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D-329.19 Senior Deputy Commissioner For Housing

52:27D-329.19 Senior Deputy Commissioner for Housing.

30. a. The position of Senior Deputy Commissioner for Housing is established within the
department, which position shall be filled by an individual with recognized and extensive
experience in housing policy, planning, and development with particular emphasis on the
planning and development of housing affordable to low, moderate, and middle income
households.
b.
The Senior Deputy Commissioner for Housing shall exercise oversight over the
housing programs of the department, including, but not limited to, programs of the agency and
the council.
c.
The commissioner may appoint the Senior Deputy Commissioner for Housing as his
or her designee to chair the agency, the commission, or the council, in which capacity or
capacities the Senior Deputy Commissioner for Housing will have all of the powers vested in
those positions by law.
L.2008, c.46, s.30.

D-329.18 Annual Housing Performance Report

52:27D-329.18 Annual Housing Performance Report.

29. a. On or before January 1 of each year, beginning with the first January 1 that falls after
the annual anniversary of the effective date of P.L.2008, c.46 (C.52:27D-329.1 et al.), the
department, in consultation with the commission and the working group, shall prepare and
submit to the Governor and the Joint Committee on Housing Affordability, or its successor, an
Annual Housing Performance Report. Within 30 days following receipt of the Annual Housing
Performance Report, a hearing shall be held by the Joint Committee on Housing Affordability, or
its successor, to provide an opportunity for public comment and discussion.
b.

The report shall include, but shall not be limited to, the following information:

(1)
All housing units constructed, rehabilitated, or preserved in which funds controlled
by any agency of the State were utilized, including the number of units by:
(a)

Location;

(b)

Affordability and income ranges of occupants;

(c)
Target population; i.e., small family, large family, senior citizens, people with
disabilities;
(d)
Type of housing, including ownership, rental, and other forms of tenure; physical
type such as single family or multifamily; and whether the unit was newly constructed,
rehabilitated, or preserved; and
(e)
(2)
proceeds.

The amount and source of all State-controlled funds used.
All bond issuance activity by the agency, including interest rates and the use of bond

(3)
All other activities, including financial support, technical assistance, or other support
conducted by the State to further affordable housing.
(4)
Municipal performance pursuant to the “Fair Housing Act,” P.L.1985, c.222
(C.52:27D-301 et al.), including the number of units listed for the distinct populations as
enumerated in subsection b. of section 27 of P.L.2008, c.46 (C.52:27D-329.16), and the monies
collected and the use of all developer fee proceeds deposited into municipal housing trust funds.
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(5)
For every report issued subsequent to the end of the first year for which a plan has
been prepared pursuant to sections 27 and 28 of P.L.2008, c.46 (C.52:27D-329.16 and C.52:27D329.17):
(a)
A comparison between the goals, strategies, and priorities set forth in the plan and
the outcomes of programs and strategies carried out by the State during the year, and a statement
of the reasons for any differences between the plan and the State’s programs and strategies; and
(b)
A description of the manner in which the State has addressed the recommendations,
if any, for procedural or substantive changes to any State program or activity set forth in the
plan.
(6)
Statistical appendices providing information on individual projects and funding
allocations.
c.
The report, appendices, and all supporting documentation thereof shall be made
available both in printed form from the department and in downloadable form on the
department’s web site.
L.2008, c.46, s.29.

D-329.17 Plan Drafted, Adopted And Transmitted By Commission

52:27D-329.17 Plan drafted, adopted and transmitted by commission.

28. a. The commission shall complete a draft plan on or before October 1 of each year. The
commission shall adopt the plan by a vote of a majority of its members and transmit the plan to
the Governor and the Joint Committee on Housing Affordability, or its successor, on or before
the next January 1. The plan shall cover the fiscal year from July 1 to June 30th, beginning with
July 1 of the preceding year, except that the first annual plan shall be transmitted on the first
January 1 that falls after the annual anniversary of the effective date of P.L.2008, c.46
(C.52:27D-329.1 et al.).
b.
With respect to the plans for the second through fourth years following the initial
plan, the commission may adopt and submit either a plan de novo or an update to, or revision of,
the initial year’s plan, based on its judgment as to the extent of housing needs, funding resources,
or other conditions that have or have not changed since the initial plan was prepared. In the fifth
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year following the initial plan, and every five years thereafter, the commission shall adopt and
submit a complete plan de novo.
c.
The plan and all supporting documentation thereof shall be made available both in
printed form by the department and in downloadable form on the department’s web site.
L.2008, c.46, s.28.

D-329.16 Annual Strategic Housing Plan

52:27D-329.16 Annual Strategic Housing Plan.

27. a. It shall be the duty of the commission annually to prepare and adopt an Annual
Strategic Housing Plan as set forth in this section.
The objectives of the plan shall be as follows:
(1)
To ensure that quality housing for people of all income levels is made available
throughout the State of New Jersey.
(2)
To overcome the shortage of housing affordable to low, moderate, and middle
income households, in order to ensure the viability of New Jersey’s communities and maintain
the State’s economic strength.
(3)
To meet the need for safe and accessible affordable housing and supportive services
for people with disabilities.
(4)
To foster a full range of quality housing choices for people of diverse incomes
through mixed income development in urban areas and in locations appropriate for growth,
including transit hubs and corridors, and areas of job concentration.
(5)
To address the needs of communities that have been historically underserved and
segregated due to barriers and trends in the housing market, and frame strategies to address the
needs of those communities.
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(6)
To facilitate the preservation of existing affordable rental housing, including both
subsidized and private market rental housing.
(7)
To further the preservation of low and moderate income and middle income
homeownership, including strategies to protect lower income homeowners from the loss of their
homes through foreclosure.
b.
In addressing these objectives, the plan shall explicitly take into consideration the
needs of the following distinct populations:
(1)
Households earning below 50% of the area median income, with particular emphasis
on households earning less than 30% of the area median income;
(2)

Low income senior citizens of 62 years of age or older;

(3)
Low income persons with disabilities, including but not limited to physical
disability, developmental disability, mental illness, co-occurring mental illness and substance
abuse disorder, and HIV/AIDS;
(4)

Homeless persons and families, and persons deemed at high risk of homelessness;

(5)
Low and moderate income and middle income households unable to find housing
near work or transportation;
(6)
Low and moderate income and middle income persons and families in existing
affordable housing that is at risk of becoming unaffordable or being lost for any reason;
(7)
Any other part of the population that the commission finds to have significant
housing needs, either Statewide or in particular areas of the State.
c.

The plan shall include, but not be limited to, the following:

(1)
The identification of all funds which any agency or department of the State controls
and uses for housing construction, rehabilitation, preservation, operating or rental subsidies and
supportive services, including bond proceeds, the allocation of federal Low Income Housing Tax
Credits, and the use of administrative funds by the agency or the department;
(2)
Goals for the number and type of housing units to be constructed, rehabilitated, or
preserved each year for the underserved populations identified in subsection b. of this section,
taking into account realistic assessments of financial resources and delivery capacity survey, and
shall include an assessment aimed at identifying and estimating the number of substandard
housing units within the State;
(3)
Specific recommendations for the manner in which all funds identified in paragraph
(1) of this subsection should be prioritized and used, either through new construction,
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rehabilitation, preservation, rental subsidies, or other activities, to address the needs of the
underserved populations set forth in subsection b. of this section;
(4)
Specific actions needed to ensure the integrated use of State government resources
that can be used to create or preserve affordable housing, provide supportive services, facilitate
the use of housing for urban revitalization, and prevent homelessness, including an identification
of the specific agencies and programs responsible for each action;
(5)

An assessment of the State’s performance during the preceding year;

(6)
Recommendations for changes to any program or use of funds which the State
controls available for land use planning, housing construction, rehabilitation, preservation,
operating or rental subsidies and supportive services, including both procedural and substantive
changes, and the specific agencies responsible for each change;
(7)
Recommendations for State and local actions to promote the creation and
preservation of subsidized affordable and market-rate housing by private sector, non-profit, and
government agencies, with particular reference to changes to programs, regulations, and other
activities that impede such activities;
(8)
Recommendations for State and local actions for programs and strategies through
which the provision of affordable and mixed-income housing can better further citywide and
neighborhood revitalization in the State’s urban areas; and
(9)
Identification of strategies that local government can take to create or preserve
affordable housing, including specific recommendations for the use of monies collected through
developer fees in local housing development trust funds.
d.

The plan shall provide for both annual and long-term targets and priorities.

L.2008, c.46, s.27.

D-329.15 Interdepartmental Working Group

52:27D-329.15 Interdepartmental working group.

26. a. An interdepartmental working group is established for the purpose of supporting the
activities of the commission and its preparation of the draft plan.
b.
The membership of the working group shall consist of the commissioners or
executive directors of the following departments or agencies of State government: the
Department of Community Affairs, the Council on Affordable Housing, the New Jersey Housing
and Mortgage Finance Agency, the Department of Human Services, the Department of Children
and Families, the Department of Health and Senior Services, the Public Advocate, the
Department of Education, the Department of Environmental Protection, the Department of
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Transportation, the Office of Smart Growth, the Department of the Treasury, the Highlands
Council, the Pinelands Commission, and the New Jersey Meadowlands Commission.
c.
The Commissioner of Community Affairs may appoint the Senior Deputy
Commissioner for Housing as his or her representative to serve on the working group.
d.
Each other commissioner or executive director may appoint a representative to serve
on the working group, who shall be a senior employee of the department or agency with
substantial background, experience, or training relevant to the mission of the working group.
e.
The working group shall be chaired by the Commissioner of Community Affairs or
by the Senior Deputy Commissioner for Housing as the commissioner’s designee, if so
appointed.
f.
Meetings of the working group shall be called by the chair as needed during the
course of preparation of the plan or the annual performance report.
g.
Each department or agency constituting the working group shall make available such
personnel and information as may be necessary to enable the working group to perform its
responsibilities.
L.2008, c.46, s.26.

D-329.14 Department To Provide Staff Services

52:27D-329.14 Department to provide staff services.

25.
The department shall provide such staff services as may be needed for the
commission to carry out its responsibilities, including assembly of necessary information and
statistics, preparation of draft reports and analyses, and preparation of the draft plan for review
by the members of the commission, acting under the supervision of the Senior Deputy
Commissioner for Housing.
L.2008, c.46, s.25.

D-329.13 State Housing Commission

52:27D-329.13 State Housing Commission.

24. a. The State Housing Commission is created and established in the Executive Branch of
the State Government. For the purposes of complying with the provisions of Article V, Section
IV, paragraph 1 of the New Jersey Constitution, the commission is allocated within the
Department of Community Affairs, but notwithstanding this allocation, the commission shall be
independent of any supervision or control by the department except as expressly authorized
under P.L.2008, c.46 (C.52:27D-329.1 et al.). The commission shall consist of 15 public
members and shall also include the Commissioner of Community Affairs, the Commissioner of
Environmental Protection, the Commissioner of Human Services, the Commissioner of
Transportation, the Commissioner of Education, the Chairman of the State Planning
Commission, and the State Treasurer, who shall be nonvoting, ex-officio members of the
commission. The non-public members may each designate a qualified employee to serve in their
stead.

Thirteen of the public members shall be appointed by the Governor with the advice and
consent of the Senate as follows: four members shall be individuals qualified by expertise in
housing preservation, development, and management and who do not hold public office or public
employment, and one of the four shall have particular experience in addressing the needs of the
homeless; two of the four members shall be individuals qualified by expertise in urban
revitalization and redevelopment and who do not hold public office, one of whom shall be a
nonprofit builder, and another member of the four shall be a for-profit developer; two members
shall be elected local officials at the time of initial appointment, one of whom shall be an elected
official in a municipality having a population greater than 50,000; two members shall be
individuals who do not hold public office and are qualified by their position and experience to
represent the interests of low and moderate income and middle income families and individuals;
one member shall be an individual who does not hold public office and who is qualified by
expertise in planning and land use, one member who does not hold public office shall be a
licensed real estate broker or a licensed real estate salesperson, and one member who shall be an
executive director of a public housing authority within the State. Two additional public
members who do not hold public office or public employment shall be appointed as follows: one
member by the Speaker of the General Assembly and one member by the President of the
Senate. The public members of the commission shall reflect the diversity of housing sector
professionals.
b.
The Governor shall nominate 13 public members of the commission, within 90 days
following the effective date of P.L.2008, c.46 (C.52:27D-329.1 et al.), and shall designate a
public member to preside over the commission until a chair and vice-chair are elected by the
members of the commission. The Speaker of the General Assembly and the President of the
Senate shall each appoint a member, respectively, within 90 days following the effective date of
P.L.2008, c.46 (C.52:27D-329.1 et al.).
c.
Each public member of the commission shall serve for a term of three years, except
that of the initial members so appointed: three members appointed by the Governor shall serve
for terms of one year; one member appointed by the President of the Senate, one member
appointed by the Speaker of the General Assembly and five members appointed by the Governor
shall serve for terms of two years; and the remaining appointees shall serve for terms of three
years. Public members shall be eligible for reappointment. They shall serve until their
successors are appointed and qualified, and the term of the successor of any incumbent shall be
calculated from the expiration of the term of that incumbent. A vacancy occurring other than by
expiration of term shall be filled in the same manner as the original appointment, but for the
unexpired term only.
The members of the commission shall serve without compensation, but shall be entitled to
reimbursement for all necessary expenses incurred in the performance of their duties. Each
member of the commission may be removed from office by the Governor, for cause, upon notice
and opportunity to be heard.
d.
The commission shall elect annually a chair and vice-chair from among the public
members of the commission, who shall serve for one year and until a successor is elected.

e.
The executive secretary of the commission shall be the Senior Deputy Commissioner
for Housing. In the event the commissioner designates the Senior Deputy Commissioner for
Housing to serve in his or her stead as a member of the commission, the Senior Deputy
Commissioner for Housing shall designate a qualified employee of the department to serve as
executive secretary of the commission. Eight of the voting members of the commission shall
constitute a quorum and a vote of the majority of the members present shall be necessary for any
action taken by the commission.
f.

The duties of the commission shall be as follows:

(1)
To provide guidance and direction with respect to the policies and strategies to be
pursued by State agencies with respect to housing which are incorporated into the plan.
(2)
To prepare and adopt the Annual Strategic Housing Plan as set forth in section 28 of
P.L.2008, c.46 (C.52:27D-329.17).
(3)
To hold such public hearings and other activities as may be desirable to ensure
adequate public input into the preparation of the plan and increase public awareness of the
strategies and activities contained in the plan.
(4)
To gather and disseminate such information on housing needs and strategies as may
be useful for the work of the commission and informative to the public.
L.2008, c.46, s.24.

D-329.12 Definitions Relative To Strategic Housing Planning

52:27D-329.12 Definitions relative to strategic housing planning.

23.

As used in sections 21 through 30 of P.L.2008, c.46 (C.52:27D-329.10 through
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C.52:27D-329.19):
“Agency” means the New Jersey Housing and Mortgage Finance Agency.
“Commission” means the State Housing Commission established pursuant to section 24of
P.L.2008, c.46 (C.52:27D-369.13).
“Council” means the New Jersey Council on Affordable Housing.
“Department” means the Department of Community Affairs.
“Middle income housing” means housing affordable according to federal Department of
Housing and Urban Development or other recognized standards for home ownership and rental
costs and occupied or reserved for occupancy by households with a gross household income
equal to or more than 80% but less than 120% of the median gross household income for
households of the same size within the housing region in which the housing is located.
“Plan” means the Annual Strategic Housing Plan prepared pursuant to section 27 of
P.L.2008, c.46 (C.52:27D-329.16).
“Report” means the Annual Housing Performance Report required to be prepared pursuant
to section 29 of P.L.2008, c.46 (C.52:27D-329.18).
“Senior Deputy Commissioner for Housing” means the position established within the
department which is charged with overseeing all housing programs.
“Working group” means the interdepartmental working group created pursuant to section 26
of P.L.2008, c.46 (C.52:27D-329.15).
L.2008, c.46, s.23.

D-329.11 Findings Relative To Strategic Housing Plan

52:27D-329.11 Findings relative to strategic housing plan.

22.

The Legislature finds that:

a.
High housing prices, escalating property taxes, increasing municipal fees, rising
energy costs, and the costs to implement various State rules and regulations have put housing out
37

of the reach of many citizens;
b.
The State of New Jersey suffers from a serious lack of housing affordable to its low
and moderate income households, reflected in the large number of households living in
overcrowded and substandard housing conditions, or burdened by unreasonable and excessive
housing costs;
c.
As housing costs have increased in many parts of the State, and the process of urban
revitalization has taken hold in many of the State’s cities, these problems have become more
severe and have come to affect a wide range of households at many income levels;
d.
While new housing affordable to households at all income levels is urgently needed,
the need to preserve existing housing owned or rented by low and moderate income households,
much of which is at risk of loss, is also urgent;
e.
The production of new housing and the preservation of the existing housing stock,
including but not limited to subsidized affordable housing, has a significant positive impact on
the health and well-being of the State as a whole, in particular its older cities and their
neighborhoods, and should be encouraged as a matter of public policy by the State government;
f.
Although the State has devoted substantial public resources for many years towards
alleviating the housing needs of lower income households, the effective use of those resources
and their impact on urban revitalization has been limited by inadequate strategic planning in the
allocation of public resources, as well as inadequate coordination with and leveraging of private
resources;
g.
The development of a strategic housing plan that will establish priorities to effectively
targeted State resources should significantly enhance the impact of those resources in meeting
the State’s housing needs and fostering urban revitalization;
h.
A strategic housing plan should provide for a means of coordinating the activities of
the many State departments and agencies whose activities affect the ability of the State to meet
its housing needs;
i.
The active involvement of individuals outside State government with knowledge and
experience in all phases of housing preservation, development, and management, as well as
planning and urban revitalization, in the preparation and adoption of the plan, and the monitoring
of State activities pursuant to the plan, should significantly enhance the value and effectiveness
of the plan in increasing the State’s ability to meet its housing needs and foster urban
revitalization.
L.2008, c.46, s.22.

Section 64 Of P.l.1975, C.291 (c.40:55d-77), There Shall Be Required To Be Reserved For

section 64 of P.L.1975, c.291 (C.40:55D-77), there shall be required to be reserved for

occupancy by low or moderate income households at least 20 percent of the residential units
constructed, to the extent this is economically feasible.
b.
A developer of a project consisting of newly-constructed residential units being
financed in whole or in part with State funds, including, but not limited to, transit villages
designated by the Department of Transportation, units constructed on State-owned property, and
urban transit hubs as defined pursuant to section 2 of P.L.2007, c.346 (C.34:1B-208), shall be
required to reserve at least 20 percent of the residential units constructed for occupancy by low
or moderate income households, as those terms are defined in section 4 of P.L.1985, c.222
(C.52:27D-304), with affordability controls as required under the rules of the council, unless the
municipality in which the property is located has received substantive certification from the
council and such a reservation is not required under the approved affordable housing plan, or the
municipality has been given a judgment of repose or a judgment of compliance by the court, and
such a reservation is not required under the approved affordable housing plan.
c. (1) The Legislature recognizes that regional planning entities are appropriately positioned
to take a broader role in the planning and provision of affordable housing based on regional
planning considerations. In recognition of the value of sound regional planning, including the
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desire to foster economic growth, create a variety and choice of housing near public
transportation, protect critical environmental resources, including farmland and open space
preservation, and maximize the use of existing infrastructure, there is created a new program to
foster regional planning entities.
(2)
The regional planning entities identified in subsection a. of this section shall identify
and coordinate regional affordable housing opportunities in cooperation with municipalities in
areas with convenient access to infrastructure, employment opportunities, and public
transportation. Coordination of affordable housing opportunities may include methods to
regionally provide housing in line with regional concerns, such as transit needs or opportunities,
environmental concerns, or such other factors as the council may permit; provided, however, that
such provision by such a regional entity may not result in more than a 50 percent change in the
fair share obligation of any municipality; provided that this limitation shall not apply to
affordable housing units directly attributable to development by the New Jersey Sports and
Exposition Authority within the New Jersey Meadowlands District.
(3)
In addition to the entities identified in subsection a. of this section, the Casino
Reinvestment Development Authority, in conjunction with the Atlantic County Planning Board,
shall identify and coordinate regional affordable housing opportunities directly attributable to
Atlantic City casino development, which may be provided anywhere within Atlantic County,
subject to the restrictions of paragraph (4) of this subsection.
(4)
The coordination of affordable housing opportunities by regional entities as
identified in this section shall not include activities which would provide housing units to be
located in those municipalities that are eligible to receive aid under the “Special Municipal Aid
Act,” P.L.1987, c.75 (C.52:27D-118.24 et seq.), or are coextensive with a school district which
qualified for designation as a “special needs district” pursuant to the “Quality Education Act of
1990,” P.L.1990, c.52 (C.18A:7D-1 et al.), or at any time in the last 10 years has been qualified
to receive assistance under P.L.1978, c.14 (C.52:27D-178 et seq.) and that fall within the
jurisdiction of any of the regional entities specified in subsection a. of this section.
L.2008, c.46, s.18.

Section 7 Of The “pinelands Protection Act,” P.l.1979, C.111 (c.13:18a-8), The Fort Monmouth

section 7 of the “Pinelands Protection Act,” P.L.1979, c.111 (C.13:18A-8), the Fort Monmouth

Economic Revitalization Planning Authority pursuant to section 5 of P.L.2006, c.16 (C.52:27I5), or its successor, and the Highlands Water Protection and Planning Council pursuant to section
11 of P.L.2004, c.120 (C.13:20-11), but excluding joint planning boards formed pursuant to

D-329.9 Developments, Certain, In Certain Regional Planning Entities

52:27D-329.9 Developments, certain, in certain regional planning entities.

18. a. Notwithstanding any rules of the council to the contrary, for developments consisting
of newly-constructed residential units located, or to be located, within the jurisdiction of any
regional planning entity required to adopt a master plan or comprehensive management plan
pursuant to statutory law, including the New Jersey Meadowlands Commission pursuant to
subsection (i) of section 6 of P.L.1968, c.404 (C.13:17-6), the Pinelands Commission pursuant to

D-329.8 Annual Appropriation

52:27D-329.8 Annual appropriation.

14. a. There shall be appropriated annually from the amounts collected by the State
Treasurer from the imposition of Statewide non-residential development fees and retained by the
State pursuant to P.L.2008, c.46 (C.52:27D-329.1 et al.), the sum of $20,000,000 for deposit into
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the “Urban Housing Assistance Fund,” established pursuant to section 13 of P.L.2008, c.46
(C.52:27D-329.7), to be used for the purposes authorized under that section. Any surplus
amounts remaining after crediting the “Urban Housing Assistance Fund,” in the amount required
under this section from the collection of Statewide non-residential development fees, shall be
annually appropriated to the “New Jersey Affordable Housing Trust Fund,” established pursuant
to section 20 of P.L.1985, c.222 (C.52:27D-320).
b.
In the event the full amount required to be transferred pursuant to subsection a. of this
section is not transferred in any fiscal year, the Legislature shall subsequently appropriate in the
same fiscal year from the General Fund an amount equal to the difference between the amount
actually transferred and the amount required to be transferred pursuant to subsection a. of this
section, so that the total funds made available to the “Urban Housing Assistance Fund” annually
shall be equal to the amount established pursuant to subsection a. of this section.
L.2008, c.46, s.14.

D-329.6 Findings, Declarations Relative To Housing Rehabilitation And Assistance

52:27D-329.7 Urban Housing Assistance Program, “Urban Housing Assistance Fund”;
rules, regulations.
13. a. There is established within the Department of Community Affairs an Urban Housing
Assistance Program for the purposes of assisting certain municipalities in the provision of
housing through the rehabilitation of existing buildings or the construction of affordable housing.
b.
Within the program there shall be established a trust fund to be known as the “Urban
Housing Assistance Fund,” into which may be deposited:
(1)
monies which may be available to the fund from any other programs established for
the purposes of housing rehabilitation, other than monies from the “New Jersey Affordable
Housing Trust Fund,” established pursuant to section 20 of P.L.1985, c.222 (C.52:27D-320);
(2)

monies appropriated by the Legislature to the fund; and

(3)
any other funds made available through State or federal housing programs for the
purposes of producing affordable housing, other than monies from the “New Jersey Affordable
Housing Trust Fund,” established pursuant to section 20 of P.L.1985, c.222 (C.52:27D-320).
c.
The Commissioner of Community Affairs shall develop a strategic five-year plan for
the program aimed at developing strategies to assist municipalities in creating rehabilitation
programs and other programs to produce safe, decent housing within the municipality.
d.
The commissioner may award a housing rehabilitation grant to a municipality that
qualifies for aid pursuant to P.L.1978, c.14 (C.52:27D-178 et seq.) and that has submitted a valid
application to the Department of Community Affairs which details the manner in which the
municipality will utilize funding in order to meet the municipality’s need to rehabilitate or create
safe, decent, and affordable housing.
e.
The commissioner shall promulgate rules and regulations, pursuant to the
“Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), to effectuate the purposes
of P.L.2008, c.46 (C.52:27D-329.1 et al.); provided that the regulations shall permit a
municipality broad discretion in shaping its housing rehabilitation and construction program, but
shall not permit a municipality to provide assistance to any household having an income greater
than 120% of median household income for the housing region. The department may require a
return of a grant upon its determination that a municipality is not performing in accordance with
its grant or with the regulations.
L.2008, c.46, s.13.

D-329.6 Findings, Declarations Relative To Housing Rehabilitation And Assistance

52:27D-329.6 Findings, declarations relative to housing rehabilitation and assistance.

12.

The Legislature finds and declares that:

a.
The transfer of a portion of the fair share obligations among municipalities has proven
to not be a viable method of ensuring that an adequate supply and variety of housing choices are
provided in municipalities experiencing growth. Therefore, the use of a regional contribution
agreement shall no longer be permitted under P.L.1985, c.222 (C.52:27D-301 et al.).
b.
Although the elimination of the regional contribution agreement as a tool for the
production of affordable housing pursuant to P.L.1985, c.222 (C.52:27D-301 et al.), will impact
on some proposed agreements awaiting approval, it is for a public purpose and for the public
good that such contracts be declared void for the current and future housing obligation rounds.
c.
There is a need to assist municipalities in the rehabilitation of housing for occupancy
by low and moderate income households. To this end, a specific program for housing
rehabilitation by municipalities would best serve this need. It is the intent of the Legislature that
this program, as well as funds earmarked for the purposes of the program, will be utilized,
especially in urban areas which were the main recipients of regional contribution agreements, to
continue to upgrade housing stock in order to provide a wide variety and choice of housing for
persons living in those areas.
d.
There is also a need to provide funding to municipalities to create additional
incentives and assistance for the production of safe, decent, and affordable rental and other
housing.
L.2008, c.46, s.12.

D-329.4 Maintenance, Publication Of Up-to-date Municipal Status Report

52:27D-329.4 Maintenance, publication of up-to-date municipal status report.

10.
The council shall maintain on its website, and also publish on a regular basis, an upto-date municipal status report concerning the petitions for substantive certification of each
municipality that has submitted to the council’s jurisdiction, and shall collect and publish
information concerning the number of housing units actually constructed, construction starts,
certificates of occupancy granted, rental units maintained, and the number of housing units
transferred or sold within the previous 12-month period. With respect to units actually
33

constructed, the information shall specify the characteristics of the housing, including housing
type, tenure, affordability level, number of bedrooms, and whether occupancy is reserved for
families, senior citizens, or other special populations. No later than 60 months after the effective
date of P.L.2008, c.46 (C.52:27D-329.1 et al.), the council shall require each municipality, as a
condition of substantive certification, to provide, in a standardized electronic media format as
determined by the council, the details of the fair share plan as adopted by the municipality and
approved by the council. The council shall publish and maintain such approved plans on its
website.
L.2008, c.46, s.10.

D-329.3 Collection Of Payments-in-lieu Authorized

52:27D-329.3 Collection of payments-in-lieu authorized.

9. a. The council may authorize a municipality that has petitioned for substantive
certification to impose and collect payments-in-lieu of constructing affordable units on site upon
the construction of residential development, which payments may be imposed and collected as
provided pursuant to the rules of the council. Payment-in-lieu fees shall be deposited into a trust
fund, and accounted for separately from any other fees collected by a municipality. Whenever a
payment-in-lieu is charged by a municipality pursuant to this subsection, a development fee
authorized pursuant to section 8 of P.L.2008, c.46 (C.52:27D-329.2) shall not be charged in
connection with the same development.
b.
A municipality shall commit to expend collections from payments-in-lieu imposed
pursuant to subsection a. of this section within four years of the date of collection. The council
may extend this deadline if the municipality submits sufficient proof of building or other permits,
or other efforts concerning land acquisition or project development. The council shall provide
such administrative assistance as may be required to aid in the construction of affordable housing
units. A municipality that fails to commit to expend the amounts collected pursuant to this
section within the timeframes established shall be required to transfer any unexpended revenue
collected pursuant to subsection a. of this section to the “New Jersey Affordable Housing Trust
Fund,” established pursuant to section 20 of P.L.1985, c.222 (C.52:27D-320), to be used within
the same housing region for the authorized purposes of that fund, in accordance with regulations
promulgated by the council.
L.2008, c.46, s.9.

D-329.2 Authorization Of Municipality To Impose, Collect Development Fees

52:27D-329.2 Authorization of municipality to impose, collect development fees.

8. a. The council may authorize a municipality that has petitioned for substantive certification, or
that has been so authorized by a court of competent jurisdiction, and which has adopted a
municipal development fee ordinance to impose and collect development fees from developers of
residential property, in accordance with rules promulgated by the council. Each amount
collected shall be deposited and shall be accounted for separately, by payer and date of deposit.
A municipality may not spend or commit to spend any affordable housing development fees,
including Statewide non-residential fees collected and deposited into the municipal affordable
housing trust fund, without first obtaining the council’s approval of the expenditure. The council
shall promulgate regulations regarding the establishment, administration and enforcement of the
expenditure of affordable housing development fees by municipalities. The council shall have
exclusive jurisdiction regarding the enforcement of these regulations, provided that any
municipality which is not in compliance with the regulations adopted by the council may be
subject to forfeiture of any or all funds remaining within its municipal trust fund. Any funds so
31

forfeited shall be deposited into the “New Jersey Affordable Housing Trust Fund” established
pursuant to section 20 of P.L.1985, c.222 (C.52:27D-320).
b.
A municipality shall deposit all fees collected, whether or not such collections were
derived from fees imposed upon non-residential or residential construction into a trust fund
dedicated to those purposes as required under this section, and such additional purposes as may
be approved by the council.
c.
(1) A municipality may only spend development fees for an activity approved by the
council to address the municipal fair share obligation.
(2)
Municipal development trust funds shall not be expended to reimburse
municipalities for activities which occurred prior to the authorization of a municipality to collect
development fees.
(3)
A municipality shall set aside a portion of its development fee trust fund for the
purpose of providing affordability assistance to low and moderate income households in
affordable units included in a municipal fair share plan, in accordance with rules of the council.
(a)
Affordability assistance programs may include down payment assistance, security
deposit assistance, low interest loans, common maintenance expenses for units located in
condominiums, rental assistance, and any other program authorized by the council.
(b)
Affordability assistance to households earning 30 percent or less of median income
may include buying down the cost of low income units in a municipal fair share plan to make
them affordable to households earning 30 percent or less of median income. The use of
development fees in this manner shall not entitle a municipality to bonus credits except as may
be provided by the rules of the council.
(4)
A municipality may contract with a private or public entity to administer any part of
its housing element and fair share plan, including the requirement for affordability assistance, or
any program or activity for which the municipality expends development fee proceeds, in
accordance with rules of the council.
(5)
Not more than 20 percent of the revenues collected from development fees shall be
expended on administration, in accordance with rules of the council.
d.
The council shall establish a time by which all development fees collected within a
calendar year shall be expended; provided, however, that all fees shall be committed for
expenditure within four years from the date of collection. A municipality that fails to commit to
expend the balance required in the development fee trust fund by the time set forth in this section
shall be required by the council to transfer the remaining unspent balance at the end of the fouryear period to the “New Jersey Affordable Housing Trust Fund,” established pursuant to section
20 of P.L.1985, c.222 (C.52:27D-320), as amended by P.L.2008, c.46 (C.52:27D-329.1 et al.), to
be used in the housing region of the transferring municipality for the authorized purposes of that
fund.
32

e.
Notwithstanding any provision of this section, or regulations of the council, a
municipality shall not collect a development fee from a developer whenever that developer is
providing for the construction of affordable units, either on-site or elsewhere within the
municipality.
This section shall not apply to the collection of a Statewide development fee imposed upon
non-residential development pursuant to sections 32 through 38 of P.L.2008, c.46 (C.40:55D-8.1
et seq.) by the State Treasurer, when such collection is not authorized to be retained by a
municipality.
L.2008, c.46, s.8.

Section 11 Of P.l.1985, C.222 (c.52:27d-311), And The Housing Activities Under Section 20 Of

section 11 of P.L.1985, c.222 (C.52:27D-311), and the housing activities under section 20 of

P.L.1985, c.222 (C.52:27D-320), at least once every three years, to ensure that at least 13 percent
of the housing units made available for occupancy by low-income and moderate income
households will be reserved for occupancy by very low income households, as that term is
defined pursuant to section 4 of P.L.1985, c.222 (C.52:27D-304). Nothing in this section shall
require that a specific percentage of the units in any specific project be reserved as very low
income housing; provided, however, that a municipality shall not receive bonus credits for the
provision of housing units reserved for occupancy by very low income households unless the 13
percent target has been exceeded within that municipality. The council shall coordinate all
efforts to meet the goal of this section in a manner that will result in a balanced number of
housing units being reserved for very low income households throughout all housing regions.
For the purposes of this section, housing activities under section 20 of P.L.1985, c.222
(C.52:27D-320) shall include any project-based assistance provided from the “New Jersey
Affordable Housing Trust Fund” pursuant to P.L.2004, c.140 (C.52:27D-287.1 et al.), regardless
of whether the housing activity is counted toward the municipal obligation under the “Fair
Housing Act,” P.L.1985, c.222 (C.52:27D-301 et al.).
L.2008, c.46, s.7.

D-328. Builder’s Remedy Moratorium

52:27D-328. Builder’s remedy moratorium

No builder’s remedy shall be granted to a plaintiff in any exclusionary zoning litigation which
has been filed on or after January 20, 1983, unless a final judgment providing for a builder’s
remedy has already been rendered to that plaintiff. This provision shall terminate upon the
expiration of the period set forth in subsection a. of section 9 of this act for the filing with the
council of the municipality’s housing element.
For the purposes of this section, “final judgment” shall mean a judgment subject to an appeal as
of right for which all right to appeal is exhausted.
For the purposes of this section, “exclusionary zoning litigation” shall mean lawsuits filed in
courts of competent jurisdiction in this State challenging a municipality’s zoning and land use
regulations on the basis that the regulations do not make realistically possible the opportunity for
an appropriate variety and choice of housing for all categories of people living within the
municipality’s housing region, including those of low and moderate income, who may desire to
live in the municipality.
For the purposes of this section, “builder’s remedy” shall mean a court imposed remedy for a
litigant who is an individual or a profit-making entity in which the court requires a municipality
to utilize zoning techniques such as mandatory set-asides or density bonuses which provide for
the economic viability of a residential development by including housing which is not for low
and moderate income households.
L. 1985, c. 222, s. 28, eff. July 2, 1985, operative July 2, 1985.

52:27D-329. Prior law applicable
Until August 1, 1988, any municipality may continue to regulate development pursuant to a
zoning ordinance in accordance with section 49 of the “Municipal Land Use Law,” P.L. 1975, c.
291 (C. 40:55D-62) as same read before the effective date of this act.
L. 1985, c. 222, s. 31, eff. July 2, 1985, operative July 2, 1985.

D-325. Municipal Powers

52:27D-326. Reports to Governor, Legislature
Within 12 months after the effective date of this act and every year thereafter, the agency and
the council shall report separately to the Governor and the Legislature on the effect of this act in
promoting the provision of low and moderate income housing in the several housing regions of
this State. The reports may include recommendations for any revisions or changes in this act
which the agency and the council believe necessary to more nearly effectuate this end.
Within 36 months after the effective date of this act, the council shall report to the Governor
and the Legislature concerning the actions necessary to be taken at the State, regional, county
and municipal levels to provide for the implementation and administration of this act on a
regional basis, including any revisions or changes in the law necessary to accomplish that end.
The council may include in the report any recommendations or considerations it may wish to
provide regarding the advisability of implementing and administering this act on a regional basis.
L. 1985, c. 222, s. 26, eff. July 2, 1985, operative July 2, 1985.

D-325. Municipal Powers

52:27D-325. Municipal powers

Notwithstanding any other law to the contrary, a municipality may purchase, lease or acquire
by gift or through the exercise of eminent domain, real property and any estate or interest therein,
which the municipal governing body determines necessary or useful for the construction or
rehabilitation of low and moderate income housing or conversion to low and moderate income
housing.
The municipality may provide for the acquisition, construction and maintenance of buildings,
structures or other improvements necessary or useful for the provision of low and moderate
income housing, and may provide for the reconstruction, conversion or rehabilitation of those
improvements in such manner as may be necessary or useful for those purposes.
Notwithstanding the provisions of any other law regarding the conveyance, sale or lease of
real property by municipalities, the municipal governing body may, by resolution, authorize the
private sale and conveyance or lease of a housing unit or units acquired or constructed pursuant
to this section, where the sale, conveyance or lease is to a low or moderate income household or
nonprofit entity and contains a contractual guarantee that the housing unit will remain available
to low and moderate income households for a period of at least 30 years.
L.1985,c.222,s.25; amended 1990,c.109,s.1.

The Agency Shall Establish Procedures For Entering Into, And Shall Enter Into, Contractual

24. The agency shall establish procedures for entering into, and shall enter into, contractual

agreements with willing municipalities or developers of inclusionary developments whereby the
agency will administer resale controls and rent controls in municipalities where no appropriate
administrative agency exists. The contractual agreements shall be for the duration of the controls
and shall involve eligibility determinations, determination of initial occupants, the marketing of
units, maintenance of eligibility lists for subsequent purchasers or renters, and determination of
maximum resale prices or rents. The agency may charge the municipality or inclusionary
developer a reasonable per unit fee for entering into such an agreement, or may charge a
reasonable fee to a low or moderate income household at the time the home is sold subject to the
resale control or both. Agency fees shall be established according to methods or schedules
approved by the State Treasurer.
Neither the agency nor any other entity entering into an agreement to provide services to a
municipality under this section shall require, as a condition of that agreement, that these services
be provided for all eligible housing units in the municipality. A municipality, at its discretion,
may enter into an agreement for the provision of services for any reasonable portion of its
eligible housing units.
L.1985, c.222, s.24; amended 1996, c.113, s.20.

D-322. 6-year Moratorium

52:27D-322. 6-year moratorium

Any municipality which has reached a settlement of any exclusionary zoning litigation prior to
the effective date of this act shall not be subject to any exclusionary zoning suit for a six year
period following the effective date of this act. Any such municipality shall be deemed to have a
substantively certified housing element and ordinances, and shall not be required during that
period to take any further actions with respect to provisions for low and moderate income
housing in its land use ordinances or regulations.
28

L. 1985, c. 222, s. 22, eff. July 2, 1985, operative July 2, 1985.

D-321.2 Maintenance, Publishing Of Annual Report By Njhmfa

52:27D-321.2 Maintenance, publishing of annual report by NJHMFA.

20.
The New Jersey Housing and Mortgage Finance Agency shall maintain on its website
and publish annually a report concerning its activities during the year in promotion of affordable
housing, including any activity pursuant to section 21 of P.L.1985, c.222 (C.52:27D-321). The
report shall detail the number and amounts of grants, loans, the average loan amount made, the
amounts of low income tax credits allocated by the agency, by location, and the number of
proposed units, and any additional information which the agency deems informative to the
public.
L.2008, c.46, s.20.

D-321.1 Allocation Of Low Income Tax Credits

52:27D-321.1 Allocation of low income tax credits.

19.
Notwithstanding any rules of the New Jersey Housing and Mortgage Finance
Agency to the contrary, the allocation of low income tax credits shall be made by the agency to
the full extent such credits are permitted to be allocated under federal law, including allocations
of 4 percent or 9 percent federal low income tax credits, and including allocations allowable for
partial credits. The affordable portion of any mixed income or mixed use development that is
part of a fair share housing plan approved by the council, or a court-approved judgment of repose
or compliance, including, but not limited to, a development that has received a density bonus,
shall be permitted to receive allocations of low income tax credits, provided that the applicant
can conclusively demonstrate that the market rate residential or commercial units are unable to
internally subsidize the affordable units, and the affordable units are developed
contemporaneously with the commercial or market rate residential units.
L.2008, c.46, s.19.

Affordable Housing Assistance

52:27D-321 Affordable housing assistance.

21.
The agency shall establish affordable housing programs to assist municipalities in
meeting the obligation of developing communities to provide low and moderate income housing.
a.
Of the bond authority allocated to it under section 24 of P.L.1983, c.530 (C.55:14K24) the agency will allocate, for a reasonable period of time established by its board, no less than
25% to be used in conjunction with housing to be constructed or rehabilitated with assistance
under this act.
b.
The agency shall to the extent of available funds, award assistance to affordable
housing programs located in municipalities whose housing elements have received substantive
certification from the council, or which have been subject to a builder’s remedy or which are in
furtherance of a regional contribution agreement approved by the council. During the first 12
months from the effective date of this act and for any additional period which the council may
approve, the agency may assist affordable housing programs which are not located in
municipalities whose housing elements have been granted substantive certification or which are
not in furtherance of a regional contribution agreement; provided the affordable housing program
will meet all or in part a municipal low and moderate income housing obligation.
c.
Assistance provided pursuant to this section may take the form of grants or awards to
municipalities, prospective home purchasers, housing sponsors as defined in P.L.1983, c.530
(C.55:14K-1 et seq.), or as contributions to the issuance of mortgage revenue bonds or multifamily housing development bonds which have the effect of achieving the goal of producing
affordable housing.
26

d.
Affordable housing programs which may be financed or assisted under this provision
may include, but are not limited to:
(1)
Assistance for home purchase and improvement including interest rate assistance,
down payment and closing cost assistance, and direct grants for principal reduction;
(2)
Rental programs including loans or grants for developments containing low and
moderate income housing, moderate rehabilitation of existing rental housing, congregate care
and retirement facilities;
(3)

Financial assistance for the conversion of nonresidential space to residences;

(4)
Other housing programs for low and moderate income housing, including
infrastructure projects directly facilitating the construction of low and moderate income housing;
and
(5)
Grants or loans to municipalities, housing sponsors and community organizations to
encourage development of innovative approaches to affordable housing, including:
(a)
Such advisory, consultative, training and educational services as will assist in the
planning, construction, rehabilitation and operation of housing; and
(b)
Encouraging research in and demonstration projects to develop new and better
techniques and methods for increasing the supply, types and financing of housing and housing
projects in the State.
e.
The agency shall establish procedures and guidelines governing the qualifications of
applicants, the application procedures and the criteria for awarding grants and loans for
affordable housing programs and the standards for establishing the amount, terms and conditions
of each grant or loan.
f.
In consultation with the council, the agency shall establish requirements and controls
to insure the maintenance of housing assisted under this act as affordable to low and moderate
income households for a period of not less than 20 years; provided that the agency may establish
a shorter period upon a determination that the economic feasibility of the program is jeopardized
by the requirement and the public purpose served by the program outweighs the shorter period.
The controls may include, among others, requirements for recapture of assistance provided
pursuant to this act or restrictions on return on equity in the event of failure to meet the
requirements of the program. With respect to rental housing financed by the agency pursuant to
this act or otherwise which promotes the provision or maintenance of low and moderate income
housing, the agency may waive restrictions on return on equity required pursuant to P.L.1983,
c.530 (C.55:14K-1 et seq.) which is gained through the sale of the property or of any interest in
the property or sale of any interest in the housing sponsor.
g.

The agency may establish affordable housing programs through the use or
27

establishment of subsidiary corporations or development corporations as provided in P.L.1983,
c.530 (C.55:14K-1 et seq.). The subsidiary corporations or development corporations shall be
eligible to receive funds provided under this act for any permitted purpose.
h.
The agency shall provide assistance, through its bonding powers or in any other
manner within its powers, to the grant and loan program established pursuant to section 20 of
P.L.1985, c.222 (C.52:27D-320).
L.1985,c.222,s.21; amended 2004, c.140, s.5.

“new Jersey Affordable Housing Trust Fund.”

52:27D-320 “New Jersey Affordable Housing Trust Fund.”

20.
There is established in the Department of Community Affairs a separate trust fund, to be
used for the exclusive purposes as provided in this section, and which shall be known as the
“New Jersey Affordable Housing Trust Fund.” The fund shall be a non-lapsing, revolving trust
fund, and all monies deposited or received for purposes of the fund shall be accounted for
separately, by source and amount, and remain in the fund until appropriated for such purposes.
The fund shall be the repository of all State funds appropriated for affordable housing purposes,
including the proceeds from the receipts of the additional fee collected pursuant to paragraph (2)
of subsection a. of section 3 of P.L.1968, c.49 (C.46:15-7), proceeds from available receipts of
the Statewide non-residential development fees collected pursuant to section 35 of P.L.2008,
c.46 (C.40:55D-8.4), monies lapsing or reverting from municipal development trust funds, or
other monies as may be dedicated, earmarked, or appropriated by the Legislature for the
purposes of the fund. All references in any law, order, rule, regulation, contract, loan, document,
or otherwise, to the “Neighborhood Preservation Nonlapsing Revolving Fund” shall mean the
“New Jersey Affordable Housing Trust Fund.” The department shall be permitted to utilize
annually up to 7.5 percent of the monies available in the fund for the payment of any necessary
administrative costs related to the administration of the “Fair Housing Act,” P.L.1985, c.222
23

(C.52:27D-301 et al.), the State Housing Commission, or any costs related to administration of
P.L.2008, c.46 (C.52:27D-329.1 et al.).
a.
Except as permitted pursuant to subsection g. of this section, the commissioner shall
award grants or loans from this fund for housing projects and programs in municipalities whose
housing elements have received substantive certification from the council, in municipalities
receiving State aid pursuant to P.L.1978, c.14 (C.52:27D-178 et seq.), in municipalities subject
to builder’s remedy as defined in section 28 of P.L.1985, c.222 (C.52:27D-328) or in receiving
municipalities in cases where the council has approved a regional contribution agreement and a
project plan developed by the receiving municipality.
Of those monies deposited into the “New Jersey Affordable Housing Trust Fund” that are
derived from municipal development fee trust funds, or from available collections of Statewide
non-residential development fees, a priority for funding shall be established for projects in
municipalities that have petitioned the council for substantive certification.
Programs and projects in any municipality shall be funded only after receipt by the
commissioner of a written statement in support of the program or project from the municipal
governing body.
b.
The commissioner shall establish rules and regulations governing the qualifications of
applicants, the application procedures, and the criteria for awarding grants and loans and the
standards for establishing the amount, terms and conditions of each grant or loan.
c.
For any period which the council may approve, the commissioner may assist
affordable housing programs which are not located in municipalities whose housing elements
have been granted substantive certification or which are not in furtherance of a regional
contribution agreement; provided that the affordable housing program will meet all or part of a
municipal low and moderate income housing obligation.
d.
Amounts deposited in the “New Jersey Affordable Housing Trust Fund” shall be
targeted to regions based on the region’s percentage of the State’s low and moderate income
housing need as determined by the council. Amounts in the fund shall be applied for the
following purposes in designated neighborhoods:
(1)
Rehabilitation of substandard housing units occupied or to be occupied by low and
moderate income households;
(2)
Creation of accessory apartments to be occupied by low and moderate income
households;
(3)
Conversion of non-residential space to residential purposes; provided a substantial
percentage of the resulting housing units are to be occupied by low and moderate income
households;
(4)

Acquisition of real property, demolition and removal of buildings, or construction of
24

new housing that will be occupied by low and moderate income households, or any combination
thereof;
(5)
Grants of assistance to eligible municipalities for costs of necessary studies, surveys,
plans and permits; engineering, architectural and other technical services; costs of land
acquisition and any buildings thereon; and costs of site preparation, demolition and infrastructure
development for projects undertaken pursuant to an approved regional contribution agreement;
(6)
Assistance to a local housing authority, nonprofit or limited dividend housing
corporation or association or a qualified entity acting as a receiver under P.L.2003, c.295
(C.2A:42-114 et al.) for rehabilitation or restoration of housing units which it administers which:
(a) are unusable or in a serious state of disrepair; (b) can be restored in an economically feasible
and sound manner; and (c) can be retained in a safe, decent and sanitary manner, upon
completion of rehabilitation or restoration; and
(7)
Other housing programs for low and moderate income housing, including, without
limitation, (a) infrastructure projects directly facilitating the construction of low and moderate
income housing not to exceed a reasonable percentage of the construction costs of the low and
moderate income housing to be provided and (b) alteration of dwelling units occupied or to be
occupied by households of low or moderate income and the common areas of the premises in
which they are located in order to make them accessible to handicapped persons.
e.
Any grant or loan agreement entered into pursuant to this section shall incorporate
contractual guarantees and procedures by which the division will ensure that any unit of housing
provided for low and moderate income households shall continue to be occupied by low and
moderate income households for at least 20 years following the award of the loan or grant,
except that the division may approve a guarantee for a period of less than 20 years where
necessary to ensure project feasibility.
f.
Notwithstanding the provisions of any other law, rule or regulation to the contrary, in
making grants or loans under this section, the department shall not require that tenants be
certified as low or moderate income or that contractual guarantees or deed restrictions be in place
to ensure continued low and moderate income occupancy as a condition of providing housing
assistance from any program administered by the department, when that assistance is provided
for a project of moderate rehabilitation if the project (1) contains 30 or fewer rental units and (2)
is located in a census tract in which the median household income is 60 percent or less of the
median income for the housing region in which the census tract is located, as determined for a
three person household by the council in accordance with the latest federal decennial census. A
list of eligible census tracts shall be maintained by the department and shall be adjusted upon
publication of median income figures by census tract after each federal decennial census.
g.
In addition to other grants or loans awarded pursuant to this section, and without
regard to any limitations on such grants or loans for any other purposes herein imposed, the
commissioner shall annually allocate such amounts as may be necessary in the commissioner’s
discretion, and in accordance with section 3 of P.L.2004, c.140 (C.52:27D-287.3), to fund rental
assistance grants under the program created pursuant to P.L.2004, c.140 (C.52:27D-287.1 et al.).
25

Such rental assistance grants shall be deemed necessary and authorized pursuant to P.L.1985,
c.222 (C.52:27D-301 et al.), in order to meet the housing needs of certain low income
households who may not be eligible to occupy other housing produced pursuant to P.L.1985,
c.222 (C.52:27D-301 et al.).
h.
The department and the State Treasurer shall submit the “New Jersey Affordable
Housing Trust Fund” for an audit annually by the State Auditor or State Comptroller, at the
discretion of the Treasurer. In addition, the department shall prepare an annual report for each
fiscal year, and submit it by November 30th of each year to the Governor and the Legislature,
and the Joint Committee on Housing Affordability, or its successor, and post the information to
its web site, of all activity of the fund, including details of the grants and loans by number of
units, number and income ranges of recipients of grants or loans, location of the housing
renovated or constructed using monies from the fund, the number of units upon which
affordability controls were placed, and the length of those controls. The report also shall include
details pertaining to those monies allocated from the fund for use by the State rental assistance
program pursuant to section 3 of P.L.2004, c.140 (C.52:27D-287.3) and subsection g. of this
section.
s.17.

L.1985, c.222, s.20; amended 1995, c.83, s.3; 2003, c.295, s.30; 2004, c.140, s.4; 2008, c.46,

D-319. Motion For Relief

52:27D-319. Motion for relief

If the council has not completed its review and mediation process for a municipality within six
months of receipt of a request by a party who has instituted litigation, the party may file a motion
with a court of competent jurisdiction to be relieved of the duty to exhaust administrative
remedies. In the case of review and mediation requests filed within nine months after this act
takes effect, the six-month completion date shall not begin to run until nine months after this act
takes effect.
L. 1985, c. 222, s. 19, eff. July 2, 1985, operative July 2, 1985.

D-318. Expiration Of Administrative Remedy Obligation

52:27D-318. Expiration of administrative remedy obligation

If a municipality which has adopted a resolution of participation pursuant to section 9 of this
act fails to meet the deadline for submitting its housing element to the council prior to the
institution of exclusionary zoning litigation, the obligation to exhaust administrative remedies
contained in subsection b. of section 16 of this act automatically expires. The obligation also
expires if the council rejects the municipality’s request for substantive certification or conditions
its certification upon changes which are not made within the period established in this act or
within an extension of that period agreed to by the council and all litigants.
L. 1985, c. 222, s. 18, eff. July 2, 1985, operative July 2, 1985.

D-317. Presumption Of Validity

52:27D-317. Presumption of validity

a. In any exclusionary zoning case filed against a municipality which has a substantive
certification and in which there is a requirement to exhaust the review and mediation process
pursuant to section 16 of this act, there shall be a presumption of validity attaching to the housing
element and ordinances implementing the housing element. To rebut the presumption of
validity, the complainant shall have the burden of proof to demonstrate by clear and convincing
evidence that the housing element and ordinances implementing the housing element do not
provide a realistic opportunity for the provision of the municipality’s fair share of low and
moderate income housing after allowing for the implementation of any regional contribution
agreement approved by the council.
b. There shall be a presumption of validity attaching to any regional contribution agreement
approved by the council. To rebut the presumption of validity, the complainant shall have the
burden of proof to demonstrate by clear and convincing evidence that the agreement does not
provide for a realistic opportunity for the provision of low and moderate income housing within
the housing region.
c. The council shall be made a party to any exclusionary zoning suit against a municipality
22

which receives substantive certification, and shall be empowered to present to the court its
reasons for granting substantive certification.
L. 1985, c. 222, s. 17, eff. July 2, 1985, operative July 2, 1985.

D-316. Motion For Transfer

52:27D-316. Motion for transfer

For those exclusionary zoning cases instituted more than 60 days before the effective date of
this act, any party to the litigation may file a motion with the court to seek a transfer of the case
to the counciL. In determining whether or not to transfer, the court shall consider whether or not
the transfer would result in a manifest injustice to any party to the litigation. If the municipality
fails to file a housing element and fair share plan with the council within five months from the
date of transfer, or promulgation of criteria and guidelines by the council pursuant to section 7 of
this act, whichever occurs later, jurisdiction shall revert to the court.
b. Any person who institutes litigation less than 60 days before the effective date of this act or
after the effective date of this act challenging a municipality’s zoning ordinance with respect to
the opportunity to provide for low or moderate income housing, shall file a notice to request
review and mediation with the council pursuant to sections 14 and 15 of this act. In the event
that the municipality adopts a resolution of participation within the period established in
subsection a. of section 9 of this act, the person shall exhaust the review and mediation process
of the council before being entitled to a trial on his complaint.
L. 1985, c. 222, s. 16, eff. July 2, 1985, operative July 2, 1985.

D-315. Mediation, Review Process

52:27D-315. Mediation, review process

a. The council shall engage in a mediation and review process in the following situations: (1)
if an objection to the municipality’s petition for substantive certification is filed with the council
within the time specified in section 14 of this act; or (2) if a request for mediation and review is
made pursuant to section 16 of this act.
b. In cases in which an objection is filed to substantive certification the council shall meet
with the municipality and the objectors and attempt to mediate a resolution of the dispute. If the
mediation is successful, the council shall issue a substantive certification if it finds that the
criteria of section 14 of this act have been met.
c. If the mediation efforts are unsuccessful, the matter shall be transferred to the Office of
Administrative Law as a contested case as defined in the “Administrative Procedure Act,” P.L.
1968, c. 410 (C. 52:14B-1 et seq.).
The Office of Administrative Law shall expedite its hearing process as much as practicable by
promptly assigning an administrative law judge to the matter; promptly scheduling an
evidentiary hearing; expeditiously conducting and concluding the evidentiary hearing; limiting
the time allotted for briefs, proposed findings of fact, conclusions of law, forms of order or other
disposition, or other supplemental material; and the prompt preparation of the initial decision. A
written transcript of all oral testimony and copies of all exhibits introduced into evidence shall be
submitted to the council by the Office of Administrative Law simultaneously with a copy of the
21

initial decision. The evidentiary hearings shall be concluded and the initial decision issued no
later than 90 days after the transmittal of the matter as a contested case to the Office of
Administrative Law by the council, unless the time is extended by the Director of the Office of
Administrative Law for good cause shown.
L. 1985, c. 222, s. 15, eff. July 2, 1985, operative July 2, 1985.

D-314. Issuance Of Certification

52:27D-314. Issuance of certification

Unless an objection to the substantive certification is filed with the council by any person within
45 days of the publication of the notice of the municipality’s petition, the council shall review the
petition and shall issue a substantive certification if it shall find that:

a. The municipality’s fair share plan is consistent with the rules and criteria adopted by the
council and not inconsistent with achievement of the low and moderate income housing needs of
the region as adjusted pursuant to the council’s criteria and guidelines adopted pursuant to
subsection c. of section 7 of this act; and
b. The combination of the elimination of unnecessary housing cost-generating features from
the municipal land use ordinances and regulations, and the affirmative measures in the housing
element and implementation plan make the achievement of the municipality’s fair share of low
and moderate income housing realistically possible after allowing for the implementation of any
regional contribution agreement approved by the council.
In conducting its review, the council may meet with the municipality and may deny the petition
or condition its certification upon changes in the element or ordinances. Any denial or
conditions for approval shall be in writing and shall set forth the reasons for the denial or
conditions. If, within 60 days of the council’s denial or conditional approval, the municipality
refiles its petition with changes satisfactory to the council, the council shall issue a substantive
certification.
Once substantive certification is granted, the municipality shall have 45 days in which to adopt
its fair share housing ordinance approved by the council.
L. 1985, c. 222, s. 14, eff. July 2, 1985, operative July 2, 1985.

D-313.1. Previous Application For Development

52:27D-313.1. Previous application for development

The Council on Affordable Housing shall not consider for substantive certification any
application of a housing element submitted which involves the demolition of a residential
structure, which has not been declared unfit, or which was within the previous three years
negligently or willfully rendered unfit, for human occupancy or use pursuant to P.L.1942, c.112
(C.40:48-2.3 et seq.), and which is situated on a lot of less than two acres of land or on a lot
formed by merging two or more such lots, unless an application for development has been
previously approved by the municipal planning board or municipal zoning board pursuant to
procedures prescribed by the “Municipal Land Use Law,” P.L.1975, c.291 (C.40:55D-1 et seq.).
L.1989,c.142,s.2.

Petition For Substantive Certification

52:27D-313 Petition for substantive certification.

13. a. A municipality which has filed a housing element may, at any time during a twoyear period following the filing of the housing element, petition the council for a substantive
certification of its element and ordinances or institute an action for declaratory judgment
granting it repose in the Superior Court, but in no event shall a grant of substantive certification
extend beyond a 10-year period starting on the date the municipality files its housing element
with the council. The municipality shall publish notice of its petition in a newspaper of general
circulation within the municipality and county and shall make available to the public information
on the element and ordinances in accordance with such procedures as the council shall establish.
The council shall also establish a procedure for providing public notice of each petition which it
receives.
b.
Notwithstanding the provisions of subsection a. of this section, a municipality which
filed a housing element prior to the effective date of P.L.1990, c.121, shall be permitted to
petition for substantive certification at any time within two years following that filing, or within
one year following the effective date of P.L.1990, c.121, whichever shall result in permitting the
municipality the longer period of time within which to petition.
The Council shall establish procedures for a realistic opportunity review at the midpoint of
the certification period and shall provide for notice to the public.
L.1985,c.222,s.13; amended 1990, c.121; 2001, c.435, s.5.

Regional Contribution Agreements

52:27D-312 Regional contribution agreements.

12. a. Except as prohibited under P.L.2008, c.46 (C.52:27D-329.1 et al.), a municipality may
propose the transfer of up to 50% of its fair share to another municipality within its housing
region by means of a contractual agreement into which two municipalities voluntarily enter. A
municipality may also propose a transfer by contracting with the agency or another governmental
entity designated by the council if the council determines that the municipality has exhausted all
possibilities within its housing region. A municipality proposing to transfer to another
municipality, whether directly or by means of a contract with the agency or another
governmental entity designated by the council, shall provide the council with the housing
element and statement required under subsection c. of section 11 of P.L.1985, c.222 (C.52:27D311), and shall request the council to determine a match with a municipality filing a statement of
intent pursuant to subsection e. of this section. Except as provided in subsection b. of this
section, the agreement may be entered into upon obtaining substantive certification under section
14 of P.L.1985, c.222 (C.52:27D-314), or anytime thereafter. The regional contribution
agreement entered into shall specify how the housing shall be provided by the second
17

municipality, hereinafter the receiving municipality, and the amount of contributions to be made
by the first municipality, hereinafter the sending municipality.
b.
A municipality which is a defendant in an exclusionary zoning suit and which has not
obtained substantive certification pursuant to P.L.1985, c.222 may request the court to be
permitted to fulfill a portion of its fair share by entering into a regional contribution agreement.
If the court believes the request to be reasonable, the court shall request the council to review the
proposed agreement and to determine a match with a receiving municipality or municipalities
pursuant to this section. The court may establish time limitations for the council’s review, and
shall retain jurisdiction over the matter during the period of council review. If the court
determines that the agreement provides a realistic opportunity for the provision of low and
moderate income housing within the housing region, it shall provide the sending municipality a
credit against its fair share for housing to be provided through the agreement in the manner
provided in this section. The agreement shall be entered into prior to the entry of a final
judgment in the litigation. In cases in which a final judgment was entered prior to the date
P.L.1985, c.222 takes effect and in which an appeal is pending, a municipality may request
consideration of a regional contribution agreement; provided that it is entered into within 120
days after P.L.1985, c.222 takes effect. In a case in which a final judgment has been entered, the
court shall consider whether or not the agreement constitutes an expeditious means of providing
part of the fair share. Notwithstanding this subsection, no consideration shall be given to any
regional contribution agreement of which the council did not complete its review and formally
approve a recommendation to the court prior to the effective date of P.L.2008, c.46 (C.52:27D329.1 et al.).
c.
Except as prohibited under P.L.2008, c.46 (C.52:27D-329.1 et al.), regional
contribution agreements shall be approved by the council, after review by the county planning
board or agency of the county in which the receiving municipality is located. The council shall
determine whether or not the agreement provides a realistic opportunity for the provision of low
and moderate income housing within convenient access to employment opportunities. The
council shall refer the agreement to the county planning board or agency which shall review
whether or not the transfer agreement is in accordance with sound, comprehensive regional
planning. In its review, the county planning board or agency shall consider the master plan and
zoning ordinance of the sending and receiving municipalities, its own county master plan, and
the State development and redevelopment plan. In the event that there is no county planning
board or agency in the county in which the receiving municipality is located, the council shall
also determine whether or not the agreement is in accordance with sound, comprehensive
regional planning. After it has been determined that the agreement provides a realistic
opportunity for low and moderate income housing within convenient access to employment
opportunities, and that the agreement is consistent with sound, comprehensive regional planning,
the council shall approve the regional contribution agreement by resolution. All determinations
of a county planning board or agency shall be in writing and shall be made within such time
limits as the council may prescribe, beyond which the council shall make those determinations
and no fee shall be paid to the county planning board or agency pursuant to this subsection.
d.
In approving a regional contribution agreement, the council shall set forth in its
resolution a schedule of the contributions to be appropriated annually by the sending
18

municipality. A copy of the adopted resolution shall be filed promptly with the Director of the
Division of Local Government Services in the Department of Community Affairs, and the
director shall thereafter not approve an annual budget of a sending municipality if it does not
include appropriations necessary to meet the terms of the resolution. Amounts appropriated by a
sending municipality for a regional contribution agreement pursuant to this section are exempt
from the limitations or increases in final appropriations imposed under P.L.1976, c.68 (C.40A:445.1 et seq.).
e.
The council shall maintain current lists of municipalities which have stated an intent
to enter into regional contribution agreements as receiving municipalities, and shall establish
procedures for filing statements of intent with the council. No receiving municipality shall be
required to accept a greater number of low and moderate income units through an agreement
than it has expressed a willingness to accept in its statement, but the number stated shall not be
less than a reasonable minimum number of units, not to exceed 100, as established by the
council. The council shall require a project plan from a receiving municipality prior to the
entering into of the agreement, and shall submit the project plan to the agency for its review as to
the feasibility of the plan prior to the council’s approval of the agreement. The agency may
recommend and the council may approve as part of the project plan a provision that the time
limitations for contractual guarantees or resale controls for low and moderate income units
included in the project shall be less than 30 years, if it is determined that modification is
necessary to assure the economic viability of the project.
f.
The council shall establish guidelines for the duration and amount of contributions in
regional contribution agreements. In doing so, the council shall give substantial consideration to
the average of: (1) the median amount required to rehabilitate a low and moderate income unit up
to code enforcement standards; (2) the average internal subsidization required for a developer to
provide a low income housing unit in an inclusionary development; (3) the average internal
subsidization required for a developer to provide a moderate income housing unit in an
inclusionary development. Contributions may be prorated in municipal appropriations occurring
over a period not to exceed ten years and may include an amount agreed upon to compensate or
partially compensate the receiving municipality for infrastructure or other costs generated to the
receiving municipality by the development. Appropriations shall be made and paid directly to
the receiving municipality or municipalities or to the agency or other governmental entity
designated by the council, as the case may be.
g.
The council shall require receiving municipalities to file annual reports with the
agency setting forth the progress in implementing a project funded under a regional contribution
agreement, and the agency shall provide the council with its evaluation of each report. The
council shall take such actions as may be necessary to enforce a regional contribution agreement
with respect to the timely implementation of the project by the receiving municipality.
No consideration shall be given to any regional contribution agreement for which the
council did not complete its review and grant approval prior to the effective date of P.L.2008,
c.46 (C.52:27D-329.1 et al.). On or after the effective date of P.L.2008, c.46 (C.52:27D-329.1 et
al.), no regional contribution agreement shall be entered into by a municipality, or approved by
the council or the court.
19

L.1985, c.222, s.12; amended 1995, c.83, s.2; 2001, c.435, s.4; 2008, c.46, s.16.

D-311.2 Purchase Of Privately Owned Land By Municipality For Fair Share Housing

52:27D-311.2 Purchase of privately owned land by municipality for fair share housing.

41. a. Notwithstanding the provisions of the “Eminent Domain Act of 1971,” P.L.1971,
c.361 (C.20:3-1 et seq.), or of any other law, rule or regulation to the contrary, a municipality
may provide for the purchase of privately owned residential property at the value of all liens
secured by real property, excluding any tax lien to which the property is subject and include
those units toward the fulfillment of its fair share housing obligation pursuant to P.L.1985, c.222
(C.52:27D-301 et al.). Any such purchase under this section shall be made pursuant to and
consistent with regulations promulgated by the Commissioner of Community Affairs pursuant to
subsection b. of this section.
b.
The Commissioner of Community Affairs shall, on or before the first day of the
seventh month next following the effective date of P.L.2000, c.126 (C.52:13H-21 et al.)
promulgate rules and regulations pursuant to the provisions of the “Administrative Procedure
Act,” P.L.1968, c.410 (C.52:14B-1 et seq.) to effectuate the provisions of subsection a. of this
section.
L.2000,c.126,s.41.

D-311.1. Demolition Invalidated

52:27D-311.1. Demolition invalidated

Nothing in the act to which this act is supplementary, P.L.1985, c.222 (C.52:27D-301 et al.),
shall be construed to require that a municipality fulfill all or any portion of its fair share housing
16

obligation through permitting the development or redevelopment of property within the
municipality on which is located a residential structure which has not been declared unfit, or
which was within the previous three years negligently or willfully rendered unfit, for human
occupancy or use pursuant to P.L.1942, c.112 (C.40:48-2.3 et seq.), and which is situated on a lot
of less than two acres of land or on a lot formed by merging two or more such lots, if the
development or redevelopment would require the demolition of that structure. Any action
heretofore taken by the Council on Affordable Housing based upon such a construction of
P.L.1985, c.222 is invalidated.
L.1989,c.142,s.1.

D-311b Assurance Of Adaptability Requirements; Council Measures

52:27D-311b Assurance of adaptability requirements; council measures.

6.
The council may take such measures as are necessary to assure compliance with the
adaptability requirements imposed pursuant to P.L.2005, c.350 (C.52:27D-311a et al.), including
the inspection of those units which are newly constructed and receive housing credit as provided
under P.L.2005, c.350 (C.52:27D-311a et al.) for adaptability, as part of the monitoring which
occurs pursuant to P.L.1985, c.222 (C.52:27D-301 et al.). If any units for which credit was
granted in accordance with the provisions of P.L.2005, c.350 (C.52:27D-311a et al.) are found
not to conform to the requirements of P.L.2005, c.350 (C.52:27D-311a et al.), the council may
require the municipality to amend its fair share plan within 90 days of receiving notice from the
council, to address its fair share obligation pursuant to P.L.1985, c.222 (C.52:27D-301 et al.). In
the event that the municipality fails to amend its fair share plan within 90 days of receiving such
notice, the council may revoke substantive certification.
L.2005,c.350,s.6.

D-311a Adaptability Requirement; “new Construction” Defined

52:27D-311a Adaptability requirement; “new construction” defined.

1.
Beginning upon the effective date of P.L.2005, c.350 (C.52:27D-311a et al.), any new
construction for which credit is sought against a fair share obligation shall be adaptable in
accordance with the provisions of section 5 of P.L.2005, c.350 (C.52:27D-123.15). For the
purposes of P.L.2005, c.350 (C.52:27D-311a et al.), “new construction” shall mean an entirely
new improvement not previously occupied or used for any purpose.
L.2005,c.350,s.1.

Provision Of Fair Share By Municipality

52:27D-311 Provision of fair share by municipality.

11. a. In adopting its housing element, the municipality may provide for its fair share of low
and moderate income housing by means of any technique or combination of techniques which
provide a realistic opportunity for the provision of the fair share. The housing element shall
contain an analysis demonstrating that it will provide such a realistic opportunity, and the
municipality shall establish that its land use and other relevant ordinances have been revised to
incorporate the provisions for low and moderate income housing. In preparing the housing
element, the municipality shall consider the following techniques for providing low and
moderate income housing within the municipality, as well as such other techniques as may be
published by the council or proposed by the municipality:
(1)
Rezoning for densities necessary to assure the economic viability of any inclusionary
developments, either through mandatory set-asides or density bonuses, as may be necessary to
meet all or part of the municipality’s fair share in accordance with the regulations of the council
and the provision of subsection h. of this section;
(2)
Determination of the total residential zoning necessary to assure that the
municipality’s fair share is achieved;
(3)

Determination of measures that the municipality will take to assure that low and
14

moderate income units remain affordable to low and moderate income households for an
appropriate period of not less than six years;
(4)
A plan for infrastructure expansion and rehabilitation if necessary to assure the
achievement of the municipality’s fair share of low and moderate income housing;
(5)
Donation or use of municipally owned land or land condemned by the municipality
for purposes of providing low and moderate income housing;
(6)

Tax abatements for purposes of providing low and moderate income housing;

(7)
Utilization of funds obtained from any State or federal subsidy toward the
construction of low and moderate income housing;
(8)
Utilization of municipally generated funds toward the construction of low and
moderate income housing; and
(9)
The purchase of privately owned real property used for residential purposes at the
value of all liens secured by the property; excluding any tax liens, notwithstanding that the total
amount of debt secured by liens exceeds the appraised value of the property, pursuant to
regulations promulgated by the Commissioner of Community Affairs pursuant to subsection b.
of section 41 of P.L.2000, c.126 (C.52:27D-311.2).
b.
The municipality may provide for a phasing schedule for the achievement of its fair
share of low and moderate income housing.
c.

(Deleted by amendment, P.L.2008, c.46)

d.
Nothing in P.L.1985, c.222 (C.52:27D-301 et al.) shall require a municipality to raise
or expend municipal revenues in order to provide low and moderate income housing.
e.
When a municipality’s housing element includes the provision of rental housing units
in a community residence for the developmentally disabled, as defined in section 2 of P.L.1977,
c.448 (C.30:11B-2), which will be affordable to persons of low and moderate income, and for
which adequate measures to retain such affordability pursuant to paragraph (3) of subsection a.
of this section are included in the housing element, those housing units shall be fully credited as
permitted under the rules of the council towards the fulfillment of the municipality’s fair share of
low and moderate income housing.
f.
It having been determined by the Legislature that the provision of housing under
P.L.1985, c.222 (C.52:27D-301 et al.) is a public purpose, a municipality or municipalities may
utilize public monies to make donations, grants or loans of public funds for the rehabilitation of
deficient housing units and the provision of new or substantially rehabilitated housing for low
and moderate persons, providing that any private advantage is incidental.
g.

A municipality which has received substantive certification from the council, and
15

which has actually effected the construction of the affordable housing units it is obligated to
provide, may amend its affordable housing element or zoning ordinances without the approval of
the council.
h.
Whenever affordable housing units are proposed to be provided through an
inclusionary development, a municipality shall provide, through its zoning powers, incentives to
the developer, which shall include increased densities and reduced costs, in accordance with the
regulations of the council and this subsection.
i.
The council, upon the application of a municipality and a developer, may approve
reduced affordable housing set-asides or increased densities to ensure the economic feasibility of
an inclusionary development.
L.1985, c.222, s.11; amended 1995, c.344, s.2; 1998, c.89; 2000, c.126, s.30; 2001, c.435,

D-310.2 Reservation Of Park Land

52:27D-310.2 Reservation of park land

2.
Notwithstanding any law or regulation to the contrary, nothing shall preclude a
municipality which has reserved less than three percent of its land area for conservation, park
lands or open space under the standards set forth in section 1 of this act from reserving up to
three percent of its land area for those purposes. Nothing herein is intended to alter the
responsibilities of municipalities with respect to plans already approved which were based upon
the right to a vacant land adjustment.
L.1995,c.231,s.2.

D-310.1 Computing Municipal Adjustment, Exclusions

52:27D-310.1 Computing municipal adjustment, exclusions.

1.
When computing a municipal adjustment regarding available land resources as part of
the determination of a municipality’s fair share of affordable housing, the Council on Affordable
Housing shall exclude from designating as vacant land:
(a)
any land that is owned by a local government entity that as of January 1, 1997, has
adopted, prior to the institution of a lawsuit seeking a builder’s remedy or prior to the filing of a
petition for substantive certification of a housing element and fair share plan, a resolution
authorizing an execution of agreement that the land be utilized for a public purpose other than
housing;
(b)
any land listed on a master plan of a municipality as being dedicated, by easement or
otherwise, for purposes of conservation, park lands or open space and which is owned, leased,
licensed, or in any manner operated by a county, municipality or tax-exempt, nonprofit
organization including a local board of education, or by more than one municipality by joint
agreement pursuant to P.L.1964, c.185 (C.40:61-35.1 et seq.), for so long as the entity maintains
such ownership, lease, license, or operational control of such land;
(c)
any vacant contiguous parcels of land in private ownership of a size which would
accommodate fewer than five housing units if current standards of the council were applied
pertaining to housing density;
(d)
historic and architecturally important sites listed on the State Register of Historic
Places or National Register of Historic Places prior to the submission of the petition of
substantive certification;

(e)
agricultural lands when the development rights to these lands have been purchased
or restricted by covenant;
(f)
sites designated for active recreation that are designated for recreational purposes in
the municipal master plan; and
(g)
environmentally sensitive lands where development is prohibited by any State or
federal agency.
No municipality shall be required to utilize for affordable housing purposes land that is
excluded from being designated as vacant land.
L.1995, c.231, s.1; amended 1997, c.49; 2008, c.46, s.39.

A Municipality’s Housing Element Shall Be Designed To Achieve The Goal Of Access To

10. A municipality’s housing element shall be designed to achieve the goal of access to

affordable housing to meet present and prospective housing needs, with particular attention to
low and moderate income housing, and shall contain at least:
a.
An inventory of the municipality’s housing stock by age, condition, purchase or rental
value, occupancy characteristics, and type, including the number of units affordable to low and
moderate income households and substandard housing capable of being rehabilitated, and in
conducting this inventory the municipality shall have access, on a confidential basis for the sole
purpose of conducting the inventory, to all necessary property tax assessment records and
information in the assessor’s office, including but not limited to the property record cards;
b.
A projection of the municipality’s housing stock, including the probable future
construction of low and moderate income housing, for the next ten years, taking into account, but
not necessarily limited to, construction permits issued, approvals of applications for development
12

and probable residential development of lands;
c.
An analysis of the municipality’s demographic characteristics, including but not
necessarily limited to, household size, income level and age;
d.
An analysis of the existing and probable future employment characteristics of the
municipality;
e.
A determination of the municipality’s present and prospective fair share for low and
moderate income housing and its capacity to accommodate its present and prospective housing
needs, including its fair share for low and moderate income housing; and
f.
A consideration of the lands that are most appropriate for construction of low and
moderate income housing and of the existing structures most appropriate for conversion to, or
rehabilitation for, low and moderate income housing, including a consideration of lands of
developers who have expressed a commitment to provide low and moderate income housing.
L.1985,c.222,s.10; amended 2001, c.435, s.2.

D-309. Municipal Housing Element

52:27D-309. Municipal housing element

a. Within four months after the effective date of this act, each municipality which so elects
shall, by a duly adopted resolution of participation, notify the council of its intent to submit to
the council its fair share housing plan. Within five months after the council’s adoption of its
criteria and guidelines, the municipality shall prepare and file with the council a housing
element, based on the council’s criteria and guidelines, and any fair share housing ordinance
introduced and given first reading and second reading in a hearing pursuant to R.S. 40:49-2
which implements the housing element.
b. A municipality which does not notify the council of its participation within four months
may do so at any time thereafter. In any exclusionary zoning litigation instituted against such a
municipality, however, there shall be no exhaustion of administrative remedy requirements
pursuant to section 16 of this act unless the municipality also files its fair share plan and housing
element with the council prior to the institution of the litigation.
L. 1985, c. 222, s. 9, eff. July 2, 1985, operative July 2, 1985.

D-307.6 Methodology For Change In Calculation For Use On June 7, 2000 And After

52:27D-307.6 Methodology for change in calculation for use on June 7, 2000 and after.

6.
The change in the calculation of a municipality’s determination of present and
prospective share of housing need as provided in P.L.2001,c.435 shall apply to the methodology
employed by the council for the certification period beginning June 7, 2000 and thereafter.
11

L.2001,c.435,s.6.

Section 5 Of P.l.1985, C.222 (c.52:27d-305), The Regulations Adopted By The Commissioner In

section 5 of P.L.1985, c.222 (C.52:27D-305), the regulations adopted by the commissioner in

fulfillment of this subsection shall be of full force and application on and within the agency and
the council; and all members, officers and employees of the agency and council shall give full
compliance with and obedience to the rules and orders of the commissioner made in pursuance
of his duties and responsibilities under this act.
c. Reports made to the commissioner shall be promptly forwarded by him, not later than 10
days after their receipt, to the Governor and to the presiding officers of the Houses of the
Legislature, who shall cause all members of their respective Houses to be notified of the receipt
of those reports and shall make adequate provision for the inspection of the commissioner’s
reports by members and committees of either House, and for the dissemination of those reports
to the public. The reports forwarded by the commissioner shall in each instance indicate the
priority rating that has been assigned in the register to the project to which the report relates.
L.1991,c.479,s.4.

D-307.3. Priority Ratings Of Projects

52:27D-307.4. Reports of communications in furtherance of projects
4. a. Any officer or employee of the department, including any member, officer or employee
of the agency or the council, who receives from any person any solicitation, application, proposal
or communication of any kind, whether oral or in writing, aimed at furthering the assistance of
any project shall promptly report the same to the commissioner. The report shall identify the
person or persons making such communication. If any such person is not identified in the
register in accordance with the requirements of subsection b. of section 2 of this act, the report
shall state the person’s relationship to the sponsor or developer of the project and the capacity in
which the person represents himself or herself to be acting on behalf of the sponsor or developer;
or if the person fails or refuses to supply that information, the report shall so state.
b. The commissioner shall develop a procedure or procedures by which reports required
under subsection a. of this section shall be made either to the commissioner directly or through
such administrative channels as the commissioner shall devise and direct. Notwithstanding the
provisions of subsection i. of section 4 of P.L.1983, c.530 (C.55:14K-4) and subsection a. of

D-307.3. Priority Ratings Of Projects

52:27D-307.3. Priority ratings of projects

3. a. The commissioner shall cause to be developed a system for assigning and designating
priority ratings to each project included in the register. Priority ratings shall be based upon the
following factors, giving to each factor such weight as the commissioner shall judge to be
appropriate:
(1) Feasibility. Each project shall be evaluated for its physical and financial feasibility,
giving consideration to the capabilities of the proposed sponsor or developer, market conditions
and regulatory requirements in the locality for which it is proposed, and the availability of
financing in sufficient amount and at reasonable cost.
(2) Desirability. Each project shall be evaluated with relation to its probable effect in meeting
the affordable housing needs of the housing region in which it is to be located, in accordance
with the standards and criteria of the council. Consideration shall be given to (a) the number of
affordable dwelling units that the project would provide, (b) the proportion of affordable units to
the total number of units envisaged in the project plan, (c) the distribution of those affordable
units as between those affordable to persons and families of low income and those of moderate
income, considered in relation to the needs of the housing region, (d) appropriateness of the
proposed tenure of the affordable units, whether to be rental or owner-occupied, in relation to the
needs of the housing region, and (e) appropriateness of the proposed distribution of units as to
family size, in relation to the needs of the housing region.
(3) Efficiency. Each project shall be evaluated on the basis of the cost to the State, in terms of
financial assistance granted or revenue forgone in order to further the project, for each affordable
dwelling unit judged by the commissioner to be feasible and desirable according to the terms of
the proposal or application made for such assistance.
b. In developing the system of assigning and designating priorities, and in evaluating
individual projects for such assignment and designation in the register, the commissioner shall
consult with the executive director of the agency and the executive director of the council. The
council and the agency shall promptly and fully supply the commissioner with all relevant
information necessary for the commissioner’s timely and complete fulfillment of the
requirements of this act.
L.1991,c.479,s.3.

D-307.2. Register Of Housing Projects, Requirements, Reports

52:27D-307.2. Register of Housing Projects, requirements, reports

2. a. The commissioner shall cause to be established and kept a Register of Housing
Projects. The register shall list all projects for which proposal or application has been submitted
for assistance under any program of loans, grants or other financial aid administered by the
department, including programs administered by the agency, or for which the offices of the
department have been solicited in furthering an application for such assistance from any other
program of like nature administered by another agency or instrumentality of the State or of the
United States government.
b. The register shall identify each such project by name and location, and shall identify the
proposed sponsor or developer thereof. If the proposed sponsor or developer is a corporation,
association or partnership, the register shall identify by name and address each stockholder,
member or partner whose participation therein represents an equity interest exceeding five
percent. No application or proposal relating to a project for which the information required by
this subsection is not made available to the commissioner shall be received or entertained by the
department or any division, bureau, officer or employee thereof, or by the agency; nor shall any
action upon such application or proposal heretofore received or entertained be taken after the
effective date of this act until the required information is made available to the commissioner.
c. The commissioner shall, not later than the 90th day next following the effective date of this
9

act, file with the Governor and Legislature a copy of the register upon its compilation in
accordance with this section, and thereafter shall promptly report to the Governor and
Legislature any additional projects to be included therein. The register and subsequent reports
shall include for each project the priority designation assigned to it pursuant to section 3 of this
act. The register and subsequent supplements pursuant to this subsection shall be filed with the
Secretary of the Senate and Clerk of the General Assembly, and shall be a public record.
L.1991,c.479,s.2.

As Used In This Act:

1. As used in this act:

“Agency” means the Housing and Mortgage Finance Agency established pursuant to section 4
of the “New Jersey Housing and Mortgage Finance Agency Law of 1983,” P.L.1983, c.530
(C.55:14K-4).
8

“Commissioner” means the Commissioner of Community Affairs.
“Council” means the Council on Affordable Housing created by the “Fair Housing Act,”
P.L.1985, c.222 (C.52:27D-301 et al.)
“Department” means the Department of Community Affairs.
“Housing region” means a housing region as determined by the Council on Affordable
Housing pursuant to section 7 of P.L.1985, c.222 (C.52:27D-307).
“Project” or “housing project” means any specific work or undertaking for the purpose of
providing housing accommodations, whether by new construction or by rehabilitation or
adaptation of existing structures, that shall be affordable to persons and families of low or
moderate income within the meaning of the “Fair Housing Act,” P.L.1985, c.222 (C.52:27D-301
et al.). Such work or undertaking may include the acquisition, construction or rehabilitation of
lands, buildings and improvements, and such stores, offices, and social, recreational, communal
or other facilities as may be incidental or appurtenant to the housing accommodations that are to
be provided.
“Register” means the Register of Housing Projects directed by section 2 of this act to be
established and maintained by the commissioner.
L.1991,c.479,s.1.

Duties Of Council

52:27D-307 Duties of council.

7.
It shall be the duty of the council, 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 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 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
6

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 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)
altered,

The established pattern of development in the community would be drastically

(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)
d.

(Deleted by amendment, P.L.1993, c.31).
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 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
7

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, to the extent that the units are
affordable to persons of low and moderate income and are available to the general public.
The council, 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 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 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, the State Planning
Commission established under that act shall provide the council annually with economic growth,
development and decline projections for each housing region for the next ten years. The council
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
unless the unit complies with the requirements set forth thereunder.
L.1985, c.222, s.7; amended 1993, c.31, s.1; 1993, c.104; 1995, c.81; 1995, c.344, s.1; 2001,

D-306. Vice-chairman, Executive Director; Other Personnel

52:27D-306. Vice-chairman, executive director; other personnel

a. The council may establish, and from time to time alter, such plan of organization as it may
deem expedient, and may incur expenses within the limits of funds available to it.
b. The council shall elect annually by a majority of its members one of its members, other
than the chairman, to serve as vice-chairman for a term of one year and until his successor is
elected. The vice-chairman shall carry out all of the responsibilities of the chairman as
prescribed in this act during the chairman’s absence, disqualification or inability to serve.
c. The council shall appoint and fix the salary of an executive director who shall serve at its
pleasure. The council may employ such other personnel as it deems necessary. All employees
of the council shall be in the unclassified service of the Civil Service. The council may employ
legal counsel who shall represent it in any proceeding to which it is a party, and who shall render
legal advice to the counciL. The council may contract for the services of other professional,
5

technical and operational personnel and consultants as may be necessary to the performance of
its duties. Employees shall be enrolled in the Public Employees’ Retirement System of New
Jersey established under P.L. 1954, c. 84 (C. 43:15A-1 et seq.).
L. 1985, c. 222, s. 6, eff. July 2, 1985, operative July 2, 1985.

Council On Affordable Housing Established

52:27D-305 Council on Affordable Housing established.

5. a. There is established in, but not of, the Department of Community Affairs a Council on
Affordable Housing to consist of 12 members appointed by the Governor with the advice and
consent of the Senate, of whom four shall be elected officials representing the interests of local
government, at least one of whom shall be representative of an urban municipality having a
population in excess of 40,000 persons and a population density in excess of 3,000 persons per
square mile, at least one of whom shall be representative of a municipality having a population
of 40,000 persons or less and a population density of 3,000 persons per square mile or less, and
no more than one of whom may be a representative of the interests of county government; four
shall represent the interests of households in need of low and moderate housing, one of whom
shall represent the interests of the nonprofit builders of low and moderate income housing, and
shall have an expertise in land use practices and housing issues, one of whom shall be the
Commissioner of Community Affairs, ex officio, or his or her designee, who shall serve as
chairperson, one of whom shall be the executive director of the agency, serving ex officio; and
one of whom shall represent the interests of disabled persons and have expertise in construction
accessible to disabled persons; one shall represent the interests of the for-profit builders of
market rate homes, and shall have an expertise in land use practices and housing issues; and
three shall represent the public interest. Not more than six of the 12 shall be members of the
same political party. The membership shall be balanced to the greatest extent practicable among
the various housing regions of the State.
b.

The members shall serve for terms of six years, except that of the members first
4

appointed, two shall serve for terms of four years, three for terms of five years, and three for
terms of six years. All members shall serve until their respective successors are appointed and
shall have qualified. Notwithstanding the above, a member appointed to represent the interests
of local government shall serve only such length of the term for which appointed as the member
continues to hold elected local office, except that the term of a member so appointed shall not
become vacant until 60 days after the member ceases to hold that elected office. Vacancies shall
be filled in the same manner as the original appointments, but for the remainders of the
unexpired terms only.
c.
The members, excluding the executive director of the agency and the Commissioner
of Community Affairs, shall be compensated at the rate of $150.00 for each six-hour day, or
prorated portion thereof for more or less than six hours, spent in attendance at meetings and
consultations and all members shall be eligible for reimbursement for necessary expenses
incurred in connection with the discharge of their duties.
d.
The Governor shall nominate the members within 30 days of the effective date of this
act and shall designate a member to serve as chairman throughout the member’s term of office
and until his successor shall have been appointed and qualified. The member added by
P.L.2005, c.350 (C.52:27D-311a et al.) shall be nominated within 30 days of the effective date of
that act.
e.
Any member may be removed from office for misconduct in office, willful neglect of
duty, or other conduct evidencing unfitness for the office, or for incompetence. A proceeding for
removal may be instituted by the Attorney General in the Superior Court. A member or
employee of the council shall automatically forfeit his office or employment upon conviction of
any crime. Any member or employee of the council shall be subject to the duty to appear and
testify and to removal from his office or employment in accordance with the provisions of
P.L.1970, c.72 (C.2A:81-17.2a et seq.).
L.1985,c.222,s.5; amended 1989, c.199; 1995, c.83; 2005, c.350, s.3.

Definitions

52:27D-304 Definitions.

As used in this act:

a.
“Council” means the Council on Affordable Housing established in this act, which
shall have primary jurisdiction for the administration of housing obligations in accordance with
sound regional planning considerations in this State.
b.
“Housing region” means a geographic area of not less than two nor more than four
contiguous, whole counties which exhibit significant social, economic and income similarities,
and which constitute to the greatest extent practicable the primary metropolitan statistical areas
as last defined by the United States Census Bureau prior to the effective date of P.L.1985, c.222
(C.52:27D-301 et al.).
c.
“Low income housing” means housing affordable according to federal Department of
Housing and Urban Development or other recognized standards for home ownership and rental
costs and occupied or reserved for occupancy by households with a gross household income
equal to 50% or less of the median gross household income for households of the same size
within the housing region in which the housing is located.
d.
“Moderate income housing” means housing affordable according to federal
Department of Housing and Urban Development or other recognized standards for home
ownership and rental costs and occupied or reserved for occupancy by households with a gross
household income equal to more than 50% but less than 80% of the median gross household
income for households of the same size within the housing region in which the housing is
located.
e.
“Resolution of participation” means a resolution adopted by a municipality in which
the municipality chooses to prepare a fair share plan and housing element in accordance with this
act.
f.
“Inclusionary development” means a residential housing development in which a
substantial percentage of the housing units are provided for a reasonable income range of low
and moderate income households.
g.
“Conversion” means the conversion of existing commercial, industrial, or residential
structures for low and moderate income housing purposes where a substantial percentage of the
housing units are provided for a reasonable income range of low and moderate income
households.
h.
“Development” means any development for which permission may be required
pursuant to the “Municipal Land Use Law,” P.L.1975, c.291 (C.40:55D-1 et seq.).
i.
“Agency” means the New Jersey Housing and Mortgage Finance Agency established
by P.L.1983, c.530 (C.55:14K-1 et seq.).
j.
“Prospective need” means a projection of housing needs based on development and
growth which is reasonably likely to occur in a region or a municipality, as the case may be, as a
result of actual determination of public and private entities. In determining prospective need,
consideration shall be given to approvals of development applications, real property transfers and
3

economic projections prepared by the State Planning Commission established by sections 1
through 12 of P.L.1985, c.398 (C.52:18A-196 et seq.).
k.
“Disabled person” means a person with a physical disability, infirmity, malformation
or disfigurement which is caused by bodily injury, birth defect, aging or illness including
epilepsy and other seizure disorders, and which shall include, but not be limited to, any degree of
paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or
hearing impediment, muteness or speech impediment or physical reliance on a service or guide
dog, wheelchair, or other remedial appliance or device.
l.
“Adaptable” means constructed in compliance with the technical design standards 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.) and in
accordance with the provisions of section 5 of P.L.2005, c.350 (C.52:27D-123.15).
m.
“Very low income housing” means housing affordable according to federal
Department of Housing and Urban Development or other recognized standards for home
ownership and rental costs and occupied or reserved for occupancy by households with a gross
household income equal to 30% or less of the median gross household income for households of
the same size within the housing region in which the housing is located.
L.1985, c.222, s.4; amended 2005, c.350, s.2; 2008, c.46, s.5.

D-303. Declarations

52:27D-303. Declarations

The Legislature declares that the statutory scheme set forth in this act is in the public interest in
that it comprehends a low and moderate income housing planning and financing mechanism in
accordance with regional considerations and sound planning concepts which satisfies the
constitutional obligation enunciated by the Supreme Court. The Legislature declares that the
State’s preference for the resolution of existing and future disputes involving exclusionary zoning
is the mediation and review process set forth in this act and not litigation, and that it is the
intention of this act to provide various alternatives to the use of the builder’s remedy as a method
of achieving fair share housing.
L. 1985, c. 222, s. 3, eff. July 2, 1985, operative July 2, 1985.

Findings

52:27D-302 Findings.

The Legislature finds that:

a.
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), has 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.
b.
In the second Mount Laurel ruling, the Supreme Court stated that the determination of
the methods for satisfying this constitutional obligation “is better left to the Legislature,” that the
court has “always preferred legislative to judicial action in their field,” and that the judicial role
in upholding the Mount Laurel doctrine “could decrease as a result of legislative and executive
action.”
c.
The interest of all citizens, including low and moderate income families in need of
affordable housing, and the needs of the workforce, would be best served by a comprehensive
planning and implementation response to this constitutional obligation.
d.
There are a number of essential ingredients to a comprehensive planning and
implementation response, including the establishment of reasonable fair share housing guidelines
and standards, the initial determination of fair share by officials at the municipal level and the
preparation of a municipal housing element, State review of the local fair share study and
housing element, and continuous State funding for low and moderate income housing to replace
the federal housing subsidy programs which have been almost completely eliminated.
e.
The State can maximize the number of low and moderate income units provided in
New Jersey by allowing its municipalities to adopt appropriate phasing schedules for meeting
their fair share, so long as the municipalities permit a timely achievement of an appropriate fair
share of the regional need for low and moderate income housing as required by the Mt. Laurel I
and II opinions and other relevant court decisions.
f.
The State can also maximize the number of low and moderate income units by
creating new affordable housing and by rehabilitating existing, but substandard, housing in the
State. Because the Legislature has determined, pursuant to P.L.2008, c.46 (C.52:27D-329.1 et
al.), that it is no longer appropriate or in harmony with the Mount Laurel doctrine to permit the
transfer of the fair share obligations among municipalities within a housing region, it is
necessary and appropriate to create a new program to create new affordable housing and to foster

the rehabilitation of existing, but substandard, housing.
g.
Since the urban areas are vitally important to the State, construction, conversion and
rehabilitation of housing in our urban centers should be encouraged. However, the provision of
housing in urban areas must be balanced with the need to provide housing throughout the State
for the free mobility of citizens.
h.
The Supreme Court of New Jersey in its Mount Laurel decisions demands that
municipal land use regulations affirmatively afford a reasonable opportunity for a variety and
choice of housing including low and moderate cost housing, to meet the needs of people desiring
to live there. While provision for the actual construction of that housing by municipalities is not
required, they are encouraged but not mandated to expend their own resources to help provide
low and moderate income housing.
i.
Certain amendments to the enabling act of the Council on Affordable Housing are
necessary to provide guidance to the council to ensure consistency with the legislative intent,
while at the same time clarifying the limitations of the council in its rulemaking. Although the
court has remarked in several decisions that the Legislature has granted the council considerable
deference in its rulemaking, the Legislature retains its power and obligation to clarify and amend
the enabling act from which the council derives its rulemaking power, from time to time, in order
to better guide the council.
j.
The Legislature finds that the use of regional contribution agreements, which permits
municipalities to transfer a certain portion of their fair share housing obligation outside of the
municipal borders, should no longer be utilized as a mechanism for the creation of affordable
housing by the council.
L.1985, c.222, s.2; amended 2008, c.46, s.4.

Sección 1

N EW J ERSEY
F AIR H OUSING A CT
N.J.S.A. 52:27D-301 et seq.
Amended July 2008

N.J. Council on Affordable Housing
101 South Broad Street
PO Box 813
Trenton, NJ 08625-0813
(609) 292-3000
www.nj.gov/dca/affiliates/coah
State of New Jersey
Jon Corzine
Governor

Department of Community Affairs
Joseph V. Doria, Jr.
Commissioner

52:27D-301. Short title
This act shall be known and may be cited as the “Fair Housing Act.”
L. 1985, c. 222, s. 1, eff. July 2, 1985, operative July 2, 1985.

Demo

1.- PDF -> TXT

New Jersey Fair Housing Act

(N.J.S.A. 52:27D-301 et seq.) Link to PDF Link to test question Link to advanced test question

2.- TXT -> ARTICLE

New Jersey Fair Housing Act (TXT RAW)

(N.J.S.A. 52:27D-301 et seq.) Link to TXT

3.- ARTICLE -> RAG + FT

D-329.19 Senior Deputy Commissioner For Housing

D-329.18 Annual Housing Performance Report

D-329.17 Plan Drafted, Adopted And Transmitted By Commission

D-329.16 Annual Strategic Housing Plan

D-329.15 Interdepartmental Working Group

D-329.14 Department To Provide Staff Services

D-329.13 State Housing Commission

D-329.12 Definitions Relative To Strategic Housing Planning

D-329.11 Findings Relative To Strategic Housing Plan

Section 64 Of P.l.1975, C.291 (c.40:55d-77), There Shall Be Required To Be Reserved For

Section 7 Of The “pinelands Protection Act,” P.l.1979, C.111 (c.13:18a-8), The Fort Monmouth

D-329.9 Developments, Certain, In Certain Regional Planning Entities

D-329.8 Annual Appropriation

D-329.6 Findings, Declarations Relative To Housing Rehabilitation And Assistance

D-329.6 Findings, Declarations Relative To Housing Rehabilitation And Assistance

D-329.4 Maintenance, Publication Of Up-to-date Municipal Status Report

D-329.3 Collection Of Payments-in-lieu Authorized

D-329.2 Authorization Of Municipality To Impose, Collect Development Fees

Section 11 Of P.l.1985, C.222 (c.52:27d-311), And The Housing Activities Under Section 20 Of

D-328. Builder’s Remedy Moratorium

D-325. Municipal Powers

D-325. Municipal Powers

The Agency Shall Establish Procedures For Entering Into, And Shall Enter Into, Contractual

D-322. 6-year Moratorium

D-321.2 Maintenance, Publishing Of Annual Report By Njhmfa

D-321.1 Allocation Of Low Income Tax Credits

Affordable Housing Assistance

“new Jersey Affordable Housing Trust Fund.”

D-319. Motion For Relief

D-318. Expiration Of Administrative Remedy Obligation

D-317. Presumption Of Validity

D-316. Motion For Transfer

D-315. Mediation, Review Process

D-314. Issuance Of Certification

D-313.1. Previous Application For Development

Petition For Substantive Certification

Regional Contribution Agreements

D-311.2 Purchase Of Privately Owned Land By Municipality For Fair Share Housing

D-311.1. Demolition Invalidated

D-311b Assurance Of Adaptability Requirements; Council Measures

D-311a Adaptability Requirement; “new Construction” Defined

Provision Of Fair Share By Municipality

D-310.2 Reservation Of Park Land

D-310.1 Computing Municipal Adjustment, Exclusions

A Municipality’s Housing Element Shall Be Designed To Achieve The Goal Of Access To

D-309. Municipal Housing Element

D-307.6 Methodology For Change In Calculation For Use On June 7, 2000 And After

Section 5 Of P.l.1985, C.222 (c.52:27d-305), The Regulations Adopted By The Commissioner In

D-307.3. Priority Ratings Of Projects

D-307.3. Priority Ratings Of Projects

D-307.2. Register Of Housing Projects, Requirements, Reports

As Used In This Act:

Duties Of Council

D-306. Vice-chairman, Executive Director; Other Personnel

Council On Affordable Housing Established

Definitions

D-303. Declarations

Findings

Sección 1

4.- RAG + FT Configuration See in action

(N.J.S.A. 52:27D-301 et seq.)

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(N.J.S.A. 52:27D-301 et seq.)

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4.- RAG + FT Configuration