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In re Approval of Regional Contribution Agreement Between Boroughs

July 22, 2008


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

Per curiam.


Argued May 29, 2008

Before Judges Cuff, Lisa and Lihotz.

The Fair Share Housing Center (FSHC) presents this appeal challenging the approval of a regional contribution agreement (RCA) between Gibbsboro Borough (Gibbsboro) and Woodlynne Borough (Woodlynne). The terms of the RCA provided that Gibbsboro would pay Woodlynne $1.4 million for housing rehabilitation activities in Woodlynne in satisfaction of Gibbsboro's obligation to provide low- and moderate-income housing. FSHC's appeal follows the September 13, 2006 resolution recommending approval of the RCA by the Council on Affordable Housing (COAH). We determine the approval of the Gibbsboro-Woodlynne RCA resulted by virtue of Superior Court order dated December 13, 2005 and not by COAH's limited review and recommendation. Accordingly, FSHC's appeal challenging the RCA is untimely and must be dismissed.

We briefly set forth the background of Gibbsboro's affordable housing plan and the RCA at issue. In October 1995, Gibbsboro received second-round substantive certification from COAH of its 2000 housing element and fair share plan. The plan satisfied Gibbsboro's cumulative 1987-1999 affordable housing obligation of 120 units, which was comprised of 112 units of new construction and eight rehabilitation units.

Initially, the proposal sought to develop 112 affordable units on two Gibbsboro sites. In December 2004, Gibbsboro's Planning Board adopted a proposed amendment to its second-round substantive certification to replace one of the development sites because that intended site was targeted for open space preservation. In its place, Gibbsboro proposed a fifty-six-unit RCA with Woodlynne whereby Gibbsboro would pay Woodlynne $25,000 per unit for a total of $1.4 million for housing rehabilitation activities in Woodlynne. Gibbsboro moved before COAH for an extension of its second-round substantive certification and approval of the proposed amendment providing for the RCA with Woodlynne.

COAH staff responded stating it "does not review amendment requests during its review of motions for extended substantive certification." In reviewing Gibbsboro's submission, COAH staff determined wetlands made the second proposed site "unsuitable for development at a high enough net density to accommodate the number of units needed." The final staff conclusion was: "Gibbsboro is unable to comply with the terms of its 1987-1999 substantive certification . . . . Gibbsboro may seek third-round certification pursuant to N.J.A.C. 5:95 and must address its 112-unit prior obligation at that time." Thus, Gibbsboro's second-round certification would expire if COAH accepted the staff recommendation and determined Gibbsboro's plan did not meet Mount Laurel*fn1 requirements.

Prior to COAH's final action, Gibbsboro withdrew its motion for an extension of its second-round certification. On April 8, 2005, Gibbsboro filed a Superior Court complaint for declaratory judgment, seeking a determination that it had "fully discharged its affordable housing obligations under the [Fair Housing Act ("FHA"), N.J.S.A. 52:27D-301 to -329] for the second and third housing cycles" and requested an order of compliance and repose protecting it against exclusionary zoning litigation and challenges to its housing element and fair share plan.

COAH objected to Gibbsboro's request for court disposition, arguing COAH retained exclusive jurisdiction over the municipality's efforts to meet its affordable housing obligation. The court dismissed COAH's objection and granted Gibbsboro an order of repose, immunizing it against exclusionary zoning challenges while it sought to satisfy its second- and third-round housing obligations.

The court appointed a Mount Laurel master who determined the proposed RCA "was consistent with the COAH rules governing RCA transfers" and concluded "the combination of RCA units, inclusionary and affordable units and previously rehabilitated affordable units provide[] a realistic opportunity to achieve the 120 unit Second Cycle affordable housing obligation, as indicated in [Gibbsboro's] Amended Housing Element." Accordingly, the master recommended approval of the amendment "conditioned on conformance with all COAH rules relating to [RCAs]."

On December 13, 2005, on notice to interested parties including COAH and appellant, and after the public's opportunity to review and inspect Gibbsboro's amended housing element, the proposed RCA, and related RCA documents, the court held a compliance hearing. After testimony, Judge Vogelson entered a final judgment of compliance and repose with regard to Gibbsboro's amended second-round plan. The judgment reflected the court's finding that Gibbsboro's amended second-round plan was "in compliance with the Borough's Second Round Affordable Housing obligation." The judgment further stated:

IT IS FURTHER ORDERED that the [RCA] between Gibbsboro and Woodlynne Borough is approved as a component of an approved Second Round Housing Element and Fair Share Plan with a per unit contribution of $25,000 and shall be sent to [COAH] for its approval as to form and monitoring; and

IT IS FURTHER ORDERED that the Borough of Gibbsboro be immunized against the filing of Second or Third Round Exclusionary Zoning challenges or suits while the Borough remains under the Court's jurisdiction and ...

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