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In Re Borough of High Bridge Challenging Denial of Amendment to Substantive Certification

A-2103-05T2 (N.J. Super. App. Div. 2007) (Unpublished)

AFFORDABLE HOUSING; COAH —Where a developer and a municipality reach a settlement in the builder’s remedy lawsuit, and the municipality later applies to the Council on Affordable Housing for an amendment to remove the developer’s site from the municipality’s affordable housing plan, but the municipality has merely recycled its arguments, there is no abuse of discretion on the Council’s part when it decides to enforce the settlement.

A municipality appealed from the denial of its attempt to remove a developer’s property site from its fair share affordable housing plan. According to the Court, this was the latest case in a series of decisions rendered over the prior decade where the municipality and the developer had been arguing over the propriety of building affordable to moderate income level housing on the site.

The developer filed a builder’s remedy lawsuit against the municipality. It was eventually settled. The settlement allowed for the site to be added to the plan and for the construction of low cost housing. It effectively protected the municipality from the threat of future builder’s remedy lawsuits. The developer was unable to build the low-cost housing because the municipality placed several roadblocks on the path to its completion. The Court had previously concluded that the site should be included in the plan and that it had proper sewer and water infrastructure for the planned housing. In a later decision, the Court further affirmed that the municipality had to permit the developer to begin construction of the low-cost housing, citing that the public had already been deprived of their benefit for several years.

The municipality appealed to the Council on Affordable Housing (COAH) for an amendment that would remove the developer’s site from the plan, claiming that it no longer offered an opportunity for low-income housing because of an inadequate sewer system; also, the housing should not be built on steep slopes. The COAH disagreed, noting that the issues had already been raised and rejected in previous litigation. The COAH would only permit an amendment that included the developer’s site.

The Court agreed that the municipality had recycled its arguments about the steep slopes, as well as those regarding the developer’s delays and lack of cooperation and the fact that the project was not located in a designated center. The Court also held that the municipality’s arguments about being able to meet the fair share low-income housing obligations without the developer’s property were irrelevant, primarily because there was no abuse of discretion on the COAH’s decision to enforce the settlement. Not wanting to undercut the purpose of the settlement, the Court affirmed the COAH’s findings.

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