COAH case could alter N.J. towns’ affordable-housing rules

TRENTON - For nearly 30 years, a court ruling aimed at preventing discrimination against low-income families has informed decisions on how much affordable housing New Jersey towns must have.

Those guidelines could change significantly if the state Supreme Court agrees with municipalities and the Christie administration that development should determine the number of low-cost units in a town.

The court heard arguments on the issue Wednesday during a five-hour hearing. Chief Justice Stuart Rabner and Appellate Judge Mary Catherine Cuff, who is temporarily filling a vacancy on the high court, were not present.

Affordable-housing advocates and builders argue that the court should require the state Coalition on Affordable Housing (COAH) to resume its practice of telling municipalities the minimum number of lower-cost units they must have, a method that went into effect following a landmark 1983 Supreme Court decision in a suit filed by the Southern Burlington County NAACP against Mount Laurel Township.

That method prevents towns from using zoning or other regulations to keep the poor out, they argue. The appellate court sided with the builders and advocates in 2010.

But lawyers representing municipalities and the state argue that those rules are inflexible and outdated, and have not produced enough affordable housing. They asked the justices to require COAH to use growth as a trigger, setting subsidized housing obligations based on how many new market-rate homes and jobs are created in communities.

COAH could require 20 percent of newly created residential units in all New Jersey towns to be affordable, argued Edward J. Buzak, who argued on behalf of the state League of Municipalities.

"The beauty here is that you do get results," he said. "It's automatic."

Justice Barry T. Albin asked how that "growth-share" formula squared with previous Supreme Court decisions and state law that instruct COAH to consider a region's unique housing needs. Those needs were considered when the growth-share formula was developed, Buzak said.

But Kevin D. Walsh, a lawyer for Fair Share Housing, said towns could simply halt growth to avoid building affordable housing. The formula Buzak proposed is untested and not an issue for the court to decide, he argued.

Albin appeared to agree.

"We're talking about experimentation under public policy," he said.

New Jersey remains "one of the most racially and economically segregated states in the nation," Walsh later noted. Since 1999, the push for more affordable housing has been bogged down in legal disputes after COAH failed to meet a deadline to produce a third set of rules to guide municipalities in calculating their affordable-housing obligations.

"For 13 years, people have been searching, often in vain, for housing they can afford, really looking for the promise of Mount Laurel," he said.

Towns have continued to find ways to circumvent their affordable-housing responsibilities, said Stephen M. Eishdorfer, a lawyer who argued on behalf of the New Jersey Builders Association. As it stands, towns need only zone for affordable housing, not actually have it built, to skirt COAH's requirements.

The boom in age-restricted housing shows how towns can tailor housing to attract the residents it desires, he said. Seniors cost towns less than a family with children who would attend local schools, he said. It will take 16 years to fill the senior housing units already built in New Jersey; meanwhile, families and low-income workers struggle to live in the towns where they work.

And growth is not what should determine how much low-cost housing to build, Eishdorfer said.

"Whether or not Clinton Township grows has no relationship to how many poor people need housing," he said.

Justice Anne Patterson asked Eishdorfer if he believed municipalities would act the way they did 30 years ago on affordable housing if not forced to do so by law.

Human nature does not change, Eishdorfer said. Municipalities will find ways to exclude people.

"I'm not talking about people who are setting out to do evil," he said. "I'm talking about the nature of the suburbs and why people move to the suburbs."

Deputy Attorney General Geraldine Callahan, who argued on behalf of COAH, said the proposed statewide growth formula takes into account regional housing needs.

But Justice Jaynee LaVecchia asked how it could be attuned to the challenges of specific regions. Callahan responded that it was simply a change in methodology.

Albin also asked how one growth formula could work for the entire state. "That's like saying Far Hills is like Camden," he said. "You assume all towns are equal."

LaVecchia said she found it difficult to accept that "growth, when and where it occurs, will define what the need is."

"Need must be a much broader concept than that," she said.