Argued December 3, 2014
Approved for Publication July 28, 2015.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket Nos. L-3643-11, L-5052-11, L-733-12, and L-1978-12.
Kevin D. Walsh argued the cause for appellant Fair Share Housing Center.
Ronald D. Cucchiaro argued the cause for appellants City of Hoboken and Mayor and Council of the City of Hoboken ( Weiner Lesniak, LLP, attorneys; Mr. Cucchiaro and Richard Brigliadoro, on the brief).
Jennifer Phillips Smith argued the cause for respondent Advance at Hoboken, LLC ( Gibbons P.C., attorneys; Ms. Smith, on the brief).
Kevin J. Coakley argued the cause for respondents 1415 Park Avenue, LLC, 9th Monroe, LLC, and New Jersey Casket Company, Inc., ( Connell Foley, LLP, attorneys; Mr. Coakley, of counsel; Meghan B. Burke and Genevieve L. Horvath, on the brief).
Dennis M. Galvin argued the cause for respondent Zoning Board of the City of Hoboken ( Galvin Law Firm, attorneys; Mr. Galvin, on the brief).
Before Judges FUENTES, ASHRAFI and KENNEDY. The opinion of the court was delivered by FUENTES, P.J.A.D.
[441 N.J.Super. 486] FUENTES, P.J.A.D.
These are five consolidated appeals filed to determine the enforceability of an affordable housing ordinance adopted by the City of Hoboken. Plaintiff Fair Share Housing Center (Fair Share) filed three of the appeals against four developers: Advance at Hoboken, LLC (Advance) and 1415 Park Avenue, LLC (1415 Park) (both respondents in A-1535-12); 9th Monroe, LLC (9th Monroe) (A-1537-12); and New Jersey Casket Company, Inc. (NJ Casket) (A-1538-12). The City and the City's Mayor and Council (City appellants) filed the two additional appeals against Advance and 1415 Park (A-1731-12), and against 9th Monroe (A-1732-12).
Each of the four developers named as defendants in this case received significant relief from the City's zoning laws in the form of variances from the Zoning Board of Adjustment (Zoning Board), conditioned upon the developers' compliance with the City's affordable housing ordinance. The trial court held the ordinance was " null, void, and unenforceable" because it violated statewide affordable housing policies. The court invalidated the zoning approval conditions imposed by the Zoning Board, relieved the developers from their obligation to comply with the ordinance's provisions, and enjoined the City from enforcing or imposing " any requirement against the parties to construct affordable housing units and/or collect any monetary contribution related to the affordable housing from the parties[.]" Ultimately, the court dismissed with prejudice Fair Share's complaints and denied its motion for reconsideration.
[441 N.J.Super. 487] Since these appeals were filed and argued, our Supreme Court decided In re N.J.A.C. 5:96 & 5:97, 221 N.J. 1, 6, 110 A.3d 31 (2015), which effectively eliminated, " until further order," the requirement to exhaust administrative remedies under the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329.4, and directed trial courts to resolve municipalities' constitutional obligations under Mount Laurel. Thus, to the extent the trial court's decision here depended upon the Council on Affordable Housing's (COAH) availability as an administrative forum or its obligation to perform the responsibilities imposed by the Legislature through the FHA, those issues are now moot.
Notwithstanding the current state of affairs with respect to COAH, we are compelled to address the issues raised by Fair Share in order to dispel any doubt concerning the enforceability of the City's affordable housing ordinance. We now reverse the trial court's order invalidating
the City's affordable housing ordinance decision. Consequently, we hold the trial court erred in invalidating the zoning approval conditions related to compliance with the ordinance's provisions as to all of the developers named as defendants by Fair Share and remand for the trial court to adjudicate the remaining legal issues raised by the parties.
The trial court misconstrued the FHA and the case law applying it. There is no provision in the FHA or regulations promulgated by COAH requiring municipalities to submit all ordinances that impact a municipality's affordable housing obligation to COAH for approval. The " substantive certification" provided by COAH to those municipalities seeking its protection from builder's remedy suits is entirely voluntary. N.J.S.A. 52:27D-313(a). The Legislature [441 N.J.Super. 488] enacted the FHA and established COAH " to oversee the development of low and moderate income housing throughout the state through a system of voluntary participation by municipalities in the COAH process." Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 513, 803 A.2d 53 (2002) (emphasis added).
In the interest of clarity, we also expressly reverse the trial court's decision invalidating the section in the ordinance that provides for voluntary payments by developers in lieu of compliance with the ordinance's affordable housing requirements. The trial court conflated development fees under N.J.A.C. 5:97-8.3, with the payments in lieu, created " as an option to the on-site construction of affordable housing otherwise required by ordinance," authorized by N.J.A.C. 5:97-8.4 and sanctioned by N.J.S.A. 52:27D-329.3.
Before we begin our analysis, we will briefly describe the procedural trek these cases took before they ended up before us in this consolidated appeal.
From July 7, 2011 to April 17, 2012, Fair Share filed four individual actions in lieu of prerogative writs seeking declaratory and injunctive relief against the Zoning Board and the following private developers: Advance, 1415 Park, 9th Monroe, and N.J. Casket. Fair Share sought compliance with the City's affordable housing ordinance in the form of a judicial declaration that any zoning approvals these developers received be deemed void or enjoined, unless each one filed a " plan of compliance" with the affordable housing ordinance.
All four developers named as defendants by Fair Share filed answers asserting a variety of affirmative defenses including challenges to Fair Share's standing to raise these issues, attacking [441 N.J.Super. 489] the timeliness of the actions in lieu of prerogative writs pursuant to Rule 4:69-6, and challenging the ...