Borough Talks of Opting Out of COAH

Matthew Hersh

Borough Hall delivered its strongest rebuke in years to the state’s affordable housing regulations last Tuesday, saying for the first time since new regulations were released in December 2007 that the municipality could opt out of the state plan altogether.

The governing body questioned the plan’s new methodology, particularly as it related to the Borough’s lack of building space, the state’s Council on Affordable Housing’s (COAH) new growth share recommendations, and the state law that stipulates that low- and moderate-income affordable housing not carry a local residential preference.

The Borough’s response to the new COAH regulations came last Tuesday during a public hearing where COAH Executive Director Lucy Voorhoeve sought to explain the latest round of COAH regulations, which had been rejected by an appellate division in January 2007, only to resurface late that year, when its latest plan was released.

Essentially a growth share regulatory affordable housing mechanism, COAH, which is under the aegis of the state’s Department of Community Affairs, recommends a strict approach, where affordable housing is a function of residential and nonresidential market-rate growth in a town. Specifically, the regulations require an affordable unit for every five market rate residential and nonresidential units, and one affordable unit for every 16 jobs created.

COAH has determined that 115,666 affordable housing units are needed for new and anticipated construction between 1999 and 2018. The proposed regulations still permit towns to transfer up to 50 percent of their affordable housing obligations to other municipalities within that town’s respective COAH region. In the Princeton region, the cost for that arrangement, a regional contribution agreement, is $70,000 per unit.

While education institutions are exempt from the growth share plan, hospitals are not, Ms. Voorhoeve said. However, she added, COAH has received comments on both areas and will “continue to look into it.”

But in Princeton Borough, which has an existing overlay zone that requires 20 percent affordable housing for new and rehabilitated construction, there would be no net gain in housing, said Councilman Roger Martindell at the hearing. “We’re just treading water,” he said, pointing to Princeton University’s tax-exempt portion of campus. “We’re 50 percent tax exempt here, so our taxpayers get hammered by these COAH regulations,” Mr. Martindell said, also pointing to the John-Witherspoon neighborhood, where “we’re losing people who would be eligible for affordable housing, but they move because they can’t afford the taxes, so they sell the house, and a speculator buys the home.”

Ms. Voorhoeve did say that if a town was lacking vacant lands for affordable housing, then the COAH projections would be tailored for that town: “We recognize that there could be adjustments that need to be made based on land availability,” she said, though she added that COAH was “sticking to the growth share concept so affordable housing is proportionate with the construction taking place.”

Councilman Andrew Koontz worried that the COAH rules “always seem to be on shifting sands,” and expressed frustration about the time invested in abiding by COAH’s prior regulations in 2004 and 2005. “There were a lot of resources that just went down the drain — we invested in rules that didn’t stand up,” he said. Mr. Koontz recommended that the state Legislature be involved in coming up with a framework that would preclude COAH rules from being impacted by future court battles.

The Borough’s growth share requirement under the proposed regulations is 69, according to Derek Bridger, the Borough’s zoning officer who has also overseen the municipality’s affordable housing operations.

But Council’s perception of COAH’s proposal caused some members to openly question the wisdom of the Borough even getting involved, particularly in light of the Borough’s existing affordable housing policies.

“Why should we not opt out of COAH? There’s so much uncertainty with the regulations. Why are we doing this?” Mr. Martindell said.

COAH’s Ms. Voorhoeve pointed to a public relations benefit for the regulations, adding that developers would be more inclined to build in the Borough. She added that COAH would be “very much open to sitting down and building flexibility into the process.”

She also mentioned the possibility that municipalities that do not submit an affordable housing plan to the state can be sued under the “builders’ remedy” provision of the Mt. Laurel doctrine by a developer who would build the affordable housing, but typically only as a portion of a much larger development than the community desires.

Council members, however, appeared unmoved by that prospect.

“I find it hard to believe that a builder is going to sue us to build affordable housing units. What do we have to fear in a builder’s remedy?” Mr. Martindell asked.

Council President Peggy Karcher expressed a similar sentiment: “It’s as if COAH is saying to municipalities like Princeton, ‘don’t even try this in your community because it doesn’t make economic sense.’

“We feel that affordable housing belongs in Princeton. We want to do it. But you’re making it harder and harder for us to do it,” Ms. Karcher added.

Mayor Mildred Trotman agreed, calling the COAH formula “difficult.”

The new COAH rules are expected to be adopted by the state in early May, Ms. Voorhoeve said, with the current comment period expiring March 22.

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