Bill > S880

Introduced Session

Although the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.), clearly states that the State Constitution's affordable housing obligation is comprised of the "present and prospective need" for affordable housing only, some courts have misunderstood the intent of the Legislature behind the "Fair Housing Act," and imposed a retroactive obligation for the so-called gap period. The purpose of this bill is to eliminate any possible misconception with respect to the Legislature's intent to ensure that determinations of a municipality's fair share of affordable housing will be based upon the present and prospective need for affordable housing, as clearly set forth in the "Fair Housing Act," and that a fair share obligation will not include retrospective need that may have arisen during any "gap period" between housing cycles. The New Jersey Supreme Court, through its rulings in South Burlington County NAACP v. Mount Laurel, 67 N.J. 151 (1975) and South Burlington County NAACP v. Mount Laurel, 92 N.J. 158 (1983), 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. By enacting the "Fair Housing Act," the Legislature accepted the Supreme Court's request that the Legislature occupy the field of affordable housing and defined the constitutional obligation to include the present and prospective needs for affordable housing only. The Legislature directed each municipality to comply with its constitutional obligation to address its obligations with respect to the present and prospective need by: including in the housing element of its master plan a determination of the municipality's present and prospective fair share for low and moderate income housing and a determination of the municipality's capacity to accommodate its present and prospective housing needs, including its fair share for low and moderate income housing as the present and prospective need; and adopting or revising land use and other relevant ordinances consistent with the provisions for low and moderate income housing in its housing element. The courts and the Legislature of this State require municipalities to allow low and moderate income families a chance to find housing based upon the present need and the prospective need for affordable housing in each municipality and region of the State. This requirement has always been about planning and zoning; municipalities may not limit opportunities for affordable housing through exclusionary zoning. Differences of opinion between the judicial and executive branches of government over how to calculate each municipality's "fair share" of affordable housing have resulted in a "gap period" of over 15 years, which is still going on, during which the State provided municipalities no clear guidelines on how to zone to satisfy their obligation to allow for a fair share of affordable housing. Now that the courts have assumed control over municipal compliance with affordable housing obligations, it is possible that municipalities may be obligated to allow for the production of affordable housing based upon the speculated need for affordable housing which arose during the gap period. While laudable, such a result is contrary to current law, which confines municipal fair share determinations to a present and prospective need for affordable housing, and would impose an unrealistic and excessive burden upon the residential communities of our State. Requiring fair share obligations to include the need developed through a long regulatory gap period would result in an unreasonable burden, the resolution of which would force municipalities to allow rapid, unsettling changes to the physical and demographic nature of their communities. This bill eliminates any possible misconception of what the Legislature intended the fair share obligation to include so as to preclude the imposition of a fair share obligation based upon a concept of retrospective need during the gap period.

Committee Categories

Tony Bucco (R)*,  Parker Space (R), 

Introduced in the Senate, Referred to Senate Community and Urban Affairs Committee (on 01/09/2024)

Official Document