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December 17, 2010

RE: S-1/A-3447, Affordable Housing

Dear Mayor,

Our December 15 Dear Mayor letter summarized the major provisions of S-1/A-3447, which abolishes the Council on Affordable Housing and makes other changes to the State’s housing laws.  The legislation passed the Assembly and is scheduled for a vote by the full Senate on Monday.  If passed, it would then go to the Governor, who has described the legislation as a non-starter and seems likely to either veto or conditionally veto the bill.

As you know, the League has long championed a thorough revamp of the Fair Housing Act, and has worked with legislators such as Senator Lesniak and Assemblyman Green with the hope to advance legislation promoting affordable housing, sound planning and reducing costs to municipalities.   It is most unfortunate then, that the League must now oppose S-1 because recent amendments render the bill problematic for local governments, and ultimately, our taxpayers. 

Many of these of the concerns we have identified in the December 15 letter.   But we also have a more fundamental concern regarding the methodology of the bill.  We believe that the S-1/A-3447 is now vulnerable to a legal challenge.   The bill establishes either an 8% or 10% affordable housing obligation, depending on how the municipality scores in regard to free and reduced lunches for school children.   In the amendments adopted by the Assembly Housing and Local Government Committee on Friday, December 10, a municipality may alternatively rely upon the obligation assigned to it by COAH in its second round methodology.   These numbers were first issued in 1993, based on 1990 Census data.   

We recognize that in many circumstances, this would reduce the number of units required to be built.    However, if the use of those numbers is invalidated by the Courts, as we believe, all municipalities could be subject to obligations higher than were ever projected by COAH, particularly since the legislation establishes the 8% or 10% threshold.   

If Section 23c means that municipalities can rely upon the COAH prior round numbers in successive subsequent compliant periods, is it constitutional to require municipalities to provide the same fixed number of qualified housing units decade after decade without some review?   We are very concerned that the Courts will strike down this methodology. 

As noted, the bill is slated for a vote by the full Senate on Monday.   The League has asked that the bill be pulled from a vote on Monday. We urge you, however, to contact your State Senator and express your concerns with S-1/A-3447. We hope that afterwards, the League can again partner with legislative sponsors in both Houses to advance a viable legislative solution for the State’s affordable housing policy. 

Very truly yours,


William G. Dressel, Jr.
Executive Director


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