IN RE APPROVAL BY THE NEW JERSEY COUNCIL ON AFFORDABLE HOUSING OF A REGIONAL CONTRIBUTION AGREEMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3326-04T33326-04T3

IN RE APPROVAL BY THE NEW

JERSEY COUNCIL ON AFFORDABLE

HOUSING OF A REGIONAL

CONTRIBUTION AGREEMENT BETWEEN

RED BANK (MONMOUTH COUNTY) AND

MANALAPAN (MONMOUTH COUNTY)

____________________________________

 

Argued January 9, 2007 - Decided February 28, 2007

Before Judges Skillman, Holston, Jr. and Grall.

On appeal from New Jersey Council on Affordable Housing.

Jeffrey R. Surenian argued the cause for appellants Township of Middletown and Planning Board of the Township of Middletown (Mr. Surenian, of counsel; Mr. Surenian and Michael A. Jedziniak, on the brief).

George N. Cohen, Deputy Attorney General, argued the cause for respondent New Jersey Council on Affordable Housing (Stuart Rabner, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Mr. Cohen, on the brief).

PER CURIAM

This is an appeal by the Township of Middletown from a February 9, 2005 final decision of the Council on Affordable Housing (COAH) approving a regional contribution agreement (RCA) between the Township of Manalapan and the Borough of Red Bank.

On March 13, 2000, Middletown filed a petition with COAH for substantive certification of an affordable housing compliance plan. One component of Middletown's plan was an RCA between Middletown and Red Bank, under which Middletown would transfer ninety-eight units of its affordable housing obligation to Red Bank by payment to Red Bank of $20,000 per unit.

On June 14, 2000, the Red Bank governing body adopted a resolution authorizing the execution of the RCA with Middletown. The proposed form of the RCA was subsequently transmitted to COAH for its review.

Several years elapsed without COAH taking any action on Middletown's petition for substantive certification or the proposed RCA between Middletown and Red Bank. In reply to a letter from the Mayor of Red Bank complaining about this delay, the Commissioner of the Department of Community Affairs, who also serves as the Chairman of COAH, see N.J.S.A. 52:27D-305(a), wrote a letter, dated July 12, 2002, to the Mayor, which attributed the delay to the failure to complete a "Credits without Controls Survey" and objections to Middletown's compliance plan that could require mediation. The Commissioner also noted once the "Credits Without Controls Survey" was complete and the objections resolved, COAH would then have to review Middletown's housing element to ensure that no additional information was required and that no gaps existed between Middletown's affordable housing obligation and its plan.

On January 4, 2003, Red Bank's governing body adopted a resolution canceling its RCA with Middletown. On January 7, 2003, the Middletown Township Administrator sent a letter to the Mayor of Red Bank objecting to Red Bank's cancellation of the RCA and stating that Middletown "expects that [Red Bank] would fulfill its obligations under the [RCA]." However, Red Bank did not rescind the resolution canceling the RCA, and Middletown did not challenge the resolution either by an action in the Superior Court or by a petition to COAH.

On January 2, 2004, Middletown submitted a re-petition for substantive certification to COAH. Despite Red Bank's cancellation of the RCA one year earlier, Middletown's compliance plan continued to include the ninety-eight unit RCA with Red Bank as one of its components.

On December 1, 2003, Manalapan submitted an amended petition for substantive certification to COAH. Manalapan's compliance plan also included a proposed RCA with Red Bank.

In September 2004, Manalapan submitted the proposed RCA with Red Bank to COAH for its approval. The cover letter enclosing the proposed RCA stated: "This RCA is similar to one that was previously reviewed and approved between Red Bank and Middletown. However that RCA was never implemented and is null and void." On January 20, 2005, COAH staff recommended that COAH approve the RCA between Manalapan and Red Bank.

On February 8, 2005, Middletown's counsel faxed a letter to COAH stating that Middletown had just learned that the proposed 100-unit RCA between Manalapan and Red Bank had been placed on COAH's February 9, 2005 agenda. Middletown asked COAH not to process Red Bank's application for approval of the RCA or to await resolution of what it called an underlying contractual dispute between Middletown and Red Bank before deciding whether to go forward.

On the same date, Middletown applied to this court for emergent relief temporarily restraining COAH from considering the RCA between Manalapan and Red Bank at its February 9, 2005 meeting. We denied the application.

At its February 9, 2005 meeting, COAH approved the proposed RCA between Manalapan and Red Bank.

On March 11, 2005, Middletown filed a notice of appeal from the COAH resolution approving the RCA between Manalapan and Red Bank. Middletown did not join either Manalapan or Red Bank as parties to the appeal.

Middletown presents the following arguments in support of its appeal:

I. COAH VIOLATED MIDDLETOWN'S RIGHT TO "FUNDAMENTAL PROCEDURAL FAIRNESS" (A) BY UNREASONABLY DELAYING MIDDLETOWN'S PETITION FOR CERTIFICATION OF ITS AFFORDABLE HOUSING PLAN; (B) BY SUGGESTING RED BANK COULD MODIFY OR EVEN RESCIND THE MIDDLETOWN RCA WITHOUT PROVIDING MIDDLETOWN NOTICE AND AN OPPORTUNITY TO BE HEARD; AND (C) BY ITS OTHER ACTIONS AND INACTIONS.

A. COAH VIOLATED MIDDLETOWN'S RIGHT TO "FUNDAMENTAL PROCEDURAL FAIRNESS" BY UNREASONABLY DELAYING ACTION ON MIDDLETOWN'S PETITION FOR CERTIFICATION OF ITS AFFORDABLE HOUSING PLAN.

B. COAH VIOLATED MIDDLETOWN'S RIGHT TO "FUNDAMENTAL PROCEDURAL FAIRNESS" BY SUGGESTING TO RED BANK THAT IT COULD MODIFY, OR EVEN RESCIND, THE MIDDLETOWN RCA WITHOUT PROVIDING MIDDLETOWN NOTICE AND AN OPPORTUNITY TO BE HEARD.

C. COAH'S VIOLATION OF MIDDLETOWN'S RIGHT TO "FUNDAMENTAL PROCEDURAL FAIRNESS" HAS CAUSED MIDDLETOWN UNDUE PREJUDICE.

D. THIS COURT SHOULD NOT ALLOW COAH'S VIOLATION OF MIDDLETOWN'S RIGHT TO "FUNDAMENTAL PROCEDURAL FAIRNESS" TO DEPRIVE THE TOWNSHIP OF THE BENEFIT OF ITS BARGAIN. TO THE CONTRARY, COAH SHOULD HONOR THE SANCTITY OF RCAs TO THE SAME EXTENT IT HONORS THE SANCTITY OF MEDIATION AGREEMENTS.

II. COAH VIOLATED ITS DUTY TO INVESTIGATE WHEN CONFRONTED WITH BOLD ALLEGATIONS OF AN OBVIOUS BREAKDOWN OF THE COAH PROCESS.

A. COAH HAS A DUTY TO INVESTIGATE BEFORE MAKING DECISIONS THAT HAVE FAR REACHING RAMIFICATIONS TO THE PUBLIC INTEREST.

B. THE FACTS PRESENTED TO COAH BY MIDDLETOWN, ALBEIT ON VERY SHORT NOTICE, REQUIRED GREATER CONSIDERATION BEFORE COAH RAMMED THROUGH ITS APPROVAL OF THE MANALAPAN RCA.

As is evident from these point headings, all of Middletown's arguments are directed at COAH's delay in considering Middletown's petition for substantive certification and its RCA with Red Bank and at Red Bank's cancellation of the RCA. Middletown does not argue that Manalapan's RCA with Red Bank violates the statutes and regulations authorizing RCAs or that there is any other ground upon which COAH could have denied approval of that RCA.

We conclude that neither COAH's alleged delay in considering Middletown's petition for substantive certification and proposed RCA with Red Bank nor Red Bank's alleged breach of its agreement to enter into a RCA with Middletown would provide grounds for invalidation of COAH's approval of the RCA between Manalapan and Red Bank. Therefore, we affirm that approval without considering the arguments Middletown has presented in this appeal.

Middletown had available procedural avenues to directly challenge both COAH's alleged delay and Red Bank's alleged violation of its agreement to enter into an RCA with Middletown. In In re Petition of Howell Township, 371 N.J. Super. 167, 187-88 (App. Div.), certif. denied, 182 N.J. 140-41 (2004), we held that a party adversely affected by COAH's failure to act in a timely manner may apply to this court for an order compelling COAH to complete its proceedings within a reasonable period of time. If Middletown believed that COAH's delay in acting upon its petition for substantive certification and application for approval of the RCA with Red Bank was unjustifiable, it could have applied to this court for such relief. It is also clear that a municipality that claims another municipality has violated an agreement between the municipalities may bring an action for specific performance of the agreement or other appropriate relief. See Borough of W. Caldwell v. Borough of Caldwell, 26 N.J. 9 (1958). Therefore, when Middletown became aware in January 2003 that Red Bank's governing body had adopted a resolution canceling its RCA with Middletown, Middletown could have brought a timely action in the Superior Court challenging the validity of that cancellation.

Furthermore, it would be unfair to Manalapan to invalidate COAH's approval of its RCA with Red Bank based on COAH's alleged delay in processing Middletown's petition for substantive certification and approval of its RCA with Red Bank or Red Bank's alleged breach of its agreement with Middletown. Manalapan bears no responsibility for either COAH's alleged inaction or Red Bank's alleged improper cancellation of its agreement with Middletown. Indeed, Middletown has implicitly recognized this fact by failing to name Manalapan as a respondent on the appeal, even though Manalapan would seem to be a necessary party to an appeal that seeks to invalidate COAH's approval of the RCA upon which Manalapan has undoubtedly relied in achieving compliance with its affordable housing obligations.

In sum, Middletown has attempted to use an appeal from COAH's approval of an RCA between Manalapan and Red Bank as a springboard to challenge COAH's alleged delay in considering Middletown's own petition for certification and RCA with Red Bank and Red Bank's cancellation of that RCA. Even if either COAH's delay or Red Bank's cancellation were unjustifiable, this would not be a proper basis for reversing COAH's approval of Manalapan's RCA with Red Bank.

 
Affirmed.

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A-3326-04T3

February 28, 2007