On appeal from the Superior Court, Law Division, Bergen County.
King, Long and R.s. Cohen. The opinion of the court was delivered by R.s. Cohen, J.A.D.
Some of the history of Paramus's halting progress toward fulfillment of its Mt. Laurel obligations can be found in Alexander's Department Stores of New Jersey, Inc. v. Borough of Paramus, 243 N.J. Super. 157, 578 A.2d 1241 (App.Div.1990).*fn1 Part of the housing element and fair share plan which received COAH's 1988 substantive certification involved the Westland properties discussed in that opinion. We remanded the Alexander's action to the Law Division; it has proceeded independently of the present litigation.
The other major part of the plan approved by COAH, one we did not consider in Alexander's, located 703 units of affordable housing on the property of two active country clubs, Ridgewood and Arcola. Plaintiff Quad Enterprises objected to the inclusion of the country club land in the plan, and the exclusion of its own 56 vacant acres. Quad offered to build multiple housing that would include significant numbers of affordable units. It sought an OAL hearing on the question whether planning 703 units of affordable housing on the two country club parcels provided a realistic opportunity for its actual construction.
COAH declined to order such a hearing. Quad then commenced a prerogative writ action in the Law Division.
The first count of the complaint alleged that Quad wanted to build affordable housing on its land, but was prevented from doing so by the Paramus zoning ordinance; that Paramus engaged in a pattern of exclusionary zoning, and failed to provide its fair share of affordable housing, and that Quad was therefore entitled to a builder's remedy.
The second count added that Paramus sought COAH substantive certification of a plan to provide affordable housing; that Quad participated in the ensuing COAH mediation process, and objected to the plan proposed by the Borough; that the Borough never seriously considered Quad's objections and offers to build; and that COAH granted certification after denying Quad's demand that the matter be transferred to OAL as a contested matter, as required by N.J.S.A. 52:27D-315c. Quad sought a declaration that COAH's certification of the Borough plan was invalid for lack of an OAL hearing, and again demanded a builder's remedy.
On motions made by Paramus and COAH in the Law Division, the matter was ordered transferred to this court, pursuant to R. 1:13-4(a), and 2:2-3(a)(2), on the thesis that it was really an appeal from an action by COAH, a State agency.
Before us, the parties have addressed the questions (1) whether this action should be here or in the Law Division, (2) whether COAH was required to refer the matter to OAL for a contested case hearing, and (3) whether the amended Paramus zoning ordinance meets the Mt. Laurel test of providing a realistic opportunity for the construction of affordable housing.
The first question, the proper choice of forum in the Superior Court, is a difficult one, because the words of R. 2:2-3(a)(2), relating to appeals to this court of State agency decisions, stand in apparent conflict with N.J.S.A. 52:27D-316 and 317. We briefly examined the legislative scheme in Alexander's, 243 N.J. Super. at 163-164, 578 A.2d 1241. It appears to
permit, at least in some instances, Law Division actions challenging municipal enactments of zoning amendments designed to adopt and ...