STATE OF NEW JERSEY
PRE-FILED FOR INTRODUCTION IN THE 2018 SESSION
Assemblywoman HOLLY T. SCHEPISI
District 39 (Bergen and Passaic)
Assemblyman ANTHONY M. BUCCO
District 25 (Morris and Somerset)
Assemblywomen B.DeCroce, N.Munoz, Assemblymen Rooney, DiMaio, Clifton, McGuckin, Bramnick and Thomson
Requires COAH to administer affordable housing obligations of municipalities based on statewide obligation.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel.
An Act requiring COAH to administer the affordable housing obligations of municipalities based on a statewide obligation and amending and repealing various parts of the statutory law.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 2 of P.L.1985, c.222 (C.52:27D-302) is amended to read as follows:
2. The Legislature finds that:
a. The New Jersey Supreme Court, through its rulings in South Burlington County NAACP v. Mount Laurel, 67 N.J. 151 (1975) and South Burlington County NAACP v. Mount Laurel, 92 N.J. 158 (1983), has determined that every municipality in a growth area has a constitutional obligation to provide through its land use regulations a realistic opportunity for a fair share of its region's present and prospective needs for housing for low and moderate income families.
b. In the second Mount Laurel ruling, the Supreme Court stated that the determination of the methods for satisfying this constitutional obligation "is better left to the Legislature," that the court has "always preferred legislative to judicial action in their field," and that the judicial role in upholding the Mount Laurel doctrine "could decrease as a result of legislative and executive action."
c. The interest of all citizens, including low and moderate income families in need of affordable housing, and the needs of the workforce, would be best served by a comprehensive planning and implementation response to this constitutional obligation.
d. There are a number of essential ingredients to a comprehensive planning and implementation response, including the establishment of reasonable fair share housing guidelines and standards, the [initial] determination of fair share by officials at the [municipal] State level [and the] , municipal preparation of a municipal housing element, State review of the [local fair share study and] housing element and formation of a plan to achieve the municipal fair share, and continuous State funding for low and moderate income housing to replace the federal housing subsidy programs which have been almost completely eliminated.
e. The State can maximize the number of low and moderate income units provided in New Jersey by allowing its municipalities to adopt appropriate phasing schedules for meeting their fair share, so long as the municipalities permit a timely achievement of an appropriate fair share of the [regional] need for low and moderate income housing as required by the Mt. Laurel I and II opinions and other relevant court decisions.
f. The State can also maximize the number of low and moderate income units by creating new affordable housing and by rehabilitating existing, but substandard, housing in the State. Because the Legislature has determined, pursuant to P.L.2008, c.46 (C.52:27D-329.1 et al.), that it is no longer appropriate or in harmony with the Mount Laurel doctrine to permit the transfer of the fair share obligations among municipalities within a housing region, it is necessary and appropriate to create a new program to create new affordable housing and to foster the rehabilitation of existing, but substandard, housing.
g. Since the urban areas are vitally important to the State, construction, conversion and rehabilitation of housing in our urban centers should be encouraged. However, the provision of housing in urban areas must be balanced with the need to provide housing throughout the State for the free mobility of citizens.
h. The Supreme Court of New Jersey in its Mount Laurel decisions demands that municipal land use regulations affirmatively afford a reasonable opportunity for a variety and choice of housing including low and moderate cost housing, to meet the needs of people desiring to live there. While provision for the actual construction of that housing by municipalities is not required, they are encouraged but not mandated to expend their own resources to help provide low and moderate income housing.
i. Certain amendments to the enabling act of the Council on Affordable Housing are necessary to provide guidance to the council to ensure consistency with the legislative intent, while at the same time clarifying the limitations of the council in its rulemaking. Although the court has remarked in several decisions that the Legislature has granted the council considerable deference in its rulemaking, the Legislature retains its power and obligation to clarify and amend the enabling act from which the council derives its rulemaking power, from time to time, in order to better guide the council.
j. The Legislature finds that the use of regional contribution agreements, which permits municipalities to transfer a certain portion of their fair share housing obligation outside of the municipal borders, should no longer be utilized as a mechanism for the creation of affordable housing by the council.
(cf: P.L.2008, c.46, s.4)
2. Section 4 of P.L.1985, c.222 (C.52:27D-304) is amended to read as follows:
4. As used in [this act] P.L.1985, c.222 (C.52:27D-301 et al.):
a. "Council" means the Council on Affordable Housing established in [this act] P.L.1985, c.222 (C.52:27D-301 et al.), which shall have primary jurisdiction for the administration of housing obligations in accordance with sound regional planning considerations in this State, and any successor body, temporary or otherwise, that obtains such primary jurisdiction.
b. "Housing region" means a geographic area of not less than two nor more than four contiguous, whole counties which exhibit significant social, economic and income similarities, and which constitute to the greatest extent practicable the primary metropolitan statistical areas as last defined by the United States Census Bureau prior to the effective date of P.L.1985, c.222 (C.52:27D-301 et al.).
c. "Low income housing" means housing affordable according to federal Department of Housing and Urban Development or other recognized standards for home ownership and rental costs and occupied or reserved for occupancy by households with a gross household income equal to 50% or less of the median gross household income for households of the same size within the housing region in which the housing is located.
d. "Moderate income housing" means housing affordable according to federal Department of Housing and Urban Development or other recognized standards for home ownership and rental costs and occupied or reserved for occupancy by households with a gross household income equal to more than 50% but less than 80% of the median gross household income for households of the same size within the housing region in which the housing is located.
e. ["Resolution of participation" means a resolution adopted by a municipality in which the municipality chooses to prepare a fair share plan and housing element in accordance with this act.] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)
f. "Inclusionary development" means a residential housing development in which a substantial percentage of the housing units are provided for a reasonable income range of low and moderate income households.
g. "Conversion" means the conversion of existing commercial, industrial, or residential structures for low and moderate income housing purposes where a substantial percentage of the housing units are provided for a reasonable income range of low and moderate income households.
h. "Development" means any development for which permission may be required pursuant to the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.).
i. "Agency" means the New Jersey Housing and Mortgage Finance Agency established by P.L.1983, c.530 (C.55:14K-1 et seq.).
j. "Prospective need" means a projection of housing needs based on development and growth which is reasonably likely to occur in [a region or] a municipality, as the case may be, as a result of actual determination of public and private entities. In determining prospective need, consideration shall be given to approvals of development applications, real property transfers and economic projections prepared by the State Planning Commission established by sections 1 through 12 of P.L.1985, c.398 (C.52:18A-196 et seq.).
k. "Disabled person" means a person with a physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect, aging or illness including epilepsy and other seizure disorders, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device.
l. "Adaptable" means constructed in compliance with the technical design standards of the barrier free subcode adopted by the Commissioner of Community Affairs pursuant to the "State Uniform Construction Code Act," P.L.1975, c.217 (C.52:27D-119 et seq.) and in accordance with the provisions of section 5 of P.L.2005, c.350 (C.52:27D-123.15).
m. "Very low income housing" means housing affordable according to federal Department of Housing and Urban Development or other recognized standards for home ownership and rental costs and occupied or reserved for occupancy by households with a gross household income equal to 30% or less of the median gross household income for households of the same size within the housing region in which the housing is located.
(cf: P.L.2008, c.46, s.5)
3. Section 7 of P.L.1985, c.222 (C.52:27D-307) is amended to read as follows:
7. It shall be the duty of the council, [seven months after the confirmation of the last member initially appointed to the council, or January 1, 1986, whichever is earlier] on or before the first day of the seventh month after the effective date of P.L. , c. (pending before the Legislature as this bill), and from time to time thereafter, to:
a. [Determine housing regions of the State;] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)
b. Estimate the present and prospective need for low and moderate income housing at the State [and regional levels] level;
c. Adopt criteria and guidelines for municipal housing elements and determine:
(1) [Municipal determination of its] Which municipalities will be allocated a portion of the present and prospective Statewide low and moderate income housing need and determine the fair share of the Statewide housing need to be fulfilled in [a given region] each such municipality, which shall be computed for a 10-year period.
Municipal fair share shall be determined after crediting on a one-to-one basis each current unit of low and moderate income housing of adequate standard, including any such housing constructed or acquired as part of a housing program specifically intended to provide housing for low and moderate income households. Notwithstanding any other law to the contrary, a municipality shall be entitled to a credit for a unit if it demonstrates that (a) the municipality issued a certificate of occupancy for the unit, which was either newly constructed or rehabilitated between April 1, 1980 and December 15, 1986; (b) a construction code official certifies, based upon a visual exterior survey, that the unit is in compliance with pertinent construction code standards with respect to structural elements, roofing, siding, doors and windows; (c) the household occupying the unit certifies in writing, under penalty of perjury, that it receives no greater income than that established pursuant to section 4 of P.L.1985, c.222 (C.52:27D-304) to qualify for moderate income housing; and (d) the unit for which credit is sought is affordable to low and moderate income households under the standards established by the council at the time of filing of the petition for substantive certification. It shall be sufficient if the certification required in subparagraph (c) is signed by one member of the household. A certification submitted pursuant to this paragraph shall be reviewable only by the council or its staff and shall not be a public record[;] .
Nothing in P.L.1995, c.81 shall affect the validity of substantive certification granted by the council prior to November 21, 1994, or of a judgment of compliance entered by any court of competent jurisdiction prior to that date. Additionally, any municipality that received substantive certification or a judgment of compliance prior to November 21, 1994 and filed a motion prior to November 21, 1994 to amend substantive certification or a judgment of compliance for the purpose of obtaining credits, shall be entitled to a determination of its right to credits pursuant to the standards established by the Legislature prior to P.L.1995, c.81. Any municipality that filed a motion prior to November 21, 1994 for the purpose of obtaining credits, which motion was supported by the results of a completed survey performed pursuant to council rules, shall be entitled to a determination of its right to credits pursuant to the standards established by the Legislature prior to P.L.1995, c.81;
(2) Municipal adjustment of the present and prospective fair share based upon available vacant and developable land, infrastructure considerations or environmental or historic preservation factors and adjustments shall be made whenever:
(a) The preservation of historically or important architecture and sites and their environs or environmentally sensitive lands may be jeopardized,
(b) The established pattern of development in the community would be drastically altered,
(c) Adequate land for recreational, conservation or agricultural and farmland preservation purposes would not be provided,
(d) Adequate open space would not be provided,
(e) The pattern of development is contrary to the planning designations in the State Development and Redevelopment Plan prepared pursuant to sections 1 through 12 of P.L.1985, c.398 (C.52:18A-196 et seq.),
(f) Vacant and developable land is not available in the municipality, and
(g) Adequate public facilities and infrastructure capacities are not available, or would result in costs prohibitive to the public if provided[.] ;
(3) (Deleted by amendment, P.L.1993, c.31)[.]
d. Provide population and household projections for the State [and housing regions]; and
e. In its discretion, place a limit, based on a percentage of existing housing stock in a municipality and any other criteria including employment opportunities which the council deems appropriate, upon the aggregate number of units which may be allocated to a municipality as its fair share of the [region's] State’s present and prospective need for low and moderate income housing. No municipality shall be required to address a fair share of housing units affordable to households with a gross household income of less than 80% of the median gross household income beyond 1,000 units within ten years from the grant of substantive certification, unless it is demonstrated, following objection by an interested party and an evidentiary hearing, based upon the facts and circumstances of the affected municipality that it is likely that the municipality through its zoning powers could create a realistic opportunity for more than 1,000 low and moderate income units within that ten-year period. For the purposes of this section, the facts and circumstances which shall determine whether a municipality's fair share shall exceed 1,000 units, as provided above, shall be a finding that the municipality has issued more than 5,000 certificates of occupancy for residential units in the ten-year period preceding the petition for substantive certification in connection with which the objection was filed.
For the purpose of crediting low and moderate income housing units in order to arrive at a determination of present and prospective fair share, as set forth in paragraph (1) of subsection c. of this section, housing units comprised in a community residence for the developmentally disabled, as defined in section 2 of P.L.1977, c.448 (C.30:11B-2), shall be fully credited pursuant to rules promulgated or to be promulgated by the council, to the extent that the units are affordable to persons of low and moderate income and are available to the general public.
The council [, with respect to any municipality seeking substantive certification,] shall require that a minimum percentage of housing units in any residential development resulting from a zoning change made to a previously non-residentially-zoned property, where the change in zoning precedes or follows the application for residential development by no more than 24 months, be reserved for occupancy by low or moderate income households, which percentage shall be determined by the council based on economic feasibility with consideration for the proposed density of development.
In carrying out the above duties, including, but not limited to, present and prospective need estimations the council shall give appropriate weight to pertinent research studies, government reports, decisions of other branches of government, implementation of the State Development and Redevelopment Plan prepared pursuant to sections 1 through 12 of P.L.1985, c.398 (C.52:18A-196 et seq.) and public comment. To assist the council, the State Planning Commission established under that act shall provide the council annually with economic growth, development, and decline projections for [each housing region] the State for the next ten years. The council shall develop procedures for periodically adjusting [regional] the Statewide need based upon the low and moderate income housing that is provided in the [region] State through any federal, State, municipal or private housing program.
No housing unit subject to the provisions of section 5 of P.L.2005, c.350 (C.52:27D-123.15) and to the provisions of the barrier free subcode adopted by the Commissioner of Community Affairs pursuant to the "State Uniform Construction Code Act," P.L.1975, c.217 (C.52:27D-119 et seq.) shall be eligible for inclusion in the municipal fair share plan certified by the council unless the unit complies with the requirements set forth thereunder.
(cf: P.L.2008, c.46, s.6)
4. Section 9 of P.L.1985, c.222 (C.52:27D-309) is amended to read as follows:
9. a. [Within four months after the effective date of this act, each municipality which so elects shall, by a duly adopted resolution of participation, notify the council of its intent to submit to the council its fair share housing plan.] Within five months after the council's adoption of [its criteria and guidelines] the present and prospective fair share of the Statewide housing need in a municipality, the municipality shall prepare and file with the council a housing element[,] based on the council's criteria and guidelines[, and any fair share housing ordinance introduced and given first reading and second reading in a hearing pursuant to R.S.40:49-2 which implements the housing element].
b. [A municipality which does not notify the council of its participation within four months may do so at any time thereafter. In any exclusionary zoning litigation instituted against such a municipality, however, there shall be no exhaustion of administrative remedy requirements pursuant to section 16 of this act unless the municipality also files its fair share plan and housing element with the council prior to the institution of the litigation.] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)
(cf: P.L.1985, c.222, s.9)
5. Section 10 of P.L.1985, c.222 (C.52:27D-310) is amended to read as follows:
10. A municipality's housing element shall be designed to assist the council in determining how to achieve the goal of providing access to affordable housing to meet the municipality’s fair share of the Statewide present and prospective housing needs in the municipality, with particular attention to low and moderate income housing, and shall contain at least:
a. An inventory of the municipality's housing stock by age, condition, purchase or rental value, occupancy characteristics, and type, including the number of units affordable to low and moderate income households and substandard housing capable of being rehabilitated, and in conducting this inventory the municipality shall have access, on a confidential basis for the sole purpose of conducting the inventory, to all necessary property tax assessment records and information in the assessor's office, including but not limited to the property record cards;
b. A projection of the municipality's housing stock, including the probable future construction of low and moderate income housing, for the next ten years, taking into account, but not necessarily limited to, construction permits issued, approvals of applications for development and probable residential development of lands; and
c. [An analysis of the municipality's demographic characteristics, including but not necessarily limited to, household size, income level and age;] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)
d. [An analysis of the existing and probable future employment characteristics of the municipality;] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)
e. [A determination of the municipality's present and prospective fair share for low and moderate income housing and its capacity to accommodate its present and prospective housing needs, including its fair share for low and moderate income housing; and] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)
f. A consideration of the lands that are most appropriate for construction of low and moderate income housing and of the existing structures most appropriate for conversion to, or rehabilitation for, low and moderate income housing, including a consideration of lands of developers who have expressed a commitment to provide low and moderate income housing.
(cf: P.L.2001, c.435, s.2)
6. Section 13 of P.L.1985, c.222 (C.52:27D-313) is amended to read as follows:
13. a. [A] After a municipality [which] has filed a housing element [may, at any time during a two-year period following the filing of the housing element], [petition] the council [for a substantive certification of its element and ordinances or institute an action for declaratory judgment granting it repose in the Superior Court, but in no event] shall issue a grant of substantive certification [extend beyond a] for the 10-year period starting on the date the municipality files its housing element with the council. The municipality shall [publish notice of its petition in a newspaper of general circulation within the municipality and county and shall] make available to the public information on the element [and ordinances] in accordance with such procedures as the council shall establish. [The council shall also establish a procedure for providing public notice of each petition which it receives.]
b. [Notwithstanding the provisions of subsection a. of this section, a municipality which filed a housing element prior to the effective date of P.L.1990, c.121, shall be permitted to petition for substantive certification at any time within two years following that filing, or within one year following the effective date of P.L.1990, c.121, whichever shall result in permitting the municipality the longer period of time within which to petition.]
The Council shall establish procedures for a realistic opportunity review at the midpoint of the certification period and shall provide for notice to the public.
(cf: P.L.2001, c.435, s.5)
7. Section 14 of P.L.1985, c.222 (C.52:27D-314) is amended to read as follows:
14. [Unless an objection to the substantive certification is filed with the council by any person within 45 days of the publication of the notice of the municipality's petition, the council shall review the petition and shall issue a substantive certification if it shall find that:
a. The municipality's fair share plan is consistent with the rules and criteria adopted by the council and not inconsistent with achievement of the low and moderate income housing needs of the region as adjusted pursuant to the council's criteria and guidelines adopted pursuant to subsection c. of section 7 of this act; and
b. The combination of the elimination of unnecessary housing cost-generating features from the municipal land use ordinances and regulations, and the affirmative measures in the housing element and implementation plan make the achievement of the municipality's fair share of low and moderate income housing realistically possible after allowing for the implementation of any regional contribution agreement approved by the council.
In conducting its review, the council may meet with the municipality and may deny the petition or condition its certification upon changes in the element or ordinances. Any denial or conditions for approval shall be in writing and shall set forth the reasons for the denial or conditions. If, within 60 days of the council's denial or conditional approval, the municipality refiles its petition with changes satisfactory to the council, the council shall issue a substantive certification.]
Once substantive certification is granted, the council shall review the housing element and develop a fair share plan for the municipality to satisfy the municipality’s fair share obligation. Upon completion of the fair share plan, the council shall publish notice of the plan on its Internet website and shall submit a copy to the clerk of the municipality. A municipality shall [have 45 days in which to] adopt its fair share housing ordinance based on the fair share plan approved by the council within 45 days of the publication of the notice of the fair share plan, unless the plan is subject to mediation pursuant to section 15 of P.L.1985, c.222 (C.52:27D-315), in which case the municipality shall adopt the ordinance within 45 days of the resolution of the mediation.
(cf: P.L.1985, c.222, s.14)
8. Section 15 of P.L.1985, c.222 (C.52:27D-315) is amended to read as follows:
15. a. The council shall engage in a mediation and review process [in the following situations: (1)] if an objection to the [municipality's petition for substantive certification] council’s fair share plan for a municipality is filed with the council within [the time specified in section 14 of this act; or (2) if a request for mediation and review is made pursuant to section 16 of this act] 45 days of the publication of the notice of the fair share plan.
b. In cases in which an objection is filed to [substantive certification] the council’s fair share plan for a municipality, the council shall meet with the municipality and the objectors and attempt to mediate a resolution of the dispute. If the mediation is successful, the council shall issue a [substantive certification if it finds that the criteria of section 14 of this act have been met] revised fair share plan.
c. If the mediation efforts are unsuccessful, the matter shall be transferred to the Office of Administrative Law as a contested case as defined in the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.).
The Office of Administrative Law shall expedite its hearing process as much as practicable by promptly assigning an administrative law judge to the matter; promptly scheduling an evidentiary hearing; expeditiously conducting and concluding the evidentiary hearing; limiting the time allotted for briefs, proposed findings of fact, conclusions of law, forms of order or other disposition, or other supplemental material; and the prompt preparation of the initial decision. A written transcript of all oral testimony and copies of all exhibits introduced into evidence shall be submitted to the council by the Office of Administrative Law simultaneously with a copy of the initial decision. The evidentiary hearings shall be concluded and the initial decision issued no later than 90 days after the transmittal of the matter as a contested case to the Office of Administrative Law by the council, unless the time is extended by the Director of the Office of Administrative Law for good cause shown.
(cf: P.L.1985, c.222, s.15)
9. Section 17 of P.L.1985, c.222 (C.52:27D-317) is amended to read as follows:
17. a. [In any] An exclusionary zoning [case] suit shall not be filed against a municipality which has a substantive certification [and in which there is a requirement to exhaust the review and mediation process pursuant to section 16 of this act] . In any such case filed against the council with respect to a particular municipality, there shall be a presumption of validity attaching to the [housing element and ordinances implementing the housing element] fair share plan approved by the council. To rebut the presumption of validity, the complainant shall have the burden of proof to demonstrate by clear and convincing evidence that the [housing element and ordinances implementing the housing element do] plan does not provide a realistic opportunity for the provision of the municipality's fair share of low and moderate income housing after allowing for the implementation of any regional contribution agreement approved by the council.
b. There shall be a presumption of validity attaching to any regional contribution agreement approved by the council. To rebut the presumption of validity, the complainant shall have the burden of proof to demonstrate by clear and convincing evidence that the agreement does not provide for a realistic opportunity for the provision of low and moderate income housing [within the housing region].
c. The [council shall be made a party to] applicable municipality may join any exclusionary zoning suit against the council with respect to a municipality which receives substantive certification[, and shall be empowered to present to the court its reasons for granting substantive certification].
(cf P.L.1985, c.222, s.17)
10. Section 20 of P.L.1985, c.222 (C.52:27D-320) is amended to read as follows:
20. There is established in the Department of Community Affairs a separate trust fund, to be used for the exclusive purposes as provided in this section, and which shall be known as the "New Jersey Affordable Housing Trust Fund." The fund shall be a non-lapsing, revolving trust fund, and all monies deposited or received for purposes of the fund shall be accounted for separately, by source and amount, and remain in the fund until appropriated for such purposes. The fund shall be the repository of all State funds appropriated for affordable housing purposes, including, but not limited to, the proceeds from the receipts of the additional fee collected pursuant to paragraph (2) of subsection a. of section 3 of P.L.1968, c.49 (C.46:15-7), proceeds from available receipts of the Statewide non-residential development fees collected pursuant to section 35 of P.L.2008, c.46 (C.40:55D-8.4), monies lapsing or reverting from municipal development trust funds, or other monies as may be dedicated, earmarked, or appropriated by the Legislature for the purposes of the fund. All references in any law, order, rule, regulation, contract, loan, document, or otherwise, to the "Neighborhood Preservation Nonlapsing Revolving Fund" shall mean the "New Jersey Affordable Housing Trust Fund." The department shall be permitted to utilize annually up to 7.5 percent of the monies available in the fund for the payment of any necessary administrative costs related to the administration of the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.), or any costs related to administration of P.L.2008, c.46 (C.52:27D-329.1 et al.).
a. Except as permitted pursuant to subsection g. of this section, and by section 41 of P.L.2009, c.90 (C.52:27D-320.1), the commissioner shall award grants or loans from this fund for housing projects and programs in municipalities whose housing elements have received substantive certification from the council, in municipalities receiving State aid pursuant to P.L.1978, c.14 (C.52:27D-178 et seq.), in municipalities subject to a builder's remedy as defined in section 28 of P.L.1985, c.222 (C.52:27D-328) or in receiving municipalities in cases where the council has approved a regional contribution agreement and a project plan developed by the receiving municipality.
[Of those monies deposited into the "New Jersey Affordable Housing Trust Fund" that are derived from municipal development fee trust funds, or from available collections of Statewide non-residential development fees, a priority for funding shall be established for projects in municipalities that have petitioned the council for substantive certification.
Programs and projects in any municipality shall be funded only after receipt by the commissioner of a written statement in support of the program or project from the municipal governing body.]
b. The commissioner shall establish rules and regulations governing the qualifications of applicants, the application procedures, and the criteria for awarding grants and loans and the standards for establishing the amount, terms and conditions of each grant or loan.
c. [For any period which the council may approve, the commissioner may assist affordable housing programs which are not located in municipalities whose housing elements have been granted substantive certification or which are not in furtherance of a regional contribution agreement; provided that the affordable housing program will meet all or part of a municipal low and moderate income housing obligation.] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)
d. [Amounts deposited in the "New Jersey Affordable Housing Trust Fund" shall be targeted to regions based on the region's percentage of the State's low and moderate income housing need as determined by the council.] Amounts in the fund shall be applied for the following purposes in designated neighborhoods:
(1) Rehabilitation of substandard housing units occupied or to be occupied by low and moderate income households;
(2) Creation of accessory apartments to be occupied by low and moderate income households;
(3) Conversion of non-residential space to residential purposes; provided a substantial percentage of the resulting housing units are to be occupied by low and moderate income households;
(4) Acquisition of real property, demolition and removal of buildings, or construction of new housing that will be occupied by low and moderate income households, or any combination thereof;
(5) Grants of assistance to eligible municipalities for costs of necessary studies, surveys, plans and permits; engineering, architectural and other technical services; costs of land acquisition and any buildings thereon; and costs of site preparation, demolition and infrastructure development for projects undertaken pursuant to an approved regional contribution agreement;
(6) Assistance to a local housing authority, nonprofit or limited dividend housing corporation or association or a qualified entity acting as a receiver under P.L.2003, c.295 (C.2A:42-114 et al.) for rehabilitation or restoration of housing units which it administers which: (a) are unusable or in a serious state of disrepair; (b) can be restored in an economically feasible and sound manner; and (c) can be retained in a safe, decent and sanitary manner, upon completion of rehabilitation or restoration; and
(7) Other housing programs for low and moderate income housing, including, without limitation, (a) infrastructure projects directly facilitating the construction of low and moderate income housing not to exceed a reasonable percentage of the construction costs of the low and moderate income housing to be provided and (b) alteration of dwelling units occupied or to be occupied by households of low or moderate income and the common areas of the premises in which they are located in order to make them accessible to handicapped persons.
e. Any grant or loan agreement entered into pursuant to this section shall incorporate contractual guarantees and procedures by which the division will ensure that any unit of housing provided for low and moderate income households shall continue to be occupied by low and moderate income households for at least 20 years following the award of the loan or grant, except that the division may approve a guarantee for a period of less than 20 years where necessary to ensure project feasibility.
f. Notwithstanding the provisions of any other law, rule or regulation to the contrary, in making grants or loans under this section, the department shall not require that tenants be certified as low or moderate income or that contractual guarantees or deed restrictions be in place to ensure continued low and moderate income occupancy as a condition of providing housing assistance from any program administered by the department, when that assistance is provided for a project of moderate rehabilitation if the project (1) contains 30 or fewer rental units and (2) is located in a census tract in which the median household income is 60 percent or less of the median income for the housing region in which the census tract is located, as determined for a three person household by the council in accordance with the latest federal decennial census. A list of eligible census tracts shall be maintained by the department and shall be adjusted upon publication of median income figures by census tract after each federal decennial census.
g. In addition to other grants or loans awarded pursuant to this section, and without regard to any limitations on such grants or loans for any other purposes herein imposed, the commissioner shall annually allocate such amounts as may be necessary in the commissioner's discretion, and in accordance with section 3 of P.L.2004, c.140 (C.52:27D-287.3), to fund rental assistance grants under the program created pursuant to P.L.2004, c.140 (C.52:27D-287.1 et al.). Such rental assistance grants shall be deemed necessary and authorized pursuant to P.L.1985, c.222 (C.52:27D-301 et al.), in order to meet the housing needs of certain low income households who may not be eligible to occupy other housing produced pursuant to P.L.1985, c.222 (C.52:27D-301 et al.).
h. The department and the State Treasurer shall submit the "New Jersey Affordable Housing Trust Fund" for an audit annually by the State Auditor or State Comptroller, at the discretion of the Treasurer. In addition, the department shall prepare an annual report for each fiscal year, and submit it by November 30th of each year to the Governor and the Legislature, and the Joint Committee on Housing Affordability, or its successor, and post the information to its web site, of all activity of the fund, including details of the grants and loans by number of units, number and income ranges of recipients of grants or loans, location of the housing renovated or constructed using monies from the fund, the number of units upon which affordability controls were placed, and the length of those controls. The report also shall include details pertaining to those monies allocated from the fund for use by the State rental assistance program pursuant to section 3 of P.L.2004, c.140 (C.52:27D-287.3) and subsection g. of this section.
i. The commissioner may award or grant the amount of any appropriation deposited in the "New Jersey Affordable Housing Trust Fund" pursuant to section 41 of P.L.2009, c.90 (C.52:27D-320.1) to municipalities pursuant to the provisions of section 39 of P.L.2009, c.90 (C.40:55D-8.8).
(cf: P.L.2013, c.253, s.49)
11. Section 26 of P.L.1985, c.222 (C.52:27D-326) is amended to read as follows:
26. Within 12 months after the effective date of [this act] P.L.1985, c.222 (C.52:27D-301 et al.) and every year thereafter, the agency and the council shall report separately to the Governor and the Legislature on the effect of [this act] P.L.1985, c.222 (C.52:27D-301 et al.) in promoting the provision of low and moderate income housing in the [several housing regions of this] State. The reports may include recommendations for any revisions or changes in [this act] P.L.1985, c.222 (C.52:27D-301 et al.) which the agency and the council believe necessary to more nearly effectuate this end.
[Within 36 months after the effective date of this act, the council shall report to the Governor and the Legislature concerning the actions necessary to be taken at the State, regional, county and municipal levels to provide for the implementation and administration of this act on a regional basis, including any revisions or changes in the law necessary to accomplish that end. The council may include in the report any recommendations or considerations it may wish to provide regarding the advisability of implementing and administering this act on a regional basis.]
(cf: P.L.1985, c.222, s.26)
12. Section 33 of P.L.2008, c.46 (C.40:55D-8.2) is amended to read as follows:
33. The Legislature finds and declares:
a. The collection of development fees from builders of residential and non-residential properties has been authorized by the court through the powers delegated to the Council on Affordable Housing established pursuant to the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.).
b. New Jersey's land resources are becoming more scarce, while its redevelopment needs are increasing. In order to balance the needs of developing and redeveloping communities, a reasonable method of providing for the housing needs of low and moderate income and middle income households, without mandating the inclusion of housing in every non-residential project, must be established.
c. A Statewide non-residential development fee program which permits municipalities under the council's jurisdiction to retain these fees for use in the municipality will provide a fair and balanced funding method to address the State's affordable housing needs[, while providing an incentive to all municipalities to seek substantive certification from the council].
d. Whereas pursuant to P.L.1977, c.110 (C.5:12-1 et seq.), organizations are directed to invest in the Casino Reinvestment Development Authority to ensure that the development of housing for families of low and moderate income shall be provided. The Casino Reinvestment Development Authority, in consultation with the council, shall work to effectuate the purpose and intent of P.L.1985, c.222 (C.52:27D-301 et al.).
e. The "Statewide Non-Residential Development Fee Act," sections 32 through 38 of P.L.2008, c.46 (C.40:55D-8.1 through C.40:55D-8.7), prohibits municipalities from imposing their own fees to fund affordable housing on non-residential development, and P.L.2009, c.90 (C.52:27D-489a et al.) is not intended to alter this underlying policy.
f. The negative impact of a State policy that over-relies on a municipal fee structure and of State programs that require a municipality to impose fees and charges on developers must be balanced against any public good expected from such regulation. It is undisputable that the charging of fees at high levels dissuades commerce from locating within a State or municipality or locality and halts non-residential and residential development, and these ill effects directly increase the overall costs of housing, and could impede the constitutional obligation to provide for a realistic opportunity for housing for families at all income levels.
(cf: P.L.2009, c.90, s.36)
13. The following sections are repealed:
Section 16 of P.L.1985, c.222 (C.52:27D-316);
Section 18 of P.L.1985, c.222 (C.52:27D-318);
Section 28 of P.L.1985, c.222 (C.52:27D-328); and
Section 31 of P.L.1985, c.222 (C.52:27D-329).
14. This act shall take effect immediately.
This bill would require that affordable housing obligations be calculated and administered at the State level. Affordable housing is an issue of Statewide concern and importance. It is also a highly complex issue that requires technical expertise, often ends up in litigation, and is expensive to administer. This bill would eliminate the current municipality-to-municipality patchwork approach to affordable housing. The bill would centralize administration of this issue in the State agency with the necessary Statewide policy perspective and technical expertise, and which can serve as a cost-effective, fair forum to address this issue – the Council on Affordable Housing (the “council”).
Currently, affordable housing need is calculated at the regional level and fair share plans are created by municipalities. Under the bill, the council would calculate the affordable housing need of the entire State. The council would then select which municipalities will have a role to play in fulfilling this Statewide need and will assign them a fair share of this obligation. Such municipality would then submit a housing element that provides basic information on the current housing stock and properties suited for affordable housing development that could satisfy the municipal fair share. After receipt of the housing element, the bill requires the council to grant the municipality a substantive certification that shields it from exclusionary zoning suits. The council would next draft a fair share plan for the municipality that directs the municipality on how to satisfy its fair share obligation. The municipality would be required to adopt a fair share ordinance effectuating that fair share plan.
The council would be required to engage in a mediation process if an objection is made to its fair share plan for a municipality. Any exclusionary zoning suit to a fair share plan for a municipality would have to be brought against the council, with the municipality having the option to be a party in the litigation.