On appeal from the New Jersey Council on Affordable Housing, Resolution of September 22, 2008.
The opinion of the court was delivered by: Cuff, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, C.L. Miniman and Waugh.
The opinion of the court was delivered by CUFF, P.J.A.D.
This appeal concerns a regional contribution agreement (RCA) between the Township of Galloway (Galloway) and the City of Bridgeton (Bridgeton). Galloway and K. Hovnanian at Smithville, Inc. (Hovnanian) appeal from a final decision of the Council on Affordable Housing (COAH) denying approval of the RCA. COAH determined that it lacked authority to approve the RCA due to an intervening statutory amendment prohibiting any approval of RCAs after July 17, 2008.
On appeal, Hovnanian argues COAH impermissibly refused to follow the mandate of this court, the 2008 amendment to the Fair Housing Act (FHA) did not apply to this RCA, and the amendment should be applied prospectively only. Hovnanian also argues that it and the participating municipalities will suffer a manifest injustice if the RCA is not considered on its merits by COAH. Galloway joins the arguments advanced by Hovnanian. COAH argues that the 2008 amendments to the FHA prevent it from approving RCAs. Respondent Fair Share Housing Center (FSHC) responds that COAH properly followed the plain language of the amendment and properly applied current law consistent with the time of decision rule, and contends no party will suffer a manifest injustice if the RCA is not implemented.
In order to appreciate the issues presented in this appeal, the appellate course of this matter must be reviewed. In our earlier opinion, In re Approval of Amended Second Round Plan, Regional Contribution Agreement, and Mediation Report of Galloway Township, No. A-1227-06 (App. Div. July 7, 2008), we reviewed a final decision of COAH approving the RCA between Galloway and Bridgeton. As set forth in our earlier opinion, on March 23, 2006, the Galloway Planning Board adopted an amendment to its certified plan which proposed to replace sixty-one affordable rental units in the Smithville Planned Unit Development (PUD)*fn1 with a sixty-one unit RCA in Bridgeton. Galloway proposed to pay Bridgeton $35,000 per unit, totaling $2.135 million for housing rehabilitation services in Bridgeton. Id. at 5. The Galloway governing body approved the certified plan amendment on March 28, 2006. Id. at 2.
This plan was subject to review and approval by the New Jersey Housing and Mortgage Finance Agency (HMFA), the Cumberland County Planning Board (Cumberland Board), and COAH.
Id. at 2. Bridgeton also approved the plan and forwarded it and its own project to HMFA, the Cumberland Board, and COAH for review and approval. Id. at 7. After all requisite reviews and approvals, COAH adopted two resolutions on October 11, 2006: one approved the amended plan; the other determined that the RCA "is feasible and provides a ...