IN THE MATTER OF COUNCIL ON AFFORDABLE HOUSING'S GRANT OF SUBSTANTIVE CERTIFICATION TO THE TOWNSHIP OF SOUTHAMPTON

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0072-04T30072-04T3

IN THE MATTER OF COUNCIL ON

AFFORDABLE HOUSING'S GRANT OF

SUBSTANTIVE CERTIFICATION

TO THE TOWNSHIP OF SOUTHAMPTON

 

 

Argued: March 13, 2006 - Decided July 21, 2006

Before Judges Cuff, Lintner and Gilroy.

On appeal from the New Jersey Council on Affordable Housing, Resolution No. 224-99, COAH Docket No. 04-1604.

Carl S. Bisgaier argued the cause for appellant Pulte Homes (Flaster/Greenberg, attorneys; Richard J. Hoff, Jr., and Mr. Bisgaier, on the brief).

Geraldine Callahan, Deputy Attorney General, argued the cause for respondent New Jersey Council on Affordable Housing (Zulima V. Farber, Attorney General, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Ms. Callahan, on the brief).

PER CURIAM

This appeal concerns the implementation of a township's affordable housing obligation according to the Mount Laurel doctrine. Pulte Homes (Pulte), a housing developer, appeals from a final decision of the New Jersey Council on Affordable Housing (COAH) which refused to grant the Township of Southampton (Township) a reduction of its fair share for an inclusionary development that Pulte proposes to build in the Township's Rural Residential-1 (RR-1) zone. The RR-1 zone, which consists of approximately 169 acres, has been part of the Township's housing element and fair share plan since 1989, when COAH granted first round substantive certification. This court reversed COAH's 1998 grant of second round substantive certification in part because neither COAH nor the Township demonstrated that the land in the RR-1 zone had access to water and sewer service. Therefore, the fair share plan did not create a realistic opportunity for the construction of affordable housing. In re Southampton, 338 N.J. Super. 103, 120-21 (App. Div.), certif. denied, 169 N.J. 610 (2001).

Following remand, the Township submitted a revised fair share plan, which again included the RR-1 zone. The Township contended that Pulte's proposed inclusionary development could gain access to sewer service through a routine amendment to the Township's wastewater management plan. COAH declined to grant the Township a reduction because (1) the Township had yet to submit written documentation from the New Jersey Department of Environmental Protection (DEP), and (2) the proposed site of Pulte's inclusionary development was in Planning Area 4, but not in a designated center, and there had been no request to include the site within a center. COAH granted substantive certification without any affordable housing in the RR-1 zone because COAH found that the Township's fair share plan proposed more than enough affordable housing to meet its fair share.

On appeal, Pulte contends that COAH's action effectively precludes construction of a significant amount of affordable housing which would not only compensate for any potential shortfall if other developments in the fair share plan are not built, but would also address, in whole or in part, the Township's third round fair share obligation. Pulte argues that COAH violated its regulations as well as the intent and purpose of the Mount Laurel doctrine and the Fair Housing Act, N.J.S.A. 52:27D-301 to -329 (FHA). It argues the COAH should have waived the center designation requirement and should have supported the Township's efforts to obtain an amendment of the wastewater management plan and approval from the State Planning Commission. COAH responds that it followed its regulations to the letter. We remand for consideration of a waiver of the center designation requirement in light of recent developments that suggest the realization of the stated goal of construction of affordable housing in the Township.

The Township is a rural municipality consisting of approximately forty-four square miles located in central Burlington County. Nearly three-quarters of the Township is in the Pinelands area, with the remainder located in Planning Area 4. The Department of Community Affairs, New Jersey State Development and Redevelopment Plan (2001) (State Plan) describes Planning Area 4 as the rural planning area, which comprises much of the countryside of New Jersey, and is characterized by large masses of cultivated open land. Id. at 205. See In re Protest of Coastal Permit Program Rules, 354 N.J. Super. 293, 321 (App. Div. 2002) (summarizing the five planning areas in the State). The RR-1 zone currently consists of approximately 169 acres, of which approximately 67 acres are developable. Although this zone is in Planning Area 4, it is not in the designated center and is not within a sewer service area. The Township has been under the jurisdiction of COAH for eighteen of the last thirty years; not a single unit of affordable housing has been constructed in the Township.

Pulte is a self-described "nationally recognized developer." It has contracted to purchase approximately 119 acres fronting on State Highway 206 near the intersection with State Highway 38. Pulte proposed a 324-unit town house development that would include 66 affordable housing units.

The RR-1 zone was included in the Township's first round fair share plan that COAH certified in 1989. No housing was built in the RR-1 zone. The Township's second round fair share increased from 114 units to 153 units. The RR-1 zone was included in the Township's fair share plan. The Township earmarked the RR-1 zone as the site for 68 units. At the time, the Township acknowledged that the RR-1 zone was not in a sewer service area and was not in a designated center, but sought a center designation waiver pursuant to COAH's practice and policy to grant such waivers to previously certified sites. On July 1, 1998, COAH granted the Township's petition for substantive certification.

A contract purchaser of a parcel located within the RR-1 zone appealed. It argued that the plan as certified by COAH did not present a realistic opportunity for the development of affordable housing at any of the designated sites, including the RR-1 zone. This court held that COAH erred in refusing to consider the substance of the contract purchaser's objection to the fair share plan. Southampton, supra, 338 N.J. Super. at 112. We stated that COAH had a duty to independently evaluate a municipality's fair share plan and any information it received which would call into question whether the plan created a realistic opportunity for the creation of affordable housing. Id. at 114. We held that COAH should have determined whether certain impediments in the TC-1 zone, one of the primary sites designated by the Township for affordable housing, made it a realistic site. Id. at 115. With respect to the RR-1 zone, we held that COAH should have inquired whether environmental constraints significantly reduced the amount of developable land and how the site could develop without access to water and sewer service. Id. at 116-17. We noted that the Township had never amended its wastewater management plan. Id. at 117. Moreover, COAH had not addressed the Township's request for a durational adjustment. Id. at 119. Therefore, we reversed the grant of substantive certification and remanded the matter to COAH. Id. at 121.

On January 24, 2002, COAH issued a remand report in which it concluded that the RR-1 zone could not be certified because it still lacked access to water and sewer service and because it was not in a designated center. On the other hand, the TC-1 zone was now in a designated center, the village of Vincentown, and a 1998 amendment to the Township's wastewater management plan provided the TC-1 zone with access to sewer service. Nonetheless, the cost of demolishing existing buildings in the TC-1 zone brought into question the viability of the site for affordable housing. Thus, COAH recommended that the Township not receive credit for the sites in the RR-1 and TC-1 zones, but should instead prepare and adopt a new housing element and fair share plan.

In response, the Township defended both the RR-1 and TC-1 zones. The RR-1 zone was located close to existing sewer lines and treatment facilities and had, in the past, received a center designation waiver. The Township argued that removal of the RR-1 zone from the fair share plan "may be legally impossible because the owners wish to maintain the inclusionary zoning and the zoning was part of a first round mediated agreement." As to the TC-1 zone, COAH had previously certified the site knowing that there was an abandoned cannery on the property and an existing fuel oil business. The current owner had indicated that it did not object to redevelopment of part of the TC-1 zone for affordable housing. Moreover, the TC-1 zone was now in a designated center and had sewer lines immediately adjacent to the site. The Township would receive appropriate approvals for sewer service once DEP acted on the Township's pending application.

The April 17, 2002, COAH report concluded:

As to the RR-1 zone, the issue of bringing sewer to the site and having DEP approve an amendment to a 208 plan is still speculative given the site's PA 4 designation. Therefore, COAH cannot continue to give credit to the RR-1 zone because it does not present a realistic opportunity. As to Southampton's belief that removing the inclusionary zoning from the RR-1 zone may be legally impossible, nowhere does COAH raise the issue of removing the zoning, rather COAH cannot give eligible reductions to the site.

As to the TC-1 zone, the Township needed to secure DEP approval of the proposed amendment to the wastewater management plan.

On June 6, 2002, COAH's executive director notified the Township that it should amend its housing element and fair share plan and re-petition for substantive certification within ninety days. The following month, the Township submitted a revised housing element and fair share plan that continued to include the RR-1 and TC-1 zones. With respect to the RR-1 zone, the Township maintained that it was entitled to a waiver of the center designation requirement because it had received the waiver in the past. Moreover, the Township pledged to "apply for an amendment to its Section 208 plan to incorporate the RR-1 zoning district into the sewer service area." The TC-1 zone was viable because it was part of a designated center and progress had been made in getting DEP to include the site in the sewer service area. The owner of a portion of the TC-1 zone did not object to inclusionary zoning of the parcel.

Pulte first became involved in the proceedings on March 25, 2003, when its attorney notified COAH that Pulte had contracted to purchase approximately 119 acres in the RR-1 zone with the intent to build an inclusionary development. Pulte asked to participate in all future proceedings, including mediation. On April 1, 2003, COAH ruled that Pulte was entitled to participate as an objector and would be notified of any scheduled mediation. By letter dated April 24, 2003, the Township supported Pulte's participation. The Township advised COAH that Pulte's representatives had already met with the Township's planning consultant and had indicated that the Mount Holly Sewerage Authority would be able to provide sewer service to the property. The Township expressed its intention to work with Pulte and the Mount Holly Sewerage Authority "to prepare appropriate amendments to the Township's 208 Plan to place the RR[-]1 parcel in Mt. Holly's sewer service area." Two months later, the Township notified COAH of a meeting scheduled with DEP to discuss providing sewer service to Pulte's site, and noted that the Township might need COAH's support in the future.

COAH issued a pre-mediation report on July 3, 2003. It noted that the deficiencies in the RR-1 zone had not changed. Moreover, the Township was no longer eligible for center designation waiver because in September 1999, the State Planning Commission had designated Vincentown as a village and Vincentown was not in the RR-1 zone. The report recognized that Pulte and the Township had been in contact with DEP but there had been "no verification that sewer service will be provided to the site." Consequently, "COAH cannot give the Township a reduction for zoning on the RR-1 site at this time." On the other hand, some progress had been made on the TC-1 site.

On August 13, 2003, the Township requested COAH's assistance in resolving sewer issues with DEP relating to the TC-1 and RR-1 zones. As to the RR-1 zone, the Township requested COAH "to confirm with DEP that the RR-1 inclusionary parcel that Pulte Homes intends to develop can connect to the Pinelands Wastewater Company's sewer plant that provides treatment and conveyancing for Vincentown. Once confirmation is received, the Township would then be in a position to further amend its 208 Plan to resolve this issue." As to center designation for the RR-1 zone, counsel wrote:

Moreover, I have met with and written to Adam Zellner and Paul Drake at the Office of Smart Growth to try to resolve the RR-1 "center designation" issue noted in Joann's July 3rd Pre-Mediation Report. The resolution of this issue really amounts to a policy determination between COAH and OSP [Office of State Planning] in light of the October 27, 1992 MOU [Memorandum of Understanding] between the two agencies. As such, I would also appreciate if you could touch base with Messrs. Zellner and Drake as to how this issue should be addressed. This is particularly important from COAH's perspective because this issue doesn't affect just Southampton. Indeed, it affects all first round "carry-over" inclusionary parcels that now find themselves in Pa-4 as a result of the 1992 SDRP [State Development & Redevelopment Plan].

On August 14, 2003, counsel for Pulte also requested COAH's support. It advised that work was underway on a wastewater plan amendment to bring sewer service to Pulte's site.

By letter dated August 8, 2003, counsel for the Township contacted the Office of Smart Growth concerning the Township's efforts to assist Pulte in constructing an inclusionary development. Counsel explained that the RR-1 zone was originally designated for inclusionary development because its location on the Route 38 corridor made it likely that sewer service would be extended within the foreseeable future, although not necessarily during the first period of substantive certification. Because the State Plan was not adopted until 1992, three years after COAH certified the RR-1 zone as realistic, the site would be entitled to a waiver of the center designation requirement pursuant to an October 27, 1992 Memorandum of Understanding (MOU) that COAH and the Office of State Planning executed after adoption of the State Plan. As of August 2003, Pulte's site could easily connect with either the Mount Holly sewer system, or the system owned and operated by the Pinelands Wastewater Company, which had built a treatment plant and connecting lines to service a large retirement community located in the Pinelands. Excess capacity existed because the size of the community had to be reduced after creation of the Pinelands area in the late 1970's. Moreover, Pulte was fully committed to producing a substantial amount of affordable housing on its property, and the Township had been working diligently with Pulte and the DEP in order to amend the Township's "208 Plan." Counsel sought advice as to what additional steps were needed to receive COAH's approval of the RR-1 site.

On August 29, 2003, counsel for the Township again wrote the Office of Smart Growth. On that same date, counsel for the Township asked DEP to confirm that the RR-1 inclusionary parcel could be placed in a new sewer service area and receive sewer service from the Pinelands Wastewater Company. COAH, the Office of Smart Growth, and Pulte were sent copies of this letter.

On September 8, 2003, counsel for Pulte notified DEP that a concept plan to provide sewer service to Pulte's inclusionary development had been drafted, was currently being reviewed by the municipality, and that Pulte and the Township would like to meet with DEP to discuss the proposed amendment to the Township's wastewater plan.

On September 17, 2003, COAH's mediator informed those on COAH's service list that L.T.D., the party that had challenged the second round certification, had settled with the Township and had therefore withdrawn its objection to the Township's petition for substantive certification. It was, therefore, necessary for potential objectors to reconfirm their interest in participating in the mediation process. Pulte's counsel promptly replied that it remained interested in mediation.

On November 6, 2003, Pulte's counsel notified COAH that it was still interested in participating in mediation notwithstanding recent information that COAH believed mediation was not needed. Counsel stated that Pulte's site provided a "realistic development opportunity" that would "result in actual affordable units." Pulte had confirmed that sewer service was available and that "all that is required is a Wastewater Plan amendment expanding the sewer service area and permitting service to Pulte within the area." Counsel requested a status report.

On November 19, 2003, one of COAH's planners responded that, while Pulte's site remained in the Township's fair share plan, "COAH cannot give the [T]ownship a reduction for zoning on the RR-1 site at this time because it is located in Planning Area 4, is not in a designated center and is not within a sewer service area."

COAH's March 15, 2004 compliance report found that the TC-1 zone created a realistic opportunity for thirty-seven family rental units, but that the RR-1 zone did not qualify under COAH rules for a reduction. The TC-1 zone was realistic because it had received center designation from the State Planning Commission on September 22, 1999, and because DEP was reviewing the zone's inclusion in a site-specific amendment to the water quality management plan. COAH recognized that the twenty-one acre portion of the TC-1 zone included in the plan consisted of an abandoned industrial facility containing several deteriorated warehouses and out-buildings. Because of those site conditions, COAH required the Township to execute a developer's agreement.

COAH determined, however, that the Township was not entitled to a reduction for the RR-1 zone because, although the site was previously zoned for low or moderate income housing, it did not present a realistic opportunity for such housing. The zone was still located in Planning Area 4, was not in a designated center, and was not within a sewer service area. "These deficiencies remain, and COAH still has nothing to document a change in the site's status that would present a realistic opportunity for the production of affordable housing during the term of Southampton's substantive certification." COAH no longer supported a center designation waiver because the State Planning Commission had already designated Vincentown as a center in September 1999. Moreover, in May 2003, and again in December 2003, COAH had verified with DEP that the site was not the subject of a wastewater management plan amendment.

Eventually, COAH's staff recommended that the Township be granted substantive certification. Staff, however, opined that the Township is not entitled to a reduction of its fair share number for housing constructed in the RR-1 zone.

On April 1, 2004, Pulte objected to the conclusion in the compliance report that the RR-1 zone was not entitled to a reduction. Pulte requested that COAH reject the report's recommendations or, alternatively, schedule the matter for mediation or refer it to the Office of Administrative Law (OAL).

On April 7, 2004, COAH's executive director notified the Township that COAH had granted its petition for substantive certification. On April 30, 2004, Pulte moved for reconsideration. By opinion dated August 11, 2004, COAH denied the motion. COAH believed that this court in Southampton had given "clear direction . . . that there were serious problems with the RR-1 site due to its lack of sewer and water and that COAH must carefully evaluate that site and consider other options." COAH found no basis to waive the center designation requirement because the State Plan states that development in Planning Area 4 should occur in designated centers, Southampton had already designated a center which did not include Pulte's property, and neither COAH nor the State Planning Commission "would agree to waive the center designation requirement when the town has a designated center." In addition, discussions with the Township and DEP with respect to obtaining sewer service for the site were not sufficient. Finally, Pulte was not entitled to mediation because it did not object to any aspect of the Township's fair share plan. Under the FHA, COAH's role is to mediate disputes between a municipality and objectors, or among objectors. Pulte "was granted objector status solely because it was the contract purchaser of a site in the plan." However, because Pulte did not object to the Township's action, and there were no other remaining objectors, "there was no dispute or objection for COAH to mediate." In addition, there were no disputed issues of fact, since it was undisputed that Pulte's site in the RR-1 zone was located in Planning Area 4 but was not in a designated center, and did not have access to water or sewer service. The decision document did not discuss why COAH had declined to assist the Township and Pulte in either securing center designation or sewer service.

Appellate courts have a limited role in reviewing decisions of administrative agencies. In re Taylor, 158 N.J. 644, 656 (1999). An agency's decision must stand unless it is arbitrary, capricious or unreasonable. In re Twp. of Warren, 132 N.J. 1, 26 (1993); Van Dalen v. Washington Twp., 120 N.J. 234, 244 (1990); In re Adoption of Amendments to N.J.A.C. 5:93-1.3 and 5:93-5.3, 339 N.J. Super. 371, 383 (App. Div. 2001). The court's role is restricted to four inquiries: (1) does the agency's decision offend the State or Federal Constitution; (2) does the agency's action violate express or implied legislative policies; (3) does the record contain substantial evidence to support the findings on which the agency based its actions; and (4) in applying the legislative policies to the facts, did the agency clearly err in reaching a conclusion that could not have reasonably been made on a showing of the relevant factors? In re Taylor, supra, 158 N.J. at 656; George Harms Constr. Co., Inc. v. N.J. Turnpike Auth., 137 N.J. 8, 27 (1994); In re Six Month Extension of N.J.A.C. 5:91-1 et seq., 372 N.J. Super. 61, 91-92 (App. Div. 2004), certif. denied, 182 N.J. 630 (2005). Appellate courts defer to an agency's interpretation of its own enabling legislation, giving due regard to the agency's expertise. In re Six Month Extension, supra, 372 N.J. Super. at 91-92. However, "courts give no deference to agencies with respect to determinations of issues of law; they apply a de novo standard of judicial review." Id. at 93.

In this case the facts are not in dispute. The primary issue is whether COAH's refusal to grant the Township a reduction for a previously certified site violates the Mount Laurel doctrine, the policies of the FHA, or its own regulations. Also at issue is whether COAH mistakenly exercised its discretion in refusing to waive the center designation requirement or to assist the Township and Pulte in securing the necessary approvals from other agencies.

One of COAH's principal responsibilities is to insure that municipal fair share plans comply with COAH regulations and create a realistic opportunity for the construction of the municipality's fair share of affordable housing. N.J.S.A. 52:27D-314a and b; Southampton, supra, 338 N.J. Super. at 112-13. COAH's second round fair share rules grant credits to municipalities for affordable units already constructed, N.J.A.C. 5:93-3.2 and 3.3, and also grant a "reduction" for previously zoned sites. N.J.A.C. 5:93-3.5(a).

In this case, Pulte's site could provide a realistic opportunity for low and moderate income housing but for other COAH rules. The site seems to meet COAH's "suitability" requirement. A "suitable site" is "a site that is adjacent to compatible land uses, has access to appropriate streets and is consistent with the environmental policies delineated in N.J.A.C. 5:93-4." N.J.A.C. 5:93-1.3. In this case, there is no evidence that adjoining land uses are incompatible, the site adjoins or is close to two major highways, and it has none of the significant environmental constraints identified in N.J.A.C. 5:93-4, such as steep slopes, flood hazard areas, wetlands or historic structures on the site. See N.J.A.C. 5:93-4.2(e). COAH was apprised of the location of infrastructure in the area, and notified that steps had been taken to secure the necessary permits and approvals to bring water and sewer service to the site. Finally, the site is currently zoned for inclusionary development.

Thus, the site appears to meet the criteria for a reduction. Other COAH rules, however, must be satisfied. First, all new construction must be on sites that are developable, as well as suitable, approvable and available. N.J.A.C. 5:93-5.3(b). A "developable site" is "a site that has access to appropriate water and sewer infrastructure, and is consistent with the applicable areawide water quality management plan (including the wastewater management plan) or is included in an amendment to an areawide water quality management plan submitted to and under review by DEP." N.J.A.C. 5:93-1.3.

Second, COAH also requires that sites planned for construction conform to the State Plan. N.J.A.C. 5:93-5.4.

In Planning Areas 4 or 5, as designated in the SDRP, the Council shall require inclusionary development to be located in centers. Where the Council determines that a municipality has not created a realistic opportunity within the development boundaries of a center to accommodate that portion of the municipal inclusionary component that the municipality proposes to address within the municipality, the Council shall require the municipality to identify an expanded center(s) or new center(s) and submit the expanded or new center(s) to the State Planning Commission for designation.

[N.J.A.C. 5:93-5.4(c).]

COAH's sewer policies and the designated center requirement comply with the State constitution and the policies of the FHA.

COAH policies that insure the availability of infrastructure, including sewers, and that promote inclusionary development in centers in Planning Area 4 are consistent with the Mount Laurel doctrine and the FHA. The record contains substantial evidence to support COAH's finding that Pulte's site had not been included in an application to amend areawide water quality management plan, N.J.A.C. 5:93-5.3(b), and that Pulte's site was not located in a center, as required by N.J.A.C. 5:93-5.4(c). These are undisputed facts.

While COAH correctly held that Pulte's site was subject to the center designation requirement, we find merit to Pulte's argument that COAH failed to follow its own rules and policies with respect to the request for a center designation waiver. COAH's waiver regulation states:

(a) Any party may request a waiver from a specific requirement of the Council's rules at N.J.A.C. 5:91, 5:92 and 5:93 at any time. Such a waiver may be requested as part of a municipal petition, by motion in conformance with N.J.A.C. 5:91-12, or in such other form as the Council may determine, consistent with its procedural rules at N.J.A.C. 5:91.

(b) The Council will grant waivers from specific provisions of its rules if it determines:

1. That such a waiver fosters the production of low and moderate income housing;

2. That such a waiver fosters the intent of, if not the letter of, its rules; or

3. Where the strict application of the rule would create an unnecessary hardship.

[N.J.A.C. 5:93-15.1.]

Pulte first argues that the criteria in subsection (b) are disjunctive, and that the requested waiver satisfied all three of these criteria. In particular, a waiver would foster the production of low or moderate income housing, because Pulte is an experienced developer who is ready to begin construction upon receiving the necessary permits. COAH defends its decision on the ground that this court had already found that inclusion of the RR-1 site violated COAH rules.

COAH recognized that the Township requested continuation of the waiver. Pulte also requested a waiver. COAH staff no longer supported a center designation waiver because (1) the Township had been notified in January 2002 that inclusionary developments must be located in centers and (2) Vincentown was a center. The March 15, 2004, compliance report did not, however, discuss any of the three criteria for a waiver set forth in N.J.A.C. 5:93-15.1. COAH's opinion in response to Pulte's motion for partial reconsideration, likewise, did not address the criteria for a waiver. The opinion did not even cite N.J.A.C. 5:93-15.1. Instead, COAH interpreted the opinion in Southampton as finding that COAH violated its own regulations in approving the RR-1 site and that "the clear direction from the Court was that there were serious problems with the RR-1 site due to its lack of sewer and water and that COAH must carefully evaluate that site and consider other options."

In general, administrative agencies must follow their own rules and regulations. In re CAFRA Permit No. 87-0959-5 Issued to Gateway Assocs., 152 N.J. 287, 308 (1997); County of Hudson v. Dep't of Corrs., 152 N.J. 60, 70 (1997); Davis v. Am. Honda Motor Co., 368 N.J. Super. 333, 337-38 (App. Div. 2004). Agencies must make findings of fact on any relevant criteria. In re Holy Name Hosp., 301 N.J. Super. 282, 291-92 (App. Div. 1997). "When an agency's decision is not accompanied by the necessary findings of fact, the usual remedy is to remand the matter to the agency to correct the deficiency." In re Issuance of a Permit by the Dep't of Envtl. Prot. to Ciba-Geigy Corp., 120 N.J. 164, 173 (1990).

Pulte proposes to construct a substantial amount of affordable housing, which is the first criteria for a waiver. Pulte's project could meet any shortfall if, as it suggests, the TC-1 zone fails to develop as planned. In addition, COAH should have considered whether Pulte's development could satisfy the Township's third round fair share obligation. The agency has apparently given no consideration to the undisputed fact that not a single unit of affordable housing has been built in the Township since the Township first submitted itself to COAH's jurisdiction. COAH should also consider whether a waiver would foster the intent of its rules. At the very least that would involve weighing the benefit of additional affordable housing against the detriment of locating Pulte's development outside of a designated center. The hardship criteria does not seem to be relevant here, although Pulte should be given the opportunity to demonstrate unnecessary hardship. Thus, we remand the matter to COAH for specific findings on Pulte's and the Township's request for a waiver.

Moreover, COAH mistakenly interpreted Southampton as holding that the RR-1 zone could never present a realistic opportunity. When this court considered this case it was undisputed that no efforts had been made to bring water and sewer service to the RR-1 zone. Southampton, supra, 338 N.J. Super. at 117-18. COAH deemed the RR-1 zone realistic because property owners within the zone had signed a form letter stating that they believed that the zoning provided a realistic opportunity for future development and that the area had not developed because of a decline in the housing market. Id. at 118. According to the court, "there is no indication that the property owners who signed the form letters made any investigation of the availability of sewer service or that they would have been competent to express an opinion concerning the likelihood of such service becoming available." Ibid.

This record, on the other hand, indicates that Pulte and the Township had contacted DEP and the Office of State Planning on several occasions, and had received some positive feedback from DEP officials. Both Pulte and the Township requested COAH's assistance in working with those agencies. The record further indicates that COAH was unresponsive to these requests, contrary to its stated policy of assisting municipalities and developers in working with other agencies so that inclusionary developments can be built. For example, N.J.A.C. 5:93-10.4(d) states that "[i]nclusionary developers may request the Council to act as an advocate for inclusionary developments that require permits from the DEPE [DEP] and DOT." When COAH adopted the second round fair share regulations, one commenter complained that the regulations of the State Planning Commission were "of such complexity that they appear to insure that no inclusionary sites will be established" in Planning Areas 4 and 5. 26 N.J.R. 2312, comment 101 (June 6, 1994). In response, COAH replied that it would work with the State Planning Commission to "expedite the process" and that it would coordinate efforts with the State Planning Commission. Ibid. The regulations of the State Planning Commission, as revised on August 18, 2003, establish a complex process for amending the State Plan and for designating centers. N.J.A.C. 5:85-1.1 to -8.7. COAH must explain why it declined to respond to the Township's request for assistance in taking whatever steps were necessary in order to secure either center designation or waiver of center designation for Pulte's site.

Accordingly, we remand for consideration of a waiver of the center designation requirement.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

S. Burlington County NAACP v. Twp. of Mount Laurel, 67 N.J. 151, cert. denied, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975) (Mount Laurel I); S. Burlington County NAACP v. Twp. of Mount Laurel, 92 N.J. 158 (1983) (Mount Laurel II).

L.T.D. subsequently withdrew its objection because the Township purchased L.T.D.'s 223 acre parcel for the purpose of farmland preservation and recreational use. The Township's purchase of L.T.D.'s property also mooted a pending builder's remedy action filed by L.T.D. Once L.T.D. withdrew its objection, so did all other objectors.

The letter is erroneously dated January 7, 2004. However, as the text of the letter indicates, certification was granted on April 7, 2004.

In doing so, we recognize that COAH may assist, but other agencies, such as DEP or State Planning Commission, retain the authority to grant the requisite approvals. In re Petition for Substantive Certification of Montvale, ___ N.J. Super. ___, ___ (App. Div. 2006) (slip op. at 18).

(continued)

(continued)

26

A-0072-04T3

July 21, 2006

 


Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.