An Act clarifying affordable housing declaratory judgment procedures and supplementing Title 52 of the Revised Statutes.

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

1. The Legislature finds and declares that:

a. When the Legislature passed the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.) ("FHA"), it conferred primary jurisdiction on the New Jersey Council on Affordable Housing ("COAH") for the administration of housing obligations in accordance with sound regional planning considerations in this State;

b. The Legislature charged COAH with the responsibility of establishing the procedural and substantive regulations necessary to implement the FHA;

c. The Legislature, pursuant to sections 309 and 316 of the FHA, gave municipalities five months after COAH adopted criteria and guidelines to prepare and file a housing element and fair share plan ("affordable housing plan") with COAH consistent with those criteria and guidelines;

d. On March 10, 2015, the Supreme Court issued a decision entitled, In the Matter of the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. 1 (2015) ("In re COAH"). In this decision, the Court (i) found that COAH had failed to fulfill its obligation to adopt regulations essential to the implementation of the FHA; (ii) ruled that, therefore, trial courts should take over various responsibilities COAH previously fulfilled; and (iii) sought to establish an appropriate procedure by which municipalities under COAH's jurisdiction could comply in a court proceeding;

e. In its efforts to structure an appropriate judicial analogy to the COAH procedures, the Supreme Court looked to the procedures the Legislature established in the FHA;

f. Just as the FHA gave municipalities an opportunity to participate in the administrative process by first adopting a resolution of participation, the Supreme Court similarly gave municipalities under COAH's jurisdiction an opportunity to participate in a judicial proceeding by filing a declaratory relief action;

g. Similarly, since sections 309 and 316 of the FHA had established a five month deadline for municipalities to file affordable housing plans, the Supreme Court gave municipalities that brought themselves under a trial judge's jurisdiction five months to submit a plan;

h. As stated by the Supreme Court, "Towns that were in 'participating' status before COAH and that pursuant to our order now affirmatively come before the courts seeking to obtain approval of an affordable housing plan should receive like treatment to that which was afforded by the FHA to towns that had their exclusionary zoning cases transferred to COAH when the Act was passed. See N.J.S.A. 52:27D-316. Such towns received insulating protection due to COAH's jurisdiction provided that they prepared and filed a housing element and fair share plan within five months. Ibid. Similarly, towns that were in 'participating' status before COAH and that now affirmatively seek to obtain a court declaration that their affordable housing plans are presumptively valid should have no more than five months in which to submit their supplemental housing element and affordable housing plan";

i. In sections 309 and 316 of the FHA, the Legislature made clear that the five-month period was to commence at the time COAH adopted criteria and guidelines;

j. At taxpayers' expense and in good faith, hundreds of municipalities prepared and supplemented affordable housing plans to achieve compliance with COAH rules multiple times only to subsequently find that they had to redo these plans because the courts repeatedly invalidated the regulations upon which the municipalities based their plans;

k. Municipalities have finite resources and must use them for the protection of public health, welfare, and safety;

l. The preparation of affordable housing plans to meet established standards for the production of affordable housing is an appropriate use of those finite resources and promotes the public welfare, but the preparation of affordable housing plans in the absence of all the standards with which the municipality must comply is not;

m. In re COAH does not require trial judges to establish the standards with which the municipality must comply before the five-month period for the municipality to prepare a plan commences;

n. Requiring municipalities to prepare affordable housing plans without the benefit of comprehensive guidelines in advance violates an important principle embodied in the FHA; namely, that no municipality should be required to prepare an affordable housing plan until the standards with which the municipality must comply have been established;

o. Requiring municipalities to prepare affordable housing plans without first establishing the standards with which municipalities must comply would undoubtedly result in the waste considerable public monies as municipalities struggle to prepare affordable housing plans to comply with largely unknown standards;

p. If trial judges establish the standards with which municipalities must comply before requiring municipalities to prepare and file affordable housing plans responsive to those standards, municipalities can use the five-month period most effectively and the public's monies can be used most efficiently to facilitate the production of affordable housing;

q. Only if trial judges establish the standards with which municipalities must comply before requiring municipalities to file affordable housing plans consistent with those standards can the courts comply with, instead of violate, the principles embodied in the FHA;

r. Although In re COAH technically addresses only municipalities under the jurisdiction of COAH, COAH's failure to adopt regulations has also resulted in leaving towns under the jurisdiction of a court in limbo. Court towns should also have the opportunity to follow a parallel track with that of COAH towns.

2. Notwithstanding whether a municipality was under COAH's jurisdiction and now seeks to comply through the procedures established by the Supreme Court in In re COAH, or whether a municipality under the jurisdiction of a court seeks to comply with the standards set forth in In re COAH, the five month deadline to file an affordable housing plan shall not commence until such time as the trial judge having jurisdiction over the subject municipality establishes and articulates the standards with which the municipality must comply.

3. This act shall take effect immediately.

STATEMENT

This bill clarifies the procedure established by the New Jersey Supreme Court in its March 2015 opinion concerning the role of the courts and the Council on Affordable Housing ("COAH") in overseeing exclusionary zoning disputes. In its opinion, the Supreme Court properly looked to the manner in which the Legislature structured the FHA to establish a procedure for municipalities under the jurisdiction of COAH to comply in an analogous procedure before a trial judge. More specifically, the Supreme Court gave municipalities under COAH's jurisdiction five months to prepare and file a Housing Element and Fair Share Plan with a trial judge to be consistent with sections 309 and 316 of the FHA, which gave municipalities five months to file a plan with COAH.

However, a closer examination of sections 309 and 316 of the FHA reveals that the Legislature intended to give municipalities five months to file an affordable housing plan from the point that COAH established the criteria and guidelines with which municipalities must comply. Thus, municipalities would have five months to develop a plan consistent with COAH guidelines and the process of securing plan approval, and then commencing implementation in accordance with section 314 could proceed efficiently.

By requiring municipalities within five months to prepare and file a Housing Element and Fair Share Plan, before the trial judge has articulated the obligation and other standards with which municipalities must comply, the Supreme Court has fashioned a procedure inconsistent with the stated purposes of the FHA. This court procedure will waste considerable municipal resources as municipalities prepare plans without first knowing their obligations. Through this bill, the Legislature seeks merely to ensure that the procedure that trial judges implement is consistent with the FHA and promotes the efficiencies essential to avoiding a great waste of the public's finite resources.