Bill Text: NJ AR26 | 2010-2011 | Regular Session | Introduced
Bill Title: Urges Council on Local Mandates to determine certain COAH third round methodology rules invalid as unfunded mandates.
Spectrum: Strong Partisan Bill (Republican 17-1)
Status: (Introduced - Dead) 2010-01-12 - Introduced, Referred to Assembly Housing and Local Government Committee [AR26 Detail]
Download: New_Jersey-2010-AR26-Introduced.html
STATE OF NEW JERSEY
214th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2010 SESSION
Sponsored by:
Assemblyman SCOTT RUDDER
District 8 (Burlington)
Assemblywoman DAWN MARIE ADDIEGO
District 8 (Burlington)
Co-Sponsored by:
Assemblymen Rumpf, Polistina, Amodeo, Biondi, Assemblywoman Coyle, Assemblymen Wolfe, Holzapfel, Thompson, Russo, Rumana, Rible, Assemblywomen Casagrande, Angelini, Handlin, Assemblyman O'Scanlon and Assemblywoman Vandervalk
SYNOPSIS
Urges Council on Local Mandates to determine certain COAH third round methodology rules invalid as unfunded mandates.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Assembly Resolution urging the Council on Local Mandates to declare certain third round rules adopted by the Council on Affordable Housing to be unfunded mandates upon municipalities.
Whereas, The members of the General Assembly, as elected representatives of the taxpayers of New Jersey, have grave concerns over the combined impact of P.L.2008, c.46 (C.52:27D-329.1 et al.) and the recently adopted Council on Affordable Housing ("COAH") third round housing rules; and
Whereas, There is ample evidence that these new COAH rules, as currently adopted, are inconsistent with the "Fair Housing Act" and impose a significant unfunded cost burden on municipalities that will result in massive local property tax increases for residents; and
Whereas, The issues of affordable housing and the implementation of the "Fair Housing Act" through COAH regulations impact far more property taxpayers than just the constituencies of the individual municipalities that have COAH-approved housing elements. In fact, the "Fair Housing Act" and accompanying COAH regulations will impact property taxpayers in every municipality because, due to very limited options on the part of municipalities, the financial burden to implement the regulations will fall on their property taxpayers; and
Whereas, The new COAH regulations were not promulgated to implement a constitutional provision or the New Jersey Supreme Court's Mount Laurel doctrine. On the contrary, the new regulations contradict the constitutional mandate, espoused in South Burlington County NAACP v. Mount Laurel, 67 N.J. 151, 174 ("Mount Laurel I"), that only requires 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." In fact, within the findings and declarations section of the "Fair Housing Act," specifically, subsection h. of section 2 of P.L.1985, c.222 (C.52:27D-302), specific language states that there is no requirement for "municipalities to expend their own resources to help provide" affordable housing. By requiring municipalities to fund and construct affordable housing, the new COAH regulations take a step that is both beyond and directly contrary to the constitutional and statutory directives; and
Whereas, Similar to the case, In the matter of complaints filed by the Mayors of Shiloh Borough and the Borough of Rocky Hill et al. ("Shiloh"), decided by the Council on Local Mandates on October 22, 2008 at p.9, the issue concerning the new COAH regulations is not whether they were adopted "in obedience to a constitutional command," but whether the regulations' provisions for funding affordable housing actually "implement" provisions of the New Jersey Constitution. Since the constitutional mandate, according to Mount Laurel I, is limited to requiring only that municipalities provide a reasonable opportunity for affordable housing through their zoning ordinances, and not to require municipalities to actually fund such housing, the regulations' constitutional nexus fails. The two constitutional principles - to provide a reasonable opportunity for affordable housing and to restricting unfunded State mandates on municipalities - should not be read as negating each other, but rather must be "harmonized so as to give effect to both" (Shiloh at 8, citing State v. Muhammad, 145 N.J. 23, 44 (1996)); and
Whereas, The combination of the legislative enactment of P.L.2008, c.46 and COAH's third round rules have cornered municipalities into relying on one source of revenue for affordable housing - the local taxpayer - in a clear diversion from Mount Laurel I and the "Fair Housing Act." Specifically, P.L.2008, c.46 eliminated regional contribution agreements as a mechanism available to municipalities to fulfill their fair share obligation, while at the same time eliminating in lieu of payments and limiting non-residential development fees to 2.5% of equalized assessed value. This trifecta of legislative action, in addition to the limited ability to use inclusionary zoning and the unavailability of outside funding, leaves municipalities to rely on property taxpayers to fund their affordable housing obligation. Furthermore, inaccurate vacant land evaluations and the imposition of additional housing obligations for "very low income households" force municipalities to bond to ensure adequate funding for affordable housing, further exacerbating municipal property taxes; and
Whereas, Significantly, COAH's third round rules are not merely planning tools; they are strict requirements that every municipality is required to meet; and
Whereas, As the Council on Local Mandates noted in Shiloh, a constitutional principle cannot be frustrated by giving blind deference to the method of funding the costs of a mandate, if that method is seriously flawed to the point of being illusory (Shiloh at 11, citing In re Ocean Township (Monmouth County) and Frankford Township, decided August 2, 2002 at p.12); and
Whereas, Accordingly, because the resulting implementation of P.L.2008, c.46 and COAH's third round rules require municipalities to build affordable housing and restrict the funding of such projects so that they have to rely on local property taxes, the combined enactments are inconsistent with the Mount Laurel doctrine and are an unfunded mandate in violation of Article VIII, Section 2, paragraph 5 of the New Jersey Constitution and should therefore cease to be mandatory and expire; now, therefore,
Be It Resolved by the General Assembly of the State of New Jersey:
1. The Council on Local Mandates is respectfully urged to declare that the COAH third round regulations, including N.J.A.C.5:97-1.1, requiring municipalities to actually meet their actual growth share obligations; N.J.A.C.5:97-2.4, requiring one affordable housing unit among every five residential units to be constructed; and N.J.A.C.5:97-2.5, requiring one affordable housing unit for every 16 newly created jobs in a municipality, are unfunded mandates and as such, cease to be mandatory pursuant to Article VIII, Section 2, paragraph 5 of the New Jersey Constitution.
2. Duly authenticated copies of this resolution, signed by the Speaker of the General Assembly and attested by the Clerk thereof, shall be transmitted to the Governor, to the President and Majority and Minority Leaders of the Senate, to the Executive Director and each member of the Council on Local Mandates, to the Commissioner of Community Affairs and other members of the Council on Affordable Housing, and to the Executive Director of the Council on Affordable Housing.
STATEMENT
This resolution is intended to convey to the Council on Local Mandates the opinion of the General Assembly that the Council on Affordable Housing (COAH) has gone well beyond the powers it is granted under the "Fair Housing Act" to implement the Mount Laurel doctrine. Recently, a complaint has been filed with the Council on Local Mandates concerning whether COAH's third round methodology, in conjunction with P.L.2008, c.46, constitutes an unfunded mandate on municipalities. The General Assembly agrees with the premise of the complaint in, In re Complaint filed by the Township of Medford (8-08), that municipalities are only required to provide a realistic opportunity for affordable housing, but are not required to pay for it. The complaint alleges that the combination of COAH's third round methodology and certain amendments to the "Fair Housing Act" contained in P.L.2008, c.46, specifically regarding the discontinuance of the use of regional contribution agreements and the discontinuance of the collection of in-lieu-of building fees for non-residential developments by municipalities, while at the same time maintaining a clear requirement for municipalities to produce a finite number of affordable housing units, will have the effect of requiring municipalities to pay to build affordable housing using taxpayer dollars. This resolution indicates the General Assembly's support for the complaint filed by the Township of Medford and urges the Council on Local Mandates to determine that various third round methodology rules cease to be mandatory and are expired.
