On appeal from the New Jersey Council on Affordable Housing.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Messano and St. John.
Fair Share Housing Center (Fair Share) appeals from the Council on Affordable Housing's (COAH) grant of third-round substantive certification to the housing plan submitted by Blairstown Township (Blairstown). Fair Share contends that COAH violated the Administrative Procedures Act, N.J.S.A. 52:14B-1 to -24 (APA), the Fair Housing Act, N.J.S.A. 52:27D-301 to -329 (FHA), and the Mount Laurel doctrine*fn1 establishing the constitutional obligation of New Jersey's municipalities to permit the development of affordable housing. We have considered the arguments raised in light of the record and applicable legal standards. We reverse and remand for further proceedings consistent with this opinion.
Before proceeding, we note that Fair Share and COAH have urged us to
consider the issues at hand despite the ongoing litigation involving
COAH's third-round certification regulations, and the introduction of
legislation designed to significantly revamp the FHA.*fn2
See In re Adoption of N.J.A.C. 5:96 and 5:97, 416 N.J. Super.
462 (App. Div. 2010), certif. granted, 205 N.J. 317 (2011); N.J.
Legislature Bills 2010-2011,
S.1). We agree that pending developments before the Court and the
Legislature do not affect our consideration of the issues presented on
appeal, which are discrete and may be resolved on the record
On July 17, 2008, the FHA Amendments Act, L. 2008, c. 46, was enacted. Among other things, the law established a new standard for meeting the housing needs for very-low-income households. Section 7 of the law, codified at N.J.S.A. 52:27D-329.1, provides:
[COAH] shall coordinate and review the housing elements as filed pursuant to [N.J.S.A. 52:27D-311], and the housing activities under [N.J.S.A. 52:27D-320], at least once every three years, to ensure that at least 13 percent of the housing units made available for occupancy by low-income and moderate income households will be reserved for occupancy by very low income households, as that term is defined pursuant to [N.J.S.A. 52:27D-304]. Nothing in this section shall require that a specific percentage of the units in any specific project be reserved as very low income housing; . . . . The council shall coordinate all efforts to meet the goal of this section in a manner that will result in a balanced number of housing units being reserved for very low income households throughout all housing regions. [(Emphasis added).]
N.J.S.A. 52:27D-304(m) defines "'[v]ery low income housing'" as housing affordable to "households with a gross household income equal to 30% or less of the median gross household income for households of the same size within the housing region in which the housing is located." On July 24, 2008, COAH sent a letter to all municipalities summarizing the major provisions of the new law, explaining that it "provide[d] a comprehensive reform of New Jersey housing law" by, among other things, "promoting the creation of very low-income housing."
In another letter to the municipalities dated October 30, 2008, labeled "Guidance Document" (COAH's October 2008 letter), COAH referenced the prior letter and added:
We are now writing to provide you with further guidance on the implementation of L. 2008, c. 46, as it relates to fair share plans being submitted to meet COAH's December 31, 2008 deadline. COAH is in the process of preparing amendments to its regulations to comply with the new statute. Guidance is offered in the following areas:
The significance of the following first item is the crux of this appeal; it read as follows:
P.L. 2008, c. 46, creates a requirement that at least 13 percent of affordable housing units be reserved for occupancy by ...