Decided: February 29, 1988.
BI-COUNTY DEVELOPMENT CORPORATION, PLAINTIFF,
MAYOR AND COUNCIL OF THE BOROUGH OF OAKLAND, ETC. DEFENDANTS
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This is a Mount Laurel case. See So. Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp., 92 N.J. 158 (1983). On June 30, 1987, a scheduling order was entered which directed defendant, Borough of Oakland, to notify this court whether it intended to file a fair share housing plan with the Council on Affordable Housing (council) and move for a transfer to the council. The order further provided that in the event Oakland determined not to proceed before the council, it should advise the court
whether defendants will dispute the Council's fair share determination for the Borough and, if so, giving a brief outline as to the fair share issue as perceived by defendants including particular aspects of the Council's methodology or numbers generated which are in dispute, being as detailed as the defendants are then able; and, further, if not, stating whether defendants claim full or partial compliance, identifying any zoning which purportedly achieves such compliance.
In response to this order, counsel for Oakland advised the court that it intended to litigate the matter rather than moving for a transfer to the council and that it would accept the council's fair share methodology, "with the exception of the provisions of the reallocated housing formula utilized by the Council on Affordable Housing for region 1 as it applies to Oakland's fair
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share obligation." The parties subsequently agreed by consent order entered on December 30, 1987 to submit the issue of Oakland's fair share obligation for determination on the basis of the reports, resumes and depositions of their respective experts. These documents comprise the entire record before the court.
Pursuant to the Fair Housing Act, N.J.S.A. 52:27D-301 et seq., the council has adopted regulations which prescribe the method for calculating a municipality's fair share obligation. See N.J.A.C. 5:92-2.1 to -8.6. On May 21, 1986 the council issued a document entitled "Municipal Present, Prospective and Pre-Credited Need," which indicates the fair share obligation of each municipality in the State under the methodology set forth in the council's regulations. According to this document, Oakland's fair share obligation is 345 units of low and moderate income housing.
Plaintiff's experts urge this court to follow the fair share methodology adopted by the council, without modification. Oakland's expert, Malcolm Kasler, also urges this court to follow the council's fair share methodology, but with one major modification. Kasler urges that the part of Oakland's fair share consisting of reallocated present need should be phased in over three six-year periods. He contends that a requirement that the entire reallocated present need be satisfied over the next six years would impose an excessive obligation on Oakland and other municipalities in Bergen County.
I conclude that trial courts hearing Mount Laurel cases which have not been transferred to the council should follow the council's fair share methodology, unless that methodology is shown to be arbitrary or capricious. When the Legislature enacted the Fair Housing Act, it envisioned that the council, rather than the courts, would assume primary responsibility for enforcement of the Mount Laurel obligations of New Jersey municipalities. N.J.S.A. 52:27D-302(c) declares that the interests of all citizens "would be best served by a comprehensive
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planning and implementation response to" the Mount Laurel obligation. N.J.S.A. 52:27D-302(d) declares that the "essential ingredients" of such a "comprehensive planning and implementation response" include "the establishment of reasonable fair share housing guidelines and standards." Accordingly, the council has been assigned the responsibility to "[e]stimate the present and prospective need for low and moderate income housing at the State and regional levels," N.J.S.A. 52:27D-307(b), and to "[a]dopt criteria and guidelines for . . . [m]unicipal determination of its present and prospective fair share of the housing need in a given region," N.J.S.A. 52:27D-307(c)(1). The act also contains a variety of inducements for municipalities to submit fair share plans in accordance with the council's criteria and guidelines. See, e.g., N.J.S.A. 52:27D-312, -317, -320, -321.
In Hills Development Co. v. Bernards Tp., 103 N.J. 1 (1986), the Supreme Court described the primary responsibility of the council in determining the extent of municipal fair share obligations as follows:
The Court also made it clear that the trial courts should conform, wherever possible, with the council's determinations:
The council discharged its obligation to adopt criteria and guidelines for determining municipal fair shares by adopting N.J.A.C. 5:92-2.1 to -8.6. These administrative regulations
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are entitled to a presumption of validity and will be set aside only by a showing that they are arbitrary or capricious. Bergen Pines Hospital v. Dept. of Human Services, 96 N.J. 456, 477 (1984). Oakland has failed to make such a showing in this case.*fn1
Oakland argues that under N.J.A.C. 5:92-5.4, 37.4% of all the reallocated present need in the State is reallocated to Bergen County, that this reallocation is excessive, and that the only way Oakland and other Bergen County municipalities can be relieved of this excessive burden is by permitting them to satisfy their reallocated present need over 18 rather than 6 years. However, plaintiff's expert, Alan Mallach has convincingly demonstrated that the overall Mount Laurel obligations of Bergen County municipalities are not disproportionate with those of municipalities in other parts of the State. Although the reallocated present need obligations of Bergen County municipalities are relatively high, these obligations are offset by the relatively low prospective need obligations of these municipalities. Indeed, the total "precredited" need allocated to Bergen County municipalities is 5.7% of the existing occupied housing units in the county, which is less than the statewide average.*fn2 Therefore, I conclude that Oakland has failed to establish that the council's regulations for calculating municipal fair share obligations impose an unfair burden upon Oakland.
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Oakland notes that the adjustment in the council's methodology which it seeks is the same as a part of the consensus methodology generally followed by the Mount Laurel judges in determining municipal fair share obligations prior to enactment of the Fair Housing Act. However, the Mount Laurel judges accepted the part of the consensus methodology which permitted reallocated present need to be satisfied over 18 years with hesitation, based on the opinion of the experts who devised the methodology that the total of reallocated present need combined with the total of prospective need could not be satisfied within six years. See AMG Realty Co. v. Warren Tp., 207 N.J. Super. 388, 425 (Law Div.1984).
I find nothing arbitrary or capricious in the council's determination not to permit reallocated present need to be phased in over 18 years. As explained in detail in Mallach's and Hudak's expert reports, the council's fair share methodology generates reallocated present need and prospective need obligations which are substantially smaller than those generated under the consensus methodology. Furthermore, the council's methodology allows credits and adjustments in a municipality's fair share obligation which are not recognized under the consensus methodology. The result is that the total Mount Laurel obligations of New Jersey municipalities under the council's methodology are substantially smaller than under the consensus methodology, even though the latter methodology only includes one-third of reallocated present need in its calculations. Thus, Oakland's fair share obligation under the consensus methodology would be 462 units of lower income housing whereas its obligation under the council's methodology is 345 units. Therefore, the council could reasonably have concluded that the essential rationale for delaying satisfaction of reallocated present need under the consensus methodology -- the difficulty of meeting that obligation over a six year period -- is not applicable to the smaller Mount Laurel obligations generated under its methodology.
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Accordingly, I find no basis for departing from use of the council's methodology in calculating Oakland's fair share obligation.*fn3