Township of Warren, In re
| Decision Date | 01 April 1993 |
| Citation | 132 N.J. 1,622 A.2d 1257 |
| Parties | In re Petition for Substantive Certification Filed by the TOWNSHIP OF WARREN. In re Petition for Substantive Certification Filed by the TOWNSHIP OF DENVILLE. In re Petition for Substantive Certification Filed by the BOROUGH OF ROSELAND. In re Petition for Substantive Certification Filed by the TOWNSHIP OF HOLMDEL. In re Petition for Substantive Certification Filed by the TOWNSHIP OF HILLSBOROUGH. In re Petition for Substantive Certification Filed by the BOROUGH OF BLOOMINGDALE. |
| Court | New Jersey Supreme Court |
Geraldine Callahan, Deputy Atty. Gen., for respondent Council on Affordable Housing (Robert J. Del Tufo, Atty. Gen. of N.J., atty.; Joseph L. Yannotti, Asst. Atty. Gen., and Mary C. Jacobson, Deputy Atty. Gen., of counsel).
John E. Coley, Jr., Warren, for respondent Tp. of Warren (Bivona, Cohen, Kunzman, Coley, Yospin, Bernstein & DiFrancesco, attys.; Richard P. Flaum, on the letter brief).
Edward A. Halpern, Neshanic Station, for respondent Tp. of Hillsborough (Frank N. Yurasko, Somerville, atty.).
Ronald L. Reisner, West Long Branch, for respondent Tp. of Holmdel (Tucci, Iadanza and Reisner, attys.).
Stephan C. Hansbury, Parsippany, submitted a letter in lieu of brief on behalf of respondent Tp. of Denville relying on the brief submitted by the Council on Affordable Housing.
Gabriel H. Halpern, Newark, submitted a letter in lieu of brief on behalf of respondent Borough of Roseland (Fox and Fox, attys.).
Richard J. Clemack, Butler, submitted a letter in lieu of brief on behalf of respondent Borough of Bloomingdale relying on the brief submitted by the Council on Affordable Housing (D'Angelo & Clemack, attys.).
John M. Payne, Newark, submitted a brief on behalf of amici curiae American Civil Liberties Union of N.J. and Civic League of Greater New Brunswick.
Stephen Eisdorfer, Asst. Deputy Public Advocate, for appellants, Morris County Fair Housing Council, Morris County Branch of the NAACP, and Public Advocate of N.J. (Zulima V. Farber, Public Advocate, atty.).
The opinion of the Court was delivered by
These appeals concern the validity of a regulation adopted by the Council on Affordable Housing (COAH) authorizing municipalities that seek substantive certification of regional fair-share plans for low- and moderate-income housing to make available an occupancy preference for fifty percent of such housing to income-eligible households that reside or work in the municipality.
Pursuant to N.J.S.A. 52:27D-314 of the Fair Housing Act (L. 1985, c. 222), COAH granted substantive certification to the housing-element and fair-share plans filed by the Townships of Denville, Hillsborough, Holmdel, and Warren, and the Boroughs of Bloomingdale and Roseland. The Public Advocate of New Jersey (Public Advocate) appealed all of COAH's orders, and the Appellate Division affirmed the grant of substantive certification to each of the six municipalities. Three of the Appellate Division decisions are reported: In re Petition for Substantive Certification Filed by the Township of Warren, 247 N.J.Super. 146, 588 A.2d 1227 (1991); In re Petition for Substantive Certification Filed by the Township of Denville, 247 N.J.Super. 186, 588 A.2d 1248 (1991); In re Petition for Substantive Certification Filed by the Borough of Roseland, 247 N.J.Super. 203, 588 A.2d 1256 (1991). In each of the six appeals, Judge Shebell dissented from that portion of the court's opinion upholding the validity of the fifty-percent-occupancy preference, which had been incorporated in each of the municipality's fair-share plans in accordance with COAH's authorizing regulation, N.J.A.C. 5:92-15.1. In all six cases the Public Advocate appeals to this Court as of right, Rule 2:2-1, as do the Morris County Fair Housing Council and the Morris County branch of the NAACP but only in respect of In re Township of Denville, supra, 247 N.J.Super. 186, 588 A.2d 1248.
The six municipal parties to this appeal had been defendants in actions instituted in the Law Division, prior to adoption of the Fair Housing Act, N.J.S.A. 52:27D-301 to -329, in which their zoning ordinances were challenged as violative of the Mount Laurel doctrine for their failure to provide a reasonable opportunity for the construction of housing affordable to lower-income households. See Southern Burlington County NAACP v. Township of Mount Laurel, 67 N.J. 151, 336 A.2d 713 (Mount Laurel I), appeal dismissed and cert. denied, 423 U.S. 808, 96 S.Ct. 18, 46 L.Ed.2d 28 (1975), and 92 N.J. 158, 456 A.2d 390 (1983) (Mount Laurel II). After adoption of the Fair Housing Act, the cases were transferred to COAH pursuant to N.J.S.A. 52:27D-316, and the municipalities filed housing elements and fair-share housing plans with COAH. See N.J.S.A. 52:27D-310, 311. The municipalities' requests to transfer the litigation to COAH from the Law Division were treated by COAH as equivalent to petitions for substantive certification. See Hills Dev. Co. v. Township of Bernards, 103 N.J. 1, 38 n. 10, 510 A.2d 621 (1986). The Public Advocate and other parties filed objections to the municipal plans. 1 With respect to each of the six municipalities, the Public Advocate objected to the fifty-percent-occupancy preference for residents and workers, emphasizing that the percentage of minority residents in each of the municipalities was substantially smaller than the percentage of minority residents in their related housing regions. In support of that assertion, the Public Advocate presented to COAH the following percentage comparisons of minority (African-American and Hispanic) households for each of the municipalities and their respective fair-share regions, based on 1980 census data:
The Public Advocate contended that the occupancy preference constituted a racially-discriminatory standard that perpetuated exclusionary zoning in violation of the New Jersey Constitution, article 1, par. 5; the Fair Housing Act; the federal Fair Housing Act, Title VIII of the Civil Rights Act of 1968, 42 U.S.C.A. §§ 3601-3631 (federal Fair Housing Act or Title VIII); and the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42.
A mediation and review process ensued, see N.J.S.A. 52:27D-315, in the course of which some of the technical objections to the various fair-housing plans were resolved. The mediators uniformly declined to address the challenges to the occupancy preferences, viewing the Public Advocate's position as tantamount to an assertion that COAH's regulation authorizing the occupancy preference was invalid. On the basis that issues that had been submitted to mediation remained unresolved, the Public Advocate requested that the occupancy-preference issue be transferred to the Office of Administrative Law as a contested case. See N.J.S.A. 52:27D-315(c). COAH rejected the Public Advocate's request for an adjudicative hearing, and proceeded to adopt resolutions granting substantive certification to the housing elements and fair-share plans of each of the municipalities. In the course of its deliberations concerning the Holmdel petition, COAH issued an opinion that summarily addressed the various challenges to the validity of the occupancy preference:
To the extent that [the Public Advocate's] concerns [about the occupancy preference] arise out of alleged racial disparities between municipalities, such actions are beyond the Council's mandate as set forth in the Fair Housing Act, and the Council concludes that it is thus an inappropriate forum in which to seek to redress such grievances.
The Appellate Division comprehensively addressed the validity of the occupancy preference only in its Warren Township opinion, supra, 247 N.J.Super. 146, 588 A.2d 1227. The court categorized the Public Advocate's contentions as constituting a facial challenge to the validity of N.J.A.C. 5:92-15.1, the occupancy-preference regulation. Id. at 157, 588 A.2d 1227. That regulation provides:
For all low and moderate income housing units provided in inclusionary developments, municipalities shall establish occupancy such that initially, no more than 50 percent of the units are made available to income eligible households that reside in the municipality or work in the municipality and reside elsewhere.
The Appellate Division acknowledged that COAH had refused the requested referral of the occupancy preference's validity to the Office of Administrative Law, but observed that no adjudicative hearing was required because no material factual data were in dispute. Id. at 159-60, 588 A.2d 1227. The court upheld the validity of the occupancy preference as an appropriate exercise of COAH's rulemaking power under the Fair Housing Act. Id. at 170-74, 588 A.2d 1227. The court rejected the contention that the occupancy preference violated either the federal or state constitutions based on the absence of any allegation that the occupancy preference was intentionally discriminatory. Id. at 175, 588 A.2d 1227. The Appellate Division also concluded that even if the occupancy preference had a disparate racial impact, it would not violate federal or state statutes because it furthered legitimate governmental interests. Id. at 176-77, 588 A.2d 1227. The dissenting member concluded that the occupancy preference violated the constitutionally-protected right to travel, id. at 183-86, 588 A.2d 1227, also noting that the preference lacked statutory authority, id. at 183, 588 A.2d 1227, and "disserv[ed] the purposes of our Mount Laurel holdings." Id. at 186, 588 A.2d 1227.
In its Warren Township opinion, the Appellate Division also addressed and sustained the validity of Regional Contribution Agreements (RCAs), expressly authorized by the Fair Housing Act, N.J.S.A. 52:27D-312a, permitting two municipalities to contract for the transfer by one to the other of up to fifty percent of the transferor's regional fair share of low- and moderate-income housing. The court...
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