The Assembly passed A4(Lopez), which reforms municipal responsibilities concerning affordable housing, abolishes the Council on Affordable Housing and appropriates funding to the newly established Affordable Housing Dispute Resolution program and to the Department of Community Affairs (DCA) to proceed with the fourth round of affordable housing obligations. The New Jersey State Bar Association remains neutral on the policy underpinnings of the bill but offered three amendments to clarify elements of the bill with respect to implementation and attorney’s fees.
The three recommended amendments address the following:
- Amending language requiring a report by the DCA to foster immediate review and ultimate predictability for the presentment of a Housing Element and Fair Share Plan (HEFSP). The Assembly version that was passed extends the DCA from Aug. 1, 2024, to within seven months following the effective date of the bill, or Dec. 1, 2024, whichever is earlier.
- Extending the timelines for the adoption of a HEFSP beyond the 75- and 90-day timelines. Municipalities would now have 180 days to file such plans under the amended bill.
- Removing the prohibition placed on municipalities from extending any portion of trust funds on attorneys’ fees in specific instances.
The NJSBA has raised concerns that the deadlines in the initial bill are unrealistic. The DCA is charged with issuing a report on the fourth-round calculations by a date certain, but language following this mandate specifically disclaims the veracity of the data and methodology currently used to make these calculations. “The crux of the litigation over the constitutional obligations established under the Mount Laurel Doctrine dating back over 30 years is the failure to resolve the issue of appropriate data and methodology,” said the NJSBA in its letter to Sen. Troy Singleton and Assemblywoman Yvonne Lopez, prime sponsors of the bill.
“As a result, this bill directs the DCA to do what so far has not been resolved in the courts to date and sets forth a hard deadline to do so without any guidance as to how that and future deadlines in reliance on this report are to be altered as a result of the failure to identify acceptable data and methodology to create such report,” the NJSBA said.
The Association urged a mandate to the DCA to post a preliminary report so that municipalities may proceed with developing their HEFSPs. The additional recommendation to extend their deadlines is a reality because “[t]hese timelines are simply not sustainable or reasonable to demand from municipal planning boards, which are comprised of volunteers who meet on a monthly basis and are required to consider pending development applications and other agenda items.”
In addition to accommodating planning board review, the Association points out that municipalities must also conduct a prior review and revision of the HEFSP, a public hearing and adoption as well as the review of an implementing ordinance or risk losing immunity from builder’s remedy lawsuits. “This is not an insignificant or inexpensive task,” said the NJSBA.
Finally, the Association cautioned that a complete ban on the use of trust fund monies on attorneys’ fees impacts municipalities, specifically smaller municipalities, which will likely be required to retain counsel with specialized knowledge to provide competent legal advice and counsel to municipalities to navigate both procedure and substantive issues from objections by developer intervenors, opponents to “overdevelopment” and affordable housing advocates.
In the amended bill, it appears that the prohibition has been removed, however conflicting language permits the use of trust funds to retain counsel in one section, but not in another. The Association offered additional amendments to clarify this language.
The bill remains pending in the Senate Budget and Appropriations Committee. The NJSBA continues to monitor the bill to urge clarity and predictability on these affordable housing mandates.
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.