Fair Share Housing Center, Inc. v. Township of Cherry Hill

• Decision Date: 14 June 1990
• Citation: 576 A.2d 24,242 N.J.Super. 76
• Parties: FAIR SHARE HOUSING CENTER, INC., Plaintiff-Respondent, v. TOWNSHIP OF CHERRY HILL, Defendant-Appellant. CHARLESTON HOMEOWNERS ASSOCIATION, Appellant, v. NEW JERSEY COUNCIL ON AFFORDABLE HOUSING, Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 76

242 N.J.Super. 76

576 A.2d 24

FAIR SHARE HOUSING CENTER, INC., Plaintiff-Respondent, v. TOWNSHIP OF CHERRY HILL, Defendant-Appellant.

CHARLESTON HOMEOWNERS ASSOCIATION, Appellant, v. NEW JERSEY COUNCIL ON AFFORDABLE HOUSING, Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued March 21, 1990.

Decided June 14, 1990.

Francine I. Axelrad, Cherry Hill, for defendant-appellant Township of Cherry Hill.

Geraldine Callahan, Deputy Atty. Gen., for plaintiff-respondent New Jersey Council on Affordable Housing (Peter N. Perretti, Jr., Atty. Gen.).

Jeffrey I. Baron, Voorhees, for appellant Charleston Homeowners Ass'n.

Stephen Eisdorfer, Asst. Deputy Public Advocate, for respondent Public Advocate of New Jersey.

Before Judges DREIER, SCALERA and D'ANNUNZIO.

The opinion of the court was delivered by

D'ANNUNZIO, J.A.D.

We now dismiss the appeal of the Township of Cherry Hill (sometimes referred to as the Township) because it is interlocutory, and we dismiss the appeal of Charleston Homeowners Association (Charleston) because it is moot.

In 1985, plaintiff, Fair Share Housing Center, Inc., and others commenced this exclusionary zoning action against the Township. Plaintiff sought relief pursuant to the principles announced in Mount Laurel I ¹ and Mount Laurel II ². That same year, the Legislature, in response to Mount Laurel I and II, adopted the Fair Housing Act (FHA), L.1985, c. 222; N.J.S.A. 52:27D-301 et seq. By order dated January 23, 1986, the Law Division granted the Township's motion to transfer Count One ³ of the complaint to the Council on Affordable Housing (COAH) "pursuant to Section 16(b) of the Fair Housing Act."

Section 16 of the FHA provides:

For those exclusionary zoning cases instituted more than 60 days before the effective date of this act, any party to the litigation may file a motion with the court to seek a transfer of the case to the council. In determining whether or not to transfer, the court shall consider whether or not the transfer would result in a manifest injustice to any party to the litigation. If the municipality fails to file a housing element and fair share plan with the council within five months from the date of transfer, or promulgation of criteria and guidelines by the council pursuant to section 7 of this act, whichever occurs later, jurisdiction shall revert to the court.

b. Any person who institutes litigation less than 60 days before the effective date of this act or after the effective date of this act challenging a municipality's zoning ordinance with respect to the opportunity to provide for low or moderate income housing, shall file a notice to request review and mediation with the council pursuant to sections 14 and 15 of this act. In the event that the municipality adopts a resolution of participation within the period established in subsection a. of section 9 of this act, the person shall exhaust the review and mediation process of the council before being entitled to a trial on his complaint. [ N.J.S.A. 52:27D-316; footnote omitted.]

Cherry Hill complied with § 16's timing requirements and submitted a housing element and fair share plan to COAH on January 5, 1987, the last day of the § 16 deadline, thereby avoiding the reversion of jurisdiction to the Law Division. On March 7, 1987, COAH instructed the Township to remedy certain plan deficiencies and to resubmit the plan within 60 days. The deadline was extended to July 3, 1987 because of COAH's adoption of a regulation capping municipal fair share obligations at 1,000 units. N.J.A.C. 5:92-7.1(b). The Township resubmitted its plan on July 1, 1987. Under N.J.A.C. 5:91-4.2, Cherry Hill's submission of the plan constituted a petition for substantive certification.

After published notice of the petition for certification, six parties filed objections to the Township's plan. Mediation commenced on August 27, 1987, as required in N.J.S.A. 52:27D-315, and continued for 164 days, 100 days beyond the 60-day time limit established in N.J.A.C. 5:91-7.2(e). Mediation concluded in February 1988. It resulted in a plan which resolved objections and which eliminated certain techniques the Township had proposed to utilize in providing its fair share of affordable housing. The plaintiff and the public advocate had vigorously opposed those techniques and the COAH task force had concluded that they were inappropriate.

Cherry Hill presented the mediated plan at a hearing before its planning board. COAH's staff presented the Township's petition for substantive certification based on the mediated plan to COAH at its May 16, 1988 public meeting. The staff recommended that COAH grant the petition with conditions. COAH was scheduled to act on the petition at its June 6, 1988 meeting, but several days before the meeting the Township filed a motion with COAH seeking to amend the mediated plan in many significant respects. The proposed amendment included reinstatement of the objectionable techniques which had been eliminated during the mediation process. On July 25, 1988, COAH entered an order denying the Township's motion to amend for the reasons expressed in its written opinion. It is from this order that Cherry Hill appeals.

On the same date, July 25, 1988, COAH adopted a resolution approving the Township's petition for substantive certification based on the mediated plan. This approval was subject to six conditions, including the condition that Cherry Hill revise its housing element and fair share plan "to reflect the agreements achieved in mediation...." The Township was given 60 days to comply with the conditions. Cherry Hill did not comply, and on September 26, 1988, COAH adopted a resolution denying substantive certification and returning the controversy to the "jurisdiction of the courts."

In its July 25, 1988 opinion, COAH addressed Charleston's attempt to file a brief in support of the Township's motion. Charleston is an association of homeowners residing adjacent to the Sergi tract which, under the mediated plan, was designated as an affordable housing site. COAH noted that Charleston

did not participate in the Council process and did not file as an objector to the plan. In fact, the group did not even file as an interested party to Cherry Hill's plan. The Council has nothing on record to indicate CHA's participation before it. Accordingly, CHA has no standing before the Council.

Charleston appeals from COAH's decision precluding its participation. Charleston contends that it did not participate as an objector in the mediation process because the Sergi tract was not part of Cherry Hill's original plan but was included in the mediated plan without notice to adjoining landowners. It also attacks the absence in COAH regulations of a provision for the filing of objections to a mediated plan.

In Hills Dev. Co. v. Bernards Tp., 103 N.J. 1, 510 A.2d 621 (1986) our Supreme Court explained the FHA in detail, especially the shifting to COAH of the courts' responsibility to implement Mount Laurel 's constitutional principles. COAH's substantive certification of a municipality's fair share plan and housing element is the FHA's core. It is a municipal goal which, if achieved, favors the municipality with certain protections. Hills Dev. Co., supra at 35, 510 A.2d 621. The major protection is found in N.J.S.A. 52:27D-317. This section provides that if a municipality with substantive certification is a party in an exclusionary zoning case, then "there shall be a presumption of validity attaching to the housing element and ordinances implementing the housing element," which the complainant must overcome by "clear and convincing evidence." Hills Dev. Co., supra at 34-35, 510 A.2d 621. The FHA also affords a municipality other protections and advantages thereby making COAH certification an attractive alternative to exclusionarys zoning litigation. Id. at 22, 510 A.2d 621. But a municipality is not required to petition for substantive certification. Id. at 35, 510 A.2d 621. If it does not petition, then it will be subject to Mount Laurel litigation. Id. at 35-36, 510 A.2d 621.

The present case involves a transfer to COAH of a pending exclusionary zoning case, pursuant to § 16 of the FHA, rather than an initial petition pursuant to N.J.S.A. 52:27D-313 and 314. The difference is significant because in a transfer context the FHA contemplates the reversion of jurisdiction to the courts in the event of a failed COAH proceeding. See § 16a and b supra. N.J.S.A. 52:27D-318 provides in part that a Mount Laurel plaintiff's obligation to exhaust administrative remedies as required in § 16b "expires if the council rejects the municipality's request for substantive certification or conditions its certification upon changes which are not made within the period established in this act or within an extension of that period agreed to by the council and all litigants." See also N.J.S.A. 52:27D-319 which authorizes a plaintiff to move before "a court...