Senator Christopher “Kip” Bateman has sent a letter to Joseph Doria, Commissioner of community Affairs, saying that he is puzzled by an October 29 article on new affordable housing rules that was published in the Asbury Park Press.
Doria wrote the opinion piece, which states that communities do not have to find ways to build more affordable housing if new market rate housing or commercial development isn’t built in a community.
“Commissioner Doria’s remarks are difficult to reconcile with the current State of New Jersey affordable housing law and regulation. Current law requires towns to come up with plans for an affordable housing by the end of 2008. Those plans must anticipate Council on Affordable Housing (COAH) mandated housing quotas. The COAH assigned quotas have no correlation to actual growth. They are simply state-mandated numbers based on the best guess as to what towns will grow over the next 10 years. They are not based on actual growth, as the commissioner suggests.
“Once towns develop those plans, they will become self-fulfilling prophecies in many cases. That’s because towns will be required to change zoning and spend tax dollars to purchase tracts for housing. Essentially, builders will be given the “red carpet” treatment to cram COAH mandated housing stock into New Jersey towns.
“My letter asks Commissioner Doria to explain the contradictions between his public statements on the law and the law’s requirements. I included a copy of the letter below.
November 7, 2008
Honorable Joseph V. Doria
Commissioner of Community Affairs
101 South Broad Street
PO Box 800
Trenton, NJ 08625-0800
Dear Commissioner Joe:
I am writing about recent statements you made in the media regarding the manner in which municipalities are to comply with the provisions of P.L.2008, c.46 (known informally as A-500) and regulations adopted by the Council on Affordable Housing (”COAH,” “the Council”).
Your public statements have suggested the issues raised by legislators regarding the law and regulatory changes send a “false and misleading” message to the public. Yet your own remarks on this subject appear to minimize the true impact of the law and associated regulations. Therefore, in order to provide the clarity that our taxpayers deserve, your response to the following questions could help clear the air.
In an opinion piece that appeared in the October 29, 2008 edition of the Asbury Park Press, you state that “municipalities’ affordable housing obligations are based on a ‘growth-share approach.’ You go on to state that a “municipality is only responsible for building affordable housing when it has built market-rate housing and commercial development. If neither market-rate units nor commercial development are built, affordable units do not have to be built, because no growth has taken place.”
It appears that your statement directly contradicts the language of the “Fair Housing Act.” Specifically, the Act provides that “every municipality in a growth area has a constitutional obligation to provide through its land use regulations a realistic opportunity for a fair share of its region’s present and prospective needs for housing for low and moderate income families.” N.J.S.A. 52:27D-302 (Emphasis added)
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Later, the Act defines a municipality’s “prospective need” as a “projection of housing needs based on development and growth which is reasonably likely to occur in a region or a municipality, as the case may be, as a result of actual determination of public and private entities.” N.J.S.A. (Emphasis added) Thus, your suggestion that a municipality’s affordable housing obligation is derived solely from the “actual growth” that occurs in a given municipality appears to be inconsistent with the statute.
Furthermore, N.J.A.C.5:97-2.2 provides that the actual growth share obligation shall be based on permanent certificates of occupancy issued within the municipality for market-rate residential units and newly constructed or expanded non-residential developments in accordance with chapter Appendix D. Affordable housing shall be provided in direct proportion to the growth share obligation generated by actual growth. However, if the actual growth share is less than the projected growth share obligation, the municipality shall continue to provide a realistic opportunity for affordable housing to plan for the projected growth share through inclusionary zoning or any of the mechanisms permitted by N.J.A.C. 5:97-6 (Emphasis added).
You have cited the first two sentences of the aforementioned regulation to argue that municipalities need only provide for COAH housing based upon actual growth. However, the complete and explicit regulation of your agency is that a municipality must revise its zoning to accommodate the projected - - and not actual - - growth if its actual growth share based upon certificates of occupancy is less than the projected growth mandated by COAH. COAH’s regulations provide that such revisions should include zoning changes to allow for the greater growth. Can your public remarks asserting the supposed voluntary nature of COAH compliance based upon actual growth be resolved with the plain language of your own department’s regulations?
Your statements seems to disregard the mandate set forth in Department of Community Affairs regulations codified at N.J.A.C. 5:96-16.2 that provide that in order to avoid a “builder’s remedy” lawsuit, a municipality that has petitioned COAH previously must file an amended third round Housing Element and Fair Share Plan on or before noon December 31, 2008. Under prior rules for round three, each of these municipalities received protection upon filing their original petition. This regulatory requirement, taken with the statutory mandate placed upon municipalities to provide for projected - - and not actual growth - - means that New Jersey municipalities will be required to make preparations to accommodate COAH’s mandated number of housing units irrespective of whether they can actually be built.
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Additionally, the mandated preparation of municipal plans will require municipalities to alter their zoning in order to accommodate what COAH determines their projected - - and not actual - - growth to be. Paragraph (1) of subsection a. of N.J.S.A. 52:27D-311 states, in part, that municipalities must undertake “rezoning for densities necessary to assure the economic viability of any inclusionary developments.” This requirement must be satisfied within 45 days of the submittal of a municipal plan pursuant to N.J.S.A. 52:27D-314, N.J.A.C. 5.97-3.2 and 5:97-5.7, respectively.
If it is truly your position that the mandates set forth in P.L. 2008, c 46 and related COAH regulations are voluntary in nature (and I hope it is!), and that municipalities need only build affordable housing units based upon their actual growth, I suggest that you reconcile your public statements with the language of the “Fair Housing Act” and regulations adopted by COAH. Do your statements which asset that a municipality need only provide for COAH housing in an amount equal to their actual growth - - as opposed to the COAH-mandated, projected growth-driven obligation - - mean that municipalities can ignore the December 31, 2008 deadline and only make plans to create affordable housing based upon their estimates of actual growth that can occur with their municipalities (again, I hope so)!
Finally, I would note that you also stated in an least two media reports that “COAH is a voluntary process.” And that “municipalities can choose whether they wish to participate.” What your comment fails to adequately note is that the failure of a municipality to submit a plan that satisfies its COAH-mandated housing obligation will result in “builder’s remedy” lawsuits that will result in the construction of units at higher zoning densities that are otherwise not provided for under municipal planning. The impression created by your statement is that municipalities can unilaterally choose not to comply with COAH without facing the threat of adverse consequences their communities and neighborhoods.
 Very truly yours,
Christopher “Kip” Bateman
Senator, District 16
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