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In re Petition for Substantive Certification of Borough of Montvale

June 8, 2006


On appeal from Administrative Decision by the New Jersey Council on Affordable Housing, Substantive Certification No. 250-99.

The opinion of the court was delivered by: S.L. Reisner, J.A.D.



Argued May 16, 2006

Before Judges Coburn, Lisa and S.L. Reisner.

Reno Del Ben appeals from a final order of the New Jersey Council on Affordable Housing (COAH) approving the Borough of Montvale's petition for second round substantive certification of its fair share housing plan. We affirm.


We begin by reviewing the regulatory scheme at issue, followed by a review of the most pertinent facts.

The Fair Housing Act, N.J.S.A. 52:27D-301 to -329 (FHA), created COAH to implement the Mount Laurel doctrine.*fn1 Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 513 (2002). The Legislature directed COAH to adopt criteria and guidelines for adjusting a municipality's fair share if there is a lack of vacant and developable land within the municipality. N.J.S.A. 52:27D-307(c)(2)(f). COAH's second-round regulations implemented the Legislature's directive by creating the concept of realistic development potential (RDP). N.J.A.C. 5:93-4.1. See Fair Share Hous. Ctr., Inc. v. Twp. of Cherry Hill, 173 N.J. 393, 412-13 (2002) (summarizing the RDP methodology). Assuming that a municipality's RDP is less than its pre-credited need minus the rehabilitation component, as is the case here, the municipality must include in its fair share plan a method of satisfying its entire fair share should additional land become available. N.J.A.C. 5:93-4.1(b); N.J.A.C. 5:93-4.2. Specifically, a municipality must identify potential sites for development, and a method to generate additional affordable units should those sites become available. N.J.A.C. 5:93-4.2. A municipality is entitled to substantive certification if it devises a fair share plan that meets its RDP and complies with COAH regulations for satisfying its unmet need. See N.J.S.A. 52:27D-314(a).

The Borough was a defendant in an exclusionary zoning suit instituted in 1989. The litigation resulted in a judgment of compliance and order of repose entered by the Law Division on December 16, 1994. The court determined that the Borough's RDP was 146 affordable units, and that its housing element and fair share plan created a realistic opportunity to meet its RDP. The judgment expired on December 15, 2000.

Del Ben owns a forty-five-acre tract that is the largest vacant parcel in the Borough. The judgment of compliance included a thirty-two-acre parcel of Del Ben's land as an inclusionary zoning site that could yield 195 units and thirty-nine affordable units. The remaining thirteen-acre parcel was zoned R-40, single-family residential, in anticipation of its acquisition by the Borough for park land. However, the Borough did not initially pursue acquisition of the thirteen-acre tract.

The Borough's second-cycle cumulative fair share is 255 affordable units, all new construction; the Borough has no indigenous need. In June 2000, the Borough petitioned for substantive certification of its second-round fair share plan. Once again, Del Ben's thirty-two acres were zoned for an inclusionary development that would yield thirty-nine affordable units. There were ten objectors to the fair share plan. Del Ben, who was then not represented by counsel, filed objections contending that all forty-five acres of his property should be zoned at a density of seventeen units per acre. He also alleged that the Borough's zoning ordinance applicable to the thirty-two acres zoned for inclusionary development contained many cost-generating features, such as excessive regulations dealing with setback, yard and bulk requirements, height and length of buildings, maximum lot coverage and buffer and open space areas.

During statutorily-required COAH mediation, all parties agreed that COAH should recalculate the Borough's RDP. In most cases, COAH honors the RDP established in prior court settlements, but in this case the Borough did not acquire certain land for open space, as it had indicated it would do in securing the judgment of compliance.

In May 2001, COAH inspectors evaluated each parcel of vacant land in the Borough and in August 2001, they issued a comprehensive report (RDP report) reevaluating the amount of vacant land in the Borough that could be utilized for affordable housing. COAH included Del Ben's entire forty-five acre tract in calculating the Borough's RDP and concluded that the Borough had an RDP of 187 affordable units, subsequently increased to 188 units. Del Ben retained a professional planner, P. David Zimmerman, who submitted a report opining that the Borough could meet its entire unmet need by rezoning Del Ben's forty-five acres at a density of approximately fourteen units per acre, which would yield a total of 630 units and 126 affordable units. On November 26, 2001, COAH issued a detailed response to comments on the RDP report. COAH responded to Zimmerman's comments by observing that the RDP "report was not directed at unmet need. Discussions concerning the suitability and/or availability of a site to address unmet need may be a topic to discuss during mediation with Montvale."

The COAH mediation continued throughout 2002. COAH's March 17, 2003, mediation report concluded that the Borough must amend its housing element and fair share plan to address its 188-unit RDP and its 67-unit unmet need. The report rejected Del Ben's contention that the ordinance contained cost-generating features. It stated: "Design and bulk standards in this zone are identical to other zones in Montvale that have been successfully developed with affordable housing and would therefore appear not to present any cost-generative impediments." The report indicated that the Borough had agreed to allow Del Ben the option of making a payment in lieu of constructing thirty-nine affordable units. "However, the objector's contention that his site should be zoned to accommodate a density greater than six units per acre is a contested issue of fact. With no resolution to this objection arising during mediation, it is recommended . . . that this objection be transferred" to the OAL.

In June 2003, the Borough submitted a new housing element and fair share plan, which again included Del Ben's thirty-two-acre site in the zone for inclusionary development. Shortly thereafter, the Borough re-petitioned for substantive certification. Again there were several objectors, including Del Ben. In August and September 2003, he reiterated his objections to the fair share plan.

COAH's pre-mediation report of July 21, 2004, concluded that, subject to additional information, the Borough proposed four units more than its 255-unit fair share through zoning for new construction for 211 units that would go toward the Borough's 188-unit RDP, and an additional forty-eight units toward its unmet need. The report summarized Del Ben's objections as follows: (1) his property was suitable for a density of at least fourteen units per acre; (2) his thirteen-acre tract should be zoned for affordable housing; (3) a site designated for overlay zoning (the De Piero site) should not be considered for overlay zoning because the owners had indicated that they intended to farm the property for the next two generations; (4) the ordinance had a number of cost-generating features.

Three mediation sessions were held between July 29, 2004, and August 23, 2004. COAH's November 24, 2004, mediation report summarizes Del Ben's ...

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