Bill Text: NJ SJR61 | 2010-2011 | Regular Session | Introduced
Bill Title: Expresses strong opposition to recent Superior Court decision; calls upon Supreme Court to reexamine validity of growth share methodology.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2011-01-10 - Introduced in the Senate, Referred to Senate Community and Urban Affairs Committee [SJR61 Detail]
Download: New_Jersey-2010-SJR61-Introduced.html
Sponsored by:
Senator CHRISTOPHER "KIP" BATEMAN
District 16 (Morris and Somerset)
SYNOPSIS
Expresses strong opposition to recent Superior Court decision; calls upon Supreme Court to reexamine validity of growth share methodology.
CURRENT VERSION OF TEXT
As introduced.
A Joint Resolution expressing strong opposition to the New Jersey Superior Court Appellate Division decision in In re Adoption of N.J.A.C.5:96 and N.J.A.C.5:97 and calling upon the Supreme Court of New Jersey to reexamine the validity of the growth share methodology.
Whereas, The New Jersey Supreme Court's opinion in Southern Burlington County N.A.A.C.P. v. Tp. of Mount Laurel, 67 N.J. 151 recognized that the need for housing, including affordable housing, is a natural and inevitable consequence of new development in a region, and the later "Fair Housing Act," was enacted as a legislative solution to address the need for affordable housing in New Jersey; and
Whereas, In Southern Burlington County N.A.A.C.P. v. Tp. of Mount Laurel, 92 N.J. 158, ("Mount Laurel II") the Supreme Court, in attempting to do justice to the constitutional mandate of the original case, established a broad, but burdensome, jurisprudence that invalidated the approach of allocating a municipality's fair share based on the municipality's own growth projections and instructed the lower courts to come up with firm housing targets for every municipality in New Jersey based on the State Development Guide Plan; and
Whereas, Following enactment of the "Fair Housing Act" in 1985, the administrative regulations developed by the Council on Affordable Housing, retained unbending affordable housing goals resulting from a Byzantine method of calculating real-world housing need that was too rigid to reflect current changes in that need caused by shifting economic conditions; and
Whereas, In 2004, the Council on Affordable Housing made "a significant departure from the Council's [earlier rules]" and promulgated rules establishing a growth share methodology that would "link the actual production of affordable housing with municipal development and growth," and thus "hew more closely to the doctrinal underpinning of Mount Laurel in that municipalities will provide a realistic opportunity for construction of a fair share of low and moderate income housing based on sound land use and long range planning,"; and
Whereas, In a decision in In re Adoption of N.J.A.C.5:96 and 5:97, 416 N.J. Super. 462 (App. Div. 2010) issued October 8, 2010, the Superior Court of New Jersey, Appellate Division, invalidated numerous portions of N.J.A.C.5:97, the current rules of the Council on Affordable Housing developed to implement the "Fair Housing Act," that relied on a growth share methodology, citing the Appellate Division's own decision in In re Adoption of N.J.A.C.5:94 and 5:95, 390 N.J. Super. 1 (App. Div. 2007) which, relying upon the opinion in Mount Laurel II, invalidated the 2004 growth share rules; and
Whereas, The Supreme Court and Appellate Court's adherence to Mount Laurel II jurisprudence has now repeatedly caused regulations that link actual production of affordable housing with municipal development and growth to be invalidated; and
Whereas, Between 1983, when Mount Laurel II was decided, and 2002, when the Supreme Court decided Toll Brothers v. Twp. of West Windsor, approximately 480,000 residential dwelling units were constructed, of which 26,000 or 5.4 percent were affordable; and
Whereas, Despite the limited production of opportunities for affordable housing, both the State and individual municipalities dispense millions of dollars annually for statutory affordable housing purposes; and
Whereas, The members of the Legislature, as elected representatives of the taxpayers of New Jersey, have grave concerns about the long-term financial and economic impact of the jurisprudence and resulting regulatory system in place concerning the creation of opportunities for affordable housing; and
Whereas, The creation of a system for carrying out and enforcing the constitutional mandate to provide a realistic opportunity for affordable housing law requires a methodology that will produce predicable requirements for municipalities, avoiding the financial costs and waste of time of conflicting results and litigation; and
Whereas, The changes in the way New Jersey regulates environmental resources, transportation infrastructure, and economic development since Mt. Laurel II was decided in 1983 demands a flexible method of addressing New Jersey's affordable housing need that is consistent with sound planning; and
Whereas, The current economic climate requires a responsive methodology that links the actual production of affordable housing to actual municipal development and growth without waste and with predictability; and
Whereas, A uniform, Statewide growth share based on growth projections from an authoritative source would make housing a natural byproduct of normal development, and would eliminate the conflicts and complexities presented by prior approaches under the "Fair Housing Act" and existing jurisprudence; and
Whereas, Prior to invalidation, the Council on Affordable Housing noted that growth share is "designed to be both more flexible and less negotiable"; and
Whereas, A growth share approach including inclusionary zoning could leverage the resources of private sector builders to enlarge the range and number of housing options available throughout New Jersey without the need for costly public subsidies; and
Whereas, If authorized by statutory and common law, a growth share approach could be designed to be flexible enough to be consistent with current planning practices while effectively creating a larger number of affordable housing units than have been constructed under prior efforts; now, therefore,
Be It Resolved by the Senate and General Assembly of the State of New Jersey:
1. The Legislature expresses its strong opposition to the Appellate Division of the Superior Court's October 8, 2010 ruling in In re Adoption of N.J.A.C. 5:96 and 5:97, 416 N.J. Super 462, and calls upon the Supreme Court of New Jersey to reexamine and reconsider those portions of its opinion in Southern Burlington County N.A.A.C.P. v. Tp. of Mount Laurel, 92 N.J. 158, that limit the ability of a municipality to address the municipality's obligation to provide a realistic opportunity for a fair share of prospective affordable housing need through a growth share approach.
2. Duly authenticated copies of this resolution, signed by the President of the Senate and the Speaker of the General Assembly, and attested by the Secretary of the Senate and the Clerk of the General Assembly, shall be transmitted to the Chief Justice and Associate Justices of the New Jersey Supreme Court.
3. This joint resolution shall take effect immediately.
STATEMENT
This resolution expresses the Legislature's strong opposition to the Appellate Division of the Superior Court's October 8, 2010 decision in In re Adoption of N.J.A.C. 5:96 and 5:97, 416 N.J. Super. 462 (App. Div., 2010), and urges the New Jersey Supreme Court to reconsider those portions of its opinion in the decision in Southern Burlington County N.A.A.C.P. v. Tp. of Mount Laurel, 92 N.J. 158 ("Mount Laurel II") that limit the ability of a municipality to entirely address the municipality's obligation to provide a realistic opportunity for a fair share of prospective affordable housing need through a growth share approach based on actual growth in the municipality. The Court's opinion in Mount Laurel II established a precedent that has led to methodologies for the provision of affordable housing that have resulted in uncertainty, enormous expense, and detrimental land use choices.
