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In re Grant of Third Round Substantive Certification to Old Bridge Township

November 19, 2010


On appeal from a Final Decision of the New Jersey Council on Affordable Housing.

Per curiam.


Submitted November 3, 2010

Before Judges Carchman, Messano and Waugh.

Appellant Oaks Development Corporation, a developer of affordable housing and a project known as The Oaks at Glenwood (the Oaks) located in Old Bridge, appeals from a decision of the New Jersey Council on Affordable Housing (COAH), granting to respondent the Township of Old Bridge (Old Bridge or the township) substantive certification for its Third Round Housing Element and Fair Share Plan (the Plan). Included within the Plan was the Oaks proposed 1,384 unit residential development, which included 276 units of affordable housing, representing a substantial portion of respondent's affordable housing obligation. Appellant asserts that COAH erred by including the Oaks project in the Plan since Old Bridge has "frustrated and stalled" the development, acted in bad faith and has failed to provide a realistic opportunity for affordable housing at the Oaks site.

In recognition of the issues raised by appellant, COAH, in its resolution granting substantive certification, included a provision requiring Old Bridge to "submit an update in 6 months" and "to continue to submit updates in 6 month intervals, on approvals and construction of the Oaks at Glenwood." Despite this provision, appellant asserts that the grant of substantive certification was arbitrary, capricious and unreasonable. We disagree and affirm.

To provide proper context for the present appeal, we review events that transpired between the parties more than 20 years ago when appellant contracted with Old Bridge to create affordable housing units.

In 1986, appellant agreed to build a residential development in Old Bridge that would include affordable housing units. This project, known as "The Oaks at Glenwood," obligated appellant to build 1,384 residential units, of which 138 would be allocated for multi-family affordable housing. In 2003, appellant's application came before the township's Planning Board but was denied.

Appellant filed an action in lieu of prerogative writs in the Law Division successfully appealing the decision of the Planning Board, and that Board was mandated to grant a preliminary and final site plan approval. Since that time, more obstacles have arisen resulting in the appointment of a special master to investigate plaintiff's claims and help finalize the development agreement with Old Bridge. In addition to the special master's appointment, appellant sued the Old Bridge Municipal Utilities Authority because it "frustrated [plaintiff's] efforts to obtain water and sewer service" and "impose[d] excessive fees" that have "thwart[ed]" the project. Specifically, appellant sought an order to compel the township to set aside water for appellant because it was a "scarce resource." Subsequent to the filing of this appeal, the Law Division tolled "applicable contract and permit deadlines, such that the expiration dates will not begin to run until the termination of this litigation."

In addition, the judge made the following finding:

The present litigation has been ongoing since 2005. In this case, Plaintiff has diligently pursued their approvals but the ongoing litigation has prevented the Plaintiff from proceeding with development. Similarly, Defendants have acted properly, with the best interests of the township and people of Old Bridge in mind. While this litigation has delayed the construction of the Oaks Development Project, this Court finds that there is no direct fault to be placed on either party. The Plaintiff's accusations of 'dilatory tactics' on the part of Defendant and the Defendant's assertion that Plaintiff refuses to act upon its contractual obligations both lack foundation. This Court is satisfied that both parties have acted in good faith and that neither has acted in a manner specifically designed to deprive the other party of any contractual rights.

Despite appellant's complaint about the project's momentum and pending lawsuits, the township devised a plan to meet COAH's third round housing cycle obligation from 1999-2018. Pursuant to COAH's regulations, all municipalities must describe their plans for constructing affordable housing by addressing three categories: rehabilitation, which is the municipality's current housing need; prior-round obligation, which assesses affordable housing issues not fulfilled by the two prior COAH rounds; and its projected growth share, which is the municipality's proposed affordable housing strategy for the third round time period.

As articulated in its Plan, the township carved out housing measures to satisfy each of these third round requirements. Those measures included: 142 units for the rehabilitation program; 439 units from the prior round; 655 units for its growth share projections. The township's plan only mentioned the Oaks development when it summarized a breakdown of all programs incorporated into its housing projections; it estimated 138 units would be associated with the Oaks project.

On December 31, 2008, the township filed a petition with COAH to obtain third round substantive certification of its Plan. COAH staff deemed the Plan to be complete and, pursuant to regulations, the township published public notice of its petition. No objections were received to the petition during the standard 45-day public comment period. COAH staff inspectors conducted a site visit prior to making their ...

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