On appeal from New Jersey Council on Affordable Housing.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On March 20, 2001, we reversed a final decision of the Council on Affordable Housing (COAH) which had granted substantive certification to Howell Township's"second cycle" affordable housing plan and remanded the matter to COAH for reconsideration in light of factual materials submitted by appellant Elon Associates, L.L.C. In re Township of Howell Petition for Substantive Certification, A-1586-98T2. Although more than three years have elapsed since we issued that opinion, COAH has not yet completed the remand. Elon has filed three new appeals directed at COAH's lengthy delay in completing its review of Howell's revised affordable housing plan.*fn1 Because these appeals rest on the same factual foundation and present related issues, we consolidate them.
In view of the fact that Elon's arguments are based on COAH's delay in completing its review of Howell's revised affordable housing compliance plan, it is necessary to recount the procedural history of this matter in some detail.
In March 1995, Howell filed a petition with COAH for substantive certification of its plan to satisfy its"second cycle" affordable housing obligations,*fn2 which COAH determined to be 1109 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 the contract purchaser, MGD Holdings, HOL, L.L.C. (MGD), proposed to construct a 392 unit housing development that would include 79 affordable units.
After COAH rejected its 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.
Elon, the owner of a forty-eight acre tract of land in Howell on which it proposes to construct a development that would produce seventy-two affordable units, filed a notice of appeal from the COAH resolution granting substantive certification. That appeal challenged COAH's recognition of a 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. Elon 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. Elon's appeal also challenged COAH's denial of its motion to intervene in the proceedings relating to Howell's petition for substantive certification.
We affirmed COAH's denial of Elon's motion to intervene. 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 Elon had submitted to COAH raised serious questions whether the Weiner site affords a realistic opportunity for the construction of affordable housing and that COAH erred in refusing even to consider those materials.
On April 30, 2001, COAH's then Executive Director sent letters to Howell and Elon seeking their views concerning the procedures to be followed on the remand, and both parties responded by the middle of May. On June 11, 2001, the Executive Director sent another letter which requested Howell to provide various documentation and answer questions relating to the suitability of the Weiner site for high-density residential development that includes affordable housing.
On July 3, 2001, MGD sent a letter to COAH, which stated in pertinent part:
Despite the prior assertions made by Elon Associates, my client's site is developable. An application [for site plan approval] was submitted to the Howell Township Planning Board in April, and we are waiting for a hearing date. The application would provide 34 affordable rental units, yielding 68 credits.
The wetlands have been delineated and an L.O.I. was issued on April 18, 2000. Water service from New Jersey American Water Company is available. The developer will be constructing the sewer improvements shown on the plans filed with the Planning Board.
This letter was supported by an engineer's affidavit, which indicated that MGD's proposed development would be served by public water and that MGD would construct all the improvements required to provide access to a public sewer system. Although the record before us does not include any response from Howell to COAH's June 11th letter, Howell apparently relied upon MGD's submission as its response to COAH's inquiries.
On July 6, 2001, the Supreme Court denied Elon's and Howell's petitions for certification of our prior decision. In re Township of Howell Petition for Substantive Certification, 169 N.J. 608.
On August 21, 2001, Elon sent a letter to COAH's Executive Director, which contended that the materials submitted by MGD did not demonstrate that the Weiner site was suitable for a high-density residential development that would include affordable housing units and urged COAH to require Howell to submit a new petition for substantive certification.
On October 30, 2001, Elon sent another letter to COAH's Executive Director, which noted that COAH had not taken any action regarding Howell's affordable housing plan since its June 11th letter and asked for a meeting with COAH. The Executive Director responded by a letter dated November 5, 2001, which indicated that COAH's staff was reviewing information relating to the Weiner site and that COAH needed additional documents from Howell to complete its review.
On February 13, 2002, COAH's staff issued a report, entitled"Site Review in Response to Court Remand Howell Township," which concluded that the Weiner site was"approvable, available, developable and suitable" but that the"availability of sewer is a contested issue of fact necessitating the issue being transferred to the Office of Administrative Law (OAL) for a determination as to the realistic opportunity for sewer service to [the site]."
After receiving comments from Howell, Elon and MGD regarding this report, COAH staff issued a supplemental report, dated April 24, 2002, which concluded that in view of continuing uncertainty concerning the availability of sewer service to the Weiner site, the site"does not provide a realistic opportunity for affordable housing within six years." Based on this conclusion, the supplemental report withdrew the February 13th report's recommendation that the matter be transferred to the OAL and instead recommended that COAH direct Howell to devise a new compliance plan and submit a re-petition for substantive certification. The supplemental report also stated:
[The Weiner site] may remain in the plan only if Howell can demonstrate with clear documentation and timetables that [this site] presents a realistic opportunity for [affordable] units.
On March 22, 2002, during the period between the issuance of the February 11th and April 24th COAH staff reports, Elon moved to intervene in the remand proceedings before COAH and to dismiss Howell's petition for substantive certification. COAH heard oral argument on this motion on June 5, 2002, but did not issue any ruling until the following January.
On September 9, 2002, COAH's staff issued another report, which concluded that the Weiner site was suitable for a high-density residential development that includes affordable housing. This report also noted that an application for site approval was pending before the Howell Planning Board,"the outcome of which will quantify site suitability," and requested ...