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In Re Adoption of Regional

February 24, 2011

IN RE ADOPTION OF REGIONAL AFFORDABLE HOUSING DEVELOPMENT PROGRAM GUIDELINES BY THE COUNCIL ON AFFORDABLE HOUSING.


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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued January 4, 2011 - Decided Before Judges Yannotti, Espinosa and Skillman.

The opinion of the court was delivered by SKILLMAN, J.A.D. (retired and temporarily assigned on recall).

The dispositive issue presented by this appeal is whether a document entitled "Regional Affordable Housing Development Program Guidelines" (Guidelines), adopted by the Council on Affordable Housing (COAH) on September 9, 2009, contains rules and regulations COAH was required to adopt in accordance with the provisions of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, governing administrative rule-making. We conclude that the Guidelines are rules and regulations that were required to be adopted in conformity with the APA. Therefore, we invalidate the Guidelines and direct COAH to address the subject matter of the Guidelines through rule-making.

COAH was created by the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329.19, which the Legislature enacted in 1985 to establish an administrative mechanism for determining municipal obligations to provide affordable housing and the means by which those obligations may be satisfied. See Hills Dev. Co. v. Twp. of Bernards, 103 N.J. 1, 31-40 (1986).

COAH adopted the Guidelines to implement a section of amendments to the FHA enacted in 2008, L. 2008, c. 46, § 18,*fn1 which requires "regional planning entities" to "identify and coordinate regional affordable housing opportunities in cooperation with municipalities in areas with convenient access to infrastructure, employment opportunities, and public transportation." N.J.S.A. 52:27D-329.9(c)(2). The "planning entities" that are subject to this regional planning requirement are the Meadowlands Commission, Pinelands Commission, Fort Monmouth Planning Authority, Highlands Water Protection and Planning Council, and Casino Reinvestment Development Authority, N.J.S.A. 52:27D-329.9(a), (c) (3), which encompass 181 of the State's 566 municipalities. This required regional planning "may include methods to regionally provide housing in line with regional concerns, such as transit needs or opportunities, environmental concerns, or such other factors as [COAH] may permit." N.J.S.A. 52:27D-329.9(c)(2).

On August 5, 2009, more than a year after enactment of this amendment to the FHA, COAH circulated what it characterized as "Guidelines" for implementation of the amendment. The email announcing these proposed Guidelines indicated that COAH would accept public comments until August 7, 2009, and that COAH planned to vote on the Guidelines on August 12, 2009. During this short comment period, which was subsequently extended to August 14, 2009, COAH received numerous objections to the proposed Guidelines, including that the Guidelines were actually rules and regulations that were required to be adopted in accordance with the rule-making requirements of the APA.

On September 9, 2009, COAH adopted the Guidelines in substantially the same form as originally proposed. COAH's resolution adopting the Guidelines stated that:

COAH, in cooperation with the statutorily defined regional planning entities, has developed a Regional Affordable Housing Development Program (RAHDP) that permits municipalities within the jurisdiction of a regional planning entity to cooperatively plan with other municipalities for regional development of up to 50 percent of a municipality's affordable housing obligation based on certain conditions and requirements . . . .

The resolution also stated that "COAH will adopt rules governing implementation of the RAHDP." However, despite the passage of more than two and a half years since enactment of the 2008 amendments to the FHA and nearly a year and a half since adoption of the Guidelines, COAH has not adopted rules and regulations relating to the regional planning requirements of N.J.S.A. 52:27D-329.9.

On appeal, Fair Share Housing Center, a public interest organization that acts as an advocate for affordable housing policies, argues the Guidelines are invalid because:

(1) they were not adopted in conformity with the APA; (2) they are inconsistent with N.J.S.A. 52:27D-329.9 and other provisions of the FHA; and (3) they violate the Mount Laurel doctrine by allowing transfers of funds for rehabilitation of dilapidated housing units.

We conclude that the Guidelines are invalid because they were not adopted in conformity with the APA. This conclusion makes it unnecessary to ...


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