September 26, 2013

N.J. Supreme Court Decision on "Growth Share" Formula a Victory for Affordable Housing

The New Jersey Supreme Court decision today invalidating "growth share" rules adopted by the Council on Affordable Housing (COAH) in 2008 is a major victory for people who need affordable homes.

CHICAGO — The New Jersey Supreme Court decision today invalidating "growth share" rules adopted by the Council on Affordable Housing (COAH) in 2008 is a major victory for people who need affordable homes. The decision requires COAH to issue prompt regulations that will create real opportunities for people to live where they work, as moderate- and low-income households are integrated into all of our communities.

New Jersey Future, the Housing and Community Development Network of New Jersey, the American Planning Association (APA) and its APA New Jersey Chapter filed a friend-of-the-court brief calling for the growth share rules to be invalidated. The coalition applauds the decision, noting it will increase the availability of affordable homes throughout the state.

"We're very pleased with the court's ruling," said Staci Berger, executive director of the Housing and Community Development Network of New Jersey. "Too many people in this state are living pay check to pay check, or just barely getting by. As a result of this decision, more of our hardworking residents, seniors and people with disabilities will have the opportunity to live in homes they can afford in communities of their choice. Creating affordable homes will help our economy and our residents thrive."

Today's decision holds that COAH's growth share approach violates the New Jersey Fair Housing Act. Under the growth share rules, the municipal obligation to provide realistic opportunities for affordable homes was linked to actual residential and nonresidential growth, allowing municipalities to avoid the obligation by controlling their rates of growth. This was a sharp change from the previous approach used by COAH from 1987 to1999, which projected the future need for affordable homes on a regional basis, and then allocated to each municipality in a region its fair share of the responsibility for making possible the development of such homes.

The most recent data from COAH show that approximately 65,000 affordable housing units have been developed statewide to satisfy the constitutional obligation. In the past fourteen years, however, COAH has failed to issue constitutional regulations and progress has stalled. Today's decision should set COAH back on the path toward implementing a system that will result in the construction and rehabilitation of homes affordable to low- and moderate-income residents in municipalities throughout the state. The Supreme Court has directed COAH to return promptly to the fair-share projection and allocation method it used from 1987 to 1999.

"This decision will allow New Jersey municipalities to move ahead with the critical mission of planning for and ensuring the construction of needed affordable homes," said Charles Latini, AICP/PP, president of the New Jersey chapter of the American Planning Association. "It removes the confusion and uncertainty that has plagued COAH for 14 years."

"COAH's failure to adopt constitutionally valid rules," Latini added, "has made municipalities reluctant to participate in COAH's programs and spend monies from their affordable housing trust funds."

Paul Farmer, FAICP, CEO of the American Planning Association, cheered the decision, noting, "New Jersey has long been a leader in comprehensively planning to build affordable housing where it is needed, and today's decision vindicates the New Jersey model."

The decision "recognizes the strong link between the provision of affordable homes and planning, particularly the State Development and Redevelopment Plan," said Peter Kasabach, executive director of New Jersey Future. "We're delighted that the court has chosen to recognize the obligation of all the state's municipalities to offer residents reasonable access to homes they can afford. COAH's 14-year-long failure to promulgate adequate rules has inhibited the state's economic growth and undermined sound planning principles."

Kasabach added, "This ruling, and the new regulations that should soon be forthcoming, mean that more workers — teachers, firefighters, police officers, child-care workers, home health aides, and many others — will be able to live in the tax-rich municipalities where they work, reducing their commute times and costs and the resulting congestion on our already-crowded roads. Their children will be able to attend high-quality schools that can prepare them for 21st-century jobs. And the state's economy will benefit because employers will be able to find workers more easily for all their jobs, reducing the likelihood that they will relocate for workforce-related reasons."

"The takeaway from this ruling," said Latini, "is that New Jersey can now get on with the essential and constitutional duty of ensuring a diverse and affordable housing stock for one of the most diverse states in the nation. Only good can come from that."

The amicus brief was written by pro bono counsel at Lowenstein Sandler LLP through its Lowenstein Center for the Public Interest.

The brief is available at

The decision is available at


Peter Kasabach, Executive Director, New Jersey Future; 609-954-7422
Staci Berger, Executive Director, Housing & Community Development Network; 732-406-7604
Paul Farmer, Chief Executive Officer, American Planning Association; 312-786-6390
Catherine Weiss, Lowenstein Center for the Public Interest at Lowenstein Sandler; 973-597-2438