Despite Misconceptions, “COAH” Obligations Still Exist
On August 28, 2011, Reorganization Plan No. 001-2011 became effective and eliminated the Council on Affordable Housing (COAH). However, it did not eliminate the rules and regulations promulgated by the New Jersey Fair Housing Act (FHA). The Reorganization Plan consolidated the regulatory framework and the Council’s staff into the New Jersey Department of Community Affairs (NJDCA).
In its attempt to streamline the efforts to produce and administer affordable housing in the Garden State, Local Planning Services (LPS) (COAH’s new name) released a series of transitional guidance documents that:
- Removes the approval processes for development fee ordinances & amendments, administrative agents, Municipal Housing Liaisons & RCA Administrators and operating manuals;
- Replaces the resolution requirement to approve Spending Plans, and any subsequent amendments, with a letter requesting the same (however, expenditures must still be authorized by resolution); and
- Allows (and encourages) the submission of waiver requests to provide relief of certain regulations that would deter the expeditious production of affordable housing.
No regulatory amendments have been made. Therefore it is questionable whether or not the NJDCA has the legal capacity to modify the administrative code without going through the rule making process. While the regulations are still subject to a pending court decision, the Uniform Housing Affordability Controls (UHAC) – the regulations that govern the administration of affordable housing – still prevail.
Court towns will not be affected by new rules, whether issued by the NJDCA or the courts (with the possible exception of modifications to third round obligations). There is still no clear directive from the State that those pending plans are valid.
So what do you do as a municipality? First, know that affordable housing is not a nightmare. Well designed and well planned affordable housing can be simple and can blend in to your community fabric. It helps senior citizens, working families and special needs populations – populations that are already members of the community.
Secondly, take charge of your community and be proactive. Do not subject your plans and your taxpayers to costly builders’ remedy lawsuits. Make sure your zoning ordinances and comprehensive planning documents are inclusive of affordable housing. Adopt a Housing Element. Appoint a Fair Housing Officer, this can be your local Clerk or Community Development Director, so that local residents have a place to learn about fair housing & equal opportunities. Secure and utilize state and federal funds to engage in homeowner rehabilitation of low and moderate-income households. Utilize innovative programs like Market-to-Affordable (great in today’s buyers market) and the Accessory Apartment Program to incentivize local production of affordable housing (you can utilize your development fees). Conduct an inventory of your current affordable housing units and find ways to maintain those units and their affordability controls (this is particularly important for those units subject to foreclosure proceedings). Small steps and annual progress is a good step to protecting yourself from litigation, while benefiting and ensuring the welfare of the State’s most vulnerable populations.
The opinions expressed in this article are that of the author.
Published October 3, 2011.
Triad Associates is currently the League’s Grant Consulting Firm. Their firm, which is known for its expertise in community and economic development, including strategic planning, redevelopment, acquisition, relocation and funding, has brought diverse plans and projects to life by generating more than $580,000,000 for over 120 public, private and nonprofit clients throughout the Northeast region since 1978. Every member of the Triad team is personally committed and dedicated to the success of its clients and the projects that benefit communities.
Full version of October article for printing