52:27D-301. Short title
This act shall be known and may be cited as the "Fair Housing Act."
L. 1985, c. 222, s. 1, eff.
52:27D-302. Findings
a. The
v.
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, 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.
f. The State can also maximize the number of low and moderate income units by rehabilitating existing, but substandard, housing in the State, and, in order to achieve this end, it is appropriate to permit the transfer of a limited portion of the fair share obligations among municipalities in a housing region, so long as the transfer occurs on the basis of sound, comprehensive planning, with regard to an adequate housing financing plan, and in relation to the access of low and moderate income households to employment opportunities.
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.
L. 1985,
c. 222, s. 2, eff.
52:27D-303. Declarations
The Legislature declares that the statutory scheme set forth in this act is in the public interest in that it comprehends a low and moderate income housing planning and financing mechanism in accordance with regional considerations and sound planning concepts which satisfies the constitutional obligation enunciated by the Supreme Court. The Legislature declares that the State's preference for the resolution of existing and future disputes involving exclusionary zoning is the mediation and review process set forth in this act and not litigation, and that it is the intention of this act to provide various alternatives to the use of the builder's remedy as a method of achieving fair share housing.
L. 1985,
c. 222, s. 3, eff.
52:27D-304. Definitions
a. "Council" means the Council on Affordable Housing established in this act, which shall have primary jurisdiction for the administration of housing obligations in accordance with sound regional planning considerations in this State.
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 this act.
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.
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 Mortgage and Housing 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 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.).
L. 1985,
c. 222, s. 4, eff.
52:27D-305. Council on Affordable Housing established
5. a. There is established in, but not of, the Department of Community Affairs a Council on Affordable Housing to consist of 11 members appointed by the Governor with the advice and consent of the Senate, of whom four shall be elected officials representing the interests of local government, at least one of whom shall be representative of an urban municipality having a population in excess of 40,000 persons and a population density in excess of 3,000 persons per square mile, at least one of whom shall be representative of a municipality having a population of 40,000 persons or less and a population density of 3,000 persons per square mile or less, and no more than one of whom may be a representative of the interests of county government; three shall represent the interests of households in need of low and moderate housing, one of whom shall represent the interests of the nonprofit builders of low and moderate income housing, and shall have an expertise in land use practices and housing issues, one of whom shall be the Commissioner of Community Affairs, ex officio, or his or her designee, who shall serve as chairperson and one of whom shall be the executive director of the agency, serving ex officio; one shall represent the interests of the for-profit builders of market rate homes, and shall have an expertise in land use practices and housing issues; and three shall represent the public interest. Not more than six of the 11 shall be members of the same political party. The membership shall be balanced to the greatest extent practicable among the various housing regions of the State.
b. The members shall serve for terms of six years, except that of the members first appointed, two shall serve for terms of four years, three for terms of five years, and three for terms of six years. All members shall serve until their respective successors are appointed and shall have qualified. Notwithstanding the above, a member appointed to represent the interests of local government shall serve only such length of the term for which appointed as the member continues to hold elected local office, except that the term of a member so appointed shall not become vacant until 60 days after the member ceases to hold that elected office. Vacancies shall be filled in the same manner as the original appointments, but for the remainders of the unexpired terms only.
c. The members, excluding the executive director of the agency and the Commissioner of Community Affairs, shall be compensated at the rate of $150.00 for each six-hour day, or prorated portion thereof for more or less than six hours, spent in attendance at meetings and consultations and all members shall be eligible for reimbursement for necessary expenses incurred in connection with the discharge of their duties.
d. The Governor shall nominate the members within 30 days of the effective date of this act and shall designate a member to serve as chairman throughout the member's term of office and until his successor shall have been appointed and qualified.
e. Any member may be removed from office for misconduct in office, willful neglect of duty, or other conduct evidencing unfitness for the office, or for incompetence. A proceeding for removal may be instituted by the Attorney General in the Superior Court. A member or employee of the council shall automatically forfeit his office or employment upon conviction of any crime. Any member or employee of the council shall be subject to the duty to appear and testify and to removal from his office or employment in accordance with the provisions of P.L.1970, c.72 (C.2A:81-17.2a et seq.).
L.1985,c.222,s.5; amended 1989,c.199; 1995,c.83,s.1.
52:27D-306. Vice-chairman, executive director; other personnel
b. The council shall elect annually by a majority of its members one of its members, other than the chairman, to serve as vice-chairman for a term of one year and until his successor is elected. The vice-chairman shall carry out all of the responsibilities of the chairman as prescribed in this act during the chairman's absence, disqualification or inability to serve.
c. The council shall appoint and fix the salary of an executive director who shall serve at its pleasure. The council may employ such other personnel as it deems necessary. All employees of the council shall be in the unclassified service of the Civil Service. The council may employ legal counsel who shall represent it in any proceeding to which it is a party, and who shall render legal advice to the counciL. The council may contract for the services of other professional, technical and operational personnel and consultants as may be necessary to the performance of its duties. Employees shall be enrolled in the Public Employees' Retirement System of New Jersey established under P.L. 1954, c. 84 (C. 43:15A-1 et seq.).
L. 1985,
c. 222, s. 6, eff.
52:27D-307 Duties of council.
a.
Determine
housing regions of the State;
b.
Estimate
the present and prospective need for low and moderate income housing at the
State and regional levels;
c.Adopt
criteria and guidelines for:
(1)Municipal
determination of its present and prospective fair share of the housing need in
a given region which shall be computed for a 10-year period. Municipal
fair share shall be determined after crediting on a one-to-one basis each
current unit of low and moderate income housing of adequate standard, including
any such housing constructed or acquired as part of a housing program
specifically intended to provide housing for low and moderate income
households. Notwithstanding any other law to the contrary, a municipality
shall be entitled to a credit for a unit if it demonstrates that (a) the municipality
issued a certificate of occupancy for the unit, which was either newly
constructed or rehabilitated between April 1, 1980 and December 15, 1986; (b) a
construction code official certifies, based upon a visual exterior survey, that
the unit is in compliance with pertinent construction code standards with
respect to structural elements, roofing, siding, doors and windows; (c) the
household occupying the unit certifies in writing, under penalty of perjury,
that it receives no greater income than that established pursuant to section 4
of P.L.1985, c.222 (C.52:27D-304) to qualify for moderate income housing; and
(d) the unit for which credit is sought is affordable to low and moderate
income households under the standards established by the council at the time of
filing of the petition for substantive certification. It shall be
sufficient if the certification required in subparagraph (c) is signed by one
member of the household. A certification submitted pursuant to this
paragraph shall be reviewable only by the council or its staff and shall not be
a public record;
Nothing
in P.L.1995, c.81 shall affect the validity of substantive certification
granted by the council prior to
(2)
Municipal
adjustment of the present and prospective fair share based upon available
vacant and developable land, infrastructure considerations or environmental or
historic preservation factors and adjustments shall be made whenever:
(a)
The
preservation of historically or important architecture and sites and their
environs or environmentally sensitive lands may be jeopardized,
(b)
The
established pattern of development in the community would be drastically
altered,
(c)
Adequate
land for recreational, conservation or agricultural and farmland preservation
purposes would not be provided,
(d)
Adequate
open space would not be provided,
(e)
The
pattern of development is contrary to the planning designations in the State
Development and Redevelopment Plan prepared pursuant to sections 1 through 12
of P.L.1985, c.398 (C.52:18A-196 et seq.),
(f)
Vacant
and developable land is not available in the municipality, and
(g)
Adequate
public facilities and infrastructure capacities are not available, or would
result in costs prohibitive to the public if provided; and
(3)
(Deleted
by amendment, P.L.1993, c.31).
d.
Provide
population and household projections for the State and housing regions;
e.
In
its discretion, place a limit, based on a percentage of existing housing stock
in a municipality and any other criteria including employment opportunities
which the council deems appropriate, upon the aggregate number of units which
may be allocated to a municipality as its fair share of the region's present
and prospective need for low and moderate income housing. No municipality shall
be required to address a fair share beyond 1,000 units within ten years from
the grant of substantive certification, unless it is demonstrated, following
objection by an interested party and an evidentiary hearing, based upon the
facts and circumstances of the affected municipality that it is likely that the
municipality through its zoning powers could create a realistic opportunity for
more than 1,000 low and moderate income units within that ten-year
period. For the purposes of this section, the facts and circumstances
which shall determine whether a municipality's fair share shall exceed 1,000
units, as provided above, shall be a finding that the municipality has issued
more than 5,000 certificates of occupancy for residential units in the ten-year
period preceding the petition for substantive certification in connection with
which the objection was filed.
For
the purpose of crediting low and moderate income housing units in order to
arrive at a determination of present and prospective fair share, as set forth
in paragraph (1) of subsection c. of this section, housing units comprised in a
community residence for the developmentally disabled, as defined in section 2
of P.L.1977, c.448 (C.30:11B-2), shall be fully credited pursuant to rules
promulgated or to be promulgated by the council, to the extent that the units are
affordable to persons of low and moderate income and are available to the
general public.
In
carrying out the above duties, including, but not limited to, present and
prospective need estimations the council shall give appropriate weight to
pertinent research studies, government reports, decisions of other branches of
government, implementation of the State Development and Redevelopment Plan
prepared pursuant to sections 1 through 12 of P.L.1985, c.398 (C.52:18A-196 et
seq.) and public comment. To assist the council, the State Planning
Commission established under that act shall provide the council annually with
economic growth, development and decline projections for each housing region
for the next ten years. The council shall develop procedures for
periodically adjusting regional need based upon the low and moderate income
housing that is provided in the region through any federal, State, municipal or
private housing program.
L.1985,c.222,s.7; amended 1993, c.31, s.1; 1993, c.104; 1995,
c.81; 1995, c.344, s.1; 2001, c.435, s.1.
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.)
"Department" means the Department of Community Affairs.
"Housing region" means a housing region as determined by the Council on Affordable Housing pursuant to section 7 of P.L.1985, c.222 (C.52:27D-307).
"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.
L.1991,c.479,s.1.
52:27D-307.2. Register of Housing Projects, requirements, reports
2. a. The commissioner shall cause to be established and kept a Register of Housing Projects. The register shall list all projects for which proposal or application has been submitted for assistance under any program of loans, grants or other financial aid administered by the department, including programs administered by the agency, or for which the offices of the department have been solicited in furthering an application for such assistance from any other program of like nature administered by another agency or instrumentality of the State or of the United States government.
b. The register shall identify each such project by name and location, and shall identify the proposed sponsor or developer thereof. If the proposed sponsor or developer is a corporation, association or partnership, the register shall identify by name and address each stockholder, member or partner whose participation therein represents an equity interest exceeding five percent. No application or proposal relating to a project for which the information required by this subsection is not made available to the commissioner shall be received or entertained by the department or any division, bureau, officer or employee thereof, or by the agency; nor shall any action upon such application or proposal heretofore received or entertained be taken after the effective date of this act until the required information is made available to the commissioner.
c. The commissioner shall, not later than the 90th day next following the effective date of this act, file with the Governor and Legislature a copy of the register upon its compilation in accordance with this section, and thereafter shall promptly report to the Governor and Legislature any additional projects to be included therein. The register and subsequent reports shall include for each project the priority designation assigned to it pursuant to section 3 of this act. The register and subsequent supplements pursuant to this subsection shall be filed with the Secretary of the Senate and Clerk of the General Assembly, and shall be a public record.
L.1991,c.479,s.2.