Bill Text: NJ A1621 | 2010-2011 | Regular Session | Introduced
Bill Title: Permits approval of certain regional contribution agreements through December 31, 2009.
Spectrum: Moderate Partisan Bill (Republican 8-1)
Status: (Introduced - Dead) 2010-01-12 - Introduced, Referred to Assembly Housing and Local Government Committee [A1621 Detail]
Download: New_Jersey-2010-A1621-Introduced.html
STATE OF NEW JERSEY
214th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2010 SESSION
Sponsored by:
Assemblyman DECLAN J. O'SCANLON, JR.
District 12 (Mercer and Monmouth)
Assemblywoman CAROLINE CASAGRANDE
District 12 (Mercer and Monmouth)
Co-Sponsored by:
Assemblymen Rumana, Rible, Bramnick, Assemblywoman McHose, Assemblyman Chiusano, Assemblywoman Addiego and Assemblyman Rudder
SYNOPSIS
Permits approval of certain regional contribution agreements through December 31, 2009.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act authorizing certain regional contribution agreements and amending P.L.1985, c.222 and P.L.2008, c.46.
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, and the needs of the workforce, 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 and other relevant court decisions.
f. The State can also maximize the number of low and moderate income units by creating new affordable housing and by rehabilitating existing, but substandard, housing in the State. Because the Legislature has determined, pursuant to P.L.2008, c.46 (C.52:27D-329.1 et al.), that [it is no longer appropriate or in harmony with the Mount Laurel doctrine to permit] the transfer of the fair share obligations among municipalities within a housing region is no longer viable as a permanent solution to creating affordable housing in municipalities, it is necessary and appropriate to create a new program to create new affordable housing and to foster the rehabilitation of existing, but substandard, housing.
g. 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.
h. 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 live 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.
i. Certain amendments to the enabling act of the Council on Affordable Housing are necessary to provide guidance to the council to ensure consistency with the legislative intent, while at the same time clarifying the limitations of the council in its rulemaking. Although the court has remarked in several decisions that the Legislature has granted the council considerable deference in its rulemaking, the Legislature retains its power and obligation to clarify and amend the enabling act from which the council derives its rulemaking power, from time to time, in order to better guide the council.
j. [The Legislature finds that the use of regional contribution agreements, which permits municipalities to transfer a certain portion of their fair share housing obligation outside of the municipal borders, should no longer be utilized as a mechanism for the creation of affordable housing by the council] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill).
(cf: P.L.2008, c.46, s.4)
2. Section 12 of P.L.1985, c.222 (C.52:27D-312) is amended to read as follows:
12. a. Except as prohibited under P.L.2008, c.46 (C.52:27D-329.1 et al.), a municipality may propose the transfer of up to 50% of its fair share 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 P.L.1985, c.222 may request the court to be permitted to fulfill a portion of its fair share 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 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 P.L.1985, c.222 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 P.L.1985, c.222 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. Notwithstanding this subsection, no consideration shall be given to any regional contribution agreement of which the council did not complete its review and formally approve a recommendation to the court prior to the effective date of P.L.2008, c.46 (C.52:27D-329.1 et al.).
c. Except as prohibited under P.L.2008, c.46 (C.52:27D-329.1 et al.), 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 ten 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.
[No] Except as otherwise provided in this section, no consideration shall be given to any regional contribution agreement for which the council did not complete its review and grant approval prior to the effective date of P.L.2008, c.46 (C.52:27D-329.1 et al.).
On or after the effective date of P.L.2008, c.46 (C.52:27D-329.1 et al.), no regional contribution agreement shall be entered into by a municipality, or approved by the council or the court.
(cf: P.L.2008, c.46, s.16)
h. Notwithstanding any law, rule or regulation to the contrary, the council shall, prior to December 31, 2009, review and either grant approval to or disapprove any regional contribution agreement that meets the following criteria:
(1) the sending municipality and the receiving municipality, prior to July 17, 2008, each, by resolution, authorized the execution of a regional contribution agreement;
(2) each resolution identifies the sending and receiving municipalities that are parties to the agreement; and
(3) each resolution identifies a proposed number of units to be credited to the sending municipality and the stated cost to the sending municipality that are substantially similar to the terms of the agreement.
When reviewing a regional contribution agreement pursuant to this subsection, the council shall apply its regulations in effect at the time agreement was entered into.
(cf: P.L.2008, c.46, s.16)
3. Section 12 of P.L.2008, c.46 (C.52:27D-329.6) is amended to read as follows:
12. The Legislature finds and declares that:
a. The transfer of a portion of the fair share obligations among municipalities has proven to not be a viable method of ensuring that an adequate supply and variety of housing choices are provided in municipalities experiencing growth. Therefore, the use of a regional contribution agreement shall no longer be permitted under P.L.1985, c.222 (C.52:27D-301 et al.), except as permitted pursuant to subsection h. of section 12 of P.L.1985, c.222 (C.52:27D-312) (pending before the Legislation as this bill).
b. [Although the] The elimination of the regional contribution agreement as a tool for the production of affordable housing [pursuant to P.L.1985, c.222 (C.52:27D-301 et al.),] will impact [on some] proposed agreements [awaiting approval] that had not yet been finalized and certain municipalities' long-term affordable housing strategies, it is for a public purpose and for the public good that such contracts be declared void for the current and future housing obligation rounds, except in the case of those regional contribution agreements permitted pursuant to subsection h. of section 12 of P.L.1985, c.222 (C.52:27D-312) (pending before the Legislature as this bill).
c. There is a need to assist municipalities in the rehabilitation of housing for occupancy by low and moderate income households. To this end, a specific program for housing rehabilitation by municipalities would best serve this need. It is the intent of the Legislature that this program, as well as funds earmarked for the purposes of the program, will be utilized, especially in urban areas which were the main recipients of regional contribution agreements, to continue to upgrade housing stock in order to provide a wide variety and choice of housing for persons living in those areas.
d. There is also a need to provide funding to municipalities to create additional incentives and assistance for the production of safe, decent, and affordable rental and other housing.
(cf: P.L.2008, c.46, s.12)
4. This act shall take effect immediately.
STATEMENT
This bill would permit certain regional contribution agreements ("RCAs") formed before the effective date of P.L.2008, c.46 to be reviewed and approved through the end of 2009. These incomplete RCAs would be reviewed and governed by the rules of the Council on Affordable Housing ("COAH") in effect at the time the agreements were entered into.
This bill would allow municipalities more time to complete the process of creating RCAs and developing alternative strategies to provide an opportunity for the creation of affordable housing. Under this legislation, which amends P.L.2008, c.46 and "The Fair Housing Act," P.L.1985, c.222, the council would be required to dispose of pending RCAs. This legislation requires COAH, by December 31, 2009, to review agreements between municipalities that took steps to enter into RCAs before July 17, 2008, the effective date of P.L.2008, c.46. COAH would be required to approve or disapprove agreements where municipalities had adopted resolutions of intent to execute an agreement.
