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COAH Votes to Propose New Rules Virtually Sight Unseen

Some members of Council on Affordable Housing said they received more than 200 pages of new regulations just a day before panel met to vote on them

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.

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