Establishes process to exempt municipality from certain fair share affordable housing obligations based on flood risk.

A226

ASSEMBLY, No. 226

STATE OF NEW JERSEY

222nd LEGISLATURE

�

PRE-FILED FOR INTRODUCTION IN THE 2026 SESSION

Sponsored by:

Assemblyman JOHN V. AZZARITI JR., M.D.

District 39 (Bergen)

Co-Sponsored by:

Assemblyman Barlas

SYNOPSIS

���� Establishes process to exempt municipality from
certain fair share affordable housing obligations based on flood risk.

CURRENT VERSION OF TEXT

���� Introduced Pending Technical Review by Legislative
Counsel.

��

An Act

concerning exemptions to affordable housing
obligations based on flood risk, and amending and supplementing P.L.1985,
c.222.

����
Be It
Enacted
by the Senate and General Assembly of
the State of New Jersey:

���� 1.� Section 7 of P.L.1985,
c.222 (C.52:27D-307) is amended to read as follows:

���� 7.� It shall be the duty of
the council
or its successor
, seven months after the confirmation of the
last member initially appointed to the council, or January 1, 1986, whichever
is earlier, and from time to time thereafter, to:

���� 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
or its successor
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
, or its successor,
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 November 21, 1994, or of a judgment of compliance entered by any court
of competent jurisdiction prior to that date.� Additionally, any municipality
that received substantive certification or a judgment of compliance prior to
November 21, 1994 and filed a motion prior to November 21, 1994 to amend
substantive certification or a judgment of compliance for the purpose of
obtaining credits, shall be entitled to a determination of its right to credits
pursuant to the standards established by the Legislature prior to P.L.1995,
c.81.� Any municipality that filed a motion prior to November 21, 1994 for the
purpose of obtaining credits, which motion was supported by the results of a
completed survey performed pursuant to council rules, shall be entitled to a
determination of its right to credits pursuant to the standards established by
the Legislature prior to P.L.1995, c.81;

���� (2)�
[
Municipal
]

The
council, or its successor, in accordance with the rules and regulations adopted
pursuant to section 2 of
P.L. , c. (C. )
(pending before the Legislature as this bill), shall exempt a municipality from
any responsibility for a present and prospective fair share obligation,
including any unfulfilled prior round obligation and gap period obligation, if
the municipality is designated by the council or its successor as extensively
flood-prone.� Additionally, 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.

���� (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
or
its successor
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 of housing units affordable to
households with a gross household income of less than 80% of the median gross
household income 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
or its successor
, to the extent that the
units are affordable to persons of low and moderate income and are available to
the general public.

���� The council
or its
successor
, with respect to any municipality seeking substantive
certification, shall require that a minimum percentage of housing units in any
residential development resulting from a zoning change made to a previously
non-residentially-zoned property, where the change in zoning precedes or
follows the application for residential development by no more than 24 months,
be reserved for occupancy by low or moderate income households, which
percentage shall be determined by the council
or its successor
based on
economic feasibility with consideration for the proposed density of
development.

���� In carrying out the above
duties, including, but not limited to, present and prospective need estimations
the council
or its successor
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
or its successor
, the
State Planning Commission established under that act shall provide the council
or
its successor
annually with economic growth, development and decline
projections for each housing region for the next ten years.� The council
or
its successor
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.

���� No housing unit subject to the
provisions of section 5 of P.L.2005, c.350 (C.52:27D-123.15) and to the
provisions 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.) shall be eligible for inclusion in the
municipal fair share plan certified by the council
or its successor

unless the unit complies with the requirements set forth thereunder.

(cf: P.L.2008, c.46, s.6)

���� 2.� (New section)� On or
before the first day of the third month next following the enactment of P.L.���
, c.��� (C.������� ) (pending before the Legislature as this bill), the
commissioner, in consultation with the Commissioner of Environmental
Protection, shall adopt, pursuant to the �Administrative Procedure Act,�
P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations necessary to serve
as a basis for determinations of exemptions from municipal fair share
obligations based on the level of flood risk in a municipality, pursuant to
paragraph (2) of subsection c. of section 7 of P.L.1985, c.222 (C.52:27D-307).�
The rules and regulations adopted pursuant to this section shall serve as a
basis for the council or its successor to determine if a municipality shall be
designated as extensively flood-prone, and thereby exempt from a fair share
obligation, based on flood insurance paid by property owners, the number of
repetitive loss and severe repetitive loss properties in the municipality
relative to the size of the municipality, and other relevant information
accessible to the commissioner.

���� 3.� This act shall take effect
immediately.

STATEMENT

���� This bill would direct the
Council on Affordable Housing, or its successor, to exempt a municipality from
any responsibility for a fair share affordable housing obligation if the
municipality is designated by the council or its successor as extensively
flood-prone.� This exemption would have the effect of protecting a municipality
from any potential builder�s remedy action to compel housing construction.�

���� The "Fair Housing
Act," P.L.1985, c.222 (C.52:27D-301 et al.), establishes that a
municipality has an obligation to provide for a fair share of the need for
affordable housing in its region.� However, this statute has allowed for
adjustments to be made to a municipality�s obligation based on certain factors,
such as needs for historic preservation and environmental protection.�

���� This bill would direct the
Commissioner of Community Affairs, in consultation with the Commissioner of
Environmental Protection, to adopt rules and regulations to serve as a basis
for determinations of exemptions from municipal fair share obligations based
flood risk.� These rules and regulations would serve as a basis for the council
or its successor to designate certain municipalities as extensively
flood-prone, and thereby exempt from a fair share obligation, including any
present and prospective obligation, unfulfilled prior round obligation, and gap
period obligation.� The bill requires the rules and regulations to be based on
flood insurance paid by property owners, the number of repetitive loss and
severe repetitive loss properties in a municipality relative to the size of the
municipality, and other relevant information.� The bill directs the
commissioner to adopt rules and regulations by the first day of the third month
following enactment.