Bill Text: NJ A2071 | 2010-2011 | Regular Session | Introduced
Bill Title: Reforms procedures concerning provision of affordable housing; abolishes Council on Affordable Housing.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2010-02-08 - Introduced, Referred to Assembly Housing and Local Government Committee [A2071 Detail]
Download: New_Jersey-2010-A2071-Introduced.html
Sponsored by:
Assemblywoman LINDA R. GREENSTEIN
District 14 (Mercer and Middlesex)
Assemblyman WAYNE P. DEANGELO
District 14 (Mercer and Middlesex)
Assemblyman ANGEL FUENTES
District 5 (Camden and Gloucester)
SYNOPSIS
Reforms procedures concerning provision of affordable housing; abolishes Council on Affordable Housing.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning affordable housing, amending, supplementing, and repealing various parts of the statutory law.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) The Council on Affordable Housing established by the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.) is abolished, and certain of its powers, functions and duties are continued in the State Housing Commission established pursuant to section 24 of P.L.2008, c.46 (C.52:27D-329.13), as provided in this amendatory and supplementary act, P.L. , c. (C. ) (pending before the Legislature as this bill. Whenever, in any law rule, regulation, order, contract, document, judicial or administrative proceeding or otherwise, reference is made to the Council on Affordable Housing, the same shall mean and refer to the State Housing Commission. All appropriations and other moneys available and to become available to the Council on Affordable Housing are hereby continued in the commission, and shall be available for the objects and purposes for which such moneys are appropriated subject to any terms, restriction, limitations or other requirements imposed by State or federal law.
This transfer shall be subject to the provisions of the "State Agency Transfer Act," P.L.1971, c.375 (C.52:14D-1 et seq.).
2. Section 19 of P.L.1975, c.291 (C.40:55D-28) is amended to read as follows:
19. a. The planning board may prepare and, after public hearing, adopt or amend a master plan or component parts thereof, to guide the use of lands within the municipality in a manner which protects public health and safety and promotes the general welfare.
b. The master plan shall generally comprise a report or statement and land use and development proposals, with maps, diagrams and text, presenting, at least the following elements (1) [and], (2), and (3) and, where appropriate, the following elements [(3)] (4) through (16):
(1) A statement of objectives, principles, assumptions, policies and standards upon which the constituent proposals for the physical, economic and social development of the municipality are based;
(2) A land use plan element (a) taking into account and stating its relationship to the statement provided for in paragraph (1) hereof, and other master plan elements provided for in paragraphs (3) through (14) hereof and natural conditions, including, but not necessarily limited to, topography, soil conditions, water supply, drainage, flood plain areas, marshes, and woodlands; (b) showing the existing and proposed location, extent and intensity of development of land to be used in the future for varying types of residential, commercial, industrial, agricultural, recreational, educational and other public and private purposes or combination of purposes; and stating the relationship thereof to the existing and any proposed zone plan and zoning ordinance; and (c) showing the existing and proposed location of any airports and the boundaries of any airport safety zones delineated pursuant to the "Air Safety and Zoning Act of 1983," P.L.1983, c.260 (C.6:1-80 et al.); and (d) including a statement of the standards of population density and development intensity recommended for the municipality;
(3) A housing plan element pursuant to section 10 of P.L.1985, c.222 (C.52:27D-310), including, but not limited to, residential standards and proposals for the construction and improvement of housing;
(4) A circulation plan element showing the location and types of facilities for all modes of transportation required for the efficient movement of people and goods into, about, and through the municipality, taking into account the functional highway classification system of the Federal Highway Administration and the types, locations, conditions and availability of existing and proposed transportation facilities, including air, water, road and rail;
(5) A utility service plan element analyzing the need for and showing the future general location of water supply and distribution facilities, drainage and flood control facilities, sewerage and waste treatment, solid waste disposal and provision for other related utilities, and including any storm water management plan required pursuant to the provisions of P.L.1981, c.32 (C.40:55D-93 et al.). If a municipality prepares a utility service plan element as a condition for adopting a development transfer ordinance pursuant to subsection c. of section 4 of P.L.2004, c.2 (C.40:55D-140), the plan element shall address the provision of utilities in the receiving zone as provided thereunder;
(6) A community facilities plan element showing the existing and proposed location and type of educational or cultural facilities, historic sites, libraries, hospitals, firehouses, police stations and other related facilities, including their relation to the surrounding areas;
(7) A recreation plan element showing a comprehensive system of areas and public sites for recreation;
(8) A conservation plan element providing for the preservation, conservation, and utilization of natural resources, including, to the extent appropriate, energy, open space, water supply, forests, soil, marshes, wetlands, harbors, rivers and other waters, fisheries, endangered or threatened species wildlife and other resources, and which systemically analyzes the impact of each other component and element of the master plan on the present and future preservation, conservation and utilization of those resources;
(9) An economic plan element considering all aspects of economic development and sustained economic vitality, including (a) a comparison of the types of employment expected to be provided by the economic development to be promoted with the characteristics of the labor pool resident in the municipality and nearby areas and (b) an analysis of the stability and diversity of the economic development to be promoted;
(10) An historic preservation plan element: (a) indicating the location and significance of historic sites and historic districts; (b) identifying the standards used to assess worthiness for historic site or district identification; and (c) analyzing the impact of each component and element of the master plan on the preservation of historic sites and districts;
(11) Appendices or separate reports containing the technical foundation for the master plan and its constituent elements;
(12) A recycling plan element which incorporates the State Recycling Plan goals, including provisions for the collection, disposition and recycling of recyclable materials designated in the municipal recycling ordinance, and for the collection, disposition and recycling of recyclable materials within any development proposal for the construction of 50 or more units of single-family residential housing or 25 or more units of multi-family residential housing and any commercial or industrial development proposal for the utilization of 1,000 square feet or more of land;
(13) A farmland preservation plan element, which shall include: an inventory of farm properties and a map illustrating significant areas of agricultural land; a statement showing that municipal ordinances support and promote agriculture as a business; and a plan for preserving as much farmland as possible in the short term by leveraging moneys made available by P.L.1999, c.152 (C.13:8C-1 et al.) through a variety of mechanisms including, but not limited to, utilizing option agreements, installment purchases, and encouraging donations of permanent development easements;
(14) A development transfer plan element which sets forth the public purposes, the locations of sending and receiving zones and the technical details of a development transfer program based on the provisions of section 5 of P.L.2004, c.2 (C.40:55D-141);
(15) An educational facilities plan element which incorporates the purposes and goals of the "long-range facilities plan" required to be submitted to the Commissioner of Education by a school district pursuant to section 4 of P.L.2000, c.72 (C.18A:7G-4); and
(16) A green buildings and environmental sustainability plan element, which shall provide for, encourage, and promote the efficient use of natural resources and the installation and usage of renewable energy systems; consider the impact of buildings on the local, regional and global environment; allow ecosystems to function naturally; conserve and reuse water; treat storm water on-site; and optimize climatic conditions through site orientation and design.
c. The master plan and its plan elements may be divided into subplans and subplan elements projected according to periods of time or staging sequences.
d. The master plan shall include a specific policy statement indicating the relationship of the proposed development of the municipality, as developed in the master plan to (1) the master plans of contiguous municipalities, (2) the master plan of the county in which the municipality is located, (3) the State Development and Redevelopment Plan adopted pursuant to the "State Planning Act," sections 1 through 12 of P.L.1985, c.398 (C.52:18A-196 et seq.) and (4) the district solid waste management plan required pursuant to the provisions of the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.) of the county in which the municipality is located.
In the case of a municipality situated within the Highlands Region, as defined in section 3 of P.L.2004, c.120 (C.13:20-3), the master plan shall include a specific policy statement indicating the relationship of the proposed development of the municipality, as developed in the master plan, to the Highlands regional master plan adopted pursuant to section 8 of P.L.2004, c.120 (C.13:20-8).
(cf: P.L.2008, c.54, s.1)
3. Section 4 of P.L.1985, c.398 (C.52:18A-199) is amended to read as follows:
4. The commission shall:
a. Prepare and adopt within 36 months after the enactment of P.L.1985, c.398 (C.52:18A-196 et al.), and revise and readopt at least every [three] six years thereafter, the State Development and Redevelopment Plan, which shall provide a coordinated, integrated and comprehensive plan for the growth, development, renewal and conservation of the State and its regions and which shall identify areas for growth, agriculture, open space conservation and other appropriate designations;
b. Prepare and adopt as part of the plan a long-term Infrastructure Needs Assessment, which shall provide information on present and prospective conditions, needs and costs with regard to State, county and municipal capital facilities, including water, sewerage, transportation, solid waste, drainage, flood protection, shore protection and related capital facilities;
c. Develop and promote procedures to facilitate cooperation and coordination among State agencies, regional entities, and local governments with regard to the development of plans, programs and policies which affect land use, environmental, capital and economic development issues;
d. Provide technical assistance to local governments and regional entities in order to encourage the use of the most effective and efficient planning and development review data, tools and procedures;
e. Periodically review State, regional, and local government planning procedures and relationships and recommend to the Governor and the Legislature administrative or legislative action to promote a more efficient and effective planning process;
f. Review any bill introduced in either house of the Legislature which appropriates funds for a capital project and may study the necessity, desirability and relative priority of the appropriation by reference to the State Development and Redevelopment Plan, and may make recommendations to the Legislature and to the Governor concerning the bill; and
g. Take all actions necessary and proper to carry out the provisions of P.L.1985, c.398 (C.52:18A-196 et al.).
(cf: P.L.2004, c.120, s.64)
4. 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.] (Deleted by amendment, P.L. , c. .) (pending before the Legislature as this bill)
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.] (Deleted by amendment, P.L. , c. .) (pending before the Legislature as this bill)
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 after December 31, 2011 as a mechanism for the creation of affordable housing [by the council].
(cf: P.L. 2008, c.46, s.4)
5. Section 4 of P.L.1985, c.222 (C.52:27D-304) is amended to read as follows:
4. As used in this act:
a. "Council" means the Council on Affordable Housing established [in this act] by section 5 of P.L.1985, c.222 (C.52:27D-305), [which shall have primary jurisdiction for the administration of housing obligations in accordance with sound regional planning considerations in this State] and, pursuant to section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill) subsequent to its effective date, the State Housing Commission.
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.] (Deleted by amendment, P.L. , c. .) (pending before the Legislature as this bill)
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] may 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.
(cf: P.L.2008, c.46, s.5)
6. Section 1 of P.L.1991, c.479 (C.52:27D-307.1) is amended to read as follows:
1. As used in this act:
"Agency" means the Housing and Mortgage Finance Agency established pursuant to section 4 of the "New Jersey Housing and Mortgage Finance Agency Law of 1983," P.L.1983, c.530 (C.55:14K-4).
"Commissioner" means the Commissioner of Community Affairs.
"Council" means the Council on Affordable Housing created by the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.) and, pursuant to section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill) subsequent to its effective date, the State Housing Commission.
"Department" means the Department of Community Affairs.
"Housing region" means a housing region as determined by the [Council on Affordable Housing] State Housing Commission pursuant to section [7 of P.L.1985, c.222 (C.52:27D-307)] 14 of P.L. , c. (C. ) (pending before the Legislature as this bill).
"Project" or "housing project" means any specific work or undertaking for the purpose of providing housing accommodations, whether by new construction or by rehabilitation or adaptation of existing structures, that shall be affordable to persons and families of low or moderate income within the meaning of the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.). Such work or undertaking may include the acquisition, construction or rehabilitation of lands, buildings and improvements, and such stores, offices, and social, recreational, communal or other facilities as may be incidental or appurtenant to the housing accommodations that are to be provided.
"Register" means the Register of Housing Projects directed by section 2 of this act to be established and maintained by the commissioner.
(cf: P.L.1991, c.479, s.1)
7. Section 3 of P.L.1991, c.479 (C.52:27D-307.3) is amended to read as follows:
3. a. The commissioner shall cause to be developed a system for assigning and designating priority ratings to each project included in the register. Priority ratings shall be based upon the following factors, giving to each factor such weight as the commissioner shall judge to be appropriate:
(1) Feasibility. Each project shall be evaluated for its physical and financial feasibility, giving consideration to the capabilities of the proposed sponsor or developer, market conditions and regulatory requirements in the locality for which it is proposed, and the availability of financing in sufficient amount and at reasonable cost.
(2) Desirability. Each project shall be evaluated with relation to its probable effect in meeting the affordable housing needs of the housing region in which it is to be located, in accordance with the standards and criteria of the [council] State Housing Commission. Consideration shall be given to (a) the number of affordable dwelling units that the project would provide, (b) the proportion of affordable units to the total number of units envisaged in the project plan, (c) the distribution of those affordable units as between those affordable to persons and families of low income and those of moderate income, considered in relation to the needs of the housing region, (d) appropriateness of the proposed tenure of the affordable units, whether to be rental or owner-occupied, in relation to the needs of the housing region, and (e) appropriateness of the proposed distribution of units as to family size, in relation to the needs of the housing region.
(3) Efficiency. Each project shall be evaluated on the basis of the cost to the State, in terms of financial assistance granted or revenue forgone in order to further the project, for each affordable dwelling unit judged by the commissioner to be feasible and desirable according to the terms of the proposal or application made for such assistance.
b. In developing the system of assigning and designating priorities, and in evaluating individual projects for such assignment and designation in the register, the commissioner shall consult with the executive director of the agency and the executive [director] secretary of the [council] State Housing Commission. The [council] person having control over the project and the agency shall promptly and fully supply the commissioner with all relevant information necessary for the commissioner's timely and complete fulfillment of the requirements of this act.
(cf: P.L.1991, c.479, s.3)
8. Section 4 of P.L.1991, c.479 (C.52:27D-307.4) is amended to read as follows:
4. a. Any officer or employee of the department, including any member, officer or employee of the agency [or the council], who receives from any person any solicitation, application, proposal or communication of any kind, whether oral or in writing, aimed at furthering the assistance of any project shall promptly report the same to the commissioner. The report shall identify the person or persons making such communication. If any such person is not identified in the register in accordance with the requirements of subsection b. of section 2 of this act, the report shall state the person's relationship to the sponsor or developer of the project and the capacity in which the person represents himself or herself to be acting on behalf of the sponsor or developer; or if the person fails or refuses to supply that information, the report shall so state.
b. The commissioner shall develop a procedure or procedures by which reports required under subsection a. of this section shall be made either to the commissioner directly or through such administrative channels as the commissioner shall devise and direct. Notwithstanding the provisions of subsection i. of section 4 of P.L.1983, c.530 (C.55:14K-4) [and subsection a. of section 5 of P.L.1985, c.222 (C.52:27D-305) ], the regulations adopted by the commissioner in fulfillment of this subsection shall be of full force and application on and within the agency [and the council]; and all members, officers and employees of the agency [and council] shall give full compliance with and obedience to the rules and orders of the commissioner made in pursuance of his duties and responsibilities under this act.
c. Reports made to the commissioner shall be promptly forwarded by him, not later than 10 days after their receipt, to the Governor and to the presiding officers of the Houses of the Legislature, who shall cause all members of their respective Houses to be notified of the receipt of those reports and shall make adequate provision for the inspection of the commissioner's reports by members and committees of either House, and for the dissemination of those reports to the public. The reports forwarded by the commissioner shall in each instance indicate the priority rating that has been assigned in the register to the project to which the report relates.
(cf: P.L.1991, c.479, s.4)
9. Section 10 of P.L.1985, c.222 (C.52:27D-310) is amended to read as follows:
10. A municipality's housing element shall be designed to achieve the goal of access to affordable housing to meet present and prospective housing needs, with particular attention to low and moderate income housing, and shall contain at least:
a. An inventory of the municipality's housing stock by age, condition, purchase or rental value, occupancy characteristics, and type, including the number of units affordable to low and moderate income households and substandard housing capable of being rehabilitated, and in conducting this inventory the municipality shall incorporate census tract data and shall have access, on a confidential basis for the sole purpose of conducting the inventory, to all necessary property tax assessment records and information in the assessor's office, including but not limited to the property record cards;
b. A projection of the municipality's housing stock, including the probable future construction of low and moderate income housing, for the next ten years, taking into account, but not necessarily limited to, construction permits issued, approvals of applications for development and probable residential development of lands;
c. An analysis of the municipality's demographic characteristics, including but not necessarily limited to, household size, income level and age;
d. An analysis of the existing and probable future employment characteristics of the municipality;
e. A determination of the municipality's present and prospective fair share for low and moderate income housing and its capacity to accommodate its present and prospective housing needs, including its fair share for low and moderate income housing; and
f. A consideration of the
lands that are most appropriate for construction of low and moderate income
housing and of the existing structures most appropriate for conversion to, or
rehabilitation for, low and moderate income housing, including a consideration
of lands of developers who have expressed a commitment to provide low and moderate
income housing.
In accordance with section 76 of the "Municipal Land
Use Law," P.L.1975, c.291 (C.40:55D-89) a municipality shall reexamine and
amend its housing element every six years.
(cf: P.L.2001, c.435, s.2)
10. Section 11 of P.L.1985, c.222 (C.52:27D-311) is amended to read as follows:
11. a. In adopting its housing element, the municipality may provide for its fair share of low and moderate income housing by means of any technique or combination of techniques which provide a realistic opportunity for the provision of the fair share, including an inclusionary zoning ordinance required pursuant to section 17 of P.L. , c. (C. ) (pending before the Legislature as this bill). The housing element shall contain an analysis demonstrating that it will provide such a realistic opportunity, and the municipality shall establish that its land use and other relevant ordinances have been revised to incorporate the provisions for low and moderate income housing. In preparing the housing element, the municipality shall consider the following techniques for providing low and moderate income housing within the municipality, as well as such other techniques as may be published by the council or proposed by the municipality:
(1) Rezoning for densities necessary to assure the economic viability of any inclusionary developments, either through mandatory set-asides or density bonuses, as may be necessary to meet [all or part of the municipality's fair share in accordance with the regulations of the council and] the provision of subsection h. of this section;
(2) Determination of the total residential zoning necessary to assure that the municipality's fair share is achieved;
(3) Determination of measures that the municipality will take to assure that low and moderate income units remain affordable to low and moderate income households for an appropriate period of not less than six years;
(4) A plan for infrastructure expansion and rehabilitation if necessary to assure the achievement of the municipality's fair share of low and moderate income housing;
(5) Donation or use of municipally owned land or land condemned by the municipality for purposes of providing low and moderate income housing;
(6) Tax abatements for purposes of providing low and moderate income housing;
(7) Utilization of funds obtained from any State or federal subsidy toward the construction of low and moderate income housing;
(8) Utilization of municipally generated funds toward the construction of low and moderate income housing; [and]
(9) The purchase of privately owned real property used for residential purposes at the value of all liens secured by the property; excluding any tax liens, notwithstanding that the total amount of debt secured by liens exceeds the appraised value of the property, pursuant to regulations promulgated by the Commissioner of Community Affairs pursuant to subsection b. of section 41 of P.L.2000, c.126 (C.52:27D-311.2);
(10) Acquiring State surplus property in the municipality for affordable housing purposes for reduced consideration and less than fair market value, as permissible under section 1 of P.L.1962, c.220 (C.52:31-1.1); and
(11) Utilization of funds obtained from any source for the rehabilitation of existing substandard or dilapidated housing for occupancy as low or moderate income housing.
b. The municipality may provide for a phasing schedule for the achievement of its fair share of low and moderate income housing.
c. (Deleted by amendment, P.L.2008, c.46)
d. Nothing in P.L.1985, c.222 (C.52:27D-301 et al.) shall require a municipality to raise or expend municipal revenues in order to provide low and moderate income housing.
e. [When a municipality's housing element includes the provision of rental housing units in a community residence for the developmentally disabled, as defined in section 2 of P.L.1977, c.448 (C.30:11B-2), which will be affordable to persons of low and moderate income, and for which adequate measures to retain such affordability pursuant to paragraph (3) of subsection a. of this section are included in the housing element, those housing units shall be fully credited as permitted under the rules of the council towards the fulfillment of the municipality's fair share of low and moderate income housing.] (Deleted by amendment, P.L. , c. .) (pending before the Legislature as this bill)
f. It having been determined by the Legislature that the provision of housing under P.L.1985, c.222 (C.52:27D-301 et al.) is a public purpose, a municipality or municipalities may utilize public monies to make donations, grants or loans of public funds for the rehabilitation of deficient housing units and the provision of new or substantially rehabilitated housing for low and moderate income persons, providing that any private advantage is incidental. A municipality may provide compensatory zoning benefits to a developer of an inclusionary development containing housing reserved for occupancy by persons of low or moderate income, or for occupancy as workforce housing, which shall be deemed an incidental private advantage.
g. [A municipality which has received substantive certification from the council, and which has actually effected the construction of the affordable housing units it is obligated to provide, may amend its affordable housing element or zoning ordinances without the approval of the council.] (Deleted by amendment, P.L. , c. .) (pending before the Legislature as this bill)
h. Whenever affordable housing units are proposed to be provided through an inclusionary development, a municipality shall provide, through its zoning powers, incentives to the developer, which shall include increased densities and reduced costs, in accordance with the regulations of the [council] commission and this subsection.
i. The [council] State Housing Commission, upon the application of a municipality and a developer, may approve reduced affordable housing set-asides, pursuant to section 21 of P.L. , c. (C. ) (pending before the Legislature as this bill) or increased densities to ensure the economic feasibility of an inclusionary development.
(cf: P.L.2008, c.46, s.15)
11. 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.).
h. (1) Notwithstanding any law, rule or regulation to the contrary, the State Housing Commission shall, prior to or on December 31, 2011, review and either grant approval to or disapprove any regional contribution agreement when the sending municipality, prior to July 17, 2008, by resolution, authorized the execution of a regional contribution agreement and the resolution identifies a proposed number of units to be credited to the sending municipality.
(2) When reviewing a regional contribution agreement pursuant to this subsection, the State Housing Commission shall apply the regulations of the Council on Affordable Housing in effect at the time agreement was entered into.
(cf. P.L.2008, c.46, s.16)
12. 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).
b. [Although 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 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.] (Deleted by amendment, P.L. , c. .) (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)
13. (New section) As used in P.L. , c. (C. ):
"Commission" means the State Housing Commission, established pursuant to section 24 of P.L.1985, c.398 (C.52:27D-329.13), that shall have primary jurisdiction for the administration of housing obligations in accordance with sound regional planning considerations in this State.
"Inclusionary development" means a residential housing development in which a substantial percentage of the housing units are provided for low income, moderate income and workforce housing.
"Inclusionary unit" means a dwelling unit for sale or for rent that is low income or moderate income or workforce housing as part of an inclusionary development pursuant to an ordinance adopted pursuant to section 17 of P.L. , c. (C. ) (pending before the Legislature as this bill).
"Inclusionary ordinance" means an ordinance adopted by a municipality that encourages or requires real estate developers to set aside residential dwelling units as low income, moderate income or workforce housing when developing real estate.
"Variety and choice of housing" means at that a municipality has planned accordingly for its housing stock to offer sufficient opportunity to provide a reasonable opportunity for price-restricted low and moderate income housing.
"Workforce housing" means housing affordable to, according to federal Department of Housing and Urban Development or other recognized standards for home ownership and rental costs, and occupied by, or reserved for occupancy by, households with a gross household income equal to more than 80 percent but less than 120 percent of the median gross household income for households of the same size within the housing region in which the housing is located, and that may be reserved for occupancy by households with at least one member working in the municipality or living in the municipality.
14. (New section) It shall be the duty of the State Housing Commission to administer the "Fair Housing Act," P.L.1985, c.222 (C:52:27D-301 et al.), as substantially amended by P.L. , c. (C. ) (pending before the Legislature as this bill), and to assist municipalities that are developing in fulfilling their obligation to provide an appropriate variety and choice of housing, including housing for low- and moderate-income families. The commission shall:
a. Determine the housing regions of the state, for the use and information of municipalities;
b. Pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), promulgate guidelines and criteria for housing elements prepared pursuant to section 19 of the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-28) and section 10 of the "Fair Housing Act," P.L. 1985, c.222 (C.52:27D-310);
c. Pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), promulgate guidelines and criteria for and review municipal ordinances of compliance adopted pursuant to section 16 of P.L. , c. (C. ) (pending before the Legislature as this bill) in accordance with the procedures provided therein; and
d. Develop standards and guidelines for an inclusionary ordinance for those municipalities required to adopt an inclusionary ordinance pursuant to section 17 of P.L. , c. (C. ) (pending before the Legislature as this bill).
15. (New section) The commission shall not adopt any rule or regulation requiring a municipality to provide an opportunity for a specific number of units attributable to prospective need as estimated by the municipality or commission. Nothing in this section shall modify any requirement that a municipality afford the opportunity for housing that satisfies the municipality's fair share of the prospective need for housing affordable to low- and moderate-income households in the housing region.
16. (New section) a. The governing body of a municipality adopting a housing element pursuant to section 10 of P.L.1985, c.222 (C.52:27D-310) and completing the general reexamination of its master plan pursuant to section 76 of P.L.1975, c.291 (C.40:55D-89) may adopt an ordinance determining that it has complied with its obligation pursuant to the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.) to provide an opportunity for an appropriate variety of housing choice within the municipality for the six-year housing round period.
b. An ordinance adopted pursuant to subsection a. of this section shall be based on a model ordinance, or other standards and criteria promulgated by the State Housing Commission pursuant to section 14 of P.L. , c. (C. ) (pending before the Legislature as this bill). A determination of compliance shall be based upon a municipality's existing housing stock, census data, and historical compliance with the regulations of the Council on Affordable Housing promulgated pursuant to the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.). There shall be a rebuttable presumption of validity attaching to the ordinance.
c. Any person may file with the State Housing Commission an objection to an ordinance adopted by the governing body of a municipality pursuant to subsection a. of this section. Any action taken by the commission concerning the objection shall be a final agency decision subject to review by the Appellate Division of the Superior Court.
17. (New section) a. A municipality that has not adopted an ordinance pursuant to section 16 of P.L. , c. (C. ) (pending before the Legislature as this bill), shall adopt a specific inclusionary ordinance requiring that one out of every five residential housing units proposed for construction as part of a residential development project resulting in two or more dwelling units be reserved for occupancy as low income, moderate income or workforce housing.
b. The ordinance shall provide that residential developments resulting in a fractional units reserved for occupancy by low- and moderate-income families, shall, if such fractional unit will not be constructed, make a payment in lieu of construction into a municipal trust fund established by a municipality authorized to collect development fees pursuant to section 8 of P.L.2008, c.46 (C.52:27D-329.2) or, if not so authorized, into the New Jersey Affordable Housing Trust Fund established pursuant to section 20 of P.L.1985, c.222 (C.52:27D-320). The commission shall promulgate guidelines for payments in lieu of construction, including guidelines for the collection, spending and calculations of payments on account of fractional dwelling units, in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
c. To encourage and stimulate the provision of opportunities for affordable housing as well as to make market-rate residential development financially viable for residential developers, an ordinance adopted pursuant to this section shall authorize indirect and direct economic incentives to any person engaging in a development project, including, but not limited to:
(1) Density bonuses;
(2) Streamlining local government permitting processes or project review where available;
(3) Fee waivers;
(4) Alternate design standards for affordable units;
(5) Permitting the required inclusionary units to be newly constructed off-site;
(6) Permitting the required inclusionary units to be provided off site by rehabilitation of existing substandard units; and
(7) Permitting a developer to pay a fee in lieu of constructing a portion of the inclusionary units into a municipal trust fund for the construction of affordable housing.
d. Nothing in this section shall preclude a municipality from imposing inclusionary requirements upon redevelopment or rehabilitation projects, condominium conversions, or any form of infill development or adaptive reuse of a residential development project.
For purposes of this section, "residential development project" means new construction resulting in the production of residential dwelling units, including single family home subdivisions or re-subdivisions, or new construction on a project resulting in two or more dwelling units, whether attached or detached, on a single parcel of real property.
18. (New section) At least 25 percent of the units required to be provided pursuant to an ordinance adopted pursuant to section 17 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be low income housing. At least 25 percent of the units required to be provided pursuant to an ordinance adopted pursuant to section 17 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be moderate income housing. At least 25 percent of the units required to be provided pursuant to an ordinance adopted pursuant section 17 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be workforce housing, and may be reserved for households that have at least one member who works or resides in the municipality, or works within a 10-mile radius of the outer boundaries of the municipality.
19. (New section) A municipal ordinance adopted pursuant to section 17 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not require any restrictions on the subsequent resale price of a workforce housing unit following the initial sale from a developer, provided that the seller of the workforce housing has maintained the home as a primary residence for at least six years prior to its resale.
20. (New section) a. In each municipality of the State that has not adopted an ordinance pursuant to section 16 of P.L. , c. (C. ) (pending before the Legislature as this bill) and that has not adopted a specific inclusionary ordinance pursuant to section 17 of P.L. , c. (C. ), or for which there is demonstrated evidence that the municipality has taken affirmative exclusionary zoning action, when a proposed inclusionary development requires approval pursuant to this act of a subdivision, site plan or conditional use, or a variance, including a variance pursuant to subsection d. of section 57 of P.L.1975, c.291 (C.40:55D-70), the board of adjustment or the use board, as appropriate, shall review the request for a subdivision, site plan or conditional use, or a variance, and the inclusionary development shall be deemed to be an inherently beneficial and the developer shall only be required to make a showing, consistent with section 57 of P.L.1975, c.291 (C.40:55D-70) that the variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.
21. (New section) a. A municipality and the developer of an inclusionary development may jointly apply to the State Housing Commission for a site-specific adjustment to the affordable housing set-aside required by an ordinance adopted pursuant to section 17 of P.L. , c. (C. ) (pending before the Legislature as this bill) if it is believed that a project will not be economically feasible if required to comply with a municipal inclusionary zoning ordinance adopted pursuant to section 17 of P.L. , c. (C. ) (pending before the Legislature as this bill).
b. An application for an adjustment shall demonstrate that the proposed development and residential, inclusionary use of the site are indispensible components of a municipal response to the municipality's housing obligation. The application for an adjustment shall contain a pro forma that includes details of the project plan and financial analysis, including the yield required for financing and to secure a mortgage, and an analysis of the burden of applicable development regulations and ordinance's effect on the project's financial viability.
c. The State Housing Commission shall have 90 days to review the application for an adjustment and shall provide, in writing, a determination containing an evaluation. The State Housing Commission shall consider the financing received by the inclusionary development, including loans, grants or other financial aid administered by the department, including programs administered by the agency, any assistance received from the New Jersey Affordable Housing Trust Fund established pursuant to section 20 of P.L.1985, c.222 (C.52:27D-320) or a municipal trust fund established pursuant to subsection c. of section 35 of P.L.2008, c.46 (C.40:55D-8.4), and any other source of financial assistance, including by not limited to assistance received from any other instrumentality of the State or the United States government. The State Housing Commission may consult with any other State agency concerning its evaluation. The commission's determination may include a suggested site-specific adjustment for the project, which may include a change in density, set-asides, or reserved units for low or moderate income occupants.
d. The State Housing Commission shall transmit its determination to the appropriate municipal agency, which shall grant relief necessary to implement the adjustment to the development's set-aside.
e. Notwithstanding any adjustment made pursuant to this section, not less than 10 percent of the housing units in any proposed inclusionary development shall be reserved for occupancy by low or moderate income occupants.
f. Any party may appeal a determination made by the State Housing Commission concerning a site-specific adjustment to the Superior Court.
g. The State Housing Commission, in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt rules and regulations to implement the provisions of this section.
22. (New section) a. The court shall grant repose from exclusionary zoning lawsuits to a municipality that has adopted an ordinance pursuant to section 16 of P.L. , c. (C. ), or has adopted a specific inclusionary ordinance in accordance with section 17 of P.L. , c. (C. ) (pending before the Legislature as this bill) and can affirmatively demonstrate to the court continued enforcement of such an ordinance since its adoption, regardless of whether the municipality has petitioned or filed an affordable housing plan with any State agency for the housing period beginning 2004.
b. This section shall not apply to a municipality subject to a court order to provide affordable housing prior to the adoption of an ordinance required pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill).
c. Any land that, by ordinance, was planned for, or reserved for purposes of satisfying a municipality's fair share of the region's housing opportunities pursuant to N.J.A.C.5:92, the regulations of the Council on Affordable Housing for the housing round beginning on August 4, 1986 or N.J.A.C.5:93, the regulations of the Council on Affordable Housing for the housing round beginning June 6, 1994, shall be excluded from any calculations concerning variety and choice of housing, pursuant to section 16 of P.L. , c (C. ) (pending before the Legislature as this bill) and the requirements of any specific inclusionary zoning ordinance adopted pursuant to section 17 of P.L. , c (C. ) (pending before the Legislature as this bill).
d. For any litigation involving exclusionary zoning instituted prior to the effective date of P.L. , c (C. ) (pending before the Legislature as this bill) jurisdiction may remain with the court.
23. (New section) A municipality shall not be liable for any unmet housing obligation based on regulations promulgated by the Council on Affordable Housing pursuant to the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.), or any law or fact in a time period prior to the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill).
24. Section 24 of P.L.2008, c. 46 (C.52:27D-329.13) is amended to read as follows:
24. a. The State Housing Commission is created and established in the Executive Branch of the State Government. For the purposes of complying with the provisions of Article V, Section IV, paragraph 1 of the New Jersey Constitution, the commission is allocated within the Department of Community Affairs, but notwithstanding this allocation, the commission shall be independent of any supervision or control by the department except as expressly authorized under P.L.2008, c.46 (C.52:27D-329.1 et al.). The commission shall consist of 15 public members and shall also include the Commissioner of Community Affairs, the Commissioner of Environmental Protection, the Commissioner of Human Services, the Commissioner of Transportation, the Commissioner of Education, the Chairman of the State Planning Commission, and the State Treasurer, who shall be nonvoting, ex-officio members of the commission. The non-public members may each designate a qualified employee to serve in their stead.
Thirteen of the public members shall be appointed by the Governor with the advice and consent of the Senate as follows: four members shall be individuals qualified by expertise in housing preservation, development, and management and who do not hold public office or public employment, and one of the four shall have particular experience in addressing the needs of the homeless; two of the four members shall be individuals qualified by expertise in urban revitalization and redevelopment and who do not hold public office, one of whom shall be a nonprofit builder, and another member of the four shall be a for-profit developer; two members shall be elected local officials at the time of initial appointment, one of whom shall be an elected official in a municipality having a population greater than 50,000; two members shall be individuals who do not hold public office and are qualified by their position and experience to represent the interests of low and moderate income and middle income families and individuals; one member shall be an individual who does not hold public office and who is qualified by expertise in planning and land use, one member who does not hold public office shall be a licensed real estate broker or a licensed real estate salesperson, and one member who shall be an executive director of a public housing authority within the State. Two additional public members who do not hold public office or public employment shall be appointed as follows: one member by the Speaker of the General Assembly and one member by the President of the Senate. The public members of the commission shall reflect the diversity of housing sector professionals.
b. The Governor shall nominate 13 public members of the commission, within 90 days following the effective date of P.L.2008, c.46 (C.52:27D-329.1 et al.), and shall designate a public member to preside over the commission until a chair and vice-chair are elected by the members of the commission. The Speaker of the General Assembly and the President of the Senate shall each appoint a member, respectively, within 90 days following the effective date of P.L.2008, c.46 (C.52:27D-329.1 et al.).
c. Each public member of the commission shall serve for a term of three years, except that of the initial members so appointed: three members appointed by the Governor shall serve for terms of one year; one member appointed by the President of the Senate, one member appointed by the Speaker of the General Assembly and five members appointed by the Governor shall serve for terms of two years; and the remaining appointees shall serve for terms of three years. Public members shall be eligible for reappointment. They shall serve until their successors are appointed and qualified, and the term of the successor of any incumbent shall be calculated from the expiration of the term of that incumbent. A vacancy occurring other than by expiration of term shall be filled in the same manner as the original appointment, but for the unexpired term only.
The members of the commission shall serve without compensation, but shall be entitled to reimbursement for all necessary expenses incurred in the performance of their duties. Each member of the commission may be removed from office by the Governor, for cause, upon notice and opportunity to be heard.
d. The commission shall elect annually a chair and vice-chair from among the public members of the commission, who shall serve for one year and until a successor is elected.
e. The executive secretary of the commission shall be the Senior Deputy Commissioner for Housing. In the event the commissioner designates the Senior Deputy Commissioner for Housing to serve in his or her stead as a member of the commission, the Senior Deputy Commissioner for Housing shall designate a qualified employee of the department to serve as executive secretary of the commission. Eight of the voting members of the commission shall constitute a quorum and a vote of the majority of the members present shall be necessary for any action taken by the commission.
f. The duties of the commission shall be as follows:
(1) To provide guidance and direction with respect to the policies and strategies to be pursued by State agencies with respect to housing which are incorporated into the plan.
(2) To prepare and adopt the Annual Strategic Housing Plan as set forth in section 28 of P.L.2008, c.46 (C.52:27D-329.17).
(3) To hold such public hearings and other activities as may be desirable to ensure adequate public input into the preparation of the plan and increase public awareness of the strategies and activities contained in the plan.
(4) To gather and disseminate such information on housing needs and strategies as may be useful for the work of the commission and informative to the public.
(5) To assume the duties of the Council on Affordable Housing which are transferred to the commission, as well as such other duties, as provided in sections 14 and 15 of P.L. , c. (C. ) (pending before the Legislature as this bill).
(cf: P.L.2008, c.46, s.24)
25. Section 26 of P.L.2008, c.46 (C.52:27D-329.15) is amended to read as follows:
26. a. An interdepartmental working group is established for the purpose of supporting the activities of the commission and its preparation of the draft plan.
b. The membership of the working group shall consist of the commissioners or executive directors of the following departments or agencies of State government: the Department of Community Affairs, [the Council on Affordable Housing,] the New Jersey Economic Development Authority, the New Jersey Housing and Mortgage Finance Agency, the Department of Human Services, the Department of Children and Families, the Department of Health and Senior Services, the Public Advocate, the Department of Education, the Department of Environmental Protection, the Department of Transportation, the Office of Smart Growth, the Department of the Treasury, the Highlands Council, the Pinelands Commission, and the New Jersey Meadowlands Commission.
c. The Commissioner of Community Affairs may appoint the Senior Deputy Commissioner for Housing as his or her representative to serve on the working group.
d. Each other commissioner or executive director may appoint a representative to serve on the working group, who shall be a senior employee of the department or agency with substantial background, experience, or training relevant to the mission of the working group.
e. The working group shall be chaired by the Commissioner of Community Affairs or by the Senior Deputy Commissioner for Housing as the commissioner's designee, if so appointed.
f. Meetings of the working group shall be called by the chair as needed during the course of preparation of the plan or the annual performance report.
g. Each department or
agency constituting the working group shall make available such personnel and
information as may be necessary to enable the working group to perform its
responsibilities.
(cf: P.L.2008, c.46, s.26)
26. The following sections are repealed:
Section 5 of P.L.1985 c.222 (C.52:27D-305);
Section 6 of P.L.1985, c.222 (C.52:27D-306);
Section 7 of P.L.1985, c.222 (C.52:27D-307);
Section 6 of P.L.2001, c.435 (C.52:27D-307.6);
Section 8 of P.L.1985, c.222 (C.52:27D-308);
Section 9 of P.L.1985, c.222 (C.52:27D-309);
Section 1 of P.L.1995, c.231 (C.52:27D-310.1);
Section 2 of P.L.1995, c.231 (C.52:27D-310.2);
Section 40 of P.L.2009, c.90 (C. 52:27D-311.3);
Section 6 of P.L.2005, c.350 (C.52:27D-311b);
Section 13 of P.L.1985 c.222 (C.52:27D-313);
Section 2 of P.L.1989, c.142 (C.52:27D-313.1);
Section 14 of P.L.1985 c.222 (C.52:27D-314);
Section 15 of P.L.1985 c.222 (C.52:27D-315);
Section 16 of P.L.1985, c.222 (C.52:27D-316);
Section 17 of P.L.1985, c.222 (C.52:27D-317);
Section 18 of P.L.1985, c.222 (C.52:27D-318); and
Section 19 of P.L.1985 c.222 (C.52:27D-319)
27. This act shall take effect immediately.
STATEMENT
This bill reforms this State's affordable housing laws. If enacted, this legislation would abolish the Council on Affordable Housing established pursuant to the "Fair Housing Act," N.J.S.A.52:27D-301 et al., and would allow municipalities to administer their own affordable housing obligations. The bill would do away with State-imposed calculations of municipal affordable housing need and would permit local governments to take charge of planning for opportunities for affordable housing. This bill charges the State Housing Commission with assisting municipalities in facilitating opportunities for affordable housing.
If enacted, this legislation would abolish the Council on Affordable Housing, and transfer any remaining authority of the council to the State Housing Commission. This bill amends the findings and declarations sections of the "Fair Housing Act" to eliminate references to the Council on Affordable Housing. In addition, this bill repeals the sections of law establishing the council.
To transfer responsibility for affordable housing planning to municipalities, this legislation would amend the "Municipal Land Use Law," N.J.S.A.40:55D-1 et seq. to make a housing element a mandatory part of a municipal master plan. In addition, to promote stability and predictability for municipal planning purposes, this bill amends the State Planning Act to provide that the State Development and Redevelopment Plan, like a municipal master plan, is readopted only every six years.
In order to ease the pressure for municipalities to meet affordable housing goals, 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 2011. These incomplete RCAs would be reviewed and governed by the rules of the council in effect at the time the agreements were entered into. Completion of these RCAs could allow the production of opportunities for as many as 5,000 units and the transfer of up $116 million to urban municipalities for rehabilitation and redevelopment.
The State Housing Commission would be required, by December 31, 2011, to review agreements between municipalities that took steps to enter into RCAs before July 17, 2008. The commission would be required to approve or disapprove agreements where municipalities had adopted resolutions of intent to execute an agreement.
Municipalities, following a general reexamination of their master plan and housing element, would be required to adopt an ordinance providing that have determined that they have provided an opportunity for an appropriate variety and choice of housing and have complied with their obligations under the "Fair Housing Act."
This bill would require those municipalities that do not adopt an ordinance determining compliance, to adopt a specific inclusionary zoning ordinance. Inclusionary zoning is a technique that insures that low and moderate income, and workforce housing is built whenever market rate units are developed. Under this legislation, a specific municipal inclusionary zoning ordinance would require developers to set aside 20 percent of the proposed units in a residential development for low- and moderate-income households and for workforce housing. Although inclusionary zoning ordinances can be cumbersome, this legislation requires the ordinance to provide for indirect economic incentives to a developer. These incentives include payments in lieu of construction, off-site construction, and alternate design standards for residential development projects that include affordable units. This legislation permits municipalities to tailor the incentives to their specific needs for encouraging development.
In addition to authorizing municipalities to grant economic incentives to developers, this legislation would add additional language to section 11 of the "Fair Housing Act," N.J.S.A.52:27D-311, to emphasize that the rehabilitation of existing dwelling units and the employment of surplus State property are techniques which provide a realist opportunity for the provision of low and moderate income housing. The bill specifies that compensatory zoning benefits given to a developer of an inclusionary development which includes workforce housing units will be deemed to be incidental private benefits, since the benefits assist the developer in the overall goal of providing affordable housing.
If a municipality does not comply with the ordinance procedure and does not adopt a specific inclusionary zoning ordinance, the bill makes available an alternate variance procedure to ensure provision of opportunities for affordable units. Under the provisions of the bill, a proposed inclusionary development seeking a variance is deemed to be inherently beneficial, and thus to have satisfied the "positive" criteria for a d. variance pursuant to section 70 of the "Municipal Land Use Law." The alternate variance procedure would not be available in a municipality that has adopted an ordinance determining compliance or has adopted a specific inclusionary zoning ordinance.
Because of the current economic situation, this legislation also provides that developers can seek site-specific adjustments of set-asides based on economic feasibility. Jointly with a municipality, a developer would apply to the State Housing Commission for a review of the pro forma and other documentation. In no event would less than 10 percent of the units in an inclusionary development be moderate income, low income or workforce housing under the adjustment.
This bill also amends the Fair Housing Act to prevent the State from calculating prospective need, in line with the original Mt. Laurel decision, which held that projected affordable housing "need" numbers were not specifically required and in consideration of the mandatory growth share ordinances which will be adopted by many municipalities. This bill also forgives unmet housing need from prior rounds or periods in time before the effective date of the act. The bill also adds the executive director of the New Jersey Redevelopment Authority to the steering workgroup of the State Housing Commission.
