call for about 31,000 new affordable homes statewide over the next decade and 22,000 units that should have been built as long ago as 1987, as well as the rehabilitation of almost 63,000 existing units.

A number of people also complained that the rules COAH published in the June 2 edition of the New Jersey Register, a requirement for all state rulemaking, are not the same as the ones the council approved by a 5-1 vote at an April 30 meeting, the first the body had held in almost a year. Among the biggest changes was the deletion of language that advocates say will lead to as many as 37,000 fewer units being built.

“What it really looks like is they made a political decision at the last minute to change what the COAH Board approved — an unprecedented step that is illegal and just something we’ve never seen in any context before,” said Adam Gordon, an attorney with Fair Share Housing Center, the Cherry Hill-based organization that won the lawsuit that forced COAH to write new rules. “It’s as if a Planning Board approved a development at a public meeting for 200 homes and their lawyer went back and wrote in the official document 300 homes — a completely and totally illegal evisceration of basic public process.”

Richard Constable, commissioner of the state Department of Community Affairs and COAH’s chairman, denied that charge and said small changes in a rule that has been proposed by a public body can be made without that group having to approve it again.

“There was a portion of the rules that was inconsistent; no substantial changes were made,” he said. “This does not rise to the level of anything untoward.”

“Yeah, the changes were de minimus in the same way that Bridgegate was a traffic study,” Gordon responded.

Specifically, he said, the rules omit language involving a new “buildable limit” that places a cap on the number of units a municipality could be forced to provide based on the amount of vacant, developable land available. These buildable limits have erased the prior obligations of hundreds of communities. Language approved by COAH said that municipalities getting a reduced obligation due to a buildable limit would have to look for other opportunities to provide affordable units, including accessory apartments, redevelopment, overlay zoning, and turning market-rate homes into affordable units. That language was eliminated when the rule was published.

Gone Forever

As a result, Gordon said, 37,000 units that were not specifically listed as municipal obligations, but which they were to have tried to accommodate, would be lost forever. Robbinsville, for instance, is required to provide a total of 910 units to meet its obligation dating back to 1987 through 2024, according to calculations used. But Rutgers researchers who drafted the methodologies determined the 20.5-acre township has no buildable land.

“Now they have to do absolutely nothing,” Gordon said. “That’s not a de minimus change for 910 low- and moderate-income families and people with special needs who would have had a chance to live in Robbinsville.”

“These rules were drafted in secret in a process that was probably one of the least transparent things this administration, which is notorious for secrecy, has done,” said Kevin Walsh, Fair Share’s associate director. “It looks like the administration is using this board for its political purposes.

An ‘Outrage’ and a Coverup

“Who’s standing behind the curtain? Anyone else want to know that?” Walsh asked, and a number of people in the audience answered, “Yes, yes.” When Constable did not answer Walsh’s question, Walsh said, to applause, “That is an outrage, and you, sir, are responsible for that and you, sir, are covering that up.”

There was frequent applause during the 1.5-hour hearing, the only one that the council will hold on rules stretching over more than 200 pages, as speaker after speaker criticized the regulations.

“The numbers you have proposed are simply not sufficient to meet the need for affordable housing in the state,” said Valerie Haynes, a member of the board of Princeton Community Housing, a non-profit advocacy group that owns and manages 466 units. She said 9 percent of homes in Princeton are affordable and they have not impacted the community negatively.

David B. Fisher, president of the New Jersey Builders Association, said the methodologies used to calculate housing obligations are so different from the prior round that more than 350 towns “have no housing obligation at all for the period 1987 to 2014” and seem to punish communities that have planned for or built homes.

“It is clear from the new numbers that COAH has intentionally throttled-back growth projections and available land estimates to reduce housing obligations,” he said, adding COAH seems to be encouraging municipalities that have already designated affordable projects from a prior round to “abandon” them.

Phil Welch, a member of the board of Family Promise of Monmouth County, echoed that sentiment, saying some communities are renegotiating deals with municipal officials to eliminate any affordable housing requirement.


“It defies logic to think that New Jersey needs fewer affordable homes now than it did before,” said Staci Berger, president and CEO of the Housing and Community Development Network of New Jersey, adding that COAH had projected 5,700 new homes were needed each year from 1987-1999, but now states only 1,700 new homes are needed a year over 25 years.

“COAH’s proposal doesn’t just turn back the clock on housing choices, it actually unplugs the clock, too,” she said. The rules “would eliminate many of the mechanisms” communities have used in the past to create housing, including market-to-affordable programs, accessory apartments and permanent supportive housing for the homeless.

Joyce Campbell, representing Catholic Charities of the Diocese of Trenton, complained that while 35 percent of people in the state are renters, the rules do not require towns to provide any rental housing, meaning a community could choose to build only owned homes.

Gail Levinson, executive director of The Supportive Housing Association of New Jersey, said it was “shocking” that rentals are not part of the rules. She also complained that the regulations omit incentives to create housing for people with special needs, as were given in prior rounds.

Several officials who work with municipalities gave mostly positive comments about the regulations.

“I think these rules, on the whole, were relatively thought out,” said David Banisch, a planner. However, he criticized the rules for reducing the percentage of homes in a new development that would have to be affordable from 20 percent to 10 percent as being “burdensome to municipalities.”

Not Environmentally Friendly

Jeff Tittel, director of the New Jersey Sierra Club, also objected to that rule as being detrimental to the environment.

“Now for every affordable unit they get to build nine, which means they get to pocket more money and pave over more land,” he said, after the hearing. Other provisions would further lead to a loss of open space, Tittel continued. “They mandate towns to zone for more development vs. meeting their obligations in other ways and target vacant and environmentally sensitive land while having no obligation for redevelopment and gentrification.”

Thomas Carroll, an attorney with Hill Wallack who works on land use and Mount Laurel issues, said municipalities “love these rules” because their obligations are “very small.”

Michael Cerra, of the New Jersey State League of Municipalities, said the group that represents 565 communities is still evaluating the regulations and will submit written comments before the August 1 deadline.

“The regulations affect each municipality in a slightly different way,” he said. “At this point, we are still working through some recurring themes . . . It’s complicated. We are still in the mode where we are hearing from our own members.”

Carroll, who serves as the land-use counsel to the builders association, said that unless COAH revamps the regulations to model its former rules, as ordered by the Supreme Court, a court challenge is guaranteed. Fair Share already has filed a motion contending that the regulations do not meet the court mandate and asking the court to enforce its order.

COAH previously had adopted rules that based affordable housing obligations on future growth and the Supreme Court ultimately ordered the council to adopt new rules similar to the former ones it used through 1999. Although the court ordered that the new regulations be proposed by the end of February, COAH had not even met following the ruling and asked for an extension, pledging to publish proposed new regulations in the June 2 register.

“If you choose to be the Council on Affordable Housing, you should immediately vote to shelve these rules and do what the court ordered you to do,” he said. Otherwise, he said, “all you will see is more litigation.”

COAH will continue to take public comments on the rules through August 1. Comments can be submitted via email to coahadmin@dca.state.nj.us, with “Rule Comments” in the subject box; or via mail to NJ Council on Affordable Housing, PO Box 813, Trenton, NJ 08625-0813, Attn: Sean Thompson, Acting Executive Director; or via fax to 609-633-6056.