Letter below was submitted to the Bernardsville News on 01-21-19. It was published on line and in the print edition 0n 01-24-19 under the title “Affordable housing system needs a new design.”
EDITOR
What we call “Mount Laurel I” was a decision of the NJ Supreme Court in 1975. It ruled that developing municipalities must in their land use regulations provide for their fair share of housing that would be affordable for households with low and moderate income. This eminently fair and reasonable ruling has evolved into an equally unreasonable and unfair system for assigning responsibility to provide affordable housing.
The present system is a complex numbers game. People sitting around a table don’t agree on the rules, and people outside the room don’t understand what’s happening. The system has many problems. I will describe three below and propose fixes.
I will use rough numbers derived from a 2018 decision by a Superior Court judge in Mercer County, that was the model for negotiations in the recent housing litigation involving Bernards Township and other towns.
ONE: The state is divided into six regions. Hunterdon, Middlesex, and Somerset are in Region 3. The plan for the state projects a need for 1,000 new dwelling units (DU) per year in Region 3 thru 2025. 400 DU (40%) should be affordable for families of low and moderate income.
To be “affordable” the DU must have price or rent controls. Their construction requires subsidy.
The 40% number derives from a 50-yearold guideline from the Dept. of Housing and Urban Development—households should pay no more than 30% of their incomes for housing—and from an analysis of current household incomes.
We live today in less liberal times and many people need help of many kinds. I wonder if subsidy for housing for 40% of our households is the right allocation of our limited funds today. If our representatives in Trenton believe it is, then they should provide some or all of the funds for the subsidy.
Case A: Suppose towns in Region 3 approve the construction of 1,000 DU in a year, and that they require the builders to set aside 200 DU (20%) that will be affordable. This 5-to-1 ratio of total DU to affordable DU is called the “builder’s remedy.” It is commonly used and is approved by the courts.
At the end of the year, Region 3 will have approved the needed 1,000 DU and included 200 affordable DU. But the need was for 400 affordable DU; there is a deficit of 200 affordable DU. Who will sidize these?
Case B: Suppose towns in Region 3 are directed to approve construction of 400 affordable DU in a year. If they all use the builder’s remedy they will approve a total of 2,000 DU, two times the need projected in the state plan. This would be an absurd outcome, but recent rulings push in that direction.
Proposal: Revise the 40% rule down and the 20% rule up. Fill in any remaining gap with state funds.
TWO: After the regional need is determined, the towns are allocated quotas of affordable DU to provide. The quotas are computed by averaging ratings for three factors for each town: commercial ratables, developable land, and household income. I see problems with each factor, and will comment here on land.
It is reasonable to consider land in assigning responsibility for building DU. But defining and measuring developable land are problematic. Here I will use an analysis by a planner who works for the Fair Share Housing Center, and who advised the courts in the Mercer County and Bernards cases.
The total Bernards land area is 23.9 square miles. Bedminster is larger with 26.1 square miles and is less developed than Bernards. But the quota for Bernards is 5.0% of the region’s total quota for affordable DU, and for Bedminster it is only 0.1%. Clinton and Tewksbury Townships with 29.9 and 31.5 square miles, respectively, are also larger and less developed than Bernards. Their quotas are only 0.4% and 0.02%. Viewed together, these quotas make no sense.
Proposal: Define clearly what is developable land, and determine an accurate method for measuring it.
THREE: Six Bernards churches saw a need in the 70s and built the Ridge Oak Senior Housing community. Rentals are subsidized with federal funds and all units are affordable. In the recent litigation the township was not allowed credit for the units built before 1980. This is unfair.
Proposal: Change the law to give credit for all affordable DU in a municipality.
Wrapup: The evolution of the law and practice since Mount Laurel I and Mount Laurel II in 1983 has brought us to an unacceptable place. We need to start over, work from the fundamental principles in these decisions, and design and implement a new system for provision of affordable housing. This will require new legislation. System administration will require a new Council on Affordable Housing (COAH).
Bernards and other towns should enlist residents to study the issues and make recommendations to their state representatives for the design of the new system. They should not sit and wait for Trenton to lead. It will be essential that they take the long view and recognize that the system they design must be fair and reasonable for the whole state.
Bill Allen 01-21-19