A Brief History of Affordable Housing And What It Means For Rutherford
The Mount Laurel Doctrine is the foundation upon which affordable housing regulations and requirements in New Jersey are based. It derives from a series of Court decisions and the passage of the Fair Housing Act. It establishes an obligation for municipalities to plan for and provide opportunities for the construction of affordable housing.
The Council on Affordable Housing (COAH) was created to approve, oversee and enforce the development of affordable housing throughout the State. They developed fair share numbers and compliance mechanisms on a six-year schedule, commonly referred to as “rounds.” The First Round rules covered from 1987-1993. The Second Round rules covered from 1993-1999. The 1999 COAH Third Round rules were delayed by litigation and political pressure from municipalities but were eventually adopted in 2008.
Rutherford adopted a fair share plan in December of 2008, the submission was deemed complete by COAH in March 2009. However, uncertainty regarding growth share and fees continued to stall the program. The years of delay resulted in what is commonly referred to as the “gap years”. In 2015, COAH was divested of its power over municipal affordable housing plans and the courts established a transitional process for municipalities to seek the equivalent of “substantive certification” of their compliance with Mount Laurel and the Fair Housing Act.
The process requires a Special Master to negotiate a settlement between parties that would include protection for municipalities from builders remedy lawsuits. Under current law, municipalities that cannot demonstrate compliance with affordable housing measures are subject to builders/developers suing the municipality to require the municipality to fulfill its “fair share” obligation. These builder remedy lawsuits are costly and may result in increased density and height to help achieve the goal of developing inclusionary housing throughout the state
To avoid builders remedy lawsuits and allow for responsible growth and redevelopment, the Borough engaged in a multi-year negotiation with the Fair Share Housing Center. FSHC is a non-profit organization that compels municipal cooperation and participation in affordable housing programs through advocacy and litigation.
In September of 2019 a settlement with the FSHC was reached that will protect the borough until July 1, 2025. It establishes certain benchmarks and goals for the borough’s development of affordable housing through its ordinances, administrative procedures, redevelopment and planning.
Additional Affordable Housing Information