On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket Number BUR-L-3373-01.
Before Judges Petrella, Wefing and
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The Council on Affordable Housing (COAH or Council) has appealed, on leave granted, from an order of the Law Division entered in an action in lieu of prerogative writs challenging adoption of an affordable housing zoning ordinance. The Law Division asserted jurisdiction to determine whether Springfield Township had satisfied its Mt. Laurel*fn1 obligations by its affordable housing compliance plan, which was pending before COAH under the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 et seq.,*fn2 and whether a builder's remedy should be given. As a respondent, Springfield joins in COAH's arguments on this appeal.
COAH and Springfield argue that the Law Division erred in refusing to dismiss claims asserted by the plaintiffs, Sod Farm Associates and SpringCo Development, LLC, regarding Springfield's claimed Mt. Laurel obligations because that issue remained under COAH's exclusive primary jurisdiction by virtue of Springfield's previously pending petition for substantive certification. For the reasons hereinafter stated, we reverse.
Springfield, a rural community with an area of approximately twenty-nine square miles in Burlington County, adopted a Mt. Laurel housing element plan on January 19, 1988, and petitioned for substantive certification on February 8, 1989.*fn3 On October 8, 1992, Springfield received substantive certification from COAH for its first round (1987-1993) obligation of 67 units of affordable housing. N.J.A.C. 5:92-1, et seq. Subsequently, Springfield's second round (1993-1999) obligation was calculated under N.J.A.C. 5:93-1, et seq. as 68 units of affordable housing, 15 units of rehabilitation housing and 53 units of new construction housing.
Springfield submitted its second round housing element and fair share plan to COAH on September 9, 1998, with a petition for substantive certification. No objections to that plan were received in the forty-five day comment period. COAH requested additional information from Springfield on September 10, 1999, and Springfield responded by submitting an amended housing element and fair share plan on December 23, 1999. Publication of a notice of the request for substantive certification was made on December 27, 1999. During the forty-five day comment period, Sod Farm Associates (Sod Farm), which owns and proposes to develop approximately 650 acres of land in Springfield, submitted the only objection. On January 24, 2000, Sod Farm brought a motion before COAH for an accelerated denial of Springfield's amended petition. Springfield filed a cross motion to dismiss Sod Farm's motion. COAH requested Springfield to address certain deficiencies and on April 5, 2000, deferred decision until the statutorily required mediation under N.J.S.A. 52:27D-315 took place later that month.
Springfield had excluded Sod Farm's site as a designated affordable housing location.*fn4 Springfield and Sod Farm commenced COAH mediation on April 14, 2000. Mediation was in effect until December 2000, when it was ended without a resolution. The mediation revealed that Springfield's plan requested 11"accessory apartments," thus requiring a waiver of the 10 unit limit in N.J.A.C. 5:93-5.9(a), which was opposed by Sod Farm and denied by COAH. Sod Farm also unsuccessfully requested that COAH dismiss Springfield from its jurisdiction.
COAH instructed Sod Farm and Springfield to re-engage in mediation. The second round of mediation was to begin in October 2001, when Sod Farm withdrew from the process and again requested that COAH dismiss and remove Springfield from its jurisdiction. COAH allowed Springfield to resubmit its second amended housing element and fair share plan and re-petition to add one additional affordable housing unit to its fair share plan.
In October 2001, Springfield introduced ordinance 2001-7 to eliminate the Planned Residential Development (PRD) zone, previously designated as affordable housing, because it would not receive credit from the Council as it was then proposed. Preapproval of COAH was neither requested nor required. SpringCo Development, LLC (SpringCo), a contract purchaser of a 53.9 acre parcel in Springfield's first round PRD district, objected to COAH on November 1, 2001, because it claimed its land would no longer be included in Springfield's affordable housing package. SpringCo proposed to develop 215 units of housing, 43 of which were purportedly for affordable housing. Because COAH considered that Springfield had proposed"substantial" changes to its fair share plan, it required Springfield on November 5, 2001, to publish notice of its intent to amend within sixty days. See N.J.A.C. 5:91-7.5.
SpringCo had also filed an action in lieu of prerogative writs in the Law Division on November 9, 2001, challenging Ordinance 2001-7, as exclusionary zoning because it eliminated the PRD zone and allegedly made Springfield noncompliant with its 1992 certification. Ordinance 2001-7 was adopted by Springfield on November 13, 2001. Additionally, on that date SpringCo moved to dismiss Springfield from COAH's jurisdiction and joined Sod Farm's January 2000 motion to dismiss the 1999 petition. Sod Farm filed its first Mt. Laurel action in the Law Division on November 15, 2001, alleging exclusionary zoning by Springfield and noncompliance with zoning requirements. On December 28, 2001, Sod Farm filed a second action to challenge Ordinance 2001-7 as exclusionary.
On December 23, 2001, Springfield published a notice of its intent to amend its housing element and fair share plan and filed a new petition and amended plan with COAH on December 31, 2001. Sod Farm and SpringCo objected to this plan and on February 4, 2002 moved before COAH to dismiss the petition.
Plaintiffs' motions to dismiss the December 1999 petition were denied by COAH on March 6, 2002, on the basis that dismissal was not warranted, relying on the State's policy expressed in the FHA to resolve Mt. Laurel disputes through COAH's mediation and review procedures. The Council also recognized the difficulty in achieving a fair share plan because Springfield is a rural community that desired to preserve its farmland. Motions to reconsider by Sod Farm and SpringCo were denied.
Sod Farm served COAH and Springfield with an amended complaint on May 24, 2002, which repeated the allegations of its first complaint. Again, Sod Farm sought a declaration that Springfield's zoning and development regulations were null and void as well as a builder's remedy. On June 5, 2002, COAH formally denied Sod Farm's and SpringCo's motions to dismiss Springfield's 2001 petition for reasons similar to its earlier ruling. On July 1, 2002, Sod Farm and SpringCo sought leave to appeal to this court from COAH's rulings. They also sought a writ of mandamus to compel COAH to release its third round methodology. We denied those applications by order dated August 22, 2002.
While this was occurring, Sod Farm sought to proceed on its complaints in lieu of prerogative writs for a declaration that Springfield's land use regulations were null and void, and for an order requiring COAH, which had been made a party to the suit under N.J.S.A. 52:27D-317, to release its third round methodology for housing.*fn5
The lawsuits were consolidated in the Law Division on July 10, 2002. SpringCo served COAH with an amended complaint on July 25, 2002. It also sought to compel issuance by COAH of a third round methodology and numbers. COAH sought to dismiss all pending court actions and dismiss portions of the actions which asserted Mt. Laurel claims on August 22, 2002, on the ground of its exclusive, primary jurisdiction. See e.g., Hackensack v. Winner, 82 N.J. 1 (1980). Each plaintiff cross-moved to declare the administrative process defunct.
Notwithstanding all of the procedural actions by plaintiffs, the motion judge in an October 23, 2002 oral opinion determined that it was COAH that had been"dragging its feet" because it had not scheduled a mediation proceeding. The judge essentially absolved Springfield from any culpability for delays, but relieved Sod Farm and SpringCo of the obligation to exhaust administrative remedies prior to proceeding with litigation. The judge held that Springfield's ordinance was noncompliant with Mt. Laurel, and invalid as exclusionary and unconstitutional. He appointed a special master to evaluate the suitability of plaintiffs' properties for Mt. Laurel housing. The judge also granted Sod Farm's and SpringCo's subsequent partial summary judgment motions for builder's remedies, in addition to granting their summary judgment motions challenging Ordinance 2001-7. The judge denied COAH's motion to dismiss and the motions for reconsideration filed by COAH and Springfield. We granted COAH's motion for leave to appeal.
COAH and Springfield raise various arguments on this appeal. First, they argue that the motion judge's decision should be reversed because plaintiffs were required to exhaust ...