Wednesday, May 6, 2015

COAH, ‘Affordable Housing,’ and Zoning in NJ

New Jersey is home to a decades-long conflict pitting so-called community “home rule” against state intervention in regards to zoning powers. Essentially, local town zoning boards were seen as practicing “exclusionary zoning“; that is, zoning in a way that makes little or no room for housing affordable to low and moderate income groups. (For an indepth explanation of this conflict, see the links below.)

After a series of court decisions, the “solution” to exclusionary zoning that emerged was the state Council on Affordable Housing (COAH). Using a quota system, COAH’s job was to oversee local zoning ordinances so as to be sure that every town made room for its “fair share” of housing affordable to low and moderate income consumers.

COAH operates under executive branch guidelines with periodic renewals. But the last set of guidelines expired in 1999, and haven’t been renewed since.

Subsequently, the NJ Supreme Court ordered COAH to establish new guidelines by November 2014. COAH under Governor Chris Christie failed to comply, and as Brent Johnson of NJ Advance Media for reported on March 10, 2015:

The state Supreme Court ruled today that judges will take over the regulation of affordable housing in New Jersey after Gov. Chris Christie's administration repeatedly failed to obey an order to establish a new set of guidelines.

New Jersey's highest court voted 6-0 that lower courts are now tasked with deciding on a case-by-case basis how many homes should make available to low- and moderate-income residents in towns across the state.

The move is the latest twist in a convoluted, decades-long battle over affordable housing in one of the country's most expensive places to live.

Republican governor Christie is a champion of “home rule” and an outspoken critic of COAH. As Johnson observes:

Christie proposed abolishing COAH in 2010, saying the state should get "the hell out of the business of telling people how many units they're supposed to have" and allow individual towns to set their own quotas.
In other words, Christie doesn’t mind government “telling people how many units they're supposed to have.” He just wants local, rather than state, bureaucrats to do the “telling” (i.e., dictating).

Supporters of COAH, which was never abolished, have a different view. As Johnson reports:

Kevin Walsh, director of Fair Share Housing Center, the advocacy group that headed the lawsuit, praised today's decision.

"Too many New Jersey municipalities exclude people who work in the stores and diners of New Jersey," Walsh said. "We now have a way to make sure they are not excluded and to ensure there are fair housing opportunities for people who are forced to live far from their jobs and families and who have been displaced by Superstorm Sandy. The court properly responded to the failure of the state government to implement the law."

The battle lines, as we can see, are drawn between which governmental agency—the towns or the state—should dictate housing quotas. No one, it seems, has seriously advanced a proper solution—a free market in housing. Not even Republican Governor Chris Christie.

However, New Jersey Star-Ledger columnist Paul Mulshine, writing on this case (Chris Christie's the cat who ate the COAH canary), touched on the core issue. Citing remarks by former Governor Tom Kean, Mulshine observes that the Supreme Court “had made . . . a mess of affordable-housing law, starting with the original 1970 Mount Laurel case.” As Mulshine writes:

The mess was the direct result of the high court's decisions in the Mount Laurel affordable housing case. The case stemmed from a lawsuit started by a civil rights group on behalf of some black residents of the Burlington County town of Mount Laurel. They wanted to build multifamily housing, [which violated the Mount Laurel’s zoning rules], in what was then a relatively rural area in a town with quarter-acre zoning.

The court could have decided the case on a property-rights basis - it's your property and you can do what you want with it. But instead the justices issued a couple of decisions filled with high-minded rhetoric but short on concrete rules for deciding which developments deserved approval. [emphasis added]

“The court could have decided the case on a property-rights basis - it's your property and you can do what you want with it.”

I agree: It’s a property rights issue. More specifically, it’s zoning boards running roughshod over individual private property owners. I saw how local zoning regulatory abuse stopped a housing development across the street from me in the “Three Bridges” section of Readington back in the 1990s. That development would have turned 3 farms—which the developer bought in the 1980s—into 2200 homes for NJ buyers ranging in price from “affordable” to “McMansion.” Imagine: building homes for people, and the government standing in the way, on behalf of other homeowners! After years of fighting the township, the developer gave up, and “sold” his property to the town at a huge loss. Those farms were then [re]sold as “preserved” farmland—at taxpayer expense [Readington used tax-based “open space” funds]. The developer’s property rights were trampled—and, by extension, the rights of housing consumers to voluntarily contract with the developer.

This is abuse of government power. Local residents have no right to dictate, through their zoning boards, if or how “their” town develops. They only have the right to determine the use of their own property, based on “it's your property and you can do what you want with it” (provided, of course, that the use of your property doesn’t infringe on the same rights of other property owners). We’re supposed to be a free republic based on individual rights, not a collectivist nation of authoritarian tribal communities.

The Supreme Court should have simply reigned in local zoning powers—if not abolished zoning boards outright—and affirmed property rights, rather than transfer local zoning powers over to the state or the courts. The housing market would have been substantially liberated, with property owners, developers, and homebuyers free to contract voluntarily without interference from stagnation-minded NIMBYs and environmentalists. Instead, we have pro- and anti-“affordable housing” forces fighting over who controls the housing market, when the real issue is whether any government entity should control the market in the first place.

Only a free market—meaning, the cummulative voluntary choices of all market participants—can enable the “common sense” sorting out of what gets built, where, and at what price. A handful of central planners, whether zoning boards, state bureaucrats, or judges, can not and should not make those determinations. This, I think, is the fundamental question: Do we have a free—or at least substantially freer—housing market, or an unfree, politicized “market?” Those who want to get COAH and the courts out of local towns, only to let local zoning boards commandeer that planning power for themselves, don’t have a moral leg to stand on, precisely because—either way—it’s a property rights issue.

Related Reading:

More Freedom, not More Government, Will Solve New Jersey's "Housing Crisis"

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