On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-742-01.
Before Judges Skillman, Coburn and Wells.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329, provides that if a municipality invokes the administrative procedures of the Council on Affordable Housing (COAH) before Mount Laurel*fn1 litigation is instituted, those procedures must be exhausted before a party may pursue such litigation. The FHA also provides that if COAH grants substantive certification approving a municipality's plan for complying with its affordable housing obligations, a party may then pursue Mount Laurel litigation, but there is a strong presumption of validity of the municipality's plan in that litigation. The question presented by this appeal is whether the FHA's requirement of exhaustion of administrative remedies is applicable if COAH's grant of substantive certification is reversed on appeal and the matter is remanded to COAH for reconsideration. We conclude that exhaustion of administrative remedies is required under these circumstances.
In March 1995, defendant Howell Township filed a petition with COAH for substantive certification of its affordable housing compliance plan to satisfy its"second cycle" obligations,*fn2 which COAH determined to be 1109 housing units, of which 690 were satisfied by credits for the actions Howell had taken to satisfy its"first cycle" obligations. One of those credits was for the rezoning of a fifty-eight acre tract in the southern part of Howell, commonly referred to as the Weiner tract, on which a developer proposed to construct a 392-unit housing development that would include 79 affordable units.
After COAH rejected Howell's initial compliance plan, Howell submitted several revisions, and COAH granted conditional substantive certification to a revised plan in April 1998.
After Howell satisfied the conditions of this approval, COAH granted final substantive certification in October 1998.
Plaintiff, the owner of a forty-eight acre tract of land in Howell, which proposes to construct a development that would produce seventy-two affordable housing units, filed a notice of appeal from the COAH resolution granting substantive certification to Howell's compliance plan. This appeal challenged COAH's recognition of the seventy-nine unit credit for the proposed affordable units on the Weiner site, which remained undeveloped even though more than ten years had elapsed since its inclusion in Howell's first cycle plan. Plaintiff contended that the factual materials it presented to COAH showed that this site is encumbered by wetlands and lacks access to water and sewer, and therefore does not present a realistic opportunity for construction of a high-density residential development that includes affordable housing. Plaintiff's appeal also challenged COAH's denial of its motion to intervene in the proceedings relating to Howell's petition for substantive certification.
While plaintiff's appeal was pending, plaintiff filed this Mount Laurel action in the Law Division against Howell, its planning board and COAH, seeking a declaration that Howell's compliance plan and implementing ordinance fail to provide a realistic opportunity for satisfaction of Howell's fair share obligations and the award of a"builder's remedy" compelling the inclusion of plaintiff's property in Howell's compliance plan.
After this action was filed, we affirmed COAH's denial of plaintiff's motion to intervene in an unreported opinion. In re Township of Howell Petition for Substantive Certification, No. A-1586-98T2 (App. Div. March 20, 2001). However, we reversed COAH's substantive certification of Howell's second cycle compliance plan and remanded the matter to COAH. We concluded that the factual materials plaintiff had submitted to COAH raised serious questions as to whether the Weiner site affords a realistic opportunity for the construction of affordable housing and that COAH had erred in refusing even to consider those materials. The Supreme Court denied petitions for certification filed by plaintiff and Howell. 169 N.J. 608 (2001).
COAH subsequently moved to dismiss this action on the ground that under the remand from this court, it has exclusive jurisdiction to consider whether Howell's compliance plan satisfies its second cycle affordable housing obligations. The trial court concluded that completion of proceedings on a municipality's petition for substantive certification is a prerequisite to maintenance of a Mount Laurel action, and therefore our remand to COAH divested the Superior Court of jurisdiction. Accordingly, the court entered an order dismissing plaintiff's complaint, subject to reinstatement upon completion of the remand. The court subsequently denied plaintiff's motion for reconsideration.
The FHA's declaration of legislative purpose expresses a strong preference for use of COAH's administrative procedures to secure compliance with a municipality's affordable housing obligations. N.J.S.A. 52:27D-303 states that"the State's preference for the resolution of existing and future disputes involving exclusionary zoning is the mediation and review process set forth in this act and not litigation[.]" To this end, the FHA confers"primary jurisdiction" upon COAH"for the administration of [affordable] housing obligations in accordance with sound regional planning considerations[.]" N.J.S.A. 52:27D-304(a).
The obligation to exhaust COAH's administrative procedures to secure compliance with municipal affordable housing obligations is particularly strong in a case where a municipality has invoked those procedures before Mount Laurel ...