How should New Jersey towns plan for — and build — housing for low-income families in their communities?
Mayors’ groups and affordable housing advocates provided diametrically opposed answers during an Assembly housing committee hearing Thursday.
Mayors said the current process of litigating settlements to hash out affordable housing obligations in Superior Court was “inefficient, ineffective and costly.” They said New Jersey should revive its defunct administrative agency, the Council on Affordable Housing, that would work with towns to come up with the number of affordable units they needed to build.
Last week, 13 towns sued the Murphy administration, urging him to jumpstart the old council.
Housing nonprofits countered the mayors at Thursday's hearing, and argued that few affordable units were actually built in the last two decades when the council operated, and that the court settlements spurred development.
A series of monumental state Supreme Court cases beginning in 1975 created the Mount Laurel doctrine, which said municipalities must zone and create a “fair share” of affordable housing for low- and moderate-income families, which typically means a household that would spend a third of its monthly paycheck on housing expenses.
In order to fulfill that constitutional obligation, the 1985 Fair Housing Act created the council to draw up guidelines for towns to calculate how many affordable units they needed.
If towns submitted affordable housing plans to the council and the council approved them, they would be protected for a period of time from builder’s remedy lawsuits, through which a developer can avoid the municipal approval process and build a project with as many market-rate units as they'd like as long as at least 20% of the units are affordable. The process was voluntary — if towns didn’t participate, they were at risk of these lawsuits.
The council approved plans for two “rounds” of housing obligations through 1999, but failed for 16 years after to adopt updated affordable housing quotas and rules to cover a third round. In March 2015, the New Jersey Supreme Court said the council was “moribund” and non-functioning, bringing the process into Superior Court.
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To protect themselves through 2025 from builder’s remedy lawsuits, municipalities would reach settlements with fair housing advocates such as the Mt. Laurel-based nonprofit Fair Share Housing Center, creating judge-approved plans for how towns should zone for affordable housing projects, and where affordable units would be built.
The litigation can cost tens of thousands of dollars to pay for lawyers and experts and planners, “instead of funding the production and support of affordable housing,” said East Windsor Mayor Janice Mironov, who also serves as president of the New Jersey Conference of Mayors.
“I’m an eyewitness to what went wrong through those years and I don’t want to relive the history but … we wouldn’t approach it the same way we did then,” said Michael Cerra, executive director of the New Jersey State League of Municipalities. “COAH could be reappointed today," he said of the old council, using its acronym. "You don’t want to call it COAH, it’s a four letter word, give it a different name. For the state not to have a regulatory agency providing assistance in terms of methodology and compliance, I can’t see it going forward.”
Assemblyman Robert Clifton, R-Monmouth, and a former mayor of Matawan, said he had liked knowing from COAH the number of units that Matawan was expected to create. Through the court settlements the towns, Fair Share Housing Center, and sometimes the court bring in their own experts to negotiate a number of units together.
“How does Fair Share Housing become the group?” Clifton asked. “Was there legislation passed that authorized you to come up with numbers? Wouldn’t it be better if the state government sat down, looked at available land, looked at farmland, looked at open space, wetlands, and said, ‘This is our number and this is where they should be built,’ and avoid municipalities having to spend thousands and thousands of dollars to litigate?”
Fair Share Housing Center staff pointed to the numbers. In the third round of working with COAH, 68 towns got through the process in 15 years. By comparison, 340 towns settled with the nonprofit to create affordable housing plans, said staff attorney Josh Bauers.
“Was COAH working?” said James Williams, director of racial justice policy at the Fair Share Housing Center. “Over the 30 years that COAH existed, the state built roughly 70,000 affordable housing units. Over the next 10 years, we’ll build 50,000 units. That's what this new process allows us to engage in: more production of more affordable housing.”
Bauers also argued that towns drove up the cost of litigation by arguing that they did not have an obligation to build affordable units.
“Determining municipal fair share obligations in the courts has resulted in the best, most efficient execution of affordable homes since Mount Laurel,” said Matthew Hersh, director of policy and advocacy at the Housing and Community Development Network of New Jersey. “Prior to the effective and fair court process we have now, politicians treated COAH like a political football.”
Panelists proposed additional ideas, like setting up a “state housing bank” that would allow towns to pay money into a fund and have it count toward their obligation. Other towns could submit applications to be awarded money from the fund, and explain how they would spend it to create affordable housing, said Mironov, the East Windsor mayor.
Trenton Mayor Reed Gusciora said he supported that idea and the flexibility of the fund, as opposed to now-abolished regional contribution agreements. Under RCAs, towns could fulfill a large part of their obligations by paying a city or another town to build affordable housing in its borders instead. Opponents said this exacerbated segregation in the state.
“Urban areas were the dumping ground for another suburban town’s obligation and we felt it should be equally distributed,” Gusciora said, saying he voted to ban the RCAs.
Gusciora said he would like flexibility to use state funds to help rehabilitate some of the roughly 1,000 abandoned and blighted buildings in Trenton.
Mironov also said towns should be given points for providing mobile homes, the state should find ways to expand senior citizen housing, and New Jersey needs to improve transparency about what state funding is available to help towns build affordable housing.
