On appeal from the New Jersey Meadowlands Commission and on transfer from the Superior Court of New Jersey, Law Division, Bergen County, L-14374-04.
The opinion of the court was delivered by: Coburn, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, R.B. Coleman and Gilroy.
These appeals, which we have consolidated for purposes of this opinion, concern the State's constitutional obligation to provide affordable housing pursuant to South Burlington County NAACP v. Township of Mount Laurel, 67 N.J. 151 ("Mount Laurel I"), cert. denied and appeal dismissed, 423 U.S. 808, 96 S.Ct. 18, 46 L.Ed. 2d 28 (1975), and South Burlington County NAACP v. Township of Mount Laurel ("Mount Laurel II"), 92 N.J. 158 (1983). The primary defendants are two State agencies: the New Jersey Meadowlands Commission (the "Commission" or "NJMC") and the New Jersey Sports and Exposition Authority ("the Sports Authority").
In A-4174-03T3, the Fair Share Housing Center ("FSHC") asks that we invalidate the master plan and zoning regulations adopted by the Commission and transfer the case to the Law Division for remedial proceedings to be conducted with the assistance of a Special Master. FSHC argues that we should direct the Law Division to determine the realistic development potential of the Commission's territory, calculate the Commission's fair share of affordable housing, and ensure that the Commission provides realistic opportunities for development of the requisite affordable housing. FSHC also argues that in the meantime we should restrain all development in the Commission's territory, excepting residential projects that have twenty percent set-asides for affordable housing, and enjoin the Commission from "further fiscal zoning and discriminatory conduct."
FSHC's appeal comes to us directly from the Commission. Its primary focus is N.J.A.C. 19:4-3.8, repealed by 39 N.J.R. 548(a) (Feb. 5, 2007), which reads as follows:
The NJMC encourages the development of residential uses in accordance with New Jersey Council on Affordable Housing (COAH) guidelines. The municipality may satisfy its COAH responsibility with any residential development in the District. The NJMC will accept petitions for rezonings from municipalities seeking to rezone land in the District to meet their COAH obligations and processed in accordance with N.J.A.C. 19:3. Applications for variances to allow density increases to meet COAH obligations shall also be considered and processed in accordance with N.J.A.C. 19:4-4.14.
This rule, which currently is the Commission's only zoning provision for affordable housing, has become in effect only an interim regulation.
In A-3107-04T1, the New Jersey Builders Association ("NJBA") asks, among other things, for a judgment declaring that the Commission and the Sports Authority, "through their respective land use regulations, have a constitutional obligation under the Mount Laurel Doctrine to provide realistic housing opportunities to New Jersey's low income and moderate income households." To that end, NJBA argues that we should declare the present regulations of both State agencies unconstitutional; require that they develop remedial plans; and in the meantime, to preserve scarce resources, restrain all development by either agency.
NJBA's lawsuit was filed in the Law Division as an action in lieu of prerogative writs. Included in the lawsuit were claims against two local entities, the Borough of East Rutherford and its Planning Board. Since NJBA's claims against the Sports Authority and the Commission were based on State agency inaction, the trial court properly transferred those claims to us. R. 2:2-3(a)(2); N.J. Civil Serv. Ass'n v. State, 88 N.J. 605, 612 (1982). The East Rutherford defendants were included in the transfer. They now argue that the case against them should have been dismissed by the Law Division because they have no authority to regulate land use in those areas of the meadowlands that are under the jurisdiction of these State agencies.
Although the Commission and the Sports Authority were created over a decade before Mount Laurel II was decided, this appears to be the first occasion on which a party has argued in the appellate courts that the principles and remedies expressed in the Mount Laurel cases apply directly to them.
While acknowledging a duty to assist its constituent municipalities with what it considers to be their Mount Laurel responsibilities, the Commission argued in its initial briefs that it has no direct obligation to zone or plan for affordable housing. But subsequently the Commission acted as if it were in fact obliged to zone and plan for affordable housing. The Sports Authority, on the other hand, contends that it has no Mount Laurel duty. Both agencies seek dismissal of the appeals, ...