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In Re Highlands Master Plan

August 15, 2011

IN RE HIGHLANDS MASTER PLAN, EXECUTIVE ORDER 114, MEMORANDUM OF UNDERSTANDING BETWEEN THE HIGHLANDS COUNCIL AND THE COUNCIL ON AFFORDABLE HOUSING, NOVEMBER 12, 2008 RESOLUTION EXTENDING DEADLINES FOR 88 MUNICIPALITIES, AUGUST 12, 2009 RESOLUTION EXTENDING DEADLINES, AND ADOPTION OF GUIDANCE FOR HIGHLANDS MUNICIPALITIES THAT CONFORM TO THE HIGHLANDS REGIONAL MASTER PLAN.


On appeal from the Highlands Water Protection and Planning Council, Council on Affordable Housing and the Governor.

The opinion of the court was delivered by: Skillman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued April 12, 2011

Before Judges Yannotti, Skillman and Roe.

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

Under the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329.19, the Legislature delegated responsibility to the Council on Affordable Housing (COAH) to determine municipal obligations to provide affordable housing. Under the Highlands Water Protection and Planning Act (the Highlands Act), N.J.S.A. 13:20-1 to -35, the Legislature delegated responsibility for land use planning in the Highlands Region, consisting of nearly 800,000 acres in eighty-eight municipalities in the northeast corner of the State, see N.J.S.A. 13:20-7(a), to the Highlands Water Protection and Planning Council (Council), N.J.S.A. 13:20-4.

One of the Council's primary responsibilities is to adopt a regional master plan (RMP) to govern development in the Highlands Region. See N.J.S.A. 13:20-8 to -12. The Highlands Act requires COAH to "take into consideration the [RMP] prior to making any determination regarding the allocation of the prospective fair share of the [affordable] housing need in any municipality in the Highlands Region." N.J.S.A. 13:20-23(a). Thus, COAH retains responsibility, notwithstanding enactment of the Highlands Act, for determining the affordable housing obligations of Highlands Region municipalities, but it must take the RMP into consideration in discharging this responsibility.

On May 6, 2008, following this court's invalidation of substantial portions of COAH's original third round rules in In re Adoption of N.J.A.C. 5:94 and 5:95 by the New Jersey Council on Affordable Housing, 390 N.J. Super. 1 (App. Div.), certif. denied, 192 N.J. 71 (2007), COAH adopted revised third round rules. See 40 N.J.R. 2690(a) (June 2, 2008). As of that date, the Council had not adopted the RMP for the Highlands Region, although it had circulated drafts for comment.

Shortly after adopting the revised third round rules, COAH proposed amendments to those rules. 40 N.J.R. 3374(a) (June 16, 2008). Those amendments were proposed partly to take into account updated data relating to the Highlands Region, which resulted in a reduction in COAH's projected growth figures for this region. Id. at 3422-25.

On July 17, 2008, the Council adopted the RMP. On September 5, 2008, after expiration of thirty days following delivery to Governor Corzine of the minutes of the meeting at which this action was taken, the RMP became effective, as provided by N.J.S.A. 13:20-5(j).

Following COAH's adoption of the revised third round rules and the Council's adoption of the RMP for the Highlands Region, Governor Corzine, COAH, and the Council took a series of steps to coordinate the actions of COAH and the Council relating to the satisfaction of Highlands Region municipalities' affordable housing obligations.

On September 5, 2008, Governor Corzine adopted Executive Order 114, which directed the Council to work in cooperation with COAH to "review COAH's third round growth projections for consistency with the Highlands Plan and [to] assist COAH in developing adjusted growth projections within the Highlands Region." 40 N.J.R. 5312, 5313 (Oct. 6, 2008). Executive Order 114 also directed the Council to "coordinate the deadlines for revision of municipal master plans and third round fair share plans to be in conformance with both the Highlands Act and the [FHA]." Ibid. In addition, Executive Order 114 directed the Council and COAH to "enter into a joint Memorandum of Understanding" to implement the provisions of the executive order. Ibid. Executive Order 114 did not direct COAH to make any changes in the revised third round rules establishing the affordable housing obligations of Highlands Region municipalities.

In accordance with Executive Order 114, on October 30, 2008, the Council and COAH entered into a joint "Memorandum of Understanding" (MOU). The MOU provided, among other things, that "[t]he Highlands Council shall prepare adjusted growth projections . . . through the development of a built out analysis at a municipal scale for conforming municipalities consistent with the RMP" and that "COAH shall ensure that any of the eighty-eight (88) municipalities in the Highlands Region under COAH's jurisdiction that choose to conform to the RMP utilize the adjusted growth projections prepared by the Highlands Council in the development of Housing Elements and Fair Share Plans." In addition, the MOU provided that "COAH shall grant a waiver from the December 31, 2008 deadline [for the ...


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