By: centraljersey.com
The state’s Fair Housing Act needs revision.
Now that a state Appellate Court has struck down the Council on Affordable Housing’s third-round regulations, it seems pretty clear that attempts to nibble around the edges of the 25-year housing program will neither satisfy municipal officials nor pass constitutional muster.
And let’s be clear, the Fair Housing Act and creation of COAH were a constitutional matter, growing from a pair of lawsuits challenging municipal zoning practices in the state. The suits – known as Mount Laurel I and Mount Laurel II – laid bare the state’s race and class divisions – divisions that remain in place 35 years after the initial Mount Laurel decision and 25 years after the passage of fair housing legislation.
The Mount Laurel rulings – the second one came in 1983 – did not say that affordable housing had to be built, but that it had to be built in suburban communities; that suburban communities had to provide their fair share of low- and moderate-income housing and that they could not leave it to be built only in the state’s overcrowded cities.
At issue was "exclusionary zoning," or zoning policies designed to preclude the construction of housing that would be affordable to the poor and working class. The court found in 1975 that exclusionary zoning practices are based on fear and bias, signaling an attempt by "municipalities to maintain themselves as enclaves of affluence or of social homogeneity." The practices – which included minimum lot sizes and rules dictating the number of bedrooms and size of houses, were inconsistent with state zoning laws and and "repugnant to the ideals of the pluralistic democracy which America has become."
The answer, ultimately, was the Fair Housing Act, which created COAH and created a system by which a "fair share" – or the minimum number of affordable housing units required for each town – could be established.
The system quieted municipal complaints for a number of years, allowing some housing to be built – though not nearly enough to keep up with need.
It unfortunately had, built into its basic structure, a series of escape clauses that have allowed many suburban towns to push their housing obligations off on others – at a price. The regional contribution agreement, which allowed communities to pay cities to build up to half of a suburban town’s obligation, allowed these growing communities to avoid building at least a portion of their fair share within their borders, sidestepping the intent of the original Mount Laurel ruling without generating enough housing to justify the approach. That’s why the state Legislature eliminated the RCA program two years ago, shortly after COAH had issued flawed rules for what is known as the third-round obligation.
The new obligations, which were tossed out by the appellate court Oct. 8, appear to have been crafted on an unworkable set of calculations that inflated housing need in each community while also allowing too much room for municipalities to game the figures. It was the worst of all possible worlds.
COAH’s inability to develop rules that would meet court muster and the vehement opposition to the most recent rules must be addressed legislatively. A decade of dithering on COAH’s part has done nothing to address the need for more low- and moderate-income housing in the state, nor has it helped narrow the racial and class divisions that plague us to this day.
COAH needs to be replaced by a new agency committed both to building housing and addressing the racial and class segregation in New Jersey.

