Public Advocate Advocates for Affordable Housing

TRENTON — The state Public Advocate filed a brief Wednesday, Feb. 11 in support of the State’s welcome efforts, during this economic downturn, to enforce the rights of low and moderate income families to housing they can afford in New Jersey.
Municipalities in Cape May County and throughout the state are mandated by the state to provide affordable housing.
According to a release, the Public Advocate participated in the landmark cases in the 1980s that led the New Jersey Supreme Court to declare a state constitutional right to affordable housing. Now, decades later, the Department is standing behind the Legislature, the Governor, the Department of Community Affairs, and the Council on Affordable Housing (COAH) as they try to ensure that this right becomes a reality.
Within the last fifteen months, the Legislature passed and the Governor signed into law amendments that strengthen the Fair Housing Act and extend its protections to some of New Jersey’s neediest families. In addition, COAH issued revised regulations that provide a roadmap for the municipalities toward meeting the real and growing need for affordable housing across the State.
These actions have met resistance. Not only have dozens of municipalities challenged the new COAH rules in court, but the Township of Medford has also filed a complaint with the Council on Local Mandates, a body created by the New Jersey Constitution to protect municipalities from “unfunded mandates,” state laws that require spending but appropriate no funds. The Council’s decisions are final and unreviewable in court. The Township argues that both the recent amendments to the Fair Housing Act and the new COAH rules require the municipalities to spend money on affordable housing without sufficient state appropriations to cover the anticipated costs.
The Public Advocate maintains that factual disputes about cost are beside the point at this stage, because the Township cannot show that there is a “mandate” at issue, unfunded or otherwise. While the COAH rules establish an important yardstick for compliance with constitutional affordable housing obligations, a municipality’s participation in the COAH process is entirely voluntary. More than 300 of New Jersey’s 566 municipalities participate in the COAH process. The remaining 250+ municipalities take their chances with lawsuits charging them with failure to meet their constitutional obligations. Those obligations are binding no matter what they may cost or what resistance they may engender. The Council on Local Mandates reviews state laws and regulations, not constitutional obligations.
Through COAH participation, a municipality may gain state certification of its constitutional compliance and some measure of immunity from litigation. These benefits are real but no municipality has to go this route. As the Public Advocate’s brief states, “if the Township of Medford is undergoing ‘buyer’s remorse’ and finds that continued adherence with the COAH rules is unduly burdensome, it should simply decline to seek substantive certification and bid COAH a respectful, but dispositive, farewell.”
Because neither COAH nor the Fair Housing Act amendments impose any legally enforceable obligation on the municipalities, they cannot complain to the Council of an “unfunded mandate.”
The Public Advocate’s brief argues further that the legislation and rules exist to “implement the provisions of [the New Jersey] Constitution” and are therefore beyond the scope of the Council’s authority. The New Jersey courts, and in particular its Supreme Court, are the final arbiters of the meaning of the state constitution. Both the Fair Housing Act and the COAH rules aim to advance compliance with the constitution’s affordable housing guarantee. By finding that there is no “mandate” at issue, the Council can avoid treading on ground properly occupied by the other branches of government.