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
12 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.
Schedule
of Meetings
COAH
normally meets on the second Wednesday of each month at the HMFA
building in the Roebling complex off South Clinton Avenue in Trenton.
The DCA commissioner serves as the COAH chairman. Meetings generally
begin at 9:30 a.m. and are open to the public. After the completion
of its published agenda, COAH provides for any members of the interested
public to speak on any issue related to affordable housing.
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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