Bill Text: NJ S162 | 2016-2017 | Regular Session | Introduced
Bill Title: Refines five-month window established by Supreme Court begins after trial court establishes standards.
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Introduced - Dead) 2016-01-12 - Introduced in the Senate, Referred to Senate Community and Urban Affairs Committee [S162 Detail]
Download: New_Jersey-2016-S162-Introduced.html
STATE OF NEW JERSEY
217th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2016 SESSION
Sponsored by:
Senator CHRISTOPHER "KIP" BATEMAN
District 16 (Hunterdon, Mercer, Middlesex and Somerset)
Senator LINDA R. GREENSTEIN
District 14 (Mercer and Middlesex)
Co-Sponsored by:
Senator Singer
SYNOPSIS
Refines five-month window established by Supreme Court begins after trial court establishes standards.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel.
An Act refining affordable housing declaratory judgment procedures and supplementing Title 52 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. The Legislature finds and declares that:
a. When the Legislature passed the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.) ("FHA"), it conferred primary jurisdiction on the New Jersey Council on Affordable Housing ("COAH") for the administration of housing obligations in accordance with sound regional planning considerations in this State;
b. The Legislature charged COAH with the responsibility of establishing the procedural and substantive regulations necessary to implement the FHA;
c. The Legislature, pursuant to sections 9 AND 16 OF p.l.1985, C.222 (C.52:27D-309 and C.52:27D-316) of the FHA, gave municipalities five months after COAH adopted criteria and guidelines to prepare and file a housing element and fair share plan (collectively "affordable housing plan") with COAH consistent with those criteria and guidelines;
d. On March 10, 2015, the Supreme Court of New Jersey issued a decision in the case, In the Matter of the Adoption of N.J.A.C.5:96 and 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. 1 (2015) ("IMO COAH") wherein the Supreme Court gave municipalities that had been under the jurisdiction of COAH but did not receive substantive certification, and brought themselves under a trial judge's jurisdiction five months to submit a plan just as sections 9 and 16 of P.L.1985, c.222 (C.52:27D-309 and C.52:27D-316) gave municipalities five months to file affordable housing plans;
e. While the Supreme Court in IMO COAH did not specify when the five-month period to prepare a plan should commence, it did reference section 16 of P.L.1985, c.222 (C.52:27D-316) when establishing the five-month standard. Section 16 of P.L.1985, c.222 (C.52:27D-316) requires the establishment of the "criteria and deadlines" before the five-month period commences. The five-month period established by the Supreme Court, therefore, should commence with the date that the trial judge determines the criteria and guidelines with which the municipality must comply. Requiring a municipality to prepare a housing element and fair share plans before the trial judge has provided the municipality the criteria and guidelines, including most importantly, the fair share number, would violate the FHA that the Supreme Court has pledged to follow;
f. Although IMO COAH technically addresses only municipalities under the jurisdiction of COAH, COAH's failure to adopt regulations has also left municipalities under the jurisdiction of a court in limbo. Court municipalities should also have the opportunity to follow a parallel track with that of COAH municipalities.
2. The five-month period by the end of which a municipality is required to file an affordable housing plan pursuant to the opinion of the Supreme Court of New Jersey in In the Matter of the Adoption of N.J.A.C.5:96 and 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. 1 (2015) shall not commence until such time as the trial judge having jurisdiction over the subject municipality establishes the standards by which the municipality must comply, notwithstanding whether the municipality was under COAH's jurisdiction and now seeks to comply through the procedures established by the Supreme Court in the opinion or the municipality was under the jurisdiction of a court and now seeks to comply with the standards set forth in that opinion.
3. This act shall take effect immediately.
STATEMENT
This bill refines the procedure established by the New Jersey Supreme Court in its March 2015 opinion concerning the role of the courts and the Council on Affordable Housing ("COAH") in overseeing exclusionary zoning disputes. In its opinion, the Supreme Court properly looked to the manner in which the Legislature structured the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.) ("FHA") to establish a procedure for municipalities under the jurisdiction of COAH to comply in an analogous procedure before a trial judge. More specifically, the Supreme Court gave municipalities that were under COAH's jurisdiction but did not receive substantive certification, five months to prepare and file a housing element and fair share plan with a trial judge consistent with sections 9 and 16 of the FHA, P.L.1985, c.222 (C.52:27D-309 and C.52:27D-316), which gave municipalities five months to file a plan with COAH.
Through sections 9 and 16 of the FHA, P.L.1985, c.222 (C.52:27D-309 and C.52:27D-316), the Legislature intended to give municipalities five months to file an affordable housing plan from the point that COAH established the criteria and guidelines with which municipalities must comply. Thus, municipalities would have five months to develop a plan consistent with COAH guidelines and the process of securing plan approval, and then commencing implementation in accordance with section 14 of the FHA, P.L.1985, c.222 (C.52:27D-314), could proceed efficiently.
This bill will eliminate any possibility, however remote, that a trial judge would interpret the Supreme Court opinion to require the five-month period to prepare an affordable housing plan to commence before such time as the trial judge has established the criteria and guidelines - including, most importantly, the fair share number - with which the municipality must comply. Through this bill, the Legislature seeks merely to ensure that the procedure that trial judges implement is consistent with the FHA and promotes the efficiencies essential to avoiding a great waste of the public's finite resources.
Other prudent considerations make it essential that the five-month period commence with the trial judge's establishment of criteria and guidelines. At taxpayers' expense and in good faith, hundreds of municipalities prepared and supplemented affordable housing plans to achieve compliance with COAH rule multiple times only to subsequently find that they had to redo these plans because the courts repeatedly invalidated the regulations upon which the municipalities based their plans.
Municipalities have finite resources and must use them for the protection of public health, safety, and welfare. The preparation of affordable housing plans to meet established standards for the production of affordable housing is an appropriate use of those finite resources and promotes the public welfare, but the preparation of affordable housing plans in the absence of all of the standards with which the municipality must comply is not.
