Bill Text: NJ A1049 | 2010-2011 | Regular Session | Introduced
Bill Title: Authorizes Council on Affordable Housing to enter into memoranda of understanding with certain planning entities; establishes presumption of compliance with council's regulations; establishes moratorium on builder's remedy.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2010-01-12 - Introduced, Referred to Assembly Housing and Local Government Committee [A1049 Detail]
Download: New_Jersey-2010-A1049-Introduced.html
STATE OF NEW JERSEY
214th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2010 SESSION
Sponsored by:
Assemblyman JOSEPH R. MALONE, III
District 30 (Burlington, Mercer, Monmouth and Ocean)
Assemblyman RONALD S. DANCER
District 30 (Burlington, Mercer, Monmouth and Ocean)
SYNOPSIS
Authorizes Council on Affordable Housing to enter into memoranda of understanding with certain planning entities; establishes presumption of compliance with council's regulations; establishes moratorium on builder's remedy.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning affordable housing and supplementing P.L.2008, c.46 (C.52:27D-329.9 et al.).
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. The Legislature finds and declares that:
a. It is in the best interest of New Jersey citizens and businesses to regulate creation of opportunities for affordable housing in a way that provides certainty and predictability for those municipalities that have voluntarily chosen to comply with the "Fair Housing Act," P.L.1985, c.222.
b. Reasonable estimates of the State's development potential and affordable housing require accurate measurement of the quantity of vacant and developable land in the State, as well as other relevant data.
c. Only precise and realistic development projections can form a legitimate basis for the equitable and rational administration of a program intended to provide a realistic opportunity for the provision of affordable housing pursuant to the "Fair Housing Act."
d. The State of New Jersey has embraced sound land use and environmental protection as important public policies, but diverse and competing directives implementing these important strategies have hampered the ability of municipalities to craft effective and innovative affordable housing plans, and have made it difficult for municipalities to proceed with certainty in planning and developing affordable housing.
e. Interdepartmental cooperation between numerous planning, environmental preservation and development entities is necessary to foster the ability of municipalities to meaningfully comply with the "Fair Housing Act," and any rules of the council.
f. Municipalities will voluntarily comply with the "Fair Housing Act" if the rules effectuating the act are balanced, fair, and equitable and compliance with the rules yields predictable results.
g. The Legislature, in crafting a long term plan for the provision of affordable housing, would benefit from the input and recommendations of the State Housing Commission established pursuant to section 24 of P.L.2008, c.46 (C.52:27D-329.9).
2. a. The Council on Affordable Housing shall consult with other State and regional planning entities to reconcile any competing regulatory requirements that may be imposed on municipalities by the State and regional planning entities that are planning and developing opportunities for affordable housing. The council shall coordinate with other State and regional planning entities to develop a more streamlined approval process and certain timeline for development and production of housing.
b. Pursuant to subsection a. of this section, the council is authorized to enter into a memorandum of understanding with the State Planning Commission, the Department of Environmental Protection or any regional planning entity, including but not limited to the New Jersey Meadowlands Commission pursuant to subsection (i) of section 6 of P.L.1968, c.404 (C.13:17-6), the Pinelands Commission pursuant to section 7 of the "Pinelands Protection Act," P.L.1979, c.111 (C.13:18A-8), the Fort Monmouth Economic Revitalization Planning Authority pursuant to section 5 of P.L.2006, c.16 (C.52:27I-5), or its successor, and the Highlands Water Protection and Planning Council pursuant to section 11 of P.L.2004, c.120 (C.13:20-11), in order to augment administrative regulations that are consistent with the Fair Housing Act, P.L.1985, c.46, and sound regional planning.
c. Any memorandum of understanding executed pursuant to subsection a. of this section shall be executed between the executive director of the Council on Affordable Housing on behalf of the council and the chief operating officer of the other entity on behalf of the other Department, commission, or entity.
3. A municipality shall be presumed to be in compliance with the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.) and the regulations promulgated by the Commissioner of Community Affairs to effectuate that act until the council adopts and promulgates, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:27B-14 et seq.), new regulations after the following actions:
a. The State Planning Commission, pursuant to section 4 of P.L.1985, c.398 (C.52:18A-199), revises and readopts the State Development and Redevelopment Plan; and
b. The State Housing Commission, established pursuant to section 24 of P.L.2008, c.46 (C.52:27D-329.13), prepares, adopts, and transmits the first Annual Strategic Housing Plan to the Governor and the Joint Committee on Housing Affordability pursuant to the requirements of section 28 of P.L.2008, c.46 (C.52:27D-329.17).
4. The State shall not enforce any builder's remedy granted to a plaintiff in an exclusionary zoning lawsuit filed on or after June 2, 2008 until:
a. The State Planning Commission, pursuant to section 4 of P.L.1985, c.398 (C.52:18A-199), revises and readopts the State Development and Redevelopment Plan; and
b. The State Housing Commission, established pursuant to section 24 of P.L.2008, c.46 (C.52:27D-329.13), prepares, adopts, and transmits the first Annual Strategic Housing Plan to the Governor and the Joint Committee on Housing Affordability pursuant to the requirements of section 28 of P.L.2008, c.46 (C.52:27D-329.17).
5. This act shall take effect immediately.
STATEMENT
This bill suspends the regulations of the Council on Affordable Housing ("Council") for the third housing round, N.J.A.C.5:96 and N.J.A.C.5:97, by establishing a presumption that municipalities have complied with the council's regulations. This legislation would also establish a moratorium on builder's remedy lawsuits. This bill also authorizes the council to enter memoranda of understanding with other entities for planning purposes.
The suspension of the rules and the moratorium would be in place until the State Planning Commission revises and readopts the State Development and Redevelopment Plan and the State Housing Commission established by P.L.2008, c.46 completes its duties and issues an annual strategic housing plan.
The Appellate Division of the New Jersey Superior Court invalidated the original growth share methodology applied in the Council's rules for the third housing round. In the Matter of the Adoption of N.J.A.C. 5:94 and 5:95 by the New Jersey Council on Affordable Housing, 390 N.J. Super. 1 (App. Div.), certif. denied, 192 N.J. 72 (2007). The Court determined that, "prior to implementing a growth share methodology and growth share ratios, [the council] must have data from the State Planning Commission or from some other reputable source that the State as a whole, and that each region within the State, have sufficient vacant developable land within growth areas to enable the ratios to generate enough housing to meet the [affordable housing] need."
This bill, therefore, would suspend the third round rules of the council until the State Planning Commission readopts the State Development and Redevelopment Plan. Issuance of the Plan, accompanied by research, will accurately resolve the issue of how much developable land the State actually contains and whether this land is within growth areas. This legislation allows time for additional consideration and research concerning estimates of the supply of vacant developable land in the State, in each housing region, and in individual municipalities before regulations for the third housing round are applied to municipalities. This bill is also intended to suspend operation of the regulations of the council, in light of pending litigation filed by numerous municipalities and by the League of Municipalities addressing possible flaws in the council's methodology and the regulations that implement it.
After the court invalided the council's growth share methodology in In re Adoption of N.J.A.C. 5:94 and 5:95, the council adopted N.J.A.C. 5:96 and 5:97, which became effective on June 2, 2008. The new regulations also rely on a growth share methodology. Numerous parties filed Notices of Appeals challenging the validity of the council's regulations when these regulations became effective. Presently, these appeals are pending before the Appellate court filed by numerous municipalities and the New Jersey League of Municipalities. The complaints in these cases request that the court review alleged flaws in the council's growth share methodology and the regulations that implement it. One essential aspect of the challenges filed by municipal interests alleges that the council did not utilize the most accurate and up to date data to determine the amount of vacant developable land in the State as well as alleging that the council grossly overstated the development projections Statewide for the period 2004 through 2018.
At the March 25, 2009, meeting of the State Planning Commission, data were presented that indicated that for the period between 2008 to 2028, job growth will only amount to 6,550 jobs annually, in contrast to the council's projection of 54,000 over the same period. Housing projections presented to the Planning Commission were likewise lower, projecting only 175,000 units to be built between July of 2008 and July of 2028, as opposed to the council's projection of 269,000 units for the period 2004-2018. These discrepancies between the State Planning Commission and the council must be reviewed and reconciled.
In order to reconcile these and other regulatory conflicts between the council and other State agencies, this legislation authorizes the council to enter into memoranda of understanding with all of the Regional Planning entities, as well as the State Planning Commission and the Department of Environmental Protection to ensure consistency with the public policy objectives of the act and the public policy objectives of the various commissions, departments and agencies having jurisdiction over and duties pertaining to development in the State.
Fundamental fairness demands that the State determine municipality's fair share of the State's affordable housing need with certainty and finality. Finally, this bill provides that exclusionary zoning lawsuits shall not be enforced by the State until the issues set forth herein have been completely resolved. It is the sponsor's understanding that until a municipality's fair share of the State's affordable housing need can be determined with certainty, this threshold requirement of deciding an exclusionary zoning lawsuit cannot be meet.
