A4848

An Act concerning exemptions to affordable housing obligations based on flood risk, 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 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 or its successor, 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 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 or its successor 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, or its successor, 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] The council, or its successor, in accordance with the rules and regulations adopted pursuant to section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), shall exempt a municipality from any responsibility for a present and prospective fair share obligation, including any unfulfilled prior round obligation and gap period obligation, if the municipality is designated by the council or its successor as extensively flood-prone. Additionally, 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;

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 or its successor 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 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 or its successor, to the extent that the units are affordable to persons of low and moderate income and are available to the general public.

The council or its successor, 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 or its successor 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 or its successor 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 or its successor, the State Planning Commission established under that act shall provide the council or its successor annually with economic growth, development and decline projections for each housing region for the next ten years. The council or its successor 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.

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 or its successor unless the unit complies with the requirements set forth thereunder.

(cf: P.L.2008, c.46, s.6)

2. (New section) On or before the first day of the third month next following the enactment of P.L. , c. (C. ) (pending before the Legislature as this bill), the commissioner, in consultation with the Commissioner of Environmental Protection, shall adopt, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations necessary to serve as a basis for determinations of exemptions from municipal fair share obligations based on the level of flood risk in a municipality, pursuant to paragraph (2) of subsection c. of section 7 of P.L.1985, c.222 (C.52:27D-307). The rules and regulations adopted pursuant to this section shall serve as a basis for the council or its successor to determine if a municipality shall be designated as extensively flood-prone, and thereby exempt from a fair share obligation, based on flood insurance paid by property owners, the number of repetitive loss and severe repetitive loss properties in the municipality relative to the size of the municipality, and other relevant information accessible to the commissioner.

3. This act shall take effect immediately.

STATEMENT

This bill would direct the Council on Affordable Housing, or its successor, to exempt a municipality from any responsibility for a fair share affordable housing obligation if the municipality is designated by the council or its successor as extensively flood-prone. This exemption would have the effect of protecting a municipality from any potential builder’s remedy action to compel housing construction.

The "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.), establishes that a municipality has an obligation to provide for a fair share of the need for affordable housing in its region. However, this statute has allowed for adjustments to be made to a municipality’s obligation based on certain factors, such as needs for historic preservation and environmental protection.

This bill would direct the Commissioner of Community Affairs, in consultation with the Commissioner of Environmental Protection, to adopt rules and regulations to serve as a basis for determinations of exemptions from municipal fair share obligations based flood risk. These rules and regulations would serve as a basis for the council or its successor to designate certain municipalities as extensively flood-prone, and thereby exempt from a fair share obligation, including any present and prospective obligation, unfulfilled prior round obligation, and gap period obligation. The bill requires the rules and regulations to be based on flood insurance paid by property owners, the number of repetitive loss and severe repetitive loss properties in a municipality relative to the size of the municipality, and other relevant information. The bill directs the commissioner to adopt rules and regulations by the first day of the third month following enactment.