Thursday, August 28, 2008

COAH, Mt. Laurel, and Fines For Disaster Victims in New Jersey

Just when you think you’ve heard it all, along comes this story. According to the Star-Ledger on August 26, 2008:

Thomas and Jacqueline Ferraro of Sussex County lost their home in a fire in March. They want to rebuild but are ensnared in the tentacles of the state's affordable housing law that now requires disaster victims to comply with the expensive fees developers and businesses face.

Because the Ferraros' house burned, it is considered a demolition and that triggers a Council on Affordable Housing fee under regulations that took effect June 2, said state Sen. Steve Oroho (R-24th Dist.) of Franklin…

In the Ferraro case, depending on which formula is used, that could range from a few thousand to nearly $20,000, borough officials said.

“It's the height of absurdity,” said Oroho, who wants COAH to exempt the Ferraros and Franklin Borough from the fee. “I'm in disbelief that this could happen, that a family who lost their home in a fire would be charged with something.”

One thing not made clear in the article is whether the Ferraro home is a subsidized “affordable housing unit.” If so, then the strings that come attached to that subsidy (the “fee”), however outrageous, is the price of dependence on government “favors.” But since not specifically stated, I must assume that it is not. This makes this case particularly egregious. Either way, it highlights the unjust and dictatorial powers of this monster called the state “Council on Affordable Housing.” That it has the power to arbitrarily force some people to subsidize the housing needs of others is a gross violation of individual rights. It is no more right to impose that fee on developers and businesses and towns (i.e., other taxpayers) than it is on the Ferraros.

In protesting this “fee,” Michael Cerra states that “The problem isn't the town's implementation of the fee, the problem is the regulation itself.”

No, it is COAH itself. COAH, however, is not the fundamental problem, but a consequence. It is an outgrowth of the Mount Laurel Supreme Court rulings, which was a consequence of the exclusionary zoning practices of municipalities across New Jersey. And the root of those zoning practices is those very zoning powers themselves.

In a related article by Tom Hester published the same day in the Star-Ledger, lawyer Stuart Koenig “said that for Bernards to meet a state demand for 206 affordable houses and apartments, it would have to allow developers to erect 1,131 units by 2018.”

By what right does Bernards (or any town) claim to “allow” or disallow private development on private property? It has the power, yes. But what right? Rather than a particular COAH regulation, what should be questioned is the very government zoning and land-use power that is at the root of the problem. Rolling back the so-called “home rule” powers of local governments, not the shifting of those powers to state agencies like COAH, is the answer.

Had local governments not interfered with the economic activities relating to the housing market, there would have been much greater availability of housing at much lower prices than we currently have. (There are a number of causes for the affordable housing crisis in NJ, but restrictive zoning and planning board practices is a major one.) By imposing these restrictions on land use, property owners are effectively barred from selling their land at market prices, builders from constructing housing to meet market demand, and potential buyers are frozen out of the market by artificially inflated prices and lack of supply in many locations.

Mike McNeil of Lakewood, the NAACP housing chairman, said “It's not just racism, it's not just because you are working poor. Someone says you are building affordable housing and they automatically assume the people are jobless and out on the street.” There is undoubtedly an element of truth to that statement. But it misses the point. When local groups use municipal zoning powers to impose land-use restrictions…whether for reasons of race, income level, preserving the “quality of life” of existing residents, esthetics, or to impose their own utopian vision of what the “character” of “their” town should look like, etc…they are violating the individual rights, including property rights, of property owners, builders, and homebuyers to enter into voluntary contractual agreements for the sale of property, and the construction and purchase of homes. (Never mind the “rights” of the local groups. Rights belong to individuals, and only individuals. There is no such thing as group rights.)

This does not mean that builders and property owners can do as they please regardless of the consequences to others. The government’s proper role is to protect individual rights. The builder cannot, for example, design his project so as to allow stormwater runoff to flood adjacent properties…or install insufficient sanitary waste removal facilities that can contaminate the property of others. In these or similar instances, the government can properly step in to require corrections and the payment of restitution to the affected property owners, as determined in a court of law. But as long as the builder causes no physical harm to the property or lives of others, he has violated no one’s rights and thus should be free to build according to his best market judgement.

There is a strong demand here in New Jersey for affordable housing. The answer to the housing affordability problem is not to impose arbitrary “fees” to artificially create “affordable housing.” The solution is to eliminate the source of the problem…government impediments. The property and housing markets should be liberated from the tyranny of local “planners” using the illegitimate and un-American zoning powers of municipal governments to create “ideal” communities at the expense of individual rights, and to the exclusion of large segments of the population. So long as no one else’s rights are violated, the location, price range, and quantity of residential development should be determined by the voluntary, uncoerced judgements of landowners, homebuilders and homebuyers…i.e., by the free market…and nothing else.

The NJ Supreme Court was right to address the “exclusionary zoning” issue, but their solution was worse than the disease. Rather than grant to the state the power to impose housing mandates on local communities and citizens, they should instead have rolled back the “home rule” authority of towns to arbitrarily block the construction of the low and moderate-income housing that the market demands.

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1 comment:

Sue said...

All I hear more and more is the push for "affordable housing". It's all about controlling those who can afford houses and not about helping those that can not.

Until some sense is injected into the NJ government, I guess we can just hope our houses don't burn down. Be sure to check your burners before bed. ;)