In re Six Month Extension of NJAC

• Decision Date: 31 August 2004
• Citation: 372 N.J.Super. 61,855 A.2d 582
• Parties: In re SIX MONTH EXTENSION OF N.J.A.C. 5:91-1 ET SEQ. In re Grant of Extended Substantive Certification to Allamuchy Township, Lawrence Township, Harding Township, Union Township (Hunterdon County), Manalapan Township, Glen Rock Borough, Cranbury Township, Bayonne City, Ridgefield Borough and Denial of Motion to Invalidate Extended Substantive Certification Previously Granted to Forty-Six Municipalities. In re Grant of Extended Substantive Certification to Allamuchy Township, Lawrence Township, Harding Township, Union Township (Hunterdon County), Manalapan Township, Glen Rock Borough, Cranbury Township, Bayonne City, Ridgefield Borough and Denial of Motion to Invalidate Extended Substantive Certification Previously Granted to Forty-Six Municipalities. In the Matter of Extended Second Round Certification Granted to East Brunswick. In re Readoption of N.J.A.C. 5:91-14. In the Matter of Resolutions Approving Readington Township's Amendment to Substantive Certification by the New Jersey Council on Affordable Housing and Grant of Extension Pursuant to N.J.A.C. 5:91-14.3. In re Grant of Extended Substantive Certification to Township of Roxbury.
• Court: New Jersey Superior Court

855 A.2d 582

372 N.J.Super. 61

In re SIX MONTH EXTENSION OF N.J.A.C. 5:91-1 ET SEQ.

In re Grant of Extended Substantive Certification to Allamuchy Township, Lawrence Township, Harding Township, Union Township (Hunterdon County), Manalapan Township, Glen Rock Borough, Cranbury Township, Bayonne City, Ridgefield Borough and Denial of Motion to Invalidate Extended Substantive Certification Previously Granted to Forty-Six Municipalities.

In re Grant of Extended Substantive Certification to Allamuchy Township, Lawrence Township, Harding Township, Union Township (Hunterdon County), Manalapan Township, Glen Rock Borough, Cranbury Township, Bayonne City, Ridgefield Borough and Denial of Motion to Invalidate Extended Substantive Certification Previously Granted to Forty-Six Municipalities.

In the Matter of Extended Second Round Certification Granted to East Brunswick.

In re Readoption of N.J.A.C. 5:91-14.

In the Matter of Resolutions Approving Readington Township's Amendment to Substantive Certification by the New Jersey Council on Affordable Housing and Grant of Extension Pursuant to N.J.A.C. 5:91-14.3.

In re Grant of Extended Substantive Certification to Township of Roxbury.

Superior Court of New Jersey, Appellate Division.

Argued May 5, 2004.

Decided August 31, 2004.

Stephen M. Eisdorfer, Princeton, argued the cause for appellant New Jersey Builders Association in A-0795-02, A-1313-02, and A-4792-02 (Hill Wallack, attorneys; Mr. Eisdorfer and Henry T. Chou, on the briefs).

Kenneth H. Zimmerman argued the cause for appellant Coalition for Affordable Housing and the Environment in A-1931-02 (New Jersey Institute for Social Justice and Rutgers Environmental Law Clinic, attorneys; Mr. Zimmerman, Susan J. Kraham, New York, NY and John M. Payne, of counsel; Nancy L. Fishman and Craig R. Levine, on the brief). Carl S. Bisgaier, Cherry Hill, argued the cause for appellant Toll Brothers, Inc. in A-4814-02 (Flaster & Greenberg, attorneys; Mr. Bisgaier and Tracy A. Siebold, on the brief).

Thomas F. Carroll, Princeton, argued the cause for appellant Roxbury 80, L.L.C. in A-5228-02 (Hill Wallack, attorneys; Mr. Carroll and Stephen M. Eisdorfer, on the brief).

David J. Frizell, Metuchen, argued the cause for appellant Anthony Bailes et al. in A-3778-02 (Frizell & Samuels, attorneys; Mr. Frizell, on the brief).

George N. Cohen, Deputy Attorney General, argued the cause for respondent Council on Affordable Housing in all appeals (Peter C. Harvey, Attorney General, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Mr. Cohen, on the briefs).

Stuart R. Koenig, Cedar Grove, argued the cause for respondent State League of Municipalities in A-1313-02 and A-1931-02 (Stickel, Koenig & Sullivan, attorneys; Mr. Koenig, on the briefs).

Jeffrey R. Surenian, Toms River, argued the cause for respondent Borough of Bloomingdale in A-1313-02 and A-1931-02 (Lomell Law Firm, attorneys; Mr. Surenian, on the briefs).

Robert F. Munoz, Freehold, argued the cause for respondent Township of Manalapan in A-1931-02 (LoMurro, Davison, Eastman & Munoz, attorneys; Mr. Munoz, on the brief).

Howard D. Cohen, Lawrenceville, argued the cause for respondent Readington Township in A-4814-02 (Parker, McCay & Criscuolo, attorneys; Mr. Cohen, of counsel and, with Edward P. Abbott, on the brief).

Gerald J. Muller, Princeton, argued the cause for respondent Township of Roxbury in A-5228-02 (Miller, Porter & Muller, Special Counsel, and Jansen, Bucco, DeBona & Semrau, Municipal Attorneys, attorneys; Mr. Muller and Anthony M. Bucco, Riverdale, of counsel and on the brief).

Vogel, Chait, Collins & Schneider, attorneys for respondent Township of Allamuchy in A-1313-02 and A-1931-02 (Thomas F. Collins, Jr., Morristown and Thomas J. Molica, Jr., on the briefs).

Mason, Griffin & Pierson, attorneys for respondent Township of Cranbury in A-1313-02 and A-1931-02 (Trishka Waterbury, Princeton, on the brief).

Hoagland, Longo, Moran, Dunst & Doukas, attorneys for respondent Township of East Brunswick in A-3778-02 (George W. Pressler, Jr., New Brunswick and Anthony C. Iacocca, on the brief; Michael J. Baker appearing).

Mason, Griffin & Pierson, attorneys for respondent Township of Princeton in A-1313-02 and A-1931-02 (Edwin W. Schmierer, Princeton, of counsel; Trishka Waterbury, on the brief).

Basile, Birchwale & Pellino, attorneys for respondent Borough of Ridgefield in A-1313-02 and A-1931-02 (Stephen F. Pellino, Ridgefield, on the brief).

Durkin & Boggia, attorneys for respondent Village of Ridgefield Park in A-1313-02 (Martin T. Durkin, Ridgefield Park, on the brief).

Feldman & Fiorello, attorneys for respondent Township of Wayne in A-1313-02 and A-1931-02 (John Fiorello, Wayne, on the brief).

Brian D. Smith, White Township Attorney, attorney for respondent Township of White in A-1313-02 and A-1931-02.

Forty-five other municipalities join in the brief of respondent State League of Municipalities. Before Judges KESTIN, CUFF and LARIO.

The opinion of the court was delivered by

KESTIN, P.J.A.D.

These seven related appeals, with common issues, were scheduled for argument and consideration together. We consolidate them for the purposes of this opinion.

I

The Council on Affordable Housing (COAH) adopted interim procedural rules in N.J.A.C. 5:91-14, effective November 1, 1999, designed to address the anticipated time gap between the expiration of its second-round cycle of low- and moderate-income housing requirements and the promulgation of its third-round methodology and rules. Those regulations, their substantive counterparts, and their predecessor provisions have been designed to implement the Mount Laurel cases¹ and the provisions of the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329, adopted initially in 1985. These appeals concern only N.J.A.C. 5:91-14.3, which provides a mechanism for municipalities previously certified in the second round to receive an extension of their substantive certification status and, therefore, further protection from civil action remedies, for up to one year following the adoption of the third-round rules, well beyond the previously scheduled 1999 expiration of second-round standards and methodology.

Specifically, N.J.A.C. 5:91-14.3(a) allows COAH to grant such "extended substantive certification" if a municipality:

1. Requests the extension;

2. Commits to continuing to implement the certified second round plan; and

3. Commits to addressing its third round fair share obligation with a newly adopted housing element and fair share plan.

A second subsection, N.J.S.A. 5:91-14.3(b) establishes the mechanism for a municipality "[t]o remain under the jurisdiction of [COAH.]" The regulation does not specify when the third-round rules will be promulgated.

In dealing with the issues advanced by the parties, we are mindful of the Supreme Court's order of April 27, 2004, recognizing COAH's "obligation ... under N.J.A.C. 1:30-6.2(c) to promulgate its Third Round Fair Share Methodology regulations no later than October 6, 2004, or the proposal expires[.]" In re Failure of New Jersey Council on Affordable Housing to Adopt Third Round Fair Share Methodology and to Allocate Third Round Fair Share Obligations, 180 N.J. 148, 849 A.2d 182 (2004). We are also aware of COAH's recently announced reproposal of its third-round methodology rules with public hearings scheduled thereon during the month of September 2004. See 36 N.J.R. 3691-874 (Aug. 16, 2004).

Appellants in these seven appeals are the New Jersey Builders Association (NJBA), the Coalition of Affordable Housing and the Environment (Coalition), Toll Brothers, Inc. (Toll Brothers), Roxbury 80, L.L.C. (Roxbury 80), and Anthony Bailes, et al. (Bailes). They challenge COAH's adoption, readoption and implementation of N.J.A.C. 5:91-14.3. On the whole, appellants raise similar arguments. They contend that N.J.A.C. 5:91-14.3 on its face and as applied, is ultra vires, violates the State Constitution and the intent and goals of the FHA, and frustrates the essential holdings in the Mount Laurel cases and in Hills Dev. Co. v. Bernards Tp., 103 N.J. 1, 510 A.2d 621 (1986). Appellants also argue that the review process embodied in N.J.A.C. 5:91-14.3 violates the State Constitution and the FHA, and that the procedures provided in that regulation—specifically, the lack of any requirement for public notice, comment and hearing—violate State and federal constitutional rights to procedural due process, principles of administrative fairness underlying the Administrative Procedure Act ("APA"), N.J.S.A. 52:14B-1 to -15, and the FHA. One appellant, Roxbury 80, argues that the regulation frustrates the jurisdiction of the Law Division in a pending case.

Respondents contend, inter alia, that NJBA and the Coalition lack standing to challenge the regulation, and that all of the appeals are time-barred. Respondents also argue that the challenge in one case, A-795-02T5, is moot, as it involves a now expired six-month extension of COAH's procedural rules in chapter 91 of Title 5 of the New Jersey Administrative Code.

II

These appeals have foundations in State constitutional law and legislative enactments. An elucidation of those bases, as well as the administrative background and procedural history of the matters, is essential to a full understanding of the issues.

A.

COAH was established by the Legislature to provide an administrative mechanism for implementing the FHA, see N.J.S.A. 52:27D-305, with its underlying policy, in recognition of the Supreme Court's holdings in the Mount Laurel cases, that "every municipality in a growth area has a constitutional obligation to provide through its land use regulations a realistic opportunity for a fair share of its region's present and prospective needs for housing for low and moderate income families."² N.J.S.A. 52:27D-302(a). The Legislature further illuminated its policies and purpose by declaring:

that the State's preference for the

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