Housing Advocate clarifies COAH legislation?

TRENTON – The Public Advocate filed a brief today in support of the State’s welcome efforts, during this economic downturn, to enforce the rights of low and moderate income families to housing they can afford in New Jersey. The Department of the Public Advocate participated in the landmark cases in the 1980s that led the New Jersey Supreme Court to declare a state constitutional right to affordable housing.
Now, decades later, the Department is standing behind the Legislature, the Governor, the Department of Community Affairs, and the Council on Affordable Housing (COAH) as they try to ensure that this right becomes a reality.
Within the last fifteen months, the Legislature passed and the Governor signed into law amendments that strengthen the Fair Housing Act and extend its protections to some of New Jersey’s neediest families. In addition, COAH issued revised regulations that provide a road map for the municipalities toward meeting the real and growing need for affordable housing across the State.
These actions have met resistance. Not only have dozens of municipalities challenged the new COAH rules in court, but the Township of Medford has also filed a complaint with the Council on Local Mandates, a body created by the New Jersey Constitution to protect municipalities from “unfunded mandates,” state laws that require spending but appropriate no funds. The Council’s decisions are final and unreviewable in court. The Township argues that both the recent amendments to the Fair Housing Act and the new COAH rules require the municipalities to spend money on affordable housing without sufficient state appropriations to cover the anticipated costs.
The Public Advocate maintains that factual disputes about cost are beside the point at this stage, because the Township cannot show that there is a “mandate” at issue, unfunded or otherwise. While the COAH rules establish an important yardstick for compliance with constitutional affordable housing obligations, a municipality’s participation in the COAH process is entirely voluntary.
More than 300 of New Jersey’s 566 municipalities participate in the COAH process. The remaining 250+ municipalities take their chances with lawsuits charging them with failure to meet their constitutional obligations. Those obligations are binding no matter what they may cost or what resistance they may engender. The Council on Local Mandates reviews states laws and regulations, not constitutional obligations.
Through COAH participation, a municipality may gain state certification of its constitutional compliance and some measure of immunity from litigation. These benefits are real but no municipality has to go this route.
As the Public Advocate’s brief states, “if the Township of Medford is undergoing ‘buyer’s remorse’ and finds that continued adherence with the COAH rules is unduly burdensome, it should simply decline to seek substantive certification and bid COAH a respectful, but dispositive, farewell.” Because neither COAH nor the Fair Housing Act amendments impose any legally enforceable obligation on the municipalities, they cannot complain to the Council of an “unfunded mandate.”
The Public Advocate’s brief argues further that the legislation and rules exist to “implement the provisions of [the New Jersey] Constitution” and are therefore beyond the scope of the Council’s authority. The New Jersey courts, and in particular its Supreme Court, are the final arbiters of the meaning of the state constitution.
Both the Fair Housing Act and the COAH rules aim to advance compliance with the constitution’s affordable housing guarantee. By finding that there is no “mandate” at issue, the Council can avoid treading on ground properly occupied by the other branches of government.
A copy of the brief can be found at http://www.njpublicadvocate.gov.

EDITOR’S NOTE: If the participation is voluntary, why do those municipalities that do not comply with COAH face possible lawsuits? Also, towns that can prove the amount of affordable housing stipulated by COAH rulings would cancel out any attempt to redevelop, and more importantly, when said towns are looking for the number of low-income units they are responsible for and cannot find a definitive answer, why does the Advocate play hard ball if some of those municipalities are already low-income and need all the ratables the can get?

NJMC to the rescue

LYNDHURST – The New Jersey Meadowlands Commission held a press conference today to highlight how the NJMC will work in cooperation with District Municipalities to provide sufficient affordable housing in light of a new law signed by Gov. Corzine last week.
“Affordable housing is for people in many economic groups,” NJMC Chairman Joseph Doria, who is also commissioner of the Department of Community Affairs said.
Doria noted that housing assistance is designed for people who earn 30 to 80 percent of median income – or $85,000 for a family of four in North Jersey.
“It’s for people who have lived in these communities a long time. It’s for their children, who are raised in these communities, so they can stay in the community,” he said.
Signed into law on July 17, the bill established a state-wide fee of 2.5 percent to be charged on non-residential construction to help pay for the construction or rehabilitation of affordable housing. It also eliminated the use of Regional Contribution Agreements, which allowed wealthier communities to pay other towns to build affordable housing on their behalf. The state now requires one in five new units to be set aside for affordable housing.
The law also reaffirmed the NJMC’s role as a regional planning agency. The Commission held a June 17 meeting with local mayors to discuss the interim policies it expects to adopt this week, and it has pledged to work in cooperation with District Municipalities to help them meet these new requirements. The interim policies still require all development proposals in the District to be reviewed for their affordable housing potential.
NJMC planners are willing to assist local officials with the process and up to $45,000 in additional money is available from the Commission for each District municipality to spend on their own affordable housing plans. The Commission also plans to create a seven-member affordable housing task force, which will include local officials and members of the public, to assist in the process.
“Our municipalities need to be a part of the rule making process,” Executive Director of the NJMCRobert Ceberio said. “The new regulations will play a large role in the towns’ future development and it is essential that their views and ideas be heard.”