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In Re Denial of Regional Contribution Agreement Between Galloway Township and City of Bridgeton

418 N.J. Super. 94, 12 A.3d 232 (App. Div. 2011)

COAH; REGIONAL CONTRIBUTION AGREEMENT — Once the Fair Housing Act was amended to say that no consideration should be given to any Regional Contribution Agreement for which the Council on Affordable Housing had not yet completed its review or granted approval, the Council could no longer consider any Regional Contribution Agreement even if it would be doing so on a remand from the court.

A municipality amended its fair share housing certified plan. It replaced sixty-one affordable rental units with a sixty-one unit Regional Contribution Agreement (RCA). Under the RCA, it would pay a neighboring municipality $2.135 million for housing rehabilitation services. The Council on Affordable Housing (COAH) approved the amended plan, determining that the RCA was feasible and would provide realistic opportunity for the provision of low and moderate income housing. A suit was filed, and the Appellate Division held that the COAH failed to articulate findings of fact to support its conclusions. It reversed and remanded the matter to the COAH to make appropriate findings of fact.

Seventeen days after this reversal, the Governor signed amendments to the Fair Housing Act (FHA). These specifically said that no consideration shall be given to any RCA for which COAH did not complete its review and grant approval prior to the date the Governor signed the amendments. Two months later, the COAH acted on the remand directed by the Appellate Division, and held that, as a result of the FHA recent amendments, it could not conduct fact finding for any additional review and approval of the RCA. The COAH therefore denied approval of the RCA.

This decision was appealed, but the Appellate Division affirmed the COAH’s denial. It addressed whether the RCA could survive the FHA amendments as an already “approved” RCA, and said it could not, finding that the failure of the COAH to provide findings of fact in support of its earlier approval of the RCA was more than just a procedural flaw - it was substantive. Without findings of fact supported by the record, the agency’s original decision was arbitrary, capricious, and unreasonable. The RCA had lost its approved status and was subject to further review by the COAH. Consequently, the RCA was subject to the prohibition of the FHA amendments, as recognized by the COAH. The Court also held that neither the equitable doctrine of manifest injustice nor the doctrine of fundamental unfairness applied to preclude the FHA amendments’ effect, as the amendment specifically recognized some RCAs would fail due to the amendment’s alteration of public policy to disallow the COAH from approving RCAs.

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