On appeal from the New Jersey Council on Affordable Housing.
Judges King, R.s. Cohen and Stern. The opinion of the court was delivered by King, P.J.A.D.
This appeal requires us to interpret the so-called "Fanwood Bill," L. 1989, c. 142; N.J.S.A. 52:270-311.1 and 313.1, effective August 3, 1989. That act amends the Fair Housing Act, N.J.S.A. 52:27D-301 to -329, by prohibiting the Council on Affordable Housing (COAH) from requiring municipalities seeking substantive certification to consider as available for affordable housing sites already improved with sound residential structures. The act was adopted shortly after COAH ordered the Borough of Fanwood to consider as available small parcels of land owned by developers which were improved with existing sound residential dwellings but which the developers intended to demolish in order to erect high-density multi-family
housing, some of which would be affordable by low and moderate income people.
In the case before us Paramus, formerly a defendant in an exclusionary zoning suit, sought substantive certification of a plan which called for the demolition of between six and 11 residential structures to make room for a 274-unit low and moderate income housing project. Paramus entered into an agreement with Westland, the owner of the property and also of an adjacent shopping center, to amend the zoning ordinance to permit more intensive commercial development of the shopping center in exchange for land and money from Westland. COAH approved the plan about a year before the "Fanwood Bill" took effect. Appellant Alexander's Department Stores (Alexander's), which owns commercial property adjacent to Westland's, and is apparently a competitor, asked COAH to vacate the grant of substantive certification on the ground that the "Fanwood Bill" prohibited the removal of the residential structures on the Westland property.
COAH had granted Paramus' petition for substantive certification on September 6, 1988. The "Fanwood Bill" had become effective on August 3, 1989. Appellant Alexander's had filed its motion with COAH on September 5, 1989 requesting that COAH vacate substantive certification.*fn1 COAH denied appellant's motion in a written opinion dated December 11, 1989.
COAH ruled that the "Fanwood Bill" did not apply because Paramus itself had selected the Westland site voluntarily as particularly suitable for low and moderate income housing. Unlike the situation in Fanwood, COAH had never ordered Paramus to consider the Westland site as available for construction of low and moderate income housing. We agree with COAH and affirm.
This is the factual background. In 1976 a builder brought an exclusionary zoning suit against Paramus which prevailed in the Law Division. However, we remanded for reconsideration in light of Mt. Laurel II (Southern Burlington Co. N.A.A.C.P. v. Mount Laurel Tp., 92 N.J. 158 (1983)). In 1985 a Law Division judge decided that the Borough's ordinance was exclusionary and appointed a master to assist in devising a suitable remedy. Finding sites for low and moderate income housing proved to be a difficult task because Paramus was almost totally, and rather intensively, developed. Of the 595 acres involved the master identified as capable of Mt. Laurel -type development, 44 to 46 belonged to respondent Westland, and were located immediately adjacent to the Garden State Plaza Shopping Center, also owned by Westland. At this point, Westland claimed that it had no intention of developing this land for housing and that most of its property was inappropriate for residential use.
The Superior Court exclusionary zoning litigation then was transferred to COAH on September 2, 1986. In February 1987 Paramus submitted its initial housing element and fair-share plan. The fair-share plan sought to avoid inclusionary developments, under which a developer would erect four market-rate units to subsidize one Mt. Laurel unit, because the municipality was intensively developed with single-family homes on small lots and had an unusual concentration of commercial, office and industrial uses, all of which caused severe traffic congestion. Instead, Paramus opted to satisfy its fair share as much as possible through developer subsidies in exchange for zoning concessions, which would generate the funds to erect projects of exclusively low and moderate income housing.
A key component of Paramus' plan was the construction of a 274-unit low and moderate income housing project on about 13 acres of land adjacent to the Garden State Plaza, sometimes referred to as the Arcola Avenue site. Westland owns between
eight and 11 of these 13 acres. Apparently, the remaining land had been dedicated to the Borough for the development of streets. The Westland property contains six single-family dwellings on lots of less than one acre. Only three of the six are occupied. There was some question before COAH as to how many of these dwellings actually were habitable. The six ...