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Montvale, NJ 07645

Regarding Recent Concerns about Affordable Housing Changes

I have received numerous questions concerning President Trump’s recent announcement that he is rescinding the “Affirmatively Furthering Fair Housing” (“AFFH”) rule and whether that affects the Borough’s affordable housing or “Mount Laurel” obligation. The short answer is “no.”  However, it is important to understand the difference between the AFFH rule and the Mount Laurel doctrine, and the ways in which each could affect the Borough. 


The Borough’s “Mount Laurel” obligation is derived from the New Jersey Supreme Court’s interpretation of the New Jersey Constitution, is codified in the Fair Housing Act, and has been implemented through either COAH or the State Courts. The Federal Government has no authority to suspend or modify these obligations, similar to how it has no authority to modify the formula for calculation of local property taxes. 


The AFFH rule that was rescinded by President Trump was a Federal administrative requirement that was even broader and more intrusive than New Jersey’s affordable housing obligation. The AFFH rule was adopted by the United States Department of Housing and Urban Development (“HUD”) during the Obama administration.  After the adoption of the rule, the receipt of certain Federal grants and other funds was expressly conditioned on a municipality’s compliance with AFFH


As we all know, both the State and Federal Constitutions rightfully prohibit discrimination in the sale or leasing of housing.  However, the AFFH rule went much further and required a municipality to: 1) analyze historical housing discrimination in the municipality, 2) develop a plan to ameliorate the effects of such discrimination, and 3) to provide continuing reporting to HUD concerning the municipality’s efforts to actively diversify housing in the municipality on such factors as race, color, religion, sex, disability, familial status or national origin.  


Compliance with AFFH’s administrative framework would have been an expensive, time-consuming and incredibly intrusive process into the Borough’s local governance, and failure to comply with the AFFH rules could have resulted in an indeterminate period of Federal oversight.


That is why the Borough has been careful not to accept Federal funding conditioned on compliance with AFFH – the administrative expenses alone would likely have far outweighed the limited benefits of any funds received.  


While the rescission of the Federal AFFH regulation helps to ensure the Borough’s ability to control its own local zoning and other ordinances, it does not have any effect on the Borough’s existing Mount Laurel obligation that is derived from the State Constitution and the New Jersey Fair Housing Act.


Mayor Mike Ghassali