Make Online Payments
Lead Service Line Information

Round 4 Affordable Housing Resolution

“The Borough of Keansburg adopted the resolution below. That resolution will be attached to a declaratory relief lawsuit that is filed on January 30, 2025”

RESOLUTION #25-013       

 

RESOLUTION OF THE COUNCIL OF THE BOROUGH OF KEANSBURG COMMITTING TO ROUND 4 PRESENT AND PROSPECTIVE NEED AFFORDABLE HOUSING OBLIGATIONS  

 

WHEREAS, on March 20, 2024, Governor Murphy signed into law P.L. 2024, c.2 (hereinafter “A4” or “Amended FHA”), which amended New Jersey’s Fair Housing Act, N.J.S.A. 52:27D-301, et. seq.; and

 

WHEREAS, A4 calculates the size of the regional affordable housing need as follows “projected household change for a 10-year round in a region shall be estimated by establishing the household change experienced in the region between the most recent federal decennial census, and the second-most recent federal decennial census. This household change, if positive, shall be divided by 2.5 to estimate the number of low- and moderate-income homes needed to address low- and moderate-income household change in the region, and to determine the regional prospective need for a 10-year round of low- and moderate-income housing obligations…”; and

 

WHEREAS, this means that the regional need equates to 40% of regional household growth; and

 

WHEREAS, the 1985 version of the Fair Housing Act and A4 both prohibit a result that would compel a municipality to spend its own money on compliance; and

 

WHEREAS, the theory which permits a municipality to meet its obligations without municipal subsidy is zoning for “inclusionary zoning”; and

 

WHEREAS, inclusionary zoning most typically requires a 15% or 20% set aside; and

 

WHEREAS, it is not clear how a regional need predicated upon 40% of anticipated growth can be met with 15-20% set asides and without municipal subsidy; and

 

WHEREAS, this is exacerbated by the fact that certain other municipalities in the region have an allocation of 0% of the prospective need (new construction obligation), irrespective of the growth in that particular municipality; and

 

WHEREAS, A4 yields a statewide new construction obligation of over 8,400 affordable units per year; and

 

WHEREAS, this is a substantially higher annual number than was imposed by COAH in the “Prior Round” or any iteration of its Round 3 regulations; and

 

WHEREAS, A4 determines the size of the regional need, but does not calculate allocation of the need to individual municipalities; and

 

WHEREAS, instead, A4 required the Department of Community Affairs (“DCA”) to produce non-binding estimates of need on or before October 20, 2024, which it did provide on October 18, 2024 (“DCA Report”); and

 

WHEREAS, the DCA Report calculates the Borough’s Round 4 (2025-2035) obligations as follows: a Present Need or Rehabilitation Obligation of 91 units and a Prospective Need or New Construction Obligation of 31 units; and

 

WHEREAS, A4 further provides that, irrespective of the DCA’s calculation, municipalities are to determine “present and prospective fair share obligation(s)…by binding resolution no later than January 31, 2025”; and

 

WHEREAS, this resolution satisfies the requirements of A4 by accepting the DCA estimate of need as described in the DCA Report; and

 

WHEREAS, Section 3 of A4 provides that: “the municipality’s determination of its fair share obligation shall have a presumption of validity, if established in accordance with sections 6 and 7” of A4; and

 

WHEREAS, Borough’s calculation of need is entitled to a “presumption of validity” because it complies with Sections 6 and 7 of A4; and

 

WHEREAS, the Borough specifically reserves the right to adjust those numbers based on one or any of the foregoing adjustments: 1) a windshield survey or similar survey which accounts for a higher-resolution estimate of present need; 2) a Vacant Land Adjustment predicated upon a lack of vacant, developable and suitable land; 3) a Durational Adjustment (whether predicated upon lack of sewer or lack of water); and/or 4) an adjustment predicated upon regional planning entity formulas, inputs or considerations, including, but not limited to the Highlands Regional Master Plan and its build out, the Pinelands or Meadowlands regulations and planning document; and

 

WHEREAS, in addition to the foregoing, the Borough specifically reserves all rights to revoke or amend this resolution and commitment, as may be necessary, in the event of a successful challenge to A4 in the context of the Montvale case (MER-L-1778-24), any other such action challenging A4, or any legislation adopted and signed into law by the Governor of New Jersey that alters the deadlines and/or requirements of A4; and

 

WHEREAS, in addition to the foregoing, the Borough reserves the right to take a position that its Round 4 Present or Prospective Need Obligations are lower than described herein in the event that a third party challenges the calculations provided for in this Resolution (a reservation of all litigation rights and positions, without prejudice); and

 

WHEREAS, in light of the above, the Mayor and Council finds that it is in the best interest of Borough to declare its obligations in accordance with this binding resolution and in accordance with the Act and    

 

WHEREAS, in addition to the above, the Acting Administrative Director issued Directive #14-24, dated December 13, 2024, and made the directive available later in the week that followed; and

 

WHEREAS, pursuant to Directive #14-24, a municipality seeking a certification of compliance with the Act shall file an action in the form of a declaratory judgment complaint “. . .within 48 hours after adoption of the municipal resolution of fair share obligations, or by February 3, 2025, whichever is sooner”; and

 

WHEREAS, nothing in this Resolution shall be interpreted as an acknowledgment of the legal validity of the AOC Directive and the Borough reserves any and all rights and remedies in relation to the AOC Directive; and

 

WHEREAS, the Borough seeks a certification of compliance with the Act and, therefore, directs its Affordable Housing Counsel to file a declaratory relief action within 48 hours of the adoption of this resolution; and

 

NOW, THEREFORE, BE IT RESOLVED on this ___ day of January, by the Council of the Borough of Keansburg, Monmouth County, State of New Jersey, as follows:

 

  1. All of the Whereas Clauses are incorporated into the operative clauses of this resolution.

 

  1. The Mayor and Council hereby commit to the DCA Round 4 Present Need Obligation of 91 units and the Round 4 Prospective Need Obligation of 31 units as described in this resolution subject to all reservations of rights, which specifically include:

 

  1. a) The right to adjust the number based on a windshield survey, lack of land, sewer, water, regional planning inputs, or any combination thereof;

 

  1. b) As described in the WHEREAS section, all rights to revoke or amend this resolution in the event of a successful legal challenge, or legislative change, to A4;

 

  1. c) All rights to take any contrary position in the event of a third party challenge to the obligations.

 

  1. The Borough hereby directs its Affordable Housing Counsel to file a declaratory judgment complaint within 48 hours after adoption this resolution attaching this resolution.

 

  1. The Borough hereby directs its Affordable Housing Counsel to file this Resolution with the “Program” pursuant to the requirements on A4.

 

  1. The Borough hereby directs that this Resolution be published on the municipal website within forty-eight (48) hours of its passage, pursuant to A4.

 

  1. This resolution shall take effect immediately, according to law.

Motion by:   Mr. Hoff

Second by:   Mr. Tonne

Ayes:      Mr. Donaldson, Mr. Tonne, Mr. Cocuzza, Mr. Foley and Mr. Hoff

Nays:      NONE

Absent:  NONE

Abstain: NONE