IN THE MATTER BOROUGH OF HIGH BRIDGE GRANT OF SUBSTANTIVE CERTIFICATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0913-04T20913-04T2

IN THE MATTER OF THE BOROUGH

OF HIGH BRIDGE GRANT OF

SUBSTANTIVE CERTIFICATION

_____________________________

 

Argued April 25, 2006 - Decided June 5, 2006

Before Judges Collester, Lisa and S.L. Reisner.

On appeal from Administrative Decision

by the New Jersey Council on Affordable Housing, Substantive Certification

No. 232-99.

Barry S. Goodman argued the cause for appellant Borough of High Bridge (Greenbaum, Rowe, Smith & Davis, attorneys; Mr. Goodman, of counsel and on the brief; Michele Gibson, on the brief).

Pamela E. Gellert, 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. Gellert, on the brief).

James H. Knox, argued the cause for respondent Pat Catanzareti (Gebhardt & Kiefer, attorneys; Mr. Knox and Deborah B. Rosenthal, on the brief).

PER CURIAM

The Borough of High Bridge appeals from a final decision of the Council on Affordable Housing (COAH) granting the Borough's petition for second round substantive certification of its affordable housing plan. We affirm.

I

This case stems from a dispute over the development of a tract of land in High Bridge owned by Pat Catanzareti (the Catanzareti site). In 1984, Catanzareti sued the Borough seeking a builder's remedy under Southern Burlington County N.A.A.C.P. v. Mount Laurel Township, 92 N.J. 158 (1983). In 1986, the litigation was transferred to COAH, pursuant to the Fair Housing Act. N.J.S.A. 52:27D-301 to -329.

In 1988, the parties executed a COAH-mediated Settlement Agreement, which provided for development of the Catanzareti site as part of the Borough's Housing Element and Fair Share Plan. As a result of the settlement, COAH granted the Borough substantive certification for its Plan for its first round fair share housing obligation. This approval, in turn, gave the Borough protection against builder's remedy lawsuits. The Borough continued to include the Catanzareti site in subsequent COAH applications.

On February 26, 1997, the Borough filed a petition for second round substantive certification to meet an affordable housing obligation of fifty-one units. Again, the plan included the Catanzareti site. But on March 26, 1999, the Borough filed a motion with COAH to amend its plan to exclude the Catanzareti site. The agency denied the motion on June 2, 1999, citing its historical and consistent policy of enforcing mediated settlements. COAH's decision also noted that the alleged environmental problems that the Borough cited in its motion "have been known, or should have been known, to High Bridge from the time it signed the 1988 mediated agreement and were not raised, and in fact were largely contradicted, by High Bridge's 1997 petition and second-round fair share plan." The Borough filed an appeal, which we dismissed on November 15, 2000, for failure to prosecute. On January 22, 2001, we denied the Borough's motions to reinstate the appeal and for leave to appeal nunc pro tunc.

Before COAH issued a final decision on the merits of its 1997 petition, the Borough filed a re-petition for substantive certification on April 26, 2001. Again, that petition included the Catanzareti site, but specifically indicated that the Borough was including the site under protest. The petition requested COAH to allow the Borough to meet its obligations by alternative means and reserved the Borough's right to appeal from any COAH approval that included the site. After a lengthy process connected with the Borough's request for "credits without controls," COAH's staff completed its review of the re-petition in 2004, and issued a Compliance Report on August 19, 2004, recommending that COAH grant the Borough second round substantive certification.

On September 1, 2004, more than three years after submitting the re-petition, the Borough submitted a letter to COAH asking COAH to delay its approval of the re-petition to allow the Borough to file an amended petition to exclude the Catanzareti site from its plan. In that letter, the Borough contended that it could use "Credits Without Controls" and other credits to meet its affordable housing obligation without using the Catanzareti site. It also contended that under the State Development and Redevelopment Plan, inclusionary development is discouraged in Planning Area 5, where the site is located, and that in Planning Area 5 inclusionary development should be located in centers, a requirement the Catanzareti site did not meet.

On September 8, 2004, COAH granted the Borough substantive certification, approving the April 2001 plan, including the Catanzareti site. In that decision, COAH acknowledged the Borough's September 1 letter, but noted that the rules allowing plan amendments, N.J.A.C. 5:95-13.2, which the Borough had cited in its letter, had not yet taken effect, and that COAH's approval of the current plan did not preclude the Borough from filing future petitions to amend its plan. The COAH decision also gave the Borough credit for six rehabilitated units and eighteen Credits Without Controls, for a total of twenty-four rehabilitation credits, plus five credits for a group home. With the additional thirty-four affordable units to be built on the Catanzareti site, the Borough's plan satisfied its fifty-one unit total obligation with a surplus of twelve units.

The Borough's appeal from the 2004 decision is presently before us. On June 24, 2005, during the pendency of this appeal, the Borough filed with COAH an amended petition for substantive certification, again seeking to exclude the Catanzareti site from its plan.

II

We begin our opinion by defining the proper scope of this appeal. The COAH decision that is under appeal here approved the Borough's 2001 application. That application included the Catanzareti site. The Borough then submitted another application, in June 2005, seeking to amend its plan to eliminate the Catanzareti site. That 2005 application is not before us, and materials from the COAH record of that application are not properly part of the record on this appeal. Consequently, we will only consider evidence of record before COAH on the 2001 application, and we will not address issues not presented to COAH on the 2001 application.

III

The Fair Housing Act (FHA), N.J.S.A. 52:27D-304(a), vests COAH with primary jurisdiction over the administration of affordable housing obligations. Holmdel Builders Ass'n v. Twp. of Holmdel, 121 N.J. 550, 577 (1990). COAH has wide-ranging authority to evaluate proposals by municipalities to meet their fair share obligations. Alexander's Dep't Stores of N.J., Inc. v. Borough of Paramus, 125 N.J. 100, 109 (1991). Its responsibilities require that COAH be afforded broad discretion in the exercise of its statutory duties. Alexander's Dep't Stores, supra, 125 N.J. at 111; see also Van Dalen v. Twp. of Washington, 120 N.J. 234, 246 (1990) (holding that COAH is entitled to reasonable degree of latitude in its effort to achieve long-term statutory objectives).

As in any appeal from a final administrative agency determination, our review of COAH's decision is limited. Matter of Musick, 143 N.J. 206, 216 (1996); Van Dalen, supra, 120 N.J. at 244-45. In general, we will intervene in agency action only when the action is clearly inconsistent with the agency's statutory mission or other State policy. Matter of Musick, supra, 143 N.J. at 216.

Although sometimes phrased in terms of a search for arbitrary or unreasonable action, the judicial role is generally restricted to three inquiries: (1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency bases its action; and (3) whether, in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Ibid. (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).]

"[I]f in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result." In the Matter of Taylor, 158 N.J. 644, 657 (1999); accord Dougherty v. Dep't of Human Servs., 91 N.J. 1, 12 (1982). In other words, if there is substantial evidence in the record to support more than one result, it is the agency's choice which governs. Dore v. Bedminster Twp. Bd. of Educ., 185 N.J. Super. 447, 453 (App. Div. 1982).

Having reviewed the record, we conclude that COAH's decision is "supported by sufficient credible evidence on the record as a whole" and is consistent with its statutory mandate. R. 2:11-3(e)(1)(D). We also conclude that the Borough's appellate arguments, including its contention that we should exercise original jurisdiction to remove the Catanzareti site from its plan, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

The Borough settled a builder's remedy lawsuit filed by Catanzareti by agreeing to include his site in its fair share plan. And the Borough has been insulated from other builder's remedy lawsuits for almost twenty years by virtue of that plan. See Toll Bros. v Twp. of W. Windsor, 334 N.J. Super. 77, 92 (App. Div. 2000), certif. denied, 168 N.J. 295 (2001); N.J.S.A. 52:27D-317. Even if the Borough could meet its fair share obligation by other means, we find no abuse of discretion or other error in COAH's determination to enforce the settlement by requiring that the plan continue to include the Catanzareti site. The fact that "the Borough disagrees with COAH as to how [its fair share] obligation should be met" does not justify our intervention.

In Toll Brothers, supra, we acknowledged "the COAH policy that sites previously zoned for inclusionary development as part of a negotiated settlement in court be retained," id. at 103, and recognized that

[t]he obvious purpose of this rule was to provide protection to owners of sites previously designated by the municipality as suitable for inclusionary development. The preservation of inclusionary zoning on sites part of a negotiated court settlement represents COAH policy, and this policy should be followed in exclusionary zoning litigation.

[Id. at 104; citation omitted.]

The same reasoning applies to sites designated for inclusionary zoning pursuant to a COAH-mediated settlement agreement. See N.J.A.C. 5:93-5.13(b). While we recognized in Toll Brothers that a consent judgment could be modified if, due to changed circumstances, a site no longer "create[s] a realistic opportunity for the construction of affordable housing," we defer to COAH's conclusion here that the Catanzareti site can be developed for affordable housing. Toll Bros. supra, 334 N.J. Super. at 104.

Further, a significant amount of the delay in developing the site is attributable to the Borough's stalling tactics. In a related case, Catanzareti v. Borough of High Bridge, Judge Mahon ordered the Borough to approve Catanzareti's preliminary subdivision approval for the site. His decision concluded that the Borough had intentionally and repeatedly delayed Catanzareti's efforts to build the affordable units. In a separate opinion, we affirmed Judge Mahon's decision. Catanzareti v. Borough of High Bridge, A-2096-04T2 (App. Div. 2006). This undercuts the Borough's arguments that Catanzareti was responsible for the delay and that enforcement of the settlement agreement "is no longer equitable." R. 4:50-1(e). Nor has the Borough demonstrated that it has in fact already satisfied its affordable housing obligations. See Deland v. Twp. of Berkeley Heights, 361 N.J. Super. 1, 16 (App. Div.), certif. denied, 178 N.J. 32 and 179 N.J. 185 (2003).

We also find no merit in the Borough's contention concerning proposed placement of the Mount Laurel housing on steep slopes. COAH's regulations do not prohibit a developer from placing housing on steep slopes. Rather, in another context entirely, the regulations permit a town to exclude from its vacant land survey parcels with a slope greater than fifteen percent. N.J.A.C. 5:93-4.2(e)2(ii). Further, the Borough's 1995 plan, which voluntarily included the site, acknowledged the existence of steep slopes on the site but asserted:

[COAH] reviewed this site for steep slopes, wetlands and floodplain areas prior to granting substantive certification. It is submitted that the [Catanzareti] tract contains no environmental constraints that would preclude the development envisioned for the site.

We likewise find no merit in the Borough's argument that the site should be eliminated because it is not located in a "center." N.J.A.C. 5:93-5.4(c). The agency's regulations permit waiver of any of its regulations if waiver "fosters the production of low and moderate income housing." N.J.A.C. 5:93-15.1(b). We find nothing unreasonable or arbitrary in COAH's decision to waive the "center location" requirement for a site such as Catanzareti's that has previously been certified as part of a fair share plan. Further, as counsel explained at oral argument, location in a center is designed to ensure access to sewer, water and other infrastructure. The record establishes that the Catanzareti site already has access to sewer and water infrastructure.

Affirmed.

 

"Credits without controls" refers to pre-existing units already occupied by persons of low or moderate income, but which are not subject to the legal restrictions normally imposed on newly-created affordable housing units.

Contrary to the Borough's contention, it appears that COAH gave the Borough the eighteen credits without controls and the other credits it sought in its application. But without at least some of the units to be built on the Catanzareti site, the Borough would still fall short of the fifty-one units it needs.

(continued)

(continued)

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A-0913-04T2

June 5, 2006