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What Comes After COAH?

by Colleen Patrice Clark

Gov. Christie’s attempt to abolish the affordable housing organization has been stalled. Is there a plan in the works and could it change the landscape of South Jersey?

It was a simple and well-intentioned dream: to end exclusionary building practices that prevented low-income, mostly inner-city families from moving into better neighborhoods, which meant opening up South Jersey’s suburbs to racial and economic equality.

This was the dream of Ethel R. Lawrence, a Mount Laurel mother of nine, who in the 1970s saw her beloved hometown of open space and farmland transforming into a bedroom community suburb—a welcome growth and sign of the times if it weren’t for the fact that zoning regulations that came with it made it unattainable for poorer families. In some instances, it became impossible for families already living there for multiple generations to stay. Their ramshackle homes were being torn down and replaced with homes for the white-collar professionals.

But Lawrence didn’t sit back and watch her family and friends get pushed out. Known as the “Rosa Parks of affordable housing,” Lawrence won a Supreme Court fight against her local government, earning low- and moderate-income families the constitutional right to live in more affluent towns where they could provide a better future for their families.

Because of her wage, municipalities across the state have, since the 1980s, been obligated to plan for a certain “fair share” of affordable housing for residents—whether they be families, senior citizens, or disabled residents living on a fixed income. Lawrence herself remains a legacy in Mount Laurel, with the Ethel R. Lawrence Homes, a 140-unit affordable housing complex, named in her honor. Though it didn’t open until 2000, it marked a major and long-awaited victory in the fight for equal rights.

But sometimes, even the best intentions can turn into a twisted case of convoluted court battles. And now, 40-some years after the fight began, the issue’s future, and what each municipality is required to do, is uncertain—and millions of dollars already set aside and earmarked for affordable housing hang in the balance.

The Mount Laurel Doctrine
Peter J. O’Connor thinks about Ethel Lawrence all the time. He was the lead counsel in the case that began in 1971, representing her and other plaintiffs that joined the fight, including the Southern Burlington County NAACP.

The initial series of court decisions, known as Mount Laurel I and II, resulted in the creation of the state’s Fair Housing Act in the 1980s, and then the Council on Affordable Housing (COAH)—which sets the formula for how many affordable housing units should be built in each town, and oversees municipalities to ensure they meet their obligations. But since the year 2000, when Lawrence’s namesake homes opened, complications have ensued.

“Ethel would be proud of the Ethel Lawrence Homes and she would feel the efforts of Mount Laurel are positive,” says O’Connor, founder of both Fair Share Housing Development Inc. in Mount Laurel, which promotes the development of affordable housing, and the Fair Share Housing Center, a nonprofit law firm in Cherry Hill dedicated to housing rights. “But I think she would feel that the opposition she faced in the ‘60s and ‘70s still exists, which is really shameful.”

Since what’s known as the Mount Laurel Doctrine was passed and COAH was created, some 65,000 affordable housing units have been constructed across New Jersey.

In the 12 years since the Ethel R. Lawrence Homes ribbon cutting, much has been stalled and only confusion has grown as towns have had little direction on how to proceed with what their fair share of affordable housing is.

COAH’s regulations had been handed down to towns in six-year terms: 1987-1993 being the first round, and 1993-1999 being the second. With each round of guidelines, in which municipal requirements were based on a statewide need divvied down to regions and municipalities, towns worked on updating their master plans to proceed with construction and maintain compliance. The costs associated with that have come from towns collecting fees from developers, monies set aside into a designated Affordable Housing Trust Fund.

During round two, it was decided to extend rounds to 10-year periods to coincide with the Census. However, the regulations expected in round three—2000 to 2010—never came. At least not accepted ones.

“Up to that point, even though people were griping, things were moving forward,” O’Connor says. “That’s when politics began to take over.”

In short, COAH attempted to pass affordable housing regulations multiple times during that 10-year period, but each time, it was challenged in court. First, the numbers given to towns were deemed too minimal; then, the concept called “growth share” was introduced, in which towns would be required to maintain a 5:1 ratio of new residential unit construction to affordable housing units, plus a 16:1 ratio of new jobs to new housing units. That was also challenged. “If you want to avoid affordable housing,” explains O’Connor, “put the brakes on development.”

In the meantime, while waiting for the Supreme Court to take up the issue, many towns moved forward with projects despite the uncertainty. There are current plans in the works such as a senior housing community in Harrison Township in cooperation with the Diocese of Camden, along with completed developments such as Creekside Apartments in Medford and Country House Village in Sewell.

Organizations like Moorestown-based MEND, which develops, builds, owns and manages affordable rental housing in the Burlington County area, have continued with projects of their own, which also help towns meet their obligations. MEND currently has 500 units in 25 locations in five municipalities, including Delanco, Deptford, Evesham, Medford and Moorestown.

Many towns also chose to wait for clearer instructions, while others have been waiting for their spending plans to be approved.

But then last year, Gov. Chris Christie, frustrated with the lack of clear order from COAH, decided to transfer its duties to the Department of Community Affairs in an attempt to streamline and reform the process. It was also proposed to change municipal obligations from the 5:1 ratio (20 percent) to 10 percent. In June 2011, Christie issued an executive order abolishing the agency.

But his order failed.

A Ghost Agency
COAH has not met as a council in more than a year now, despite the fact that an appeals panel ruled earlier this year that Christie overstepped his bounds when he tried to erase COAH. According to the courts, the Legislature alone can make the decision to abolish the agency. Christie’s administration is appealing the decision.

Complicating matters worse is recent news that the state plans to seize more than $160 million in housing funds collected by each municipality in the Affordable Housing Trust Fund. That’s thanks to a 2008 amendment to the Fair Housing Act that stated if trust fund monies weren’t “committed to expend” within four years, the state could take the money. Burlington County stands to lose the most in our area: as much as $15.2 million remained in the trust fund accounts as of June, according to COAH. That’s followed by Gloucester County at $4.4 million, and Camden County at $3.5 million. Towns are currently in the process of appealing. They have until mid-August to either prove the funds are committed to a signed and contracted project, or forfeit the money.

Now towns are waiting to find resolution to a number of issues: if they’ll keep their trust fund money, what their fair share obligations really are, and if COAH even exists at all. The latter two are expected to be heard this fall by the Supreme Court.

“Whether or not it’s the acronym COAH or the acronym DCA is less important than having a plan in place that towns can achieve,” says Michael Cerra, senior legislative analyst with the New Jersey League of Municipalities, which is helping to lead the charge with O’Connor’s Fair Share Housing Center to help get these regulations back on track.

“Since 2008, I think some towns have been hesitant to commit dollars without regulatory guidelines from COAH.”

Making matters worse is the fact that the real estate market crashed in 2008, the year the Fair Housing Act was amended. “There are towns earmarking dollars, but because bringing a project to fruition can be time consuming and very long, they’re not spent yet.”

And, he says, some township spending plans have sat unapproved on COAH’s desk, leaving them helpless to the fact their projects aren’t considered “committed to expend.”

Others, though accepted by COAH, still aren’t deemed “committed” and towns aren’t sure why. That, coupled with the fact that every dollar remaining at the local level is one less dollar that’ll have to be raised by taxes in the future when these towns are ready to proceed, is why the League is fighting the funding forfeiture.

Preparing for the Unknown
“Just because we haven’t used the money yet doesn’t mean they should take it away from us,” says Haddonfield Mayor Tish Colombi, who admits she was happy when Christie tried to abolish COAH—but not because she didn’t agree with the basic concept.

“We felt we had not had a great experience with COAH,” she says, adding that in the beginning of round three, Haddonfield was told it needed more than 100 affordable housing units. “The original numbers were so far off, it made us a little wary of who was running the agency and what kind of job they were actually doing.”

In a built-up borough of approximately 4,500 residents—one where in order to build a new home, you’d first have to knock one down—she says that just wasn’t possible.

Despite not knowing what direction to head in, Haddonfield is still a good example of a town that has prepared itself for whatever decision comes down. For the last decade, the borough has been padding its trust fund by collecting fees from those who add additions or build a new home. That amounts to a current balance of approximately $466,915.

Several years ago, the borough made an agreement to purchase an area of land beside its municipal building made up of several deep backyards, enough to subdivide into a now borough-owned property. They brought in a company called Community Investment Strategies, which develops affordable housing, to analyze the property and be the lead “when and if” the official requirements are handed down, Colombi says.

Another 10 units would be built, if necessary, on the Bancroft property on Kings Highway, which the borough and board of education recently entered into a partnership to purchase for $12 million—pending voter approval. The rest of the property, located adjacent to Haddonfield Memorial High School, could be used for additional educational facilities.

“COAH is up in the air. We don’t even know if it’ll be the same number that we have to do,” Colombi says, though acknowledging whatever requirements come down, Haddonfield will comply.

Similar circumstances were experienced in Mount Laurel, where in round three, the township was originally told it needed 220 additional units. As the township worked on its plan, the number changed—to more than 1,400. “Who came up with these numbers?” asks Mount Laurel Mayor Jim Keenan. “We’re at 85 percent growth. How can they come up with this projected growth when only 15 percent of the township is left?”

The mayor refers to his previous term on the planning board in 2005 when the township was drafting its master plan to submit to the court. He recalls the frustrations of knowing the law was going to change and how difficult it was to produce a master plan while working with a “constantly moving target.”

“My personal opinion is that Mount Laurel has met its requirements,” Keenan says, adding there are affordable units in Stonegate and Rancocas Pointe, and there is currently an extension planned to the Ethel R. Lawrence Homes development, which can’t move forward until these issues are resolved. Some 28 more units are planned on the property, as part of the township’s own Housing Element and Fair Share Plan, as are 30 units across from Harrington Middle School and more than 100 senior units near Route 38 and Arc Road.

Keenan says he thinks Mount Laurel is a great example of how affordable housing can be done right—but it’s also an example of how complicated the process has become.

The township is in the process of disputing its potential loss of more than $5 million in trust fund money.

“I don’t think any of us would deny that everyone deserves to live in a good community,” Colombi says. “I think the original concept was certainly a good one, but maybe the process was flawed in the way it was carried out.”

COAH Predictions
Some have said it’s a problem of bureaucracy, but Keenan says its simpler than that: The problem is with attorneys and politicians who made the rules so complicated in the first place. What’s the point, he asks, of constantly changing the plans, and who can follow something like that?

“Regardless of whether COAH stays in place, those functions [of monitoring compliance] need to be performed,” says O’Connor, adding there haven’t been any valid fair share regulations in 12 years now. He noted that we’re currently in what’s supposed to be round four, and there probably won’t be much of an answer until 2013 or even 2014.

As far as what the future obligations may be, the state proposed a 10-percent obligation of growth as opposed to the current 5:1 ratio. Cerra, of the League of Municipalities, believes that is doable. “That in and of itself is probably a viable approach,” he says. “I think other stakeholders in the process probably wouldn’t agree with that. At least it’s a program that’s understood, clear, and easily sustained.”

According to the DCA, that’s exactly what it comes down to—sustainability—and accepting the fact that New Jersey is in a much different place than it was in the ‘70s. While some advocates view the Christie administration as anti-affordable housing, the DCA commissioner insists that isn’t the case. Richard E. Constable III says the administration is committed to the development of affordable housing for low- and moderate-income families, but they believe there is a more economically and environmentally sustainable way—along with a more simple, fair and predictable way—to see it come to fruition.

“Our proposal is simple: 10 percent of all new residential construction will be affordable to households that earn 80 percent or less of the area’s median income. Municipalities that do not have the infrastructure to support growth (for example, with no public sewer or water), that consist largely of active agricultural or fragile environmental areas, or in municipalities already over-burdened by lower-income households would be exempt from the 10 percent requirement,” he says.

According to Constable, the proposal would create more opportunities for low- and moderate-income households while taking into consideration how New Jersey has changed since the original 1975 Supreme Court decision.

“Over the past three decades, developers, housing advocates, legislators and the judiciary have used a 20 percent set-aside rule of thumb for affordable housing development,” Constable says. “Community acceptance of the 20 percent standard has never been universally achieved because in order to reach the 20 percent, the density of the whole development has to be increased so that the market units can effectively subsidize the affordable units. Since 1975, there have been significant changes in New Jersey’s population, housing stock, transportation infrastructure, environmental awareness and its economic and employment trends that must be taken into account in developing a new approach to affordable housing.

“Setting the overall goal at 10 percent (cutting the de-facto minimum set-aside in half) acknowledges that prior methodologies imposed unrealistic burdens on all parties interested in the outcome,” Constable says, “and acknowledges our changing demographic and physical landscape.”

Whatever happens, Cerra adds the issue is ripe for legislative reform and has been for years. When the dust settles, he hopes to see all involved in the issue, from all sides, come together and draft a compromise. It’ll take a long time, but he sees the pieces in place for it to be accomplished in the foreseeable future.

“The tragedy is, given the economy, there are more people in need,” O’Connor says.

“Not only are they in need in the inner city, but there’s more people in the suburbs in need. While these problems are growing, politicians are fighting the issue rather than implementing it.”

Matthew Reilly, president/CEO of Moorestown’s MEND, agrees.

“It’s really sad that this conversation ends up being this abstract conversation about dollars and units and timeframes,” he says. “It’s people. We’re talking about people’s lives and we’re talking about people who, through no fault of their own, are living in an expensive state and they really need help with their housing options. I think the people get lost. It’s not just about rules and court regulations. It’s people.”

Affordable Housing Trust Fund Balances (as of June):
CHERRY HILL: $2,071,280
EVESHAM: $321,819
MEDFORD: $542,254
MOORESTOWN: $1,026,642
MOUNT LAUREL: $5,416,507

County Balances:
Burlington County: $15,276,576
Camden County: $3,555,728
Gloucester County: $4,436,257

Published (and copyrighted) in South Jersey Magazine, Volume 9, Issue 5 (August, 2012).
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