PART I - What is COAH?
The Council on Affordable Housing (COAH) was created by the Fair Housing Act of 1985 as the State Legislature’s response to a series of New Jersey Supreme Court cases known as the Mount Laurel decisions. The Supreme Court established a constitutional obligation for each of the 566 municipalities in the state to establish a realistic opportunity for the provision of fair share low and moderate income housing obligations, generally through land use and zoning powers. The legislature provided an administrative alternative to this constitutional obligation via the Fair Housing Act.
With 11 members appointed by the Governor on the advice and consent of the Senate, COAH is empowered to: (1) define housing regions, (2) estimate low and moderate income housing needs, (3) set criteria and guidelines for municipalities to determine and address their own fair share numbers and then (4) review and approve housing elements/fair share plans and regional contribution agreements (RCAs) for municipalities. As a quasi-judicial organization, COAH can also impose resource restraints and consider motions regarding housing plans.
In December 1990 the New Jersey Supreme Court directed COAH to determine criteria for development fee ordinances and then to review and approve the ordinances for municipalities.
COAH is an administrative and regulatory organization. It does not produce, fund or compel municipalities to expend local funds to build affordable housing. Funding is usually provided by the New Jersey Department of Community Affairs (DCA) through its various housing programs or by the New Jersey Housing and Mortgage Finance Agency (HMFA) using its bonding capabilities or its federal low income housing tax credit allocations. Some municipalities also expend their own funds or utilize bonding resources.
COAH does provide municipalities that choose to enter its process and obtain substantive certification of their fair share plans with an administrative shield from developer’s lawsuits. Often such lawsuits result in the imposition of “builder’s remedies” (four market units for each low and moderate income unit).
The COAH Process
New Jersey municipalities enter the COAH process voluntarily. They do so by filing a housing element (required by the Municipal Land Use Law as part of each municipality’s master plan) and a fair share plan establishing a realistic opportunity for the provision of a predetermined number of units affordable to low and moderate income households as well as an affordable housing obligation directly related to certificates of occupancy issued for residential and non-residential market rate development.
Within two years of such filing, municipalities must petition COAH for substantive certification (approval) of such plans if a municipality is to remain under COAH’s jurisdiction. Petitioning assures continued protection from lawsuits while COAH reviews, sometimes requests revisions and possibly mediates objections from interested parties before COAH grants or denies substantive certification. Certification is granted for a ten-year period and may be withdrawn if a municipality fails to assure the continuing realistic opportunity for its fair share housing obligation.
A portion of the fair share obligation is the rehabilitation of existing units. To provide a realistic opportunity for the construction of new units, municipalities may zone specific sites for residential developments by the private sector. Developers must agree to build a fixed percentage of affordable units—usually 20 percent—of the total constructed on the site, to market to low and moderate income households and to maintain affordability for 30 years.
Other methods for meeting the obligation include municipally sponsored construction using for-profit or nonprofit builders, the purchase of existing units for sale or rent to eligible householders, regional contribution agreements (RCAs), the creation of accessory apartments within existing structures, a buy-down program and the provision of alternative or congregate living arrangements including group homes for the physically handicapped or developmentally disabled.
Major Accomplishments
Of the 566 municipalities in the state, approximately 287 are participating in the COAH process as of January 2006. An additional 78 municipalities are or were at one time under the jurisdiction of the court.
Every county in the state has at least two municipalities involved in the COAH process. Bergen County has the highest number (42) followed by Morris County (29).
As of September 2004, according to COAH’s monitoring reports, the opportunity for approximately 71,000 affordable units has been provided. This includes about 39,000 units that have been built or are under construction, 8,300 units that have realistic zoning in place, 10,000 RCA units and 14,000 units that have been rehabilitated. The statistics are based on monitoring information from municipalities under COAH’s jurisdiction. There are hundreds more units that have been created and/or have zoning in place in municipalities that are under the court’s jurisdiction and do not report to COAH.
The Fair Housing Act permits certified or court-ordered municipalities to transfer up to 50 percent of their fair share obligations to one or more municipalities within the applicable housing region. The sending municipality must transfer a negotiated payment now established at $35,000 per unit as the minimum. Funds may be used to subsidize new construction or to rehabilitate existing units for occupancy by low or moderate income households. More than $200 million has been approved for transfer.
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I am a resident of Cranbury NJ interested in your coalition of towns in response to COAH’s Third Round Rules. We are looking for new ideas on how to sway Coah to ammend these rules so we can fulfill our COAH responsibilities without bankrupting our town.