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

Decided: June 14, 1990.

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



On appeal from Council on Affordable Housing.

Dreier, Scalera and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.

D'annunzio

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*fn1 and Mount Laurel II.*fn2 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*fn3 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 ...


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