On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. MON-L-742-01 and MON-L-5032-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Yannotti.
These consolidated appeals are part of continuing litigation between a developer, Elon Associates (Elon), and the Township of Howell (Township), arising from the Township's efforts to secure second cycle substantive certification from the Council on Affordable Housing (COAH).*fn1 We have addressed aspects of this controversy on four previous occasions, resulting in two published and two unpublished opinions. After we reversed COAH's grant of second cycle substantive certification to the Township, the matter is once again pending before COAH.
In these appeals, Elon challenges two orders entered in the Law Division: an order entered on January 21, 2005, denying Elon's motion to reinstate an exclusionary zoning complaint originally filed in 2001; and an order entered on May 13, 2005, refusing to award Elon a builder's remedy in an action in lieu of prerogative writs. The Township appeals from an order entered on June 10, 2005 denying the Township's motion to strike portions of the May 13, 2005 order.
Elon's arguments are based on the premise that exclusionary zoning litigation brought pursuant to the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329, should be tried under the facts and law as they existed at the time the case was filed, not as they exist following COAH review. Because Elon presents no legal support for its argument and because Elon's position runs contrary to the purposes of the FHA, we reject Elon's arguments and affirm the order of January 21, 2005. We affirm the order of May 13, 2005, except for Paragraph 3, which we reverse and vacate. The June 10, 2005 order is reversed and vacated.
In October 1989, COAH granted substantive certification for a compliance plan that provided the Township with protection from exclusionary zoning litigation from 1989 to 1995. In re Twp. of Howell Petition for Substantive Certification, No. A-1586-98 (App. Div. March 20, 2001) (slip op. at 2), certif. denied, 169 N.J. 608 (2001). The plan required the re-zoning of several sites in the Township for inclusionary development, including a fifty-eight-acre tract commonly known as the Weiner site. Ibid. In June 1989, the Township Planning Board "granted subdivision and preliminary site plan approval for a" development on the Weiner site that was to include seventy-nine affordable housing units. Ibid.
In February or March 1995, the Township petitioned COAH for second cycle substantive certification. Ibid. The second cycle compliance plan included credits for the seventy-nine proposed, but not yet built, affordable housing units on the Weiner site. Id. at 2-3. The Township subsequently submitted several plan revisions, but none altered the development slated for the Weiner site. Id. at 3. On April 3, 1998, Elon filed a motion to intervene in the COAH proceedings, accompanied by supporting documents that cast doubt on the feasibility of the Weiner development. Ibid. On May 6, 1998, COAH denied Elon's motion to intervene and granted the Township conditional second cycle substantive certification. Id. at 5.
On October 7, 1998, COAH adopted a resolution granting final substantive certification to the Township's compliance plan. Ibid. Elon appealed COAH's decision, arguing that COAH abused its discretion in denying the motion to intervene and acted arbitrarily and capriciously in concluding that the Weiner site was suitable for the development of affordable housing. Id. at 5-6.
On February 13, 2001, while its appeal was still pending, Elon filed a complaint, MON-L-742-01, in the Law Division, alleging that the Township's second cycle plan did not create a realistic opportunity for the provision of affordable housing contrary to N.J.S.A. 52:27D-317. The complaint asserted that the Weiner site was constrained by wetlands and lack of sewer infrastructure, in contrast to the Elon property which was immediately available and approvable for inclusionary development. Elon sought to void COAH's grant of substantive certification and demanded a builder's remedy "in the form of site specific relief" that re-zoned its property "to allow for a 240 unit inclusionary development with a [twenty percent affordable housing] set aside."
On March 20, 2001, we reversed COAH's grant of substantive certification, finding that "the factual materials Elon submitted in support of its motion raise[d] serious questions as to whether Howell's plan complies with COAH's regulations and provides a realistic opportunity for satisfaction of Howell's affordable housing obligation." Twp. of Howell, supra, slip op. at 6. We remanded the case to COAH for further consideration. Ibid.
In response to the remand, COAH requested additional information from the Township concerning the suitability of the Weiner site for high-density residential development. In re March 22, 2002 Motion to Dismiss and Intervene in the Petition of Howell Twp., 371 N.J. Super. 167, 172 (App. Div.), certif. denied, 182 N.J. 140 (2004). While the additional materials were under review, Elon moved to intervene in the proceedings before COAH and to dismiss the Township's petition for substantive certification. Id. at 174.
On January 8, 2003, "COAH adopted an order that required [the Township] to amend its compliance plan and re-petition for substantive certification." Id. at 175. The order also denied Elon's motions to intervene and to dismiss the Township's petition. Ibid. On January 31, 2003, the Township "filed a repetition for substantive certification that deleted the Weiner site from its compliance plan." Ibid.
On February 6, 2003, Elon filed an appeal addressing COAH's delay in completing its review on remand. Ibid. Shortly thereafter, Elon "filed a motion for summary disposition" seeking an order requiring COAH to issue an opinion within thirty days or, alternatively, terminating COAH's jurisdiction and transferring the matter back to the Law Division. Id. at 175-76. We denied the motion on April 2, 2003. Id. at 176. For the next several months, COAH failed to take any action regarding the Township's re-petition for substantive certification. Ibid.
On July 14, 2004, we affirmed COAH's denial of Elon's motions to intervene and to dismiss the Township's petition. Ibid. We also denied Elon's request to terminate the proceedings before COAH and its claim for site-specific relief. Id. at 177. We agreed with Elon, however, that "there ha[d] been an unjustifiable delay [in the] proceedings on remand" and ordered COAH to complete the proceedings in accordance with a fixed time schedule. Ibid.
Meanwhile, shortly after the Township's petition was remanded to COAH, COAH moved in the Law Division to dismiss the complaint in MON-L-742-01 on the ground that COAH had "exclusive jurisdiction to consider whether the Township's plan satisfi[ed] its second cycle affordable housing obligations." Elon Assocs., L.L.C. v. Twp. of Howell, 370 N.J. Super. 475, 480 (App. Div.), certif. denied, 182 N.J. 140 (2004).
On July 24, 2002, the Law Division heard arguments on the motion and dismissed the complaint on procedural grounds. Analogizing the matter to proceedings that occur in bankruptcy cases, the court stated that it would allow for reinstatement of the complaint without penalty if "there are still issues that need to be litigated" after COAH issued a final decision. When Elon's counsel asked whether reinstatement would be on the basis of facts as they existed on February 13, 2001, the court replied:
I thought about trying to . . . craft all sorts of language. And the simple answer is there's no way to craft the language. The best way and the way that I am going to do it is what I said, without penalty. Because none of us can foresee what the future is going to bring. And I think if that were the situation . . . without penalty, means just that, without penalty. It will be back. And that's the way we treat the bankruptcy cases. You'll be back just as if whatever happened hadn't happened without any penalty.
The court entered an order on July 24, 2002, dismissing the complaint in MON-L-742-01 "subject to re-instatement without penalty at the conclusion of the COAH proceedings." The judge subsequently denied Elon's motion for reconsideration. Elon Assocs., supra, 370 N.J. Super. at 480. Elon appealed from this dismissal of its complaint. Ibid.
On July 1, 2004, we affirmed the dismissal, reasoning that "nothing in the language of the FHA or its underlying policies . . . would support the conclusion that its exhaustion of administrative remedies requirements are inapplicable when a petition for substantive certification is remanded to COAH for reconsideration or revision." Id. at 483. Thus, we concluded that "even though [Elon's] action was maintainable as of the date it was filed, our remand to COAH reinstated ...