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In re Approval of Amended Second Round Plan

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 7, 2008

IN RE APPROVAL OF AMENDED SECOND ROUND PLAN, REGIONAL CONTRIBUTION AGREEMENT, AND MEDIATION REPORT OF GALLOWAY TOWNSHIP.

On appeal from the New Jersey Council on Affordable Housing, Resolution No. 07-1902.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: May 29, 2008

Before Judges Cuff, Lisa and Lihotz.

In this appeal, we review the final decision of the Council on Affordable Housing (COAH) approving the regional contribution agreement (RCA) between the Township of Galloway (Galloway) and the City of Bridgeton (Bridgeton). We reverse and remand for findings of fact in support of the agency conclusions and approval of this agreement.

On March 23, 2006, the Galloway Planning Board (the Galloway Board) adopted an amendment to its certified plan, and on March 28, 2006, the Galloway governing body adopted a resolution endorsing the plan and requested COAH review and approve the amendment that included an RCA between Galloway and Bridgeton. After review by the New Jersey Housing and Mortgage Finance Agency (HMFA), the Cumberland County Planning Board (Cumberland Board), and COAH staff, COAH adopted two resolutions on October 11, 2006: one approved the amended plan, the other determined that the RCA "is feasible and provides a realistic opportunity for the provision of low- and moderate-income housing." As to the latter resolution, COAH reported that it had reviewed and accepted the recommendations of HMFA and the Cumberland Board. In its appeal from the resolution approving the RCA, Fair Share Housing Center (FSHC) argues that the review by COAH of such agreements fails to provide due process by not articulating standards to guide COAH's review and acceptance of such plans. It seeks a ruling by this court that requires COAH to adopt regulations to guide its review of RCAs. FSHC also contends that the absence of standards frustrates the implementation of the stated purpose of the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329.

In addition, FSHC argues that the RCA, as approved, does not provide a realistic opportunity for the provision of affordable housing, it is inconsistent with sound, comprehensive regional planning, and the receiving town is not convenient to employment opportunities due to its high rate of job loss and unemployment. Finally, FSHC contends that the regulations do not comply with the FHA because they do not require consideration of an alternative within the town as required by N.J.S.A. 52:27D-311c and -312a.

The background of the Galloway affordable housing plan, its amendment, and the RCA at issue provides context to our consideration of this appeal. Galloway encompasses ninety-six square miles in the northeast section of Atlantic County near the border of Ocean County. It is located a few miles to the west across a bay from Atlantic City and Brigantine. The Garden State Parkway divides the township almost in half. The western half is under the jurisdiction of the Pinelands Commission, which designated Galloway as "one of three [regional] growth municipalities in Atlantic County." The eastern half is under the jurisdiction of the State Planning Commission and is subject to the State Development and Redevelopment Plan and the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -21.

The State Planning Commission designated three centers in Galloway. One of those centers, the Smithville Town Center, contained the Smithville Planned Unit Development (Smithville PUD or PUD). Construction of the PUD began in 1980, and 6732 units and retail uses were preliminarily approved. A 1979 CAFRA permit required sixty-one units to be set aside in the PUD for low- or moderate-income households.

Over the years, the Smithville PUD was reduced to 4857 proposed units. By 1996, with many of the units still unbuilt, respondent K. Hovnanian at Smithville, Inc. (Hovnanian) took over construction, agreeing to build only 2400 new units with a minimum of thirty percent, or 720 homes, designated as age-restricted units. Thus, the PUD was reduced to 3942 proposed units.

By January 2004, Hovnanian had constructed only 842 new units, of which 793 were age-restricted, single-family homes. The sixty-one-unit CAFRA obligation still remained. Although it had the right to build 1558 more units, Hovnanian only had approvals to build 1500 units, and 600 units had yet to be constructed. Thus, the total of the PUD would be 3100 units.

On December 15, 2004, Galloway received second round substantive certification from COAH of its 2000 housing element and fair share plan. The plan satisfied Galloway's cumulative 1987-1999 affordable housing obligation of 409 units, comprised of 328 units of new construction and eighty-one rehabilitation units. After credits and reductions were taken into account, the plan resulted in a surplus of eleven units and an excess of eighteen age-restricted units, all of which could be carried forward to satisfy any future affordable housing obligation. Galloway's plan also included the sixty-one affordable units in the Smithville PUD, and it specified that those units would be zoned as family rental units.

On March 23, 2006, the Galloway Board adopted an amendment to its certified plan, proposing to replace the sixty-one affordable rental units in the Smithville PUD with a sixty-one-unit RCA with Bridgeton.*fn1 Galloway proposed to pay Bridgeton $35,000 per unit, totaling $2.135 million for housing rehabilitation activities in Bridgeton.

The Galloway Board explained that rental units at the Smithville PUD were "not necessary," because Galloway's certified plan had exceeded its rental obligation with group homes and age-restricted rentals. It asserted that "rental units were never obligated to be provided on this site," and it declared that "[t]he RCA units [would] not be replaced by market rate units" at the PUD. The Board also reported that since the Smithville PUD was "under the jurisdiction of CAFRA, a letter was sought from and provided by CAFRA that permit[ted] the meeting of the affordable housing obligation [on that site] with an RCA." In a letter dated September 30, 2004, the New Jersey Department of Environmental Protection indicated that it would recognize the RCA as satisfaction of its original CAFRA-permit condition.

Nevertheless, the proposed RCA would result in a four-unit shortfall in Galloway's obligation of age-restricted units. The Galloway Board proposed to replace that shortfall with four Habitat for Humanity homes. It reported that Galloway had already donated two lots to the charity and construction was "almost complete," and it would donate two additional township-owned lots.

On March 28, 2006, Galloway's governing body endorsed the amendment, including the RCA, and sent it to COAH for review and approval. Meanwhile, Bridgeton's governing body also endorsed the RCA and forwarded it and its own project plan to HMFA, to the Cumberland Board, and to COAH for their review and approval.

Bridgeton had proposed a sixty-one-unit scattered site rehabilitation program to provide a zero percent deferred payment loan to sixty-one low- and moderate-income households to rehabilitate substandard one-to-four family housing structures; that is, owner- or renter-occupied units requiring replacement of at least one major system costing about $12,000 and having an average total rehabilitation cost of $29,750. If additional funds were required to complete a unit, Bridgeton "will be required to provide the additional funding."

In September 2005, HMFA recommended that COAH approve the RCA and Bridgeton's project plan subject to three conditions:

1. Annual submission to HMFA of documentation acceptable to HMFA staff evidencing that there exists sufficient number of eligible applicants, project, and/or units to demonstrate continued project plan feasibility.

2. Any change in the project plan subsequent to this feasibility approval must be reviewed by the Executive Director of the HMFA, when requested by COAH, to determine if a new feasibility analysis is required.

3. The receiving municipality's submission of their municipal audit showing the disbursement of RCA funds, signed by the Mayor of the municipality, to HMFA and COAH on an annual basis.

In its project plan report, the HMFA stated that: (1) the community development consultant selected to administer Bridgeton's RCA program was administering other RCAs and would work "in conjunction with [Bridgeton]'s Building Code and Finance Departments"; (2) the "work write-ups" submitted with the application "meet program requirements"; and (3) Bridgeton had complied with COAH's requirement that fifty-percent "of the units are affordable to low-income households" and "ha[d] agreed to impose all applicable rules regarding affordability controls."

Also that month, the Cumberland Board adopted a resolution recommending that COAH approve the RCA. In addition to the proposed RCA and Bridgeton's proposed project plan, the Cumberland Board and its staff "examined the Master Plan and Zoning Ordinances of the City of Bridgeton, Plans of the County of Cumberland including the Lower Cohansey River Basin Wastewater Management Plan, and the State Development and Redevelopment Plans," and "found" the RCA "to promote and be in accordance with sound, comprehensive regional planning."

COAH received Galloway's proposed amendment, including a draft RCA, in April 2006. In May 2006, during COAH's objection period, FSHC filed its objections to Galloway's amendment, and requested that the matter be transferred to the Office of Administrative Law (OAL) for its review. In addition, by letter to COAH dated May 22, 2006, Bridgeton's mayor said that "[t]he majority" of the city's residents who met the income requirements to participate in the RCA's rehabilitation project were "employed in the City and surrounding area." He explained:

It is anticipated that the homes to be rehabilitated will not only meet the income requirements as stipulated by COAH but, in many instances, will fall below COAH's minimum thresholds. Census data reveals that 26% of the City's population has income below poverty level and 18% has income of less than 75% of the median.

And he declared that Bridgeton's intention in entering the RCA and securing the resultant funding was to assist these hard-working residents address the cost for needed rehabilitation of critical components, including roofs, heaters, windows, and related code violations that are due largely to the fact that their income status has required them to defer maintenance beyond reasonable limits.

The City's goal is to stabilize and maintain its existing housing inventory so that it can continue to serve as a viable housing resource for the labor force, most of whom have jobs in the City or the immediate surrounding area. Many of these residents are employed by . . . major employers . . . in addition to the plethora of small business in Bridgeton and environs. There are an estimated 2,385 properties (approximately 27% of the City's housing inventory) that have demonstrated need for substantial improvements. Failure to provide rehabilitation assistance would result in the loss of this critical resource, thus negatively impacting on accessible (in close proximity to jobs), affordable housing to support existing employment and future employment opportunities.

COAH conducted mediation in August 2006.

On August 24, 2006, COAH issued its mediation report:

(1) summarizing appellant's objections and Galloway's and COAH's responses, including Galloway's agreement to use the New Jersey Housing Resource Center website as part of its affirmative marketing plan, and (2) denying transfer of the matter to the OAL because there were no contested issues of material fact that necessitated such transfer.

In September 2006, FSHC filed its objections to the mediation report with COAH. Its "primary objection" was to COAH's finding "that there were no contested issues of material fact." It also objected to Galloway's failure to demonstrate alternatives to the RCA in its housing element, pursuant to N.J.S.A. 52:27D-311c, to COAH's "rubberstamping" the RCA, and to Hovnanian's avoidance of build[ing] the units in Galloway, where the schools are good, the streets are safe, the air is clean and jobs are plentiful . . . by paying Bridgeton, a town that is already distressed due to poverty concentration, to accept the obligation, which likely would result in units being rehabilitated but no new units being built.

By motion on September 13, 2006, COAH accepted the mediation report.

Thereafter, on September 20, 2006, Sarah Murphy, an assistant planner for COAH, issued a compliance report, reviewing Galloway's proposed amendment to its certified plan and recommending its approval "pending approval of the 61-unit RCA." In the report, COAH's staff reviewed Galloway's RCA and age-restricted-unit maximums, rental obligation, affirmative marketing plan, and mediation, finding: (1) the RCA was within the limits permitted by the FHA and COAH's regulations; (2) the RCA reduced the number of age-restricted units permitted in Galloway's amended plan; (3) Galloway would meet the shortfall created by the RCA with Habitat for Humanity units; and (4) Galloway had revised its affirmative marketing plan to include the Housing Resource Center as an additional advertising resource.

On October 2, 2006, Eileen Brennen of COAH, issued an executive summary and a "separate" report reviewing the RCA itself and recommending its approval. The report declared that the Cumberland Board had found that "[t]he proposed affordable housing is conveniently located relative to public transit and employment opportunities."

After reiterating the HMFA and the Cumberland Board recommendations, the report stated:

VI. COAH REVIEW

COAH staff reviewed the RCA contract, the project plan and the recommendations from HMFA and the Cumberland County Planning Board. In accordance with N.J.S.A. 52:27D-312(c), COAH staff has determined that:

1. The RCA provides a realistic opportunity for the provision of low- and moderate-income housing, as supported by HMFA's feasibility analysis and recommendation of approval; and

2. The agreement is consistent with sound comprehensive regional planning, as confirmed by the review and recommendation for approval by the Cumberland County Planning Board.

VII. RECOMMENDATION

Based upon the reviews of HMFA, the Cumberland County Planning Board, and COAH, it is concluded that the 61-unit RCA between Galloway and Bridgeton is in accordance with sound comprehensive regional planning and is a feasible and viable means of providing realistic opportunities for the creation of low- and moderate-income housing in the region.

The 61-unit RCA between Galloway Township and Bridgeton City is recommended for approval to the [COAH] Board.

In October 2006, FSHC presented to COAH its objections to these reports, and it raised the same substantive and procedural complaints to the RCA and Galloway's plan amendment as it had made previously.

By unanimous vote at its meeting on October 11, 2006, and by separate resolutions on that same day, COAH approved both the amendment to Galloway's certified second round plan and the RCA. The RCA resolution recited the general terms of the proposed RCA, described the review process, accepted the recommendation of HMFA and the Cumberland Board, and declared "that COAH has determined that the RCA is feasible and provides a realistic opportunity for the provision of low- and moderate-income housing."

FSHC contends that COAH regulations are facially invalid and have no ascertainable standards to implement the FHA's RCA statute. N.J.S.A. 52:27D-312c of the FHA provides:

Regional contribution agreements shall be approved by the council, after review by the county planning board or agency of the county in which the receiving municipality is located. The council shall determine whether or not the agreement provides a realistic opportunity for the provision of low and moderate income housing within convenient access to employment opportunities. The council shall refer the agreement to the county planning board or agency which shall review whether or not the transfer agreement is in accordance with sound, comprehensive regional planning. In its review, the county planning board or agency shall consider the master plan and zoning ordinance of the sending and receiving municipalities, its own county master plan, and the State development and redevelopment plan. In the event that there is no county planning board or agency in the county in which the receiving municipality is located, the council shall also determine whether or not the agreement is in accordance with sound, comprehensive regional planning. After it has been determined that the agreement provides a realistic opportunity for low and moderate income housing within convenient access to employment opportunities, and that the agreement is consistent with sound, comprehensive regional planning, the council shall approve the regional contribution agreement by resolution. All determinations of a county planning board or agency shall be in writing and shall be made within such time limits as the council may prescribe, beyond which the council shall make those determinations and no fee shall be paid to the county planning board or agency pursuant to this subsection.

In In re Petition for Substantive Certification filed by Township of Warren, 247 N.J. Super. 146, 162-70 (App Div. 1991), rev'd on other grounds, 132 N.J. 1 (1993), this court sustained the validity of RCAs, concluding that those agreements violated neither the Mount Laurel*fn2 doctrine nor constitutional and statutory prohibitions against racial discrimination. Recently, in In re Adoption of N.J.A.C. 5:94 and 5:95 by the New Jersey Council on Affordable Housing, 390 N.J. Super. 1, 80-81 (App. Div.), certif. denied, 192 N.J. 71-72 (2007), we refused to invalidate the third-round RCA provisions, declaring that "a challenge to the facial validity of the third round rules is a poor vehicle" for reviewing COAH's implementation and administration of the FH." We declared: "If, as Fair Share contends, COAH has been erroneously approving or failing to adequately supervise RCAs, then it is incumbent upon Fair Share to identify the RCAs that have been improperly approved or inadequately monitored or enforced." Ibid.*fn3

Specifically, FSHC objects to the repeated use without definition of certain FHA terms of art in COAH's RCA procedural regulations: (1) a realistic opportunity for low- and moderate-income housing; (2) convenient to employment opportunities; and (3) consistent with sound, comprehensive regional planning. It argues that these regulations were required to "give content" to the legislative objectives. Szabo v. N.J. State Firemen's Ass'n, 230 N.J. Super. 265, 289 (Ch. Div. 1988).

The Galloway-Bridgeton RCA is governed by the second-round RCA substantive rules at N.J.A.C. 5:93-6.1 to -6.6. Review and monitoring such agreements requires submission of periodic reports and satisfaction of the general goals of the FHA. N.J.A.C. 5:95-11.6, -11.7.*fn4

The procedural regulation for approval of RCAs has varied little over the years. N.J.A.C. 5:91-11.65(a), which is nearly identical to both the third round and the revised third round rules on for the approval of RCAs, states:

The Council shall approve an RCA upon finding that:

1. The agreement provides a realistic opportunity for low and moderate income housing within convenient access to employment opportunities;

2. The agreement is consistent with sound comprehensive regional planning; and

3. The receiving municipality's project plan is a feasible means of achieving the purposes of the agreement, as determined by the Agency. If the receiving municipality has been granted RCA recipient certification by the Council, such feasibility is established by N.J.A.C. 5:91-11.4.

Consequently, FSHC asks this court to force COAH to adopt regulations that guide its RCA approval process by specifically defining, and not merely mirroring, the required legislative standards to allow both the regulated municipalities and the general public to better understand its process of RCA review.

"The FHA vests [COAH] with 'primary jurisdiction [over] the administration of housing obligations,'" Holmdel Builders Ass'n v. Twp. of Holmdel, 121 N.J. 550, 577 (1990) (quoting N.J.S.A. 52:27D-304(a)), and COAH's power "'is extremely broad.'" Ibid. (quoting Hills Dev. Co. v. Twp. of Bernards, 103 N.J. 1, 32 (1986)). "The breadth of the legislative mandate and the statutory standards creating COAH's regulatory authority comport with the complexity and sensitivity of the subject of affordable housing." Ibid. "It cannot be overstressed that the Legislature, through the FHA, intended to leave the specific methods of compliance with Mt. Laurel in the hands of COAH and the municipalities, charging COAH with the singular responsibility for implementing the statute and developing the state's regulatory policy for affordable housing." Id. at 576.

Nevertheless, regulations, particularly those governing an agency's discretionary decisions, must adequately articulate relevant standards and principles both to inform the public and guide the agency. Lower Main St. Assocs. v. N.J. Hous. & Mortgage Fin. Agency, 114 N.J. 226, 235 (1989). A court will invalidate the actions of administrative agencies "when there [is] a significant failure to provide either statutory or regulatory standards that would inform the public and guide the agency in discharging its authorized function." Ibid. Thus, regulations may be struck down if they contain no "clear or objectively ascertainable standard." In re Dykas, 261 N.J. Super. 626, 630 (App. Div. 1993).

In In re Crown/Vista Energy Project, 279 N.J. Super. 74, 84 (App. Div.), certif. denied, 140 N.J. 277 (1995), this court declared that, "where a regulation does provide some standards or criteria, a substantial degree of discretion allows the agency the flexibility to deal with the varying circumstances." Thus, in those cases where some regulatory standards are provided, our courts have found that the regulations must only be "sufficiently definite to inform those subject to them as to what is required." In re Review of Admin. Promulgation of Health Care Admin. Bd., 83 N.J. 67, 82, appeal dismissed and cert. denied, 449 U.S. 944, 101 S.Ct. 342, 66 L.Ed. 2d 208 (1980).

We hold that the standards articulated in the FHA and repeated in COAH's regulations are neither so imprecise nor so vague as to offend due process; rather, they are sufficiently informative to instruct concerned parties and the public about the requirements of an RCA, while at the same time, guiding the agency's review and giving COAH the flexibility to make decisions on affordable housing consistent with its legislative mandate.

This court noted in In re Six Month Extension of N.J.A.C. 5:91-1, 372 N.J. Super. 61, 101 (App. Div. 2004), certif. denied, 182 N.J. 630 (2005), that the FHA contains no definition of "a realistic opportunity review." Nevertheless, we also recognized that the term had been defined in other cases. Ibid.*fn5

In Mount Laurel II, supra, "realistic opportunity" was first defined by the Supreme Court to mean that "there is in fact a likelihood--to the extent economic conditions allow--that the lower income housing will actually be constructed." 92 N.J. at 221-22. That opportunity must be "a realistic, not just a theoretical, opportunity for the construction of lower-income housing." Holmdel Builders Ass'n, supra, 121 N.J. at 562.

Over twenty years have passed since those cases were decided, and experience demonstrates that the three concepts contained in COAH's RCA approval regulations defy cataloguing of all conceivable factual patterns drawn from each RCA and the particular municipalities involved. Indeed, it would be difficult for COAH to propose more precise standards that would be equally workable in all situations.

"There are some concepts which, by their nature, defy precise definition." In re Revocation of Access of Block No. 1901, Lot No. 1, Borough of Paramus, 324 N.J. Super. 322, 332 (App. Div.), certif. denied, 162 N.J. 664 (1999). Although In re Access Block No. 1901 concerned a statute, the principle is the same for regulations. Id. at 332-33. In In re Health Care Administration Board, supra, a case involving nursing home regulations, the Court declared:

It is fundamental that administrative regulations must . . . be sufficiently definite to inform those subject to them as to what is required. At the same time, regulations must be flexible enough to accommodate the day-to-day changes in the area regulated.

....

We conclude that the standards used in the regulations are definite enough to be understood and followed and yet flexible enough to give the Department the necessary discretion to proceed on an individual basis weighing the particular circumstances of each nursing home.

[83 N.J. at 81-82 (citations omitted).]

Moreover, COAH has measures that it employs when reviewing RCAs and satisfying the concepts in N.J.A.C. 5:91-11.6(a), and those measures are set forth in its regulations and in the FHA to amply inform the public. See also N.J.A.C. 5:95-11.5(a), 5:97-7.8(a). That is, under N.J.A.C. 5:91-11.3(b), the RCA-receiving municipality must submit its project plan to the HMFA, which "render[s] a timely report on the feasibility of the proposed plan for the Council." See also N.J.A.C. 5:95-11.3(b), 5:97-7.6(c). And under N.J.A.C. 5:91-11.5, the county planning board of the RCA-receiving municipality reviews the RCA proposal as to whether it "is in accordance with sound comprehensive regional planning," N.J.A.C. 5:91-11.5(a), and then submits its report to COAH. See also N.J.A.C. 5:95-11.4, 5:97-7.7. Furthermore, N.J.S.A. 52:27D-312c requires that the county planning board or HMFA must "consider the master plan and zoning ordinance of the sending and receiving municipalities, its own county master plan, and the State development and redevelopment plan." Thus, COAH has regulations and standards governing its review of the fiscal feasibility, regional impact, and access to employment of an RCA.

In addition, the Legislature set forth certain policies in N.J.S.A. 52:27D-302 that will guide COAH's RCA decisions, including "maximiz[ing] the number of low and moderate income units by rehabilitating existing, but substandard, housing in the State," N.J.S.A. 52:27D-302f, and "encourag[ing]" the "construction, conversion and rehabilitation of housing in our urban centers," N.J.S.A. 52:27D-302g.

Nevertheless, FSHC argues that the standards are vague and open to multiple interpretations. By way of example, it points out that each respondent claims that "within convenient access to employment opportunities" has a different meaning. FSHC correctly asserts that flexible regulatory standards offer the potential for multiple interpretations and discretionary administrative decisions based on agency fact finding and regulatory interpretation are not without limit or unreviewable.

R. 2:2-3(a)(2).

FSHC also contends that the Galloway-Bridgeton RCA does not satisfy either the FHA or COAH's regulations, because it (1) does not provide a realistic opportunity for affordable housing in Bridgeton; (2) impermissibly double counts affordable units in both municipalities and dilutes their fair share obligations; (3) transfers affordable housing obligations to Bridgeton, which has among the highest job loss rates and unemployment; (4) sets forth an arbitrary and capricious monetary payment amount; (5) is inconsistent with sound, comprehensive regional planning; and (6) is not convenient to employment opportunities. It also contends that COAH defaulted on its obligation to render findings of fact in support of its approval of the RCA and simply parroted the statutory language offering no meaningful basis for appellate review. We agree with the latter contention.

A reviewing court's inquiry is restricted to:

(1) whether the agency's decision offends the State or Federal Constitution;

(2) whether the agency's action violates express or implied legislative policies;

(3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]

Since our review is limited, an appellate court does "not substitute its own factfinding for that of the agency. The court must defer to the agency decision if the findings of fact are supported by substantial credible evidence in the record and are not so wide off the mark as to be manifestly mistaken." Tlumac v. High Bridge Stone, 187 N.J. 567, 573-74 (2006) (citations omitted).

COAH failed to articulate any specific findings of fact to support its conclusions and approvals. The agency merely relied on the conclusions of HMFA and the Cumberland Board, both of which simply reiterated the legal standards without articulating their own findings of fact. There is no indication in the report from COAH's staff or in the presentations during COAH's meeting that the agency relied on or even read the May 27, 2006 letter from Bridgeton's mayor, which set forth concrete facts that could have supported the approval of the RCA.

In In re Petition for Substantive Certification, Township of Southampton, 338 N.J. Super. 103, 114 (App. Div.), certif. denied, 169 N.J. 610 (2001), we emphasized that "COAH has a responsibility to do more than simply conduct a paper review of a municipality's submission in support of a petition for certification. COAH must conduct its own independent evaluation of the compliance plan . . . ." Similarly, N.J.S.A. 52:27D-312c requires COAH to conduct a similar level of evaluation before approving an RCA, especially when the recommendations from the HMFA and a county planning board are not submitted with specific statements of facts supporting their conclusions.

In addition, COAH never explained its reasons for approving the $35,000 per unit transfer rate. Simply stated, there is nothing for this court to review. "When an agency's decision is not accompanied by the necessary findings of fact, the usual remedy is to remand the matter to the agency to correct the deficiency." In re Issuance of a Permit by the Dep't of Envtl. Prot. to Ciba-Geigy Corp., 120 N.J. 164, 173 (1990).

We, therefore, reverse the October 11, 2006 resolution approving the Galloway-Bridgeton RCA and remand for appropriate findings of fact. We do not retain jurisdiction. Nevertheless, the remand must be conducted promptly due to the lapse of time and the need for a plan to provide affordable housing.


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