newjerseynewsroom.com

BY TOM HESTER SR.

NEWJERSEYNEWSROOM.COM

An analysis by the bipartisan state Office of Legislative Services of legislation that would abolish the state Council on Affordable Housing and give cities and towns more power in determining how much affordable housing they should provide finds the proposal may be unconstitutional.

The analysis, obtained by the Cherry Hill-based

Fair Share Housing Center, states that the main affordable housing bill pending in the Legislatures S-1 could be found by a state court to be unconstitutional.

"The absence of a nexus between the mandatory inclusionary zoning proposed by the bill and satisfaction of regional and statewide affordable housing needs would permit a challenge to the sufficiency of the bill under the Mount Laurel doctrine," the analysis states.

It continues that the bill "may be susceptible to a constitutional challenge" based on "the constitutional requirement that the exercise of a municipality's land use regulations promotes the general welfare."

"S-1 serves only special interests, and will result in communities excluding people from having a range of housing choices," Kevin Walsh, Fair Share Housing Center counsel, said Wednesday. "S-1 does not promote the general good of our state. OLS has correctly found that courts would strike down S-1 as unworkable and unconstitutional."

Sen. Raymond J. Lesniak (D-Union), co-sponsor of the bipartisan bill strongly disagrees.

"They can't read,'' he said of Fair Share housing advocates. "The opinion stated it may be unconstitutional. They're beating a dead horse (COAH). S-1 will be signed into law and is constitutional.''

Lesniak's proposal is pending before the Senate Economic Growth Committee that he chairs. It was withdrawn from a Senate floor vote on March 22 after Sen. Loretta Weinberg (D-Bergen), a key vote, said she would not support it.

But the measure could be acted upon by June 30. The state government's 2010-11 fiscal year begins July 1 and Gov. Chris Christie wants COAH abolished. The Assembly version, A-2057 has been pending before the lower house's Housing and Local Government Committee since Feb. 8.

Walsh said the OLS analysis finds that, if enacted, S-1 would expose the state and every municipality to costly litigation, with unpredictable results.

"The analysis contradicts Senator Lesniak's promise at a February Senate Economic Growth Committee hearing that S-1 would be constitutional,'' Walsh said. "Passing S-1 would be imprudent. It will force everyone involved to spend millions on lawsuits to resolve this issue. Just as important, it will delay over $6 billion in planned housing construction that our state economy desperately needs. S-1 falls short of real solutions. We need a fair system that rewards towns that have done their fair share, and requires towns with exclusionary regulations to allow the market to create housing choices."

Walsh said the analysis surfaced before the bill's latest changes, which replace all housing obligations with $10,000 grants for home improvements, a change the housing attorney said raises further constitutional issues.

"Home improvement grants do not meet our state's needs for homes near jobs and transit, affordable places to live for people at different incomes and for those with special needs," Walsh said. "Allowing towns to meet all of their obligations through home improvement grants is plainly unconstitutional."

While Lesniak maintains the bill would provide more affordable housing, housing advocates charge it would gut the state's current housing policy and reduce the number of homes built near jobs and transit.

Christie has proposed what he describes as a realistic and achievable plan for affordable housing. It would allow cities and towns to decide how much moderate- and low-income housing they need with minimal state involvement.

The plan, which would need the approval of the Legislature, has been criticized by housing advocates as something that would not stand up in court and could delay the construction and rehabilitation of 40,000 planned affordable houses and apartments.

Christie argues New Jersey is facing what he sees as dramatically different economic, demographic and social circumstances since the original state Fair Housing Act was passed 25 years ago. He said that is why the current affordable housing system must be retired and replaced.

Under Christie's plan, COAH and state-imposed housing obligations on municipalities would be abolished and local officials would decide how much affordable housing their towns need.

The plan also calls for the rehabilitation of existing housing before new affordable homes or apartments would be built.

Christie's proposal calls for a 10 percent affordable housing unit requirement in development projects greater than 10 units — for example, 2 affordable units for a 20 unit development — and would require a payment to a municipal affordable housing trust fund for projects between 2 and 10 units. The governor recommends provisions to give priority housing trust funding for projects that provide special needs housing.