July 6, 2011
LINQUE H.C. PARTNERS, L.L.C., APPELLANT,
NEW JERSEY MEADOWLANDS COMMISSION, RESPONDENT.
On appeal from the New Jersey Meadowlands Commission.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 1, 2011 - Decided
Before Judges Parrillo, Espinosa and Skillman.
In In re Adoption of N.J.A.C. 19:3, 19:4, 19:5 & 19:6 by N.J. Meadowlands Comm'n (In re N.J.A.C. 19:3), 393 N.J. Super. 173, 182-83 (App. Div. 2007), certif. denied, 194 N.J. 267 (2008), we held that the Hackensack Meadowlands Commission has a constitutional responsibility to plan and zone for affordable housing.*fn1 We also held that it was reasonable for the Commission to stay the effectiveness of its new zoning regulations on affordable housing until after the Council on Affordable Housing (COAH) readopted its third round affordable housing rules that we had invalidated in In re Adoption of N.J.A.C. 5:94 and 5:95 by N.J. Council on Affordable Hous. (In re N.J.A.C. 5:94), 390 N.J. Super. 1 (App. Div.), certif. denied, 192 N.J. 71 (2007). In re N.J.A.C. 19:3, supra, 393 N.J. Super. at 181-82. Our opinion directed the Commission to conduct "further rule-making proceedings" relating to its affordable housing obligations, which were to be "completed promptly after" COAH adopted revised third round rules. Id. at 179.
On June 2, 2008, COAH adopted revised third round rules. In re Adoption of N.J.A.C. 5:96 & 5:97 by N.J. Council on Affordable Hous. (In re N.J.A.C. 5:96), 416 N.J. Super. 462, 477 (App. Div. 2010). Shortly thereafter, twenty-four notices of appeal were filed challenging the validity of those revised rules.
On September 22, 2010, appellant filed its notice of appeal, which it described as an appeal "from inaction of [the Commission] for failure to complete rulemaking to plan and zone in a manner that insures adequate affordable housing in the New Jersey Meadowlands district as required by the Appellate Division in [In re N.J.A.C. 19:3]." Appellant's case information statement further stated that in In re N.J.A.C.19:3, this court had ordered the Commission "to undertake 'further rule-making proceedings to be completed promptly' after COAH adopted revised [third round] rules," but that the Commission had failed even to begin such rule-making proceedings notwithstanding the passage of more than two years since COAH adopted revised third round rules.
On October 8, 2010, this court issued its opinion in In re N.J.A.C. 5:96, supra, 416 N.J. Super. at 462, which invalidated substantial portions of COAH's revised third round rules. We remanded the case to COAH to adopt new revised third round rules within five months. Id. at 511. However, the Supreme Court issued a stay of our decision on January 14, 2011 and granted certification on March 31, 2011. 205 N.J. 317. Consequently, most of COAH's revised third round rules, particularly those dealing with prospective third round affordable housing obligations, are not in effect as of the present time.
Despite our invalidation of substantial portions of COAH's revised third round rules and the pendency before the Supreme Court of appeals from our decision, appellant urges us to issue an expansive remedial order that "set[s] a specific deadline by which the Commission must adopt a fair share plan and zoning regulations needed to provide adequate affordable housing in the [Meadowlands] District, including the designation of specific sites for construction of the affordable housing."
We conclude that the grant of such relief would not be appropriate at this time. In our prior opinion dealing with the Commission's responsibility to plan and zone for affordable housing, we noted that "until the third round rules are resolved, the obligations of the Commission's constituent municipalities are unknown." In re N.J.A.C. 19:3, supra, 393 N.J. Super. at 181. We also stated that deference to COAH's determination of affordable housing obligations "is certainly called for when [the Commission] is asked to coordinate its actions with rules that have been rejected by a court and are in the process of being redone, as is the situation with COAH's third round rules." Id. at 182. As a result of our October 8, 2010 decision invalidating substantial portions of the revised third round rules, COAH's rules for determining third round affordable housing obligations have been again "rejected by a court" and, subject to the stay granted by the Supreme Court, "are in the process of being redone." The situation today is thus similar to what it was when we decided In re N.J.A.C. 19:3.
Our invalidation of substantial portions of the revised third round rules, and the pendency before the Supreme Court of an appeal from our decision, does not relieve the Commission of all responsibility for coordination and implementation of affordable housing obligations. We note, for example, that this court affirmed the part of COAH's revised third round rules relating to the determinations of present need and prior round affordable housing obligations. See In re N.J.A.C. 5:96, supra, 416 N.J. Super. at 512. Therefore, the Commission should be addressing those obligations notwithstanding the current uncertainties about the calculation of prospective need for affordable housing. However, it would not be appropriate at this time to grant the coercive relief appellant seeks.
Accordingly, the appeal is dismissed. This dismissal is without prejudice to appellant seeking similar relief after the Supreme Court decides the pending appeals involving the validity of the revised third round rules.