Bill Text: NJ S355 | 2010-2011 | Regular Session | Introduced
Bill Title: Prohibits Council on Affordable Housing from establishing affordable housing need and fees based on commercial and industrial development.
Sponsorship: Partisan Bill (Republican 3)
Status: (Introduced - Dead) 2010-01-12 - Introduced in the Senate, Referred to Senate Community and Urban Affairs Committee [S355 Detail]
Download: New_Jersey-2010-S355-Introduced.html
STATE OF NEW JERSEY
214th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2010 SESSION
Sponsored by:
Senator MICHAEL J. DOHERTY
District 23 (Warren and Hunterdon)
Senator JOSEPH M. KYRILLOS, JR.
District 13 (Middlesex and Monmouth)
Co-Sponsored by:
Senator Oroho
SYNOPSIS
Prohibits Council on Affordable Housing from establishing affordable housing need and fees based on commercial and industrial development.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning certain fees authorized for affordable housing purposes, supplementing and amending P.L.1985, c.222.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) The Legislature finds and declares:
a. It has been more than 20 years since the enactment of the "Fair Housing Act," which was enacted to address the Mount Laurel court decisions which held that municipalities have a constitutional obligation to provide a realistic opportunity for the provision of affordable housing within the municipality.
b. During this time, the Legislature has not critically reviewed or invalidated any of the methodologies adopted by the Council on Affordable Housing, which entity was created by the Legislature to administer the "Fair Housing Act."
c. There is no provision of the "Fair Housing Act" which specifically authorizes a municipality to charge any fees to a developer in connection with the provision of affordable housing in a municipality under the council's jurisdiction. Notwithstanding this, the New Jersey Supreme Court, in Holmdel Builders Assoc. v. Township of Holmdel, 121 N.J. 550 (1990), held that the charging of such fees by municipalities which are under the council's or the court's jurisdiction was valid.
d. In the intervening years since the Holmdel decision, municipalities have collected hundreds of millions of dollars from residential, commercial and industrial developers for affordable housing purposes, often without compensatory zoning benefits being given to these developers, and with little evidence of an increase in the supply of affordable housing in the municipality.
e. The Legislature expresses its rejection of the court's assumption in Holmdel that commerce creates affordable housing need. To the contrary, low or moderate income households who have no or inadequate paying jobs will benefit the most when commercial or industrial development creates jobs in their housing region, because employment by that commercial enterprise can financially empower those persons or others in the region to afford to buy decent housing. In addition, there are many contributing factors to housing affordability. So, to this end, the Legislature finds that commerce helps to address affordable housing by increasing the buying power of households in the region who are the most likely to be employed by that commerce, and declares that no fair share affordable housing obligation shall be assigned to a municipality on the basis of commercial and industrial development within its borders.
f. The court assumed in Holmdel that a company developing commercial or industrial land would be hiring workers from outside of the existing local labor market, and thus it would need to provide affordable housing for those workers. By deduction, this presumes that no local residents are seeking employment. This fosters an exclusionary policy discriminating against the locally unemployed workforce, whose current housing would be affordable if their buying power was enhanced by said employment. The court's reasoning also assumed that there is no available local affordable housing for use by any new worker, regardless of their current place of residence.
g. The Legislature further rejects the Holmdel court's logic that commercial and industrial developers should subsidize a portion of the cost to construct affordable housing. Since commercial or industrial development empowers workers to afford housing, requiring developers of commercial enterprises to contribute a subsidy to the construction of affordable housing is tantamount to requiring a dual contribution from them. Furthermore, the Mount Laurel doctrine as incorporated into the "Fair Housing Act," envisions affordable housing being produced in tandem with, and supported by, the profit from market-rate residential housing production. The act does not create an obligation for municipalities to financially subsidize affordable housing construction, nor does it place a burden on nonresidential developers to subsidize the construction of residential housing.
h. The creation of State programs through which a municipality may be deemed to have met its fair share housing obligation must be balanced with the economic impacts realized when municipalities are permitted to impose onerous fees and charges on developers. It is undisputable, and has been recognized by the courts, when such fees are permitted to be charged at a level that results in great disincentives for commerce to locate within the State, and directly increases the overall costs of housing for everyone, the potential for affordable housing opportunities will be scarce, and the constitutional obligation to provide for affordable housing will thus not be met.
2. (New section) The charging of fees to a nonresidential developer by a municipality for affordable housing purposes is prohibited. For the purposes of P.L. , c. (C. ) (pending before the Legislature as this bill) "nonresidential developer" means a developer of anything other than residential housing. "Residential housing" means housing intended as a permanent abode, but does not include dormitories, assisted living facilities, hospitals, commercial portions of mixed use developments, or shelters.
3. 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 need shall not include any units of affordable housing calculated from the actual occurrence of commercial or industrial development. 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 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 to 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; and
(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 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, to the extent that the units are affordable to persons of low and moderate income and are available to the general public.
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 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.2005, c.350, s.4)
4. This act shall take effect immediately.
STATEMENT
This bill prohibits the charging of fees to a nonresidential developer by a municipality for affordable housing purposes and prohibits the Council on Affordable Housing from assigning affordable housing need on that basis. Such fees are currently authorized by the Council on Affordable Housing (COAH), but are not authorized by the "Fair Housing Act," the enabling act for that State agency.
The bill expresses the Legislative intent that the charging of fees under the rubric of "affordable housing" must be balanced with all of the negative effects of charging such fees. In addition, other factors, such as economic and commercial stimulus, must be viewed as a positive factor in housing affordability, and not a negative factor, for increasing the job supply within a housing region will generally increase the buying power of individuals employed by that commerce. The Legislature expressly rejects the notion that commercial and industrial development, in and of itself, may be used to calculate the number of affordable housing units that comprise the fair share obligation of a municipality, and the bill prohibits the charging of fees to developers of such projects for affordable housing purposes.
The bill defines "nonresidential developer" as a developer of anything other than residential housing. "Residential housing" is defined to mean housing intended as a permanent abode, but does not include dormitories, assisted living facilities, hospitals, commercial portions of mixed use developments, or shelters.
