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In re Matter of the Adoption of Amendments to N.J.A.C. 5:93-1.3 and 5:93-5.3

339 N.J. Super. 371, 772 A.2d 9 (App. Div. 2001)

MOUNT LAUREL; AFFORDABLE HOUSING—Amendments to affordable housing regulations that merely raise the possibility of delays in achieving Mount Laurel goals are not facially unconstitutional.

Three housing, planning, and environmental advocacy organizations asserted a facial challenge to the constitutionality of amendments to regulations promulgated by the Council on Affordable Housing (COAH), the administrative agency created and authorized under the Fair Housing Act (FHA), “to ensure that municipalities meet their obligation to provide a fair share of their region’s need for low and moderate income housing.” They argued that “the proposed amendments violated the ‘realistic opportunity’ Mount Laurel standard by allowing COAH to certify a fair share housing plan for sites that do not have STET plans for sewer infrastructure that have been approved by the Department of Environmental Protection (DEP).” Prior to amendment, the administrative regulation defined “developable site” to mean: “a site that has access to appropriate water and sewer infrastructure, and has received water consistency approvals from the DEP or its designated agent authorized by law to issue such approvals.” After amendment, the definition of developable site became: “a site that has access to appropriate water and sewer infrastructure, and is consistent with the applicable areawide water quality management plans (including the wastewater management plan) or is included in an amendment to the areawide water quality management plan submitted to and under review by DEP.” Also, before the amendment, the COAH was to give priority to sites where infrastructure “is available.” After amendment, priority was to be given to sites where infrastructure is “currently or imminently available.” The following provision also was added by the amendments: “All sites designated for low and moderate income housing shall be consistent with the applicable areawide water quality management plan (including the waste water management plan) or be included in an amendment application filed prior to the grant of final substantive certification. If there is a denial by DEP or at the end of two years if there is no DEP determination, then COAH shall revisit the site and housing plan to determine if it provides a realistic opportunity.” Essentially the objectors claimed that these “amendments invite municipal delay in complying with fair share obligations by allowing substantive certification of a municipal housing element that relies on inclusionary development sites lacking DEP approved access to sewer infrastructure, with review of the situation only after two years.” The objectors argued that “[s]ites without infrastructure cannot expeditiously deliver affordable housing.” This argument was important because “[t]he FHA requires that a realistic plan be achievable within six years. While sites with all approvals in place are most desirable, not all municipalities have such sites at the time of petition. This rule provides a degree of flexibility for municipalities, while still assuring that the FHA’s realistic opportunity standard is met.” The Court pointed out that the administrative regulation was published for comment and that the same objections were raised during the comment period. Further, COAH’s administrator responded to the objections, in essence stating that the proposed amendments neither encouraged municipal delay nor weakened the State Development and Redevelopment Plan. The COAH claimed that it had always been consistent with the policies of the Plan and would only certify a site if it was consistent with the plan or if it had received a waiver from the Office of State Planning. Further, the COAH argued that the rule that existed prior to amendment did not require prior DEP approval. It argued that the rule change only was meant to conform to a terminology change utilized by DEP and the DEP rules in place when the original regulation was adopted had been replaced by the term “areawide water quality management plan.” Lastly, COAH said that the pre-amendment rule offered no time line in which to revisit a site if DEP had not acted. Consequently, COAH considered the amendment to be an improvement over the prior rule. As to the substance of the objector’s concerns, COAH asserted “that no Mount Laurel case [had] ever held that only sites with approved sewer infrastructure [could] satisfy the realistic opportunity standard.” Further, it contended “that the amended rules, which are but one piece in a complex regulatory scheme [were] a reasonable exercise of is authority, which is the appropriate standard of review.” The Court agreed with COAH. It pointed out that the FHA was the “legislative response to the Supreme Court’s declaration that every municipality has an obligation to create a realistic opportunity for the construction of its fair share for the regional need for low and moderate income housing.” The FHA specifically refers to infrastructure (sewer and water) in only two contexts, each of which would permit a municipality to downgrade its obligation if the lack of such infrastructure prevented reasonable development. Further, the availability of water and sewer connections is only one of the factors to be considered in determining whether a municipality has provided a realistic opportunity for affordable housing. Lastly, “the lack of access to sewer does not necessarily rule a site out.” This is because where sewer infrastructure is not in place, it can be brought to a site. Further, “[m]unicipalities have an affirmative obligation to facilitate provision of the infrastructure necessary to make development realistically likely.” In this particular case, the Court could find nothing in the record to suggest that COAH’s amended regulations on sewer access were unreasonable. Under governing case law, “the possibility of delay is in itself not enough to lead to invalidation of regulations.” Consequently, the claim made by the objectors failed. Also, the Court rejected the objectors’ contention that the amended regulations were impermissibly vague by measuring the challenged language against the standard that it would have to be “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.”

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