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Edward Boccher, a partner at DeCotiis, FitzPatrick, Cole & Giblin, authored an article titled “Base Affordable-Housing on Need and Supreme Court Directives” published in the April 11, 2011 edition of the New Jersey Law Journal. Prior to joining the firm in 2004, Boccher, a member of the firm’s Real Estate, Municipal Law, and Redevelopment practice groups, served as NJ Deputy Attorney General where he was the first attorney to represent the Council on Affordable Housing (COAH). Boccher leveraged his experience representing COAH and practicing municipal and land use law to outline how meeting affordable housing needs on a regional basis can lead to smarter planning and economic growth.

 You can read Boccher’s opinion editorial below:

Base Affordable-Housing Obligation on Need and Supreme Court Directives

Edward J. Boccher

New Jersey Law Journal

April 11, 2011

Gov. Chris Christie says no affordable housing quotas. The Supreme Court says the numbers have to be specific. What's a Legislature to do?

For more than a year, the Legislature has struggled to put together an affordable-housing bill that abolishes the Council on Affordable Housing and provides a new approach for municipalities to address the Mount Laurel obligation, requiring that every town provide its fair share of its region's need.

This is particularly difficult because the state Supreme Court has determined, in a move unique in the nation, that the obligation is of constitutional dimension and thus cannot be overhauled by legislative fiat.

Little agreement exists about how to address the obligation, as evidenced by unsuccessful legislative initiatives and a governor's conditional veto of the latest bill. The lower courts have only contributed to the confusion by periodically serving up decisions that invalidate COAH rules but offer little guidance — like a game of judicial charades with no answer.

What's missing in all of this is a consideration of a fundamental principle of Mount Laurel : a municipality is to provide for a fair share of its region's need for affordable housing. Instead, both COAH's latest rules, and legislative efforts, impose blanket or standardized obligations on municipalities without regard to the regional need for housing.

This is no small point. Addressing housing on a regional basis, as required by the Supreme Court, imports a wholly different perspective on how the need should be approached, more consistent with the original intent of Mount Laurel , and more likely to produce housing where it is needed.

COAH failed to recall this regional component when it adopted "growth share" rules that sought to allocate municipal affordable-housing obligations on the basis of an individual town's projected and actual growth. It did not account for the town's obligation to provide for its fair share of the region's need for affordable housing.

Similarly, legislative efforts, which impose a fixed percentage of affordable housing, either on the basis of new growth or as a share of a town's existing housing stock, don't proceed from the regional need for housing. Instead, by requiring that all towns provide for a fixed percentage of housing, such proposals simply carpet-bomb all municipalities with an obligation, irrespective of the region's actual need and a town's responsibility for its fair share of that need.

From the earliest, the Supreme Court instructed that the obligation derives from regional need.

In Mount Laurel I, it held that, since land use regulation is a component of the state's police power, it must be exercised to promote the "general welfare," a concept that extends "beyond the borders of [a] particular municipality," and "involves the necessity of regional considerations in zoning."

And in Mount Laurel II, the Court said, " ... the determination of region was more important in achieving the goals of Mount Laurel than the fair share allocation itself." Therefore, any approach to meet the affordable-housing obligation should start with an identification of regional need.

The Court offered guidance in determining regions, suggesting it might include area-wide considerations such as the interdependent residential housing market; patterns of commutation; public services and facilities, parks, hospitals, cultural facilities; and "the area in which the housing problem can be solved."

These considerations follow current notions of "smart growth," shared services and intermunicipal cooperation. A regional approach not only abides by the Mount Laurel doctrine, it promotes municipal cooperation to address a need where it actually exists — and not to satisfy cold calculations made by a Trenton computer program.

The elements of this approach are basic and allow for new measures as well:

Establish and recognize true regions that reflect how we live, work, socialize and interact. Constituent towns can tell us how to do this.

Allow towns to assess their region's need and location for affordable housing. Affordable housing should be near jobs, transportation and shopping. Even the State Plan says so. Let towns plan collectively.

Establish a protocol for regional planning. Provide for state direction only if towns fail to take advantage.

Use municipal trust fund monies and assets in a meaningful way. Establish an affordable housing bank capitalized with the variety of assets member towns may own: trust fund money; development rights; land.

Form a municipal development corporation with the towns as shareholders.

The affordable-housing obligation is not a municipal liability; it is an asset that can be part of the building blocks for municipal revitalization and smart growth. But provide for the housing where it's needed most and which best accommodates the needs of low- and moderate income households. That's how we do the best for the most.

Boccher is a partner with DeCotiis, FitzPatrick and Cole in Teaneck and focuses his practice on land use, redevelopment, affordable housing, financing and related litigation.

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