SENATE CONCURRENT RESOLUTION No. 109

STATE OF NEW JERSEY

INTRODUCED JANUARY 23, 1997

By Senator CIESLA

A Concurrent Resolution concerning legislative review of Department of Community Affairs regulations pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey.

    Be It Resolved by the Senate of the State of New Jersey (the General Assembly concurring):

    1.   Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Legislature may review any rule or regulation adopted by an administrative agency to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement.

    2. a. In 1985, the Legislature adopted the "Fair Housing Act," P.L.1985, c.222, which recognized the constitutional obligation of each municipality to provide its present and prospective share of housing affordable to persons of low and middle income.

    b. Acknowledging the extent of urbanization and density of population in the State, however, the Legislature provided in section 7 of P.L.1985, C.222 (C.52:27D-307) for an adjustment in the calculation of municipal fair share housing need "based upon available vacant and developable land...whenever... vacant and developable land is not available in the municipality..."

    3. On June 6, 1994, the Department of Community Affairs promulgated Affordable Housing Rules, which, pursuant to N.J.A.C.5:93-4.2(g), may be interpreted to call for the development of private clubs, publicly owned land, and subdivision of existing parcels of land in order to fulfill a municipality's fair share housing obligation. The Legislature finds that it never intended to require municipalities to expend municipal revenues or resources for affordable housing.

    4. The Legislature finds that the provision of the Affordable Housing Rules codified at N.J.A.C.5:93-4.2(g) which would require provision for the redevelopment of real property which is already developed within a municipality is in direct contravention of the intent of the Legislature in allowing for an adjustment to fair share need based on the lack of developable land.

    5. The Legislature finds that N.J.A.C.5:93-4.2(g) exceeds the scope and intent of the "Fair Housing Act" in that it would impose an obligation upon municipalities to provide for the development of already developed land to provide for affordable housing. It was never the intent of the Legislature to impose an obligation upon municipalities beyond the obligation to provide for affordable housing to the extent possible from the use of available vacant land.

    6. The Secretary of the Senate and the Clerk of the General Assembly shall transmit a duly authenticated copy of this concurrent resolution to the Governor and the Commissioner of Community Affairs.

    7. Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Commissioner of Community Affairs shall have 30 days following transmittal of this resolution to amend or withdraw the regulations codified in N.J.A.C.5:93-4.2 or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the regulations codified in N.J.A.C.5:93-4.2, in whole or in part.

STATEMENT

    This concurrent resolution embodies the finding of the Legislature that the regulations of the Department of Community Affairs concerning the calculation of developable land for the purposes of calculating a municipality's affordable housing obligation is not consistent with legislative intent pursuant to Article V, Section IV, paragraph 6 of the State Constitution.

    The concurrent resolution finds that N.J.A.C.5:93-4.2 could be interpreted to have the practical effect of requiring municipalities to encourage the redevelopment of public parks and private clubs in order to make way for affordable housing development, which was never intended by the Legislature in enacting the "Fair Housing Act."

    The concurrent resolution further finds that N.J.A.C.5:93-4.2(g) has the further practical effect of depriving municipalities of the opportunity of obtaining an adjustment of their fair share obligation based on the lack of developable vacant land in direct contravention of the "Fair Housing Act."

    The Commissioner of Community Affairs will have 30 days to withdraw or amend the inconsistent regulations or the Legislature may, by the passage of another concurrent resolution, invalidate the regulations in whole or in part.

Determines that COAH regulations regarding calculation of developable land are inconsistent with legislative intent.