Senator LINDA R. GREENSTEIN
District 14 (Mercer and Middlesex)
Senator CHRISTOPHER "KIP" BATEMAN
District 16 (Hunterdon, Mercer, Middlesex and Somerset)
Senators T.Kean, Oroho, Turner, Beck and Cardinale
Clarifies scope of affordable housing obligations.
CURRENT VERSION OF TEXT
An Act concerning affordable housing obligations and amending P.L.1985, c.222.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. 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, 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 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.
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.
n. “Present need” means an estimate of the number of deficient housing units that are occupied by low and moderate income households within each municipality.
o. “Gap period” means the period between the expiration of an obligation for any given housing cycle and the date used to define the present need and the commencement date of the next 10-year prospective need period.
(cf: P.L.2008, c.46, s.5)
2. 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 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. Municipal fair share shall be determined for a 10-year period and shall not include retrospective calculations of low and moderate income households created during gap periods for which low and moderate income households were not previously accounted for as either present or prospective need by the council. 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;
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 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] 10 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] 10-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] 10-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 for the next [ten] 10 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.
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)
3. This act shall take effect immediately.
Although the “Fair Housing Act,” P.L.1985, c.222 (C.52:27D-301 et al.), clearly states that the State Constitution’s affordable housing obligation is comprised of the “present and prospective need” for affordable housing only, some courts have misunderstood the intent of the Legislature behind the “Fair Housing Act,” and imposed a retroactive obligation for the so-called gap period. The purpose of this bill is to eliminate any possible misconception with respect to the Legislature’s intent to ensure that determinations of a municipality’s fair share of affordable housing will be based upon the present and prospective need for affordable housing, as clearly set forth in the “Fair Housing Act,” and that a fair share obligation will not include retrospective need that may have arisen during any “gap period” between housing cycles.
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), 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.
By enacting the “Fair Housing Act,” the Legislature accepted the Supreme Court’s request that the Legislature occupy the field of affordable housing and defined the constitutional obligation to include the present and prospective needs for affordable housing only. The Legislature directed each municipality to comply with its constitutional obligation to address its obligations with respect to the present and prospective need by:
including in the housing element of its master plan a determination of the municipality's present and prospective fair share for low and moderate income housing and a determination of the municipality’s capacity to accommodate its present and prospective housing needs, including its fair share for low and moderate income housing as the present and prospective need; and
adopting or revising land use and other relevant ordinances consistent with the provisions for low and moderate income housing in its housing element.
The courts and the Legislature of this State require municipalities to allow low and moderate income families a chance to find housing based upon the present need and the prospective need for affordable housing in each municipality and region of the State. This requirement has always been about planning and zoning; municipalities may not limit opportunities for affordable housing through exclusionary zoning.
Differences of opinion between the judicial and executive branches of government over how to calculate each municipality’s “fair share” of affordable housing have resulted in a “gap period” of over 15 years, which is still going on, during which the State provided municipalities no clear guidelines on how to zone to satisfy their obligation to allow for a fair share of affordable housing. Now that the courts have assumed control over municipal compliance with affordable housing obligations, it is possible that municipalities may be obligated to allow for the production of affordable housing based upon the speculated need for affordable housing which arose during the gap period.
While laudable, such a result is contrary to current law, which confines municipal fair share determinations to a present and prospective need for affordable housing, and would impose an unrealistic and excessive burden upon the residential communities of our State. Requiring fair share obligations to include the need developed through a long regulatory gap period would result in an unreasonable burden, the resolution of which would force municipalities to allow rapid, unsettling changes to the physical and demographic nature of their communities. This bill eliminates any possible misconception of what the Legislature intended the fair share obligation to include so as to preclude the imposition of a fair share obligation based upon a concept of retrospective need during the gap period.