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In Re Approval of Regional Contribution Agreement Between Gibbsboro and Woodlynne Boroughs

A-1229-06T1 (N.J. Super. App. Div. 2008) (Unpublished)

COAH; REGIONAL CONTRIBUTION AGREEMENTS — The entering of a final judgment of compliance and repose with respect to a Regional Contribution Agreement marks the beginning of the time period within which an objector can file an appeal.

A municipality wanted to enter into a Regional Contribution Agreement (RCA) with another municipality pursuant to which it would pay that other municipality to build housing. The plan would be in satisfaction of its own obligation to provide low and moderate income housing as required by its own second-round substantive certification from the Council of Affordable Housing (COAH). COAH staff determined that wetlands made the proposed site unsuitable for development. Prior to COAH final action, the municipality sued, seeking a determination that it had fully discharged its affordable housing obligations and requested an order of compliance and repose. The lower court dismissed COAH’s objection and granted an order of repose. It appointed a master who determined that the proposed RCA was consistent with COAH rules and gave a realistic opportunity to achieve the second round obligation. The lower court, after taking testimony, issued a final judgment of compliance and repose with regard to the second-round plan. Following a review of the RCA, COAH’s staff issued a report and recommended the RCA’s approval. At a public meeting, an objector to the plan requested that COAH delay action because the objector had submitted earlier objections to the lower court and was awaiting a response. COAH declined that request and voted to approve the RCA. It then adopted a resolution confirming its approval. The objector filed an appeal with the Appellate Division.

The Appellate Division concluded that the objector’s appeal challenging the RCA was untimely and so dismissed the appeal. The Court interpreted that the lower court had actually approved the RCA almost a year before, when the final judgment of compliance and repose was entered. The Court stated that the objector should have brought forth its claim at that time. It further found that COAH’s review and COAH’s recommendation of the RCA were performed pursuant to the terms of that lower court order and did not constitute a final agency action subject to appeal. The Court lastly stated that judgments of compliance should provide finality to allow municipalities to enjoy the repose free of litigious interference with the normal planning process.

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