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February 23, 2009

Legislative Alert

Re: S-2577 & A-3772, “Concerning the Development of Non-Age-Restricted Communities”

Dear Mayor:

Companion legislation,  S-2577 and A-3772, “which would allow for the conversion of age-restricted housing units, pending approval by the local planning or zoning board and/or the Smart Growth Ombudsman”  has been introduced 

This legislation is being pushed by the development community, as a short-term response to the downturn in real estate markets.   Anecdotally, we are aware that a number of developers have sought amendments to their approved plans for age-restricted housing, as referenced in the Star-Ledger article of February 15, 2009. 

The League has serious technical concerns with many of the provisions of the bill, but our strongest objection to the bill is Section 11. This section would allow a developer to seek an appeal of the local land use board’s decision to the “Smart Growth Ombudsman” created by PL 2004, c. 89, more commonly referred to as the “fast track law.”  The role which the local board plays in this appeal is undefined by the bill, and the decision of the Ombudsman would not be appealable. Thus, if your local board denies an amendment to an already-approved age-restricted housing development, the developer can then appeal to a state official to overrule your board’s action. If your board is over-ruled, you have no further appeal. Thus, first and foremost, we strenuously object to the intrusion on the local planning process by allowing an appeal to the “Smart Growth Ombudsman.” 

Further, a municipality must be concerned with cost-generating amenities and infrastructure.  If an age-restricted development is converted, will amenities and infrastructure that were already approved be lost, or will this financial obligation now fall to local taxpayers?   Further, there are related costs to development, such as the impact on the school system, sewer, water and other infrastructure, and we fail to see how this bill addresses these additional costs.

Third, the bills stipulate a 30-day period for the determination of completeness and for the preparation of the resolutions, which is overly ambitious.  Considering the requirements of the Open Public Meetings Act, the Open Public Records Act and the public need to conduct business in a transparent manner, this 60-day (combined) window is not reasonable.  

Fourth, the bills state that the applicants for converted development shall be exempt from paying application fees.   We fail to see why there should be such an exemption. 

The “incentive” for municipalities that the bills allow is for up to 20% of the new market rates units to set aside as affordable housing, and be part of the COAH plan.   Specifically, Section 3.b of the bills states that any affordable unit which is provided under the provisions of the bills shall automatically become part of the municipal fair share plan and eligible for credits to meet a municipality’s obligation under the Fair Housing Act.

Further, Section 3.c states that no affordable units complying with COAH standards or market rate housing units associated with such a converted development shall generate any growth share affordable housing obligation for a municipality. 

Thus, we appreciate that this bills allow an opportunity for a municipality to provide affordable housing and add to its COAH inventory.  We fail to see, however, why this particular legislation is needed. Applicants routinely return to local boards and seek adjustments and changes to previously approved plans.   

The Star-Ledger article referenced above demonstrates that there is an encouraging amount of cooperation between developers and municipalities on this issue.   But it is being done with the appropriate local boards safeguarding the concerns and interests of taxpayers. Thus, such intrusive legislation, which actually impedes the local board’s ability to address taxpayers’ interests and dilutes due process, is not appropriate.

We have suggested to the sponsors and interested stakeholders that if they seek to facilitate this process, making it easier for local governments and developers to cooperate in these difficult economic times, while safeguarding local discretion and leaving the State’s Ombudsman out of the process, the League would welcome such a dialogue and partnerships.

Thus, if it is the intention of the Legislature to encourage the conversion of some approved age-restricted housing to market-rate housing, we would suggest the following:

  • The majority of the bill, as introduced, should be struck, including Section 11 in its entirety. 
  • Rely on the existing, proven provisions of the Municipal Land Use Law (MLUL), but add the language set forth in Sections 3.b and 3.c.  


S-2577 will have first reading today (Monday) and is scheduled for consideration by the Senate Economic Growth Committee on Thursday.    As this letter is sent, the bills are not yet available on the State Legislature’s website but should be within a day or two.  

We would suggest contacting your State Senator and ask that he or she oppose S-2577, as introduced.  We also ask that if your municipality has agreed to a conversion of an age-restricted project to a market rate unit, we would ask that you please advise Mike Cerra at or 609-695-3481 x120 of the details.  

Very Truly Yours,

William G. Dressel, Jr.,
Executive Director


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