ASSEMBLY, No. 2176

 

STATE OF NEW JERSEY

 

INTRODUCED JUNE 20, 1996

 

 

By Assemblywoman MYERS, Assemblymen GREGG, Weingarten, O'Toole, Assemblywoman Bark, Assemblymen DeCroce, Garrett, Bodine, Assemblywoman J. Smith, Assemblymen Bucco, Arnone, Kramer, Assemblywoman Murphy, Assemblymen Cottrell, T. Smith and Carroll

 

 

An Act concerning affordable housing, amending P.L.1976, c.68, P.L.1979, c.275, P.L.1989, c.142, P.L.1992, c.82, and P.L.1995, c.231 and amending and supplementing P.L.1985, c.222.

 

    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, 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 level and the preparation of a municipal housing element, State review of the local fair share study and housing element, 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.

    f. The State can also maximize the number of low and moderate income units by rehabilitating existing, but substandard, housing in the State, and, in order to achieve this end, it is appropriate to permit the transfer of a limited portion of the fair share obligations among municipalities in a housing region, so long as the transfer occurs on the basis of sound, comprehensive planning, with regard to an adequate housing financing plan, and in relation to the access of low and moderate income households to employment opportunities.

    g.] It is in the best interests of the State to provide for municipalities to provide comprehensive planning and the preparation of a municipal housing element to ensure a realistic opportunity for affordable housing.

    b. New Jersey is richly diverse. 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.]Since agricultural and environmentally sensitive areas and open space are equally important to the State, it is inappropriate for the Legislature to encourage housing in these areas when they lack supporting infrastructure and easy access to employment centers.

    [h.] c. 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] that live and work 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.

(cf: P.L.1985, c.222, s.2)

 

    2. Section 3 of P.L.1985, c.222 (C.52:27D-303) is amended to read as follows:

    3. The Legislature declares that the statutory scheme set forth in this act is in the public interest in that it comprehends a low and moderate income housing planning and financing mechanism in accordance with regional considerations and sound planning concepts which satisfies the constitutional obligation enunciated by the Supreme Court. The Legislature declares that the State's preference for the resolution of existing and future disputes involving exclusionary zoning is the mediation and review process set forth in this act and not litigation, and that it is the intention of this act to provide various alternatives to the use of the builder's remedy as a method of achieving [fair share] housing.

(cf: P.L.1985, c.222, s.3)

 

    3. Section 4 of P.L.1985, c.222 (C.52:27D-304) is amended to read as follows:

    4. As used in this act:

    a. "Council" means the Council on Affordable Housing established in this act, which shall have primary jurisdiction for the administration of housing obligations in accordance with sound regional planning considerations in this State.

    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 this act.

    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.

    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.] f. "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.] g. "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.] h. "Agency" means the New Jersey Mortgage and Housing Finance Agency established by P.L. 1983, c. 530 (C. 55:14K-1 et seq.).

    [j.] i. "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.).

(cf: P.L.1985, c.222, s.4)

 

    4. Section 5 of P.L. 1985, c.222 (C.52:27D-305) is amended to read as follows:

    5. 5. a. There is established in, but not of, the Department of Community Affairs a Council on Affordable Housing to consist of [11] 13 members appointed by the Governor with the advice and consent of the Senate, of whom [four]five shall be elected officials representing the interests of local government, at least one of whom shall be representative of an urban municipality having a population in excess of 40,000 persons and a population density in excess of 3,000 persons per square mile, at least one of whom shall be representative of a municipality having a population of 40,000 persons or less and a population density of 3,000 persons per square mile or less, at least one of whom shall be representative of a rural municipality, and no more than one of whom may be a representative of the interests of county government; three shall represent the interests of households in need of low and moderate housing, one of whom shall represent the interests of the nonprofit builders of low and moderate income housing, and shall have an expertise in land use practices and housing issues, one of whom shall be the Commissioner of Community Affairs, ex officio, or his or her designee, who shall serve as chairperson and one of whom shall be the executive director of the agency, serving ex officio; one shall represent the interests of the for-profit builders of market rate homes, and shall have an expertise in land use practices and housing issues; and [three]four shall represent the public interest. Not more than [six]seven of the [11] 13 shall be members of the same political party. The membership shall be balanced to the greatest extent practicable among the various housing regions of the State.

    b. The members shall serve for terms of six years, except that of the members first appointed, two shall serve for terms of four years, three for terms of five years, and three for terms of six years. Both members appointed pursuant to subsection a. of this section, as amended by P.L. c. (C. ) (pending before the Legislature as this bill) shall be appointed for a term of six years. All members shall serve until their respective successors are appointed and shall have qualified. Notwithstanding the above, a member appointed to represent the interests of local government shall serve only such length of the term for which appointed as the member continues to hold elected local office, except that the term of a member so appointed shall not become vacant until 60 days after the member ceases to hold that elected office. Vacancies shall be filled in the same manner as the original appointments, but for the remainders of the unexpired terms only.

    c. The members, excluding the executive director of the agency and the Commissioner of Community Affairs, shall be compensated at the rate of $150.00 for each six-hour day, or prorated portion thereof for more or less than six hours, spent in attendance at meetings and consultations and all members shall be eligible for reimbursement for necessary expenses incurred in connection with the discharge of their duties.

    d. The Governor shall nominate the members within 30 days of the effective date of this act and shall designate a member to serve as chairman throughout the member's term of office and until his successor shall have been appointed and qualified.

    e. Any member may be removed from office for misconduct in office, willful neglect of duty, or other conduct evidencing unfitness for the office, or for incompetence. A proceeding for removal may be instituted by the Attorney General in the Superior Court. A member or employee of the council shall automatically forfeit his office or employment upon conviction of any crime. Any member or employee of the council shall be subject to the duty to appear and testify and to removal from his office or employment in accordance with the provisions of P.L.1970, c.72 (C.2A:81-17.2a et seq.).

(cf: P.L.1995, c.83, s.1)

 

    5. 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, and from time to time thereafter, to:

    a. Determine housing regions of the State;

    b. Estimate the present and prospective need for low and moderate income housing at the State and regional levels;

    c. Adopt criteria and guidelines for:

    (1) Municipal determination of its present and prospective [fair share of the] housing need [in a given region]. Municipal [fair share] need 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 to 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] need 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; and

    (3) (Deleted by amendment, P.L.1993, c.31);

    d. Provide population and household projections for the State and housing regions;

    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 present and prospective need for low and moderate income housing]. No municipality shall be required to address a [fair share] need beyond 1,000 units within six 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 six-year period. For the purposes of this section, the facts and circumstances which shall determine whether a municipality's [fair share] need 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 six-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] need, 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.

    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 for the next six years. The council shall develop procedures for periodically adjusting regional need based upon the low and moderate income housing that is provided in the region through any federal, State, municipal or private housing program.

(cf: P.L.1995, c.344, s.1)

 

    6. 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 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.

(cf: P.L.1985, c.222, s.9)

 

    7. 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 achieve the goal of access to affordable housing to meet present [and prospective] housing needs, 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 six years, taking into account, but not necessarily limited to, construction permits issued, approvals of applications for development and probable residential development of lands;

    c. An analysis of the municipality's demographic characteristics, including but not necessarily limited to, household size, income level and age;

    d. An analysis of the existing and probable future employment characteristics of the municipality;

    e. A determination of the municipality's present and prospective [fair share] need 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

    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.1985, c.222, s.10)

 

    8. Section 1 of P.L.1995, c.231 (C.52:27D-310.1) is amended to read as follows:

    1. When computing a municipal adjustment regarding available land resources as part of the determination of a municipality's [fair share of] affordable housing need, the Council on Affordable Housing shall exclude from designating as vacant land any land listed on a master plan of a municipality as being dedicated, by easement or otherwise, for purposes of conservation, park lands or open space and which is owned by a county, municipality or tax-exempt, nonprofit organization.

(cf: P.L.1995, c.231, s.1)

 

    9. Section 11 of P.L.1985, c.222 (C.52:27D-311) is amended to read as follows:

    11. a. In adopting its housing element, the municipality may provide for its [fair share of] low and moderate income housing need by means of any technique or combination of techniques which provide a realistic opportunity for the provision of [the fair share] that need. The housing element shall contain an analysis demonstrating that it will provide such a realistic opportunity, and the municipality shall establish that its land use and other relevant ordinances have been revised to incorporate the provisions for low and moderate income housing. In preparing the housing element, the municipality shall consider the following techniques for providing low and moderate income housing within the municipality, as well as such other techniques as may be published by the council or proposed by the municipality:

    (1) Rezoning for densities necessary to assure the economic viability of any inclusionary developments, either through mandatory set-asides or density bonuses, as may be necessary to meet all or part of the municipality's [fair share] need;

    (2) Determination of the total residential zoning necessary to assure that the municipality's [fair share] housing need is achieved;

    (3) Determination of measures that the municipality will take to assure that low and moderate income units remain affordable to low and moderate income households for an appropriate period of not less than six years;

    (4) A plan for infrastructure expansion and rehabilitation if necessary to assure the achievement of the municipality's [fair share of] need for low and moderate income housing;

    (5) Donation or use of municipally owned land or land condemned by the municipality for purposes of providing low and moderate income housing;

    (6) Tax abatements for purposes of providing low and moderate income housing;

    (7) Utilization of funds obtained from any State or federal subsidy toward the construction of low and moderate income housing; and

    (8) Utilization of municipally generated funds toward the construction of low and moderate income housing.

    b. The municipality may provide for a phasing schedule for the achievement of its [fair share of] low and moderate income housing need which is not inconsistent with section 23 of this act.

    c. The municipality may propose that a portion of its [fair share] housing need be met through a regional contribution agreement. The housing element shall demonstrate, however, the manner in which that portion will be provided within the municipality if the regional contribution agreement is not entered into. The municipality shall provide a statement of its reasons for the proposal.

    d. Nothing in this act shall require a municipality to raise or expend municipal revenues in order to provide low and moderate income housing.

    e. When a municipality's housing element includes the provision of rental housing units in a community residence for the developmentally disabled, as defined in section 2 of P.L.1977, c.448 (C.30:11B-2), which will be affordable to persons of low and moderate income, and for which adequate measures to retain such affordability pursuant to paragraph (3) of subsection a. of this section are included in the housing element, those housing units shall be fully credited as permitted under the rules of the council towards the fulfillment of the municipality's [fair share of] low and moderate income housing need.

(cf: P.L.1995, c.344, s.2)

 

    10. Section 1 of P.L.1989, c.142 (C.52:27D-311.1) is amended to read as follows:

    1. Nothing in the act to which this act is supplementary, P.L.1985, c.222 (C.52:27D-301 et al.), shall be construed to require that a municipality fulfill all or any portion of its [fair share] housing obligation through permitting the development or redevelopment of property within the municipality on which is located a residential structure which has not been declared unfit, or which was within the previous three years negligently or willfully rendered unfit, for human occupancy or use pursuant to P.L.1942, c.112 (C.40:48-2.3 et seq.), and which is situated on a lot of less than two acres of land or on a lot formed by merging two or more such lots, if the development or redevelopment would require the demolition of that structure. Any action heretofore taken by the Council on Affordable Housing based upon such a construction of P.L.1985, c.222 is invalidated.

(cf: P.L.1989, c.142, s.1)

 

    11. Section 12 of P.L.1985, c.222 (C.52:27D-312) is amended to read as follows:

    12. a. A municipality may propose the transfer of [up to 50% of its fair share] its obligation to provide affordable housing opportunities to another municipality within its housing region by means of a contractual agreement into which two municipalities voluntarily enter. A municipality may also propose a transfer by contracting with the agency or another governmental entity designated by the council if the council determines that the municipality has exhausted all possibilities within its housing region. A municipality proposing to transfer to another municipality, whether directly or by means of a contract with the agency or another governmental entity designated by the council, shall provide the council with the housing element and statement required under subsection c. of section 11 of P.L.1985, c.222 (C.52:27D-311), and shall request the council to determine a match with a municipality filing a statement of intent pursuant to subsection e. of this section. Except as provided in subsection b. of this section, the agreement may be entered into upon obtaining substantive certification under section 14 of P.L.1985, c.222 (C.52:27D-314), or anytime thereafter. The regional contribution agreement entered into shall specify how the housing shall be provided by the second municipality, hereinafter the receiving municipality, and the amount of contributions to be made by the first municipality, hereinafter the sending municipality.

    b. A municipality which is a defendant in an exclusionary zoning suit and which has not obtained substantive certification pursuant to this act may request the court to be permitted to fulfill a portion of its [fair share] housing need by entering into a regional contribution agreement. If the court believes the request to be reasonable, the court shall request the council to review the proposed agreement and to determine a match with a receiving municipality or municipalities pursuant to this section. The court may establish time limitations for the council's review, and shall retain jurisdiction over the matter during the period of council review. If the court determines that the agreement provides a realistic opportunity for the provision of low and moderate income housing within the housing region, it shall provide the sending municipality a credit against its [fair share for] housing obligation to be provided through the agreement in the manner provided in this section.

    The agreement shall be entered into prior to the entry of a final judgment in the litigation. In cases in which a final judgment was entered prior to the date this act takes effect and in which an appeal is pending, a municipality may request consideration of a regional contribution agreement; provided that it is entered into within 120 days after this act takes effect. In a case in which a final judgment has been entered, the court shall consider whether or not the agreement constitutes an expeditious means of providing part of the [fair share]obligation.

    c. Regional contribution agreements shall be approved by the council, after review by the county planning board or agency of the county in which the receiving municipality is located. The council shall determine whether or not the agreement provides a realistic opportunity for the provision of low and moderate income housing within convenient access to employment opportunities. The council shall refer the agreement to the county planning board or agency which shall review whether or not the transfer agreement is in accordance with sound, comprehensive regional planning. In its review, the county planning board or agency shall consider the master plan and zoning ordinance of the sending and receiving municipalities, its own county master plan, and the State development and redevelopment plan. In the event that there is no county planning board or agency in the county in which the receiving municipality is located, the council shall also determine whether or not the agreement is in accordance with sound, comprehensive regional planning. After it has been determined that the agreement provides a realistic opportunity for low and moderate income housing within convenient access to employment opportunities, and that the agreement is consistent with sound, comprehensive regional planning, the council shall approve the regional contribution agreement by resolution. All determinations of a county planning board or agency shall be in writing and shall be made within such time limits as the council may prescribe, beyond which the council shall make those determinations and no fee shall be paid to the county planning board or agency pursuant to this subsection.

    d. In approving a regional contribution agreement, the council shall set forth in its resolution a schedule of the contributions to be appropriated annually by the sending municipality. A copy of the adopted resolution shall be filed promptly with the Director of the Division of Local Government Services in the Department of Community Affairs, and the director shall thereafter not approve an annual budget of a sending municipality if it does not include appropriations necessary to meet the terms of the resolution. Amounts appropriated by a sending municipality for a regional contribution agreement pursuant to this section are exempt from the limitations or increases in final appropriations imposed under P.L.1976, c.68 (C.40A:4-45.1 et seq.).

    e. The council shall maintain current lists of municipalities which have stated an intent to enter into regional contribution agreements as receiving municipalities, and shall establish procedures for filing statements of intent with the council. No receiving municipality shall be required to accept a greater number of low and moderate income units through an agreement than it has expressed a willingness to accept in its statement, but the number stated shall not be less than a reasonable minimum number of units, not to exceed 100, as established by the council. The council shall require a project plan from a receiving municipality prior to the entering into of the agreement, and shall submit the project plan to the agency for its review as to the feasibility of the plan prior to the council's approval of the agreement. The agency may recommend and the council may approve as part of the project plan a provision that the time limitations for contractual guarantees or resale controls for low and moderate income units included in the project shall be less than 30 years, if it is determined that modification is necessary to assure the economic viability of the project.

    f. The council shall establish guidelines for the duration and amount of contributions in regional contribution agreements. In doing so, the council shall give substantial consideration to the average of: (1) the median amount required to rehabilitate a low and moderate income unit up to code enforcement standards; (2) the average internal subsidization required for a developer to provide a low income housing unit in an inclusionary development; (3) the average internal subsidization required for a developer to provide a moderate income housing unit in an inclusionary development. Contributions may be prorated in municipal appropriations occurring over a period not to exceed six years and may include an amount agreed upon to compensate or partially compensate the receiving municipality for infrastructure or other costs generated to the receiving municipality by the development. Appropriations shall be made and paid directly to the receiving municipality or municipalities or to the agency or other governmental entity designated by the council, as the case may be.

    g. The council shall require receiving municipalities to file annual reports with the agency setting forth the progress in implementing a project funded under a regional contribution agreement, and the agency shall provide the council with its evaluation of each report. The council shall take such actions as may be necessary to enforce a regional contribution agreement with respect to the timely implementation of the project by the receiving municipality.

(cf: P.L.1995, c.83, s.2)

 

    12. 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 obligation 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 municipality shall have 45 days in which to adopt its [fair share] housing ordinance approved by the council.

(cf: P.L.1985, c.222, s.14)

 

    13. Section 16 of P.L.1985, c.222 (C.52:27D-316) is amended to read as follows:

    16. For those exclusionary zoning cases instituted more than 60 days before the effective date of this act, any party to the litigation may file a motion with the court to seek a transfer of the case to the council. In determining whether or not to transfer, the court shall consider whether or not the transfer would result in a manifest injustice to any party to the litigation. If the municipality fails to file a housing element and [fair share] plan with the council within five months from the date of transfer, or promulgation of criteria and guidelines by the council pursuant to section 7 of this act, whichever occurs later, jurisdiction shall revert to the court.

    b. Any person who institutes litigation less than 60 days before the effective date of this act or after the effective date of this act challenging a municipality's zoning ordinance with respect to the opportunity to provide for low or moderate income housing, shall file a notice to request review and mediation with the council pursuant to sections 14 and 15 of this act. In the event that the municipality [adopts a resolution of participation] notifies the council within the period established in subsection a. of section 9 of this act, the person shall exhaust the review and mediation process of the council before being entitled to a trial on his complaint.

(cf: P.L.1985, c.222, s.16)

 

    14. Section 3 of P.L.1979, c.275 (40:37A-108) is amended to read as follows:

    3. a. The authority, for the purpose of carrying out the purposes of this act, may:

    `(1) Accept from qualified housing sponsors applications for loans;

    (2) Enter into agreements with qualified housing sponsors for permanent loans and temporary loans or advances in anticipation of such permanent loans for the construction or rehabilitation of housing projects;

    (3) Make permanent loans and temporary loans or advances in anticipation of such permanent loans to qualified housing sponsors under the provisions of this act;

    (4) Enter into lease, loan, mortgage, security or any other type of agreements with other agencies or instrumentalities of the State or any political subdivisions of the State for the purpose of providing loans and other financial assistance in order to promote housing projects in any municipality, including, without limitation, agreements to purchase bonds, notes or other debt obligations issued by municipalities and lease, loan, mortgage, security or any other type of agreements to be entered into by municipalities in order to finance a [fair share] housing obligation pursuant to P.L.1985, c.222 (C.52:27D-301 et al.). The period of usefulness in which such municipal debt obligations or such agreements must mature shall, notwithstanding any provision of law to the contrary, be based on the reasonable life of such housing projects directly or indirectly financed with such municipal debt obligations or such agreements, but in no event shall the period of usefulness be less than the minimum established under the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.); and

    (5) Prepare, carry out, acquire, own, lease and operate housing projects and provide for the construction, reconstruction, improvement, alteration or repair of those housing projects, and to lease or rent any dwellings, accommodations, lands, buildings, structures or other facilities comprising a housing project, subject to the limitations of this act.

    b. No application for a loan for the construction or rehabilitation of a housing project to be located in any municipality shall be processed unless there shall be filed with the secretary of the authority prior to such application a certified copy of a resolution adopted by said municipality reciting that there is a need for low and moderate income housing projects in said municipality.

(cf: P.L.1994, c.31, s.1)

 

    15. Section 4 of P.L.1992, c.82 (40:55D-133) is amended to read as follows:

    4. a. For any government approval which expired or is scheduled to expire during the economic emergency, that approval is automatically extended until December 31, 1996, except as otherwise provided hereunder. Nothing in this act shall prohibit the granting of such additional extensions as are provided by law when the extensions granted by this act shall expire.

    b. Nothing in this act shall be deemed to extend or purport to extend any permit issued by the government of the United States or any agency or instrumentality thereof, or to any permit by whatever authority issued of which the duration of effect or the date or terms of its expiration are specified or determined by or pursuant to law or regulation of the federal government or any of its agencies or instrumentalities.

    c. Nothing in this act shall be deemed to extend any permit or approval issued pursuant to the "Pinelands Protection Act," P.L.1979, c.111 (C.13:18A-1 et seq.) if the extension would result in a violation of federal law, or any State rule or regulation requiring approval by the Secretary of the Interior pursuant to Pub.L.95-625 (16 U.S.C. 471 (i)).

    d. This act shall not affect any administrative consent order issued by the Department of Environmental Protection in effect or issued during the period of the economic emergency, nor shall it be construed to extend any approval in connection with a resource recovery facility as defined in section 2 of P.L.1985, c.38 (C.13:1E-137).

    e. In the event that any permit extended pursuant to the "Permit Extension Act," P.L.1992, c.82 (C.40:55D-130 et seq.) was based upon the connection to a sanitary sewer system, the permit's extension shall be contingent upon the availability of sufficient capacity, on the part of the treatment facility, to accommodate the development whose approval has been extended. If sufficient capacity is not available, those permit holders whose permits have been extended shall have priority with regard to the further allocation of gallonage over those permit holders who have not received approval of a hookup prior to the enactment of the "Permit Extension Act." Priority regarding the distribution of further gallonage to any permit holder who has received the extension of a permit pursuant to the "Permit Extension Act" shall be allocated in order of the granting of the original approval of the connection.

    f. This act shall not extend any approval issued under the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.) in connection with an application for development involving a residential use where, subsequent to the expiration of the permit but prior to January 1, 1992, an amendment has been adopted to the master plan and the zoning ordinance to rezone the property to industrial or commercial use when the permit was issued for residential use.

    g. In the case of any approval issued under the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.) which is extended pursuant to P.L.1992, c.82 (C.40:55D-130 et seq.), a municipality may disapprove such an extension of approval for the period beyond January 1, 1996, if, subsequent to January 1, 1992, but prior to July 1, 1994, an amendment has been adopted to the master plan and the zoning ordinance to change the use of the property for which the approval was issued to a use different from the use for which the approval was issued. A municipal disapproval pursuant to this subsection shall be made prior to June 30, 1995.

    h. Nothing in this act shall be deemed to extend any permit issued pursuant to the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.) that expires after December 31, 1994 but prior to January 1, 1997, if the permit was issued for a development located in the coastal area, as defined pursuant to section 4 of P.L.1973, c.185 (C.13:19-4), between the mean high water line of any tidal waters or the landward limit of a beach or dune, whichever is most landward, and a point 150 feet landward of the mean high water line of any tidal waters or the landward limit of a beach or dune, whichever is most landward.

    i. This act shall not affect the terms or expiration date of any stipulation of settlement that was made or entered into during the economic emergency, provided that the stipulation of settlement involves a development which received preliminary major subdivision approval prior to January 1, 1979 in a municipality that has adopted a zoning change affecting the lot size and density of the development which is the subject of the stipulation of settlement after the date of the preliminary or final subdivision approval of that development, and provided further that the stipulation of settlement does not affect any housing constructed or rehabilitated in fulfillment of a [fair share] housing plan adopted pursuant to P.L.1985, c.222 (C.52:27D-301 et al.).

(cf: P.L.1995, c.341, s.1)

 

    16. Section 3 of P.L.1976, c.68 (40A:4-45.3) is amended to read as follows:

    3. In the preparation of its budget a municipality shall limit any increase in said budget to 5% or the index rate, whichever is less, over the previous year's final appropriations subject to the following exceptions:

    a. (Deleted by amendment, P.L.1990, c.89.)

    b. Capital expenditures, including appropriations for current capital expenditures, whether in the capital improvement fund or as a component of a line item elsewhere in the budget, provided that any such current capital expenditure would be otherwise bondable under the requirements of N.J.S.40A:2-21 and 40A:2-22;

    c. (1) An increase based upon emergency temporary appropriations made pursuant to N.J.S.40A:4-20 to meet an urgent situation or event which immediately endangers the health, safety or property of the residents of the municipality, and over which the governing body had no control and for which it could not plan and emergency appropriations made pursuant to N.J.S.40A:4-46. Emergency temporary appropriations and emergency appropriations shall be approved by at least two-thirds of the governing body and by the Director of the Division of Local Government Services, and shall not exceed in the aggregate 3% of the previous year's final current operating appropriations.

    (2) (Deleted by amendment, P.L.1990, c.89.)

    The approval procedure in this subsection shall not apply to appropriations adopted for a purpose referred to in subsection d. or j. below;

    d. All debt service, including that of a Type I school district;

    e. Upon the approval of the Local Finance Board in the Division of Local Government Services, amounts required for funding a preceding year's deficit;

    f. Amounts reserved for uncollected taxes;

    g. (Deleted by amendment, P.L.1990, c.89.)

    h. Expenditure of amounts derived from new or increased construction, housing, health or fire safety inspection or other service fees imposed by State law, rule or regulation or by local ordinance;

    i. Any amount approved by any referendum;

    j. Amounts required to be paid pursuant to (1) any contract with respect to use, service or provision of any project, facility or public improvement for water, sewerage, parking, senior citizen housing or any similar purpose, or payments on account of debt service therefor, between a municipality and any other municipality, county, school or other district, agency, authority, commission, instrumentality, public corporation, body corporate and politic or political subdivision of this State; (2) the provisions of article 9 of P.L.1968, c.404 (C.13:17-60 through 13:17-76) by a constituent municipality to the intermunicipal account; (3) any lease of a facility owned by a county improvement authority when the lease payment represents the proportionate amount necessary to amortize the debt incurred by the authority in providing the facility which is leased, in whole or in part; and (4) any repayments under a loan agreement entered into in accordance with the provisions of section 5 of P.L.1992, c.89.

    k. (Deleted by amendment, P.L.1987, c.74.)

    l. Appropriations of federal, county, independent authority or State funds, or by grants from private parties or nonprofit organizations for a specific purpose, and amounts received or to be received from such sources in reimbursement for local expenditures. If a municipality provides matching funds in order to receive the federal, county, independent authority or State funds, or the grants from private parties or nonprofit organizations for a specific purpose, the amount of the match which is required by law or agreement to be provided by the municipality shall be excepted;

    m. (Deleted by amendment, P.L.1987, c.74.)

    n. (Deleted by amendment, P.L.1987, c.74.)

    o. (Deleted by amendment, P.L.1990, c.89.)

    p. (Deleted by amendment, P.L.1987, c.74.)

    q. (Deleted by amendment, P.L.1990, c.89.)

    r. Amounts expended to fund a free public library established pursuant to the provisions of R.S.40:54-1 through 40:54-29, inclusive;     s. (Deleted by amendment, P.L.1990, c.89.)

    t. Amounts expended in preparing and implementing a housing element and [fair share] plan pursuant to the provisions of P.L.1985, c.222 (C.52:27D-301 et al.) and any amounts received by a municipality under a regional contribution agreement pursuant to section 12 of that act;

    u. Amounts expended to meet the standards established pursuant to the "New Jersey Public Employees' Occupational Safety and Health Act," P.L.1983, c.516 (C.34:6A-25 et seq.);

    v. (Deleted by amendment, P.L.1990, c.89.)

    w. Amounts appropriated for expenditures resulting from the impact of a hazardous waste facility as described in subsection c. of section 32 of P.L.1981, c.279 (C.13:1E-80);


    x. Amounts expended to aid privately owned libraries and reading rooms, pursuant to R.S.40:54-35;

    y. (Deleted by amendment, P.L.1990, c.89.)

    z. (Deleted by amendment, P.L.1990, c.89.)

    aa. Extraordinary expenses, approved by the Local Finance Board, required for the implementation of an interlocal services agreement;     bb. Any expenditure mandated as a result of a natural disaster, civil disturbance or other emergency that is specifically authorized pursuant to a declaration of an emergency by the President of the United States or by the Governor;

    cc. Expenditures for the cost of services mandated by any order of court, by any federal or State statute, or by administrative rule, directive, order, or other legally binding device issued by a State agency which has identified such cost as mandated expenditures on certification to the Local Finance Board by the State agency;

    dd. Expenditures of amounts actually realized in the local budget year from the sale of municipal assets if appropriated for non-recurring purposes or otherwise approved by the director;

    ee. Any local unit which is determined to be experiencing fiscal distress pursuant to the provisions of P.L.1987, c.75 (C.52:27D-118.24 et seq.), whether or not a local unit is an "eligible municipality" as defined in section 3 of P.L.1987, c.75 (C.52:27D-118.26), and which has available surplus pursuant to the spending limitations imposed by P.L.1976, c.68 (C.40A:4-45.1 et seq.), may appropriate and expend an amount of that surplus approved by the director and the Local Finance Board as an exception to the spending limitation. Any determination approving the appropriation and expenditure of surplus as an exception to the spending limitations shall be based upon:

    1) the local unit's revenue needs for the current local budget year and its revenue raising capacity;

    2) the intended actions of the governing body of the local unit to meet the local unit's revenue needs;

    3) the intended actions of the governing body of the local unit to expand its revenue generating capacity for subsequent local budget years;

    4) the local unit's ability to demonstrate the source and existence of sufficient surplus as would be prudent to appropriate as an exception to the spending limitations to meet the operating expenses for the local unit's current budget year; and

    5) the impact of utilization of surplus upon succeeding budgets of the local unit;

    ff. Amounts expended for the staffing and operation of the municipal court;

    gg. Amounts appropriated for the cost of administering a joint insurance fund established pursuant to subsection b. of section 1 of P.L.1983, c.372 (C.40A:10-36), but not including appropriations for claims payments by local member units;

    hh. Amounts appropriated for the cost of implementing an estimated tax billing system and the issuance of tax bills thereunder pursuant to section 3 of P.L.1994, c.72 (C.54:4-66.2).

(cf: P.L.1994, c.72, s.6)

 

    17. (New section) Notwithstanding the provisions of P.L.1985, c.222 (C.52:27D-301 et al.) or any other law, rule or regulation to the contrary, no municipality shall be required to provide for affordable housing to accommodate housing need generated outside of its borders. Any municipality which chooses to provide for its prospective need may propose the transfer of any portion of that need to another municipality within its housing region pursuant to section 12 of P.L.1985, c.222 (C.52:27D-312).

 

    18. This act shall take effect upon the adoption of a constitutional amendment relieving municipalities of the responsibility to provide affordable housing for persons living or working outside municipal boundaries.

 

 

STATEMENT

 

    It has been 13 years since the New Jersey Supreme Court issued its second Mount Laurel decision and 11 years since the Legislature adopted the Fair Housing Act to address the court's concern that municipalities were using zoning to exclude opportunities for affordable housing. The sponsor feels that it is time to examine the impact of this legislation and amend the law to address concerns that were not foreseen by either the court or the original law.

    In its decision, the court relied on the 1980 State Development Guide Plan for designating where housing should be built. That plan identified growth and non-growth areas. In 1992, however, the state adopted a new plan, which stated that all areas can accept growth. This has been used to say that all areas have an equal responsibility for providing affordable housing. As a result, the heaviest burden is falling on pristine environmentally sensitive and agricultural areas, furthering the urbanization of the state and threatening natural resources, concepts that the public finds anathema. It's simply easier and more profitable to build new housing in the wide open spaces, rather than in areas already developed. The State has done little to change this, in spite of statements in the State Development and Redevelopment Plan that discourage such development.

    Municipalities find it unfair to accept an obligation to contribute to a region's need unless there is agreement between municipalities in a region, particularly when the state has done nothing to promote regional planning. For example, a municipality that is determined to preserve farmland located next to a municipality that is determined to encourage industrial and commercial development must allocate scarce resources to an increase in development because of the Fair Housing Act's requirement for contributing to regional needs.

    The statement by the court that "In exercising control over use of land, state cannot favor rich over poor; it cannot legislatively set aside dilapidated housing in urban ghettos for the poor and decent housing elsewhere for everyone else" ignored the fact that people lived in the city to begin with because there were more jobs, services and mass transportation. The State has done little to provide mass transportation elsewhere, and the increase in housing in the suburbs and rural areas has only served to clog highways and increase air pollution. How can the poor afford to live in the suburbs and rural areas where there are fewer jobs and few options for reaching them? There is too much incentive, initiated by the Mount Laurel decision, for building in the country versus the city. This is adding to urban problems as businesses follow development elsewhere.

    The court also said that "our present programs of State aid to education are designed to reduce significantly the differential school tax burden between municipalities that accept residential development and those that do not." This ignores the fact that the state does not subsidize education in suburban and rural areas to the extent that it does in urban areas and indicates that the court did not envision the increased tax burden on municipalities resulting from residential developments, which is causing middle income families to find those municipalities increasingly unaffordable.

    This bill accepts the court's invitation for legislative action based on a need to balance the need for affordable housing with the need for affordable communities, permitting municipalities to further other worthy goals, such as urban development and redevelopment, planning based on infrastructure, farmland preservation and environmental protection. It rejects a municipality's obligation to provide for affordable housing based on regional need absent a voluntary regional agreement, and rejects the obligation to commit to a prospective need for such housing while retaining a requirement to plan for such need. Municipalities must continue to accept an obligation to provide for opportunities for affordable housing and to reflect this in their master plans, under the bill.

 

 

                             

Removes requirement of "Fair Housing Act" that municipality accommodate housing need generated beyond municipal borders.