Affordable Housing 101: A Brief History

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Christopher "Kit" Falcon, Millburn Township Attorney Credits: Brad Klein
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Edward Buzak, Millburn Township Planning Board Attorney Credits: Brad Klein
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Paul Phillips, Millburn Township Planner Credits: Brad Klein
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MILLBURN, NJ - Township Attorney Christopher Falcon led a discussion on the history and the current situation of low and moderate income housing in Millburn and New Jersey Wednesday night at Town Hall. Joining Falcon was Planning Board Attorney Edward Buzak and Township Planner Paul Phillips.

In its most understandable form, zoning is the creation of land use regulations to allocate space within a community.  Municipalities use the power to zone as a means to identify compatible land uses for designated areas.  However, it can also be an exclusionary technique designed to prevent low-income individuals from living in certain municipalities.

In 1975 the New Jersey Supreme Court ruled that municipalities must establish a variety of housing options for individuals in all zones. The court mandated that every municipality must provide its “fair share” of the region’s present and prospective demands for affordable housing. Subsequently the Mt. Laurel Doctrines were established, taking its name from the lead case in which plaintiffs challenged the zoning ordinance in Mt. Laurel Township. 

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The court stated that a municipality must express its affordable housing obligation through specific numbers and further explained that the Mt. Laurel obligation could only be satisfied if a municipality has, in fact, provided a realistic opportunity for the construction of its fair share low and moderate income housing. 

Falcon explained “through its zoning, it must make for a reasonable opportunity for [the development of low and moderate income housing] to occur.”

The court also implemented a builder’s remedy, which allows developers to obtain approval to build low and moderate income housing even if a town has not approved it. This created an incentive for developers to take municipalities to court in the hopes that affordable housing developments can override municipal zoning requirements.

Accepting the premise that there constitutional obligations for municipalities to foster some degree of affordable housing, the New Jersey Legislature passed the Fair Housing Act, which established the Council of Affordable Housing, or COAH, in 1985.  COAH became the agency responsible for developing the state’s affordable housing plans and ensuring that towns comply with the Mt. Laurel Doctrine.

Municipalities thinking that the COAH numbers were too high and housing advocates thinking the numbers were too low ultimately led to multiple legislative failures.  The New Jersey Appellate court struck down COAH rules “due to COAH’s inability to produce acceptable supporting data” said Falcon.  

In an effort to devise a better system to establish fair municipal housing obligations, COAH reached out to the public. In 2003-2004, COAH decided it would establish a ration whereby “depending upon how much growth occurred in a municipality, you would then have a simultaneous obligation to provide a realistic opportunity for the construction of affordable housing. Build as you grow.” said Buzak.

In 2007 the appellate division of the courts invalidated the rules that were established just three years prior because the municipalities were given the ability to “control their own destiny” said Buzak. COAH tried to satisfy the requests of the appellate courts, but failed.

“What are the post 1999 municipal fair share obligations?” Paul Phillips posed.

Phillips went on to say that the quantity of low and moderate income housing requirements for municipalities is “ridiculous”. He further stated that Millburn Township does not have enough resources to meet the required number.  However, there are a number of mechanisms, which municipalities can adopt to meet its obligations.

Through inclusionary zoning “You [build] things such as accessory apartments and group homes, which would be supportive housing for the special needs population.” Said Phillips.  “Assisted living facilities would qualify as affordable housing”. 

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