On appeal from the Council on Affordable Housing.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued by Telephone February 4, 2011 -Decided
Before Judges Parrillo, Espinosa and Skillman.
This appeal challenges the validity of revised rules of the Council on Affordable Housing (COAH), adopted under the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329.19, which establish the obligations of municipalities to provide affordable housing during the "third round" period from 1999 to 2018 and provide mechanisms for municipalities to achieve compliance with those obligations. After briefing, but before calendaring, of this appeal, we issued an opinion in the consolidated appeals of twenty-two other parties who challenged COAH's revised third round rules, which concluded that substantial portions of those rules were invalid and remanded to COAH to adopt new revised third round rules. In re Adoption of N.J.A.C. 5:96 and 5:97 by N.J. Council on Affordable Hous., 416 N.J. Super. 462 (2010). On March 31, 2011, the Supreme Court granted certification of those appeals. 205 N.J. 317 (2011).
Following issuance of our opinion, COAH filed a motion to dismiss this appeal as moot because we had invalidated the principal parts of the rules challenged by appellant and COAH would be required to make substantial revisions in order to comply with our mandate. In its response, appellant acknowledged that part of its appeal, specifically, the arguments presented under Points I and V of its brief, was moot because our opinion had ruled in appellant's favor on those points. However, appellant argued that the rest of its appeal, specifically the arguments presented under Points II, III and IV of its brief, was not moot because it raised additional issues regarding the validity of COAH's revised third round rules that had not been ruled upon in our opinion. We reserved decision on the motion pending consideration of the merits of the appeal. We now dismiss the appeal as moot.
We recognize that our opinion invaliding substantial portions of COAH's revised third round rules did not address appellant's arguments that the third round rules are invalid because they exclude land available for redevelopment in determining development capacity, fail to require municipal fair share plans to take into account known or anticipated development, and fail to authorize an interested party to petition COAH for an upward adjustment in a municipality's affordable housing obligations. However, our opinion remanded to COAH to adopt new revised third round rules. Our mandate does not limit COAH, in devising new third round rules, to address only the deficiencies identified in our opinion. COAH is free to make additional changes in those rules, including changes that address the points appellant seeks to have us decide in this appeal. Furthermore, appellant may urge COAH to address those points in the course of the rule-making proceeding required by our remand. See N.J.S.A. 52:14B-4(a)(3). Consequently, any views we might express regarding the parts of the 2008 revised third round rules challenged by appellant, which may or may not be included in the new revised rules required by our opinion, would be purely advisory.
Therefore, the appeal is dismissed as moot. This dismissal is without prejudice to appellant moving for reinstatement of the appeal if the Supreme Court reverses our opinion remanding to COAH to adopt new revised third round rules.
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