IN THE MATTER OF FORT MONMOUTH REUSE AND REDEVELOPMENT PLAN

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0924-08T1

IN THE MATTER OF

FORT MONMOUTH REUSE AND

REDEVELOPMENT PLAN

______________________________

October 27, 2010

 

Submitted May 11, 2010 - Decided

 

Before Judges Skillman, Fuentes and Gilroy.

 

On appeal from a Final Decision of the Fort Monmouth Economic Revitalization Planning Authority and Council on Affordable Housing.

 

Kevin D. Walsh, attorney for appellant Fair Share Housing Center.

 

Paula T. Dow, Attorney General, attorney for respondent Fort Monmouth Economic Revitalization Planning Authority (Nancy Kaplen, Assistant Attorney General, of counsel; Kavin K. Mistry, Deputy Attorney General, on the brief).

 

PER CURIAM

Appellant Fair Share Housing Center appeals from the Fort Monmouth Economic Revitalization Planning Authority's (the Authority) September 3, 2008 resolution that adopted the Fort Monmouth Reuse and Redevelopment Plan (the plan), pursuant to the Fort Monmouth Economic Revitalization Planning Authority Act (FMERPA), N.J.S.A. 52:27I-1 to -17. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Fort Monmouth is a 1,127-acre United States Army base that occupies parts of three municipalities in Monmouth County: the Borough of Tinton Falls, the Borough of Eatontown, and the Borough of Oceanport. The base is scheduled to close on September 15, 2011. Because of concerns of possible adverse effects from the base closure upon the three host communities, Monmouth County, and the State as a whole, the Legislature enacted FMERPA in 2006, "to plan for the comprehensive conversion and revitalization of Fort Monmouth that will enhance the creation of employment and other business opportunities for the benefit of the host communities and the entire State." N.J.S.A. 52:27I-2.

To achieve that goal, the Legislature created the Authority. N.J.S.A. 52:27I-4. The purpose of the Authority is:

[T]o develop a comprehensive conversion and revitalization plan for the territory encompassed by Fort Monmouth in a manner that will promote, develop, encourage, and maintain employment, commerce, economic development, and the public welfare; conserve the natural resources of the State; and advance the general prosperity and economic welfare of the people in the affected communities and the entire State by cooperating and acting in conjunction with other organizations, public and private, to promote and advance the economic use of the facilities located at Fort Monmouth.

 

[N.J.S.A. 52:27I-5.]

The plan is to "comprise a report or statement and land use and development proposals, including plans for the development, redevelopment or rehabilitation of the project area with maps, diagrams and texts . . . ." N.J.S.A. 52:27I-14a. The plan is to include:

(1) A statement of objectives, principles, assumptions, policies and standards upon which the constituent proposals for the physical, economic and social development of the project area are based;
 
(2) The relationship of the plan to Statewide, county and municipal objectives as to appropriate land uses, density of population, and traffic and public transportation, public utilities, recreational and community facilities and other public improvements;
 
(3) Proposed land uses in the project area, taking into account and stating the relationship thereof to the statement provided for in paragraph (1) of this subsection, and other plan elements as the authority deems appropriate, including, but not necessarily limited to, topography, soil conditions, water supply, drainage, flood plain areas, marshes, and woodlands; showing the existing and proposed location, extent and intensity of development of land to be used in the future for varying types of residential, commercial, industrial, agricultural, recreational, educational and other public and private purposes or combination of purposes; and including a statement of the standards of population density and development intensity recommended for the project area. . . . and
 
(4) Any significant relationship of the plan to (a) the master plans of constituent municipalities, (b) the master plan of the county in which the municipalities are located, and (c) the State Development and Redevelopment Plan adopted pursuant to the "State Planning Act," P.L.1985, c.398 (C. 52:18A-196 et al.).

 

[N.J.S.A. 52:27I-14a.]

 

Lastly, once adopted, "[t]he plan shall supersede applicable provisions of the development regulations of the constituent municipalities or constitute an overlay district within the project area." N.J.S.A. 52:27I-14b.1

On July 17, 2008, recent amendments to the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329.19 became effective. L. 2008, c. 46. They provided in part that the Authority "shall identify and coordinate regional affordable housing opportunities in cooperation with municipalities in areas with convenient access to infrastructure, employment opportunities, and public transportation." L. 2008, c. 46, 18 (codified as amended at N.J.S.A. 52:27D-329.9(c)(2)). "Coordination of affordable housing opportunities may include methods to regionally provide housing in line with regional concerns, such as transit needs or opportunities, environmental concerns, or such other factors as the council may permit . . . ." Ibid.

The Authority made the plan available to members of the public for review and comment prior to its final adoption. On May 19, 2008, the Authority held a public meeting in Tinton Falls concerning its obligation to provide affordable housing. Additional public meetings were held in Tinton Falls, Eatontown, and Oceanport. These meetings included Community Planning Board presentations on April 21, 23, and 30, 2008, and Draft Plan presentations on July 21, 23, and 29, 2008.

Under the plan, a minimum of 45% of the base will be set aside for open space, and 1,585 residential housing units will be provided on the property. Of these units, 20% will be constructed as "affordable" to meet the Council on Affordable Housing's (COAH) low- and moderate-income housing requirements. Section 9.5 of the plan addresses fair housing considerations. It provides in relevant part that:

As [the Authority] examines the affordable housing responsibilities affecting the Fort Monmouth lands, several facts must be recognized:

 

1. Currently, due to its existence as a federally-owned property, Fort Monmouth accrues no affordable housing obligation according to the Fair Housing Act and the COAH rules. Any responsibility for [accommodating] future affordable housing needs resides with the municipality to which the housing obligation would be assigned or within which growth occurs. However, the Reuse Plan [accommodates] the future possibility of affordable housing units in each of the three host municipalities on the Fort Monmouth property.

 

. . . .

 

3. The proposed redevelopment at Fort Monmouth would be substantially impacted by the cost implications of the proposed COAH rules, although the uncertain nature of the final rule provisions makes this impact difficult to accurately predict.

 

In summary, the impact of COAH's affordable housing requirements to the host municipalities, as they relate to Fort Monmouth's redevelopment, is not possible to predict accurately at this time.

 

[(emphasis added).]

 

The plan also details the COAH-assigned affordable housing obligations for each municipality under the then effective COAH rules and proposed amendments.2

On September 2, 2008, Joseph Doria, the then Department of Community Affairs Commissioner, sent a letter to the Authority "regarding [the Department's] commitment to entering into a Memorandum of Understanding (MOU) among [COAH, the Authority], and the municipalities of Eatontown, Oceanport and Tinton Falls." According to the Commissioner, the proposed MOU would "recognize the unique circumstances surrounding the closure of the Fort" and would address the issues of lost jobs, demolished housing, the affordable housing obligation under federal law, and a framework for COAH compliance.

Under the proposed MOU, COAH would recommend a mechanism to account for lost jobs as documented by the Department of Defense, and develop a tracking mechanism to permit a credit for lost jobs against any new jobs that are created on Fort Monmouth land. COAH would also develop a method for the treatment of demolished military housing, to provide a credit against the municipalities' fair share obligations. As to federal affordable housing requirements, COAH would grant credits to permanent supportive housing for the homeless as provided in the COAH regulations. Finally, the relationship between timelines for COAH compliance and base closing would be addressed to provide "an equitable approach to calculating future municipal obligations." As of the appeal's submission date, the MOU had not been executed.

The Authority adopted the plan at its September 3, 2008 meeting. In December 2008, the Boroughs of Eatontown, Oceanport and Tinton Falls adopted their COAH fair share plans for the third round period of 2004 to 2018. The Authority played no role in the preparation or municipal approval of those plans.

On appeal, appellant argues that the plan violates FMERPA, the FHA and COAH's third round rules, N.J.A.C. 5:96, 5:97. Appellant contends that the plan is invalid because it is based on unlawful fiscal zoning and discriminates based on familial status. Appellant further asserts that the plan did not receive the required six votes needed for adoption, and it was not adopted in compliance with the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -25.

"In administrative law, the overarching informative principle guiding appellate review requires that courts defer to the specialized or technical expertise of the agency charged with administration of a regulatory system." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). Accordingly, "an appellate court ordinarily should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." Ibid; see also Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9-10 (2009). Thus, "[w]e will reverse an agency decision if it is arbitrary, capricious, or unreasonable or if it is not supported by credible evidence in the record." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.), certif. denied, 176 N.J. 281 (2003). However, an appellate court is not bound by the agency's interpretation of a statute or legal issue. In re Taylor, 158 N.J. 644, 658 (1999).

Appellant argues first that in adopting the plan the Authority failed to comply with its own enabling legislation, the Mount Laurel3 doctrine, the FHA, and COAH's third round rule. It contends that because the Authority did not comply with its statutory and constitutional obligations, we should reverse and remand for it to do so.

Under the Mount Laurel doctrine, municipalities have a constitutional obligation to provide a realistic opportunity for the construction of their fair share of the present need and future regional need for low- and moderate-income housing. Mount Laurel I, supra, 67 N.J. at 173-74. The Court reaffirmed this doctrine in Mount Laurel II, supra, 92 N.J. at 220-23, recognizing that every municipality has an obligation to provide a realistic opportunity for affordable housing to its resident poor. Id. at 214-20; 243-44. This court has held that the Mount Laurel requirement to ensure adequate affordable housing also applies to agencies "with complete control over the planning and zoning of a vast amount of land." In re the Adoption of N.J.A.C. 19:3, 19:4, 19:5 and 19:6 by the N.J. Meadowlands Comm'n, 393 N.J. Super. 173, 182 (App. Div. 2007), certif. denied, 194 N.J. 267-68 (2008).

The Legislature enacted the FHA in 1985. L. 1985, c. 222, 1. The FHA created COAH in order to provide an administrative mechanism for implementing the Mount Laurel doctrine. N.J.S.A. 52:27D-302 to -307. Under COAH's third round rules in effect at the time the Authority adopted the plan, a municipality's fair share was based on three components:

There are three components to the third round Methodology: the rehabilitation share, the prior round obligation, and the "growth share." Growth share is generated by Statewide residential and non-residential growth during the period January 1, 2004 to December 31, 2018 based on individuals projected to need affordable housing from 1999 through 2018. As a result, for every five residential units constructed, the municipality shall be obligated to include one unit that is affordable to households of low or moderate income (one affordable unit for every four market rate units). Job creation carries a responsibility to provide housing as well. For every 16 newly created jobs as measured by new or expanded non-residential construction within the municipality in accordance with chapter Appendix D, incorporated herein by reference, the municipality shall be obligated to provide one unit that is affordable to households of low- and moderate-income. . . .

 

[N.J.A.C. 5:97-1.1(d).]

 

Accordingly, under the then third round rules, in order to have met its growth share obligation, the Authority was to have provided for the development of one affordable housing unit for every four new market-rate residential units constructed, plus one affordable unit for every sixteen newly created jobs. N.J.A.C. 5:97-2.5(a) and (b).4

The Authority has specific statutory obligations with regard to affordable housing. Under FMERPA, the Authority was to "develop a comprehensive conversion and revitalization plan" for Fort Monmouth. N.J.S.A. 52:27I-5. This plan "shall generally comprise a report or statement and land use and development proposals, including plans for the development, redevelopment or rehabilitation of the project area with maps, diagrams and texts . . . ." N.J.S.A. 52:27I-14(a). Additionally, FMERPA required the Authority to establish a housing advisory committee. N.J.S.A. 52:27I-13. This committee "shall submit a report of its recommendations to the [A]uthority. The [A]uthority shall consider the report[] of the committee[] in preparing the plan required by [N.J.S.A. 52:27I-14]." N.J.S.A. 52:27I-13. Lastly, under the FHA, the Authority was required to "identify and coordinate regional affordable housing opportunities in cooperation with municipalities . . . . Coordination of affordable housing opportunities may include methods to regionally provide housing in line with regional concerns, such as transit needs or opportunities, environmental concerns, or such other factors as the council may permit . . . ." N.J.S.A. 52:27D-329.9(c)(2).

The Authority failed to establish a housing advisory committee pursuant to N.J.S.A. 52:27I-13. Accordingly, contrary to the statute's requirement, the Authority never considered a report of the housing advisory committee in preparing the plan. N.J.S.A. 52:27I-13. Nor did the Authority comply with its obligation to coordinate regional housing opportunities under N.J.S.A. 52:27D-329.9(c)(2). The plan does not address the need created by non-residential development, but instead states that "[a]ny responsibility for [accommodating] future affordable housing needs resides with the municipality to which the housing obligation would be assigned or within which growth occurs." Merely stating that it will be the municipality's obligation to meet affordable housing requirements does not satisfy the coordination requirements of N.J.S.A. 52:27D-329.9(c)(2). Further, the Authority's bare assertion that it intends to ensure additional growth share obligations does not satisfy its Mount Laurel responsibility to provide a realistic opportunity for affordable housing. In re N.J.A.C. 5:96, supra, (slip op. at 7); In re the Adoption of N.J.A.C. 19:3, supra, 393 N.J. Super. at 182.

Because of the Authority's failure to comply with these statutory requirements, we reverse and remand for the Authority to consider and coordinate the affordable housing issues as required by FMERPA and the FHA.5

Appellant argues next that the Authority failed to adopt the plan pursuant to the APA because the plan was not subjected to the APA's notice and comment requirements. We disagree.

The APA defines a rule as an "agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency." N.J.S.A. 52:14B-2(e). The APA imposes notice and comment requirements on agencies promulgating rules. N.J.S.A. 52:14B-4. Prior to an agency adopting, amending, or repealing a rule, an agency must satisfy these requirements: give the public at least thirty days notice of the proposed change; publicly distribute a summary of the proposed rule; give interested parties at least thirty days to submit written and oral comments; review the public comments; conduct a public hearing on the proposed rule under certain circumstances, providing fifteen days notice prior to the hearing; and prepare a summary of comments received for public distribution. Ibid.

An agency determination is considered an administrative rule "when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process." Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 331 (1984). Factors to consider include whether the agency determination:

(1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy.

 

[Id. at 331-32.]

 

"An agency determination that is intended to be applied as a general standard and with widespread coverage and continuing effect can also be considered an administrative rule if it is not otherwise expressly authorized by or obviously inferable from the specific language of the enabling statute." Id. at 329 (emphasis added).

FMERPA required the Authority to hold three public hearings, one each within the Boroughs of Eatontown, Oceanport, and Tinton Falls, prior to the adoption of the plan. N.J.S.A. 52:27I-14(4)(c). FMERPA also directed that the Authority "transmit a copy of the proposed plan to the planning board of each constituent municipality." N.J.S.A. 52:27I-15. Within forty-five days after referral of the proposed plan, each planning board was required to "transmit to the [A]uthority a report containing its recommendation concerning the plan." Ibid. This report was to include "an identification of any provisions in the proposed plan that are inconsistent with the master plan," "recommendations concerning these inconsistencies," and "any other matters as the board deems appropriate." Ibid. Thus, FMERPA expressly authorized the procedures for adoption of the plan, and the rulemaking procedures of the APA did not apply.6 Metromedia, Inc., supra, 97 N.J. at 329.

Appellant argues next that the vote to confirm the plan did not receive six affirmative votes as required under N.J.S.A. 52:27I-14a. It contends that the vote of Freeholder Lillian Burry was conditional, and thus should not have been counted as a vote for the plan's approval. We disagree.

The Authority adopted the plan at its September 3, 2008 meeting with six of its nine members voting in favor of the plan. Prior to the vote, the Authority's Special Counsel advised the members that the federal government would not accept a conditional vote of approval of the plan. Before casting her vote, Freeholder Burry stated:

Before I cast my vote, I would like to state there are two major points that I base my vote on.

 

First is that the Governor or Commissioner Doria honor their Memorandum of Understanding that reassures the three host communities that their COAH concerns will be satisfied.

 

And this was specifically addressed in a September 2nd letter which was sent to each of us. Each of the Authority members [received a letter] from the Commissioner . . . [that] addressed the lost jobs, the demolished housing, the HUD related affordable housing. And I do make reference to that letter.

 

The second point is that this plan is the result of two and a half years of intense, hard work and commitment and it is a good one. Is it perfect? No, it isn't. But, it is a good one.

 

We have been able to achieve certain concessions and I would not be comfortable with an uncertain future should this plan be defeated this evening. The impact of withholding our support would ultimately be disastrous to the future of Fort Monmouth and the County of Monmouth as a whole.

 

And, in conclusion, the approval of the plan will allow us to move forward with our mission and that is the revitalization of Fort Monmouth. And, on that basis, I vote in the affirmative.

 

We conclude that Burry's comments were hortatory and did not render her vote conditional. Burry never said her vote was conditional, but only that she wanted to express two major points before casting her vote. Additionally, the vote was cast after the Authority's counsel advised the members that the federal government would not accept a conditional vote. We assume that Burry understood and followed that advice.

Appellant argues next that the plan should be invalidated because it is based on unlawful fiscal zoning. It contends that the plan is impermissibly "maximizing ratables by minimizing school children" because it minimizes residential development by allowing only 13% of the property to be used for residential purposes, with half of that housing to be "age-targeted," meaning that school-age children will be unlikely to reside there. Lastly, appellant asserts that the Authority has discriminated based on familial status and thus has violated federal and state civil rights statutes. Specifically, it argues that the Authority has violated the federal Fair Housing Act, Title VIII of the Civil Rights Act of 1968, 42 U.S.C. 3601-3619, and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12(g)(3) and N.J.S.A. 10:5-12.5(a), because the plan has an expressed intention to limit residential development that will result in school-age children moving into the residential units.

We are satisfied that neither of these arguments are ripe for review. Fort Monmouth is still a federally-owned property. Although the Authority adopted the plan as a guide for Fort Monmouth's redevelopment through 2028, it has not adopted any zoning regulations implementing the plan.

Affirmed in part; reversed in part; and remanded to the Authority for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 On August 17, 2010, Governor Chris Christie signed into law the Fort Monmouth Economic Revitalization Authority Act (FMERA), L. 2010, c. 51. FMERA repealed all but two sections of FMERPA. Id. at 25. It also replaced the Authority with the Fort Monmouth Economic Revitalization Authority (the new Authority). Id. at 4. For reasons discussed infra, the enactment of FMERA has no effect on the disposition of this appeal.

2 On December 20, 2004, COAH adopted its third round substantive and procedural rules. 36 N.J.R. 5748(a); 36 N.J.R. 5895(a). This court later invalidated certain parts of the third round rules. In re the Adoption of N.J.A.C. 5:94 and 5:95 by the N.J. Council on Affordable Hous., 390 N.J. Super. 1, 86-88 (App. Div. 2007). On June 2, 2008, COAH adopted revised third round rules. 40 N.J.R. 2690(a); 40 N.J.R. 3161(a). On October 20, 2008, COAH adopted amendments to the revised third round rules. 40 N.J.R. 5962(a); 40 N.J.R. 5965(a). The present third round rules are codified in the New Jersey Administrative Code at N.J.A.C. 5:96-1.1 to -20.4, and N.J.A.C. 5:97-1.1 to -10.5, and Appendixes A through F.

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

4 In a recently published opinion, In re the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Hous., this court invalidated several of COAH's revised third round rules, including "COAH's use of a 'growth share' methodology to allocate the responsibility for the prospective need for affordable housing to municipalities, rather than assigning a specific numerical prospective need obligation to every municipality located in a growth area, as the first and second rules had done." ___ N.J. Super. ___, ___ (App. Div. 2010) (slip op. at 26). We remanded the matter to COAH "to adopt new third round rules that use a methodology for determining prospective needs similar to methodologies used in the first and second rounds." Id. at 71. We directed that the remand be completed within five months of issuance of the opinion. Ibid.

5 As previously stated supra, note 1, the Legislature's enactment of FMERA does not affect the issues on appeal and our remand. FMERA established the new Authority as the successor to the Authority. FMERA provides that the new Authority "shall assume all the powers, rights, assets and duties of the predecessor authority." L. 2010, c. 51, 5. Additionally, FMERA did not repeal N.J.S.A. 52:27I-14, which addresses the preparation of the comprehensive plan for Fort Monmouth. See id. at 25. Under FMERA, the new Authority has the power to "adopt development and design guidelines and land use regulations consistent with and in furtherance of the plan . . ." Id. 9(c).

6 Contrary to FMERPA, FMERA does not explicitly set forth the procedures by which the new Authority shall implement FMERA. Instead, it authorizes the new Authority to adopt rules and regulations necessary to implement FMERA pursuant to the APA. L. 2010, c. 51, 9(kk).