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October 22, 2010

RE: Assembly Introduces Affordable Housing Legislation

Dear Mayor:

On Monday, Assemblyman Jerry Green, chair of the Assembly Housing and Local Government Committee, introduced A-3447, which makes reforms to the Fair Housing Act and abolishes the Council on Affordable Housing.  The bill is assigned to the Assembly Housing and Local Government Committee, where S-1 now resides after its passage by the Senate in June. 

Like S-1, A-3447 abolishes the Council on Affordable Housing (COAH) and transfers the responsibility for administration of the Fair Housing Act to the Department of Community Affairs. 

A-3447 differs from S-1 in defining a “compliant municipality.” Under this legislation a municipality is “compliant” if:

1) 12% of its existing affordable housing stock is long term affordable housing; or,
2) more than 25% but less 50% of the children in the municipality qualify for free or reduced school lunches.

If a municipality does not meet one of the two criteria, it may be “deemed compliant” by zoning 20% of its developable land for housing for families with income up to 150% of the median regional income (i.e. “workforce housing.”)   This zoning would require minimum densities of 4 units per acres for single residential homes, and 8 units per acres for attached housing and multi-family dwellings.

All municipalities would be required to plan for the rehabilitation of existing units, and would be required to establish a 10% set-aside in all residential development.    Municipalities with 50% or more of its children qualifying for free or reduced lunches, would not need to require the 10% set-aside, but could do so at its discretion. 

“Non-compliant” municipalities would be subject to an enhanced variance project.  In these communities and where the project includes at least a 10% set-aside, the developer would only need to prove the negative criteria under the variance procedure in the Municipal Land Use Law. 

The bill allows for a phase-in of the 2.5% fee on non-residential development.  For two years, dating back to July 1, 2010, there will be no such fee on commercial development.    The fee would then be phased back in over 3 years, reaching 2.5% in the fifth year following enactment.   If you recall, the fee was established by PL 2008, c. 46, suspended by the NJ Stimulus Act but effective again as of July 1, 2010. 

The League provided some initial comments to the sponsors of the legislation, highlighting concerns with the legislation.    Our comments focused on the fact that the criteria were high, and the 12% of existing housing stock was unachievable.  We also expressed serious concerns since there is no protection from fair share litigation, including builder’s remedy lawsuits, for compliant municipalities, and that the only way to be “deemed compliant” is to zone for workforce housing.  The legislation lacks an optional plan provision, as was contained in S-1, allowing towns to file a plan with the DCA to be deemed compliant. 

The bill is assigned to the Assembly Housing and Local Government Committee, which is scheduled to meet next on Monday, November 8.    An earlier meeting, however, could be scheduled and we will advise of any such developments. 

The Mayors’ Housing Committee will be monitoring developments, and offering comments and analysis on the legislation.   We would also like to hear from you on this matter, so please direction any comments and questions to Mike Cerra at or at 609-695-3481 x120.

Very truly yours,

William G. Dressel, Jr.
Executive Director




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