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In re Adoption of Amendments to N.J.A.C. 5:93-1.3 and 5:93-5.3

April 10, 2001

IN THE MATTER OF THE ADOPTION OF AMENDMENTS TO N.J.A.C. 5:93-1.3 AND 5:93-5.3 BY THE NEW JERSEY COUNCIL ON AFFORDABLE HOUSING.


Before Judges Newman, Braithwaite and Wells.

The opinion of the court was delivered by: Braithwaite, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 26, 2001

On appeal from Council on Affordable Housing.

Appellants, three housing, planning and environmental advocacy organizations, Affordable Housing Network of New Jersey, Association of New Jersey Environmental Commissions and New Jersey Future, Inc., assert a facial challenge to the constitutionality of amendments to regulations promulgated by respondent, Council on Affordable Housing ("COAH"), the administrative agency created and authorized under the Fair Housing Act, N.J.S.A. 52:27D-301 to -329 ("FHA"), to ensure that municipalities meet their obligation to provide a fair share of their region's need for low and moderate income housing. Hills Dev. Co. v. Bernards Township in Somerset County, 103 N.J. 1, 19-20 (1986). Appellants argue that the COAH amendments to N.J.A.C. 5:93-1.3 and 5:93-5.3(b) violate the "realistic opportunity" Mount Laurel*fn1 standard by allowing COAH to certify a fair share housing plan for sites that do not have in place plans for sewer infrastructure that have been approved by the Department of Environmental Protection ("DEP").

We reject appellants' contentions and affirm the validity of the amended regulations because appellants have not sustained their burden of proving that the regulations are unreasonable or that the language of the regulations is unconstitutionally vague.

I.

On August 18, 1997, COAH published proposed amendments to N.J.A.C. 5:91 and 5:93. 29 N.J. Reg. 3665(a) (August 18, 1997). Appellants, along with four other organizations and one individual, filed comments with COAH on September 17, 1997, in which they objected to the changes to N.J.A.C. 5:93-5.3(b). Those proposed rule changes were not adopted.

On October 19, 1998, COAH published proposed amendments to N.J.A.C. 5:91-7.4 and 5:93-1.3, 4.2, 5.1, 5.2, 5.3, and 6.5. On November 18, 1998, appellants, along with the Upper Raritan Watershed Association, filed comments with COAH, in which they objected to the changes in N.J.A.C. 5:93-1.3 (definition of "developable site") and N.J.A.C. 5:93-5.3(b) (new construction site criteria) for reasons similar to those stated in their 1997 comments. On that same day appellants' attorneys submitted another set of comments on behalf of all of the same parties except for the Affordable Housing Network.

On April 5, 1999, COAH adopted the amendments to N.J.A.C. 5:91-7.4 and N.J.A.C. 5:93-1.3, 4.2, 5.1, 5.2, 5.3, and 6.5 (unchanged from the proposed amendments) and published its summary of the public comments to the proposed changes and the agency's responses. 31 N.J. Reg. 868(a) (April 5, 1999). On May 20, 1999, appellants filed a notice of appeal from COAH's adoption of the amendments to N.J.A.C. 5:93-1.3 and 5:93-5.3(b).

The FHA requires that COAH adopt criteria and guidelines for the municipal determination of its present and prospective fair share of affordable housing need. N.J.S.A. 52:27D-307. COAH enacted the substantive rules in N.J.A.C. 5:93, effective June 6, 1994, and amended them on September 5, 1995, December 6, 1995, May 20, 1996, and January 5, 1998. 30 N.J. Reg. 3719(a) (October 19, 1998).

II.

Before the 1999 amendments were adopted, N.J.A.C. 5:93-1.3 had defined "developable site" to mean:

a site that has access to appropriate water and sewer infrastructure, and has received water consistency approvals from the DEP or its designated agent authorized by law to issue such approvals. [30 N.J. Reg. 3719(a) (October 19, 1998).]

The 1999 amendment, challenged here by appellants, changed the second part of the definition:

"Developable site" means a site that has access to appropriate water and sewer infrastructure, and is consistent with the applicable areawide water quality management plan (including the wastewater management plan) or is included in an amendment to the areawide water quality management plan submitted to and under review by DEP. [30 N.J. Reg. 3719(a) (Oct. 19, 1998); 31 N.J. Reg. 868(a) (April 5, 1999) (emphasis added).]

Before the 1999 amendment was adopted, N.J.A.C. 5:93-5.3(b) had provided:

Municipalities shall designate sites that are available, suitable, developable and approvable, as defined in N.J.A.C. 5:93-1. In reviewing sites, the Council shall give priority to sites where infrastructure is available. All sites designated for low and moderate income housing shall receive approval for consistency review, as set forth in Section 208 of the Clean Water Act, 33 U.S.C. 1251 et seq., prior to substantive certification. Where a site is denied consistency review, the municipality shall apply for an amendment to its Section 208 plan to incorporate the denied site. [30 N.J. Reg. 3719(a) (Oct. 19, 1998).]

The 1999 amendment added the qualifying words "currently or imminently" to modify "available" infrastructure in the second sentence, which discusses which sites will be given priority; made some technical changes in the third sentence; and added a new substantive provision regarding COAH's obligation to "revisit" a site if the DEP denied approval or made no determination at the end of two years. The provision as amended, now challenged by appellants, reads:

Municipalities shall designate sites that are available, suitable, developable and approvable, as defined in N.J.A.C. 5:93-1. In reviewing sites, the Council shall give priority to sites where infrastructure is currently or imminently available. All sites designated for low and moderate income housing shall be consistent with the applicable areawide water quality management plan (including the wastewater management plan) or be included in an amendment application filed prior to the grant of final substantive certification. If there is a denial by DEP or at the end of two years if there is no DEP determination, then COAH shall revisit the site and housing plan to determine if it provides a realistic opportunity. [30 N.J. Reg. 3719(a) (Oct. 19, 1998); 31 N.J. Reg. 868 (April 5, 1999) (emphasis added).]

Appellants' comments on the proposed amendments made the same objections as those presented in this appeal, the chief of which is that the amendments invite municipal delay in complying with fair share obligations by allowing substantive certification of a municipal housing element that relies on inclusionary development sites lacking ...


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