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November 9, 2010

Re:  Assembly Committee releases COAH Bill

Dear Mayor:

Yesterday, the Assembly Housing and Local Government Committee considered, amended and approved A-3447 and amended S-1, which previously passed the State Senate, to make it identical to the amended Assembly bill.

League Third Vice President and Mayor of East Windsor Janice Mironov was joined by Fanwood Mayor Colleen Mahr and Bridgewater Mayor Patricia Flannery to express serious questions and objections with the new legislation.

A-3447, like S-1, establishes a mandatory 10% statewide set-aside for affordable housing and abolishes the Council on Affordable Housing (COAH.)  The bill, however, is significantly different in determining municipal obligations and how a municipality can comply.

To summarize, the bills establish two criteria to determine whether a municipality is compliant.     The municipality must meet one the criteria to be compliant. 

The first is based on income, specifically the number of children in the municipality who qualify for free or reduced school lunches.   Municipalities in which 50% or more of their children qualified are considered compliant, or in technical terms “urban compliant”, and are exempt from the 10% set-aside. 

Municipalities with more than 25% but less than 50% of their children qualifying for free or reduced lunches are considered compliant, but will have a 10% set-aside requirement going forward.

The school lunch data is compiled every October by the Department of Education.

The second criteria is based on the number of qualifying affordable housing units in the municipality. Municipalities with 10% or more of their existing housing units qualifying as affordable are compliant, but also will have a 10% set-aside requirement going forward.

Municipalities which are not classified compliant will have two means to be deemed compliant.    The first option would be to zone 20% of its developable land for families making up to 150% of the regional median income, commonly referred to as “workforce housing.”    This would require rezoning of land, and establish minimum presumptive densities of 4 units per acres for single-family, detached homes, 8 units per acre for attached housing (such as townhouses) and multi-family dwellings. 

The second option to be deemed compliant is for the municipality to adopt and file a housing element with the Department of Community Affairs (DCA) to demonstrate how it plans to meet the housing stock criteria through such means as inclusionary development, off-site construction, off-site rehabilitation, 100% affordable development and other compliance techniques that have historically been made available to municipalities.   Prior to filing the plan with the DCA, the county planning board shall adopt the plan by resolution, including at least one public hearing.    It is not clear when the municipality would need to demonstrate it has met the criteria.

The League has called for two reasonable and achievable criteria, and for a reasonable and achievable path to compliance for municipalities.   Further, the League has pushed for protection from litigation and the variance procedure outlined in the bill for municipalities which are deemed compliant.  

A major concern rests with the second criteria.   This criteria is that 10% of its housing stock are qualified housing units, with at least 50% of the qualified units for low income units and no more than 25% of the units be age-restricted.   Further all these units are subject to affordability controls, defined to require 30-year deed restrictions.   This narrow definition would exclude, for example, units subsidized by federal tax credits and subject to 15-year deed restrictions.     

Since the plan option under the bill is directly tied to this criteria, it would require towns to plan to meet this criteria, though it is unclear as to when the town would be required to meet the obligation. Such a high criteria is unreachable for many municipalities, and would be a disincentive for the production of affordable housing, particularly for units that would offer additional credits, such as special needs and supportive housing.  

The League statement yesterday requested that this criteria be reduced to a reasonable and achievable number, and what qualifies as a qualified unit be expanded to include more affordable housing units.

The Assembly bill has been second referenced to the Assembly Appropriations Committee.    The next Assembly voting session is scheduled for November 22, so we would anticipate the Appropriations Committee to consider, and further amend the bill, before that date.   A hearing could be scheduled as soon as next Monday, November 15.  The League will remain vigilant in seeking amendments to make the Assembly bill workable.  We would urge you to immediately contact your Assembly representatives and express your concerns with A-3447.  

For more on this legislation, please the articles in the November 9 Philadelphia Inquirer and the November 9 Newark Star-Ledger.   Questions can be directed to Mike Cerra at or 609-695-3481 x120.

Very truly yours,


William G. Dressel, Jr.
Executive Director


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