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In Re Highlands Master Plan

421 N.J. Super. 614, 25 A.3d 1172 (App. Div. 2011)

ZONING; HIGHLANDS — In the absence of clear evidence that New Jersey’s Legislature intended to require the Highlands Council to follow the Administrative Procedure Act in addition to the procedures set forth in the Highlands Act, a court will not extend such an obligation.

A public interest group, that acts as an advocate for affordable housing policies, challenged the Highlands Regional Master Plan (RMP) and subsequent efforts by each of the Governor, the Council on Affordable Housing (COAH), and the Highlands Water Protection and Planning Council to coordinate the actions of COAH and the Council regarding the satisfaction of affordable housing requirements within the Highlands Region.

Pursuant to the Fair Housing Act (FHA), the Council on Affordable Housing (COAH) is responsible for determining a municipality’s obligations to provide affordable housing in the State of New Jersey. Pursuant to the Highlands Water Protection and Planning Act (Highlands Act), the Highlands Council is required to adopt a regional master plan to govern development in the Highlands Region. The Region consists of approximately 800,000 acres of land within eighty-eight municipalities located in the northeast corner of New Jersey. Even though the COAH is responsible for determining affordable housing obligations through the State of New Jersey, the Highlands Act requires the COAH to take the regional master plan into consideration when allocating affordable housing needs for municipalities within the Highlands Region.

Following the Appellate Division’s invalidation of substantial portions of the COAH’s third round rules, the COAH adopted revised third round rules and proposed amendments to take into account updated data relating to the Highlands Region. The Highlands Council also adopted a regional master plan for development within the Highlands Region. After the COAH’s adoption of the third round rules, and the Highlands Council’s adoption of the regional master plan, the Governor, the COAH, and the Highlands Council took a series of steps to coordinate the actions of the COAH and the Council relating to satisfaction of the affordable housing obligations of municipalities within the Highlands Region.

The Governor adopted an executive order directing the Highlands Council to work with the COAH to review the COAH’s third round affordable housing projections for consistency with the Highlands regional master plan, and to assist the COAH in adjusting growth projections within the Highlands Region. It also directed the Highlands Council to coordinate deadlines for revisions of various municipal master plans and third round fair share affordable housing plans to be in compliance with the Highlands Act and FHA.

The COAH and the Highlands Council then entered into a Memorandum of Understanding (MOU) requiring the Highlands Council to prepare adjusted growth projections and for the COAH to ensure that the municipalities within the Highlands Region that chose to conform to the regional master plan utilize the Highlands Council’s adjusted growth projections. They also agreed that COAH would grant a waiver of the third round compliance deadline for municipalities that satisfied certain conditions in the MOU. A resolution was adopted by the COAH, granting the waiver. Later, the COAH adopted a second resolution which waived projected growth share regulations under the third round rules for municipalities within the Highlands Region that petition the COAH and the Highlands Council to conform with the regional master plan by June 8, 2010.

The public interest group claimed that the regional master plan and the second resolution adopted by the COAH were required to be adopted according to the rule-making procedure of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15. The Appellate Division found that the Highlands Council was not required to follow the APA’s rules when adopting the regional master plan. However, the COAH was required to adopt the second resolution and accompanying guidelines in accordance with the APA.

The Court found that with respect to the regional master plan, the procedures for its adoption were governed by the Highlands Act. In the absence of clear evidence that the legislature intended to require the Highlands Council to follow the APA’s rules in addition to the procedures set forth in the Highlands Act, the Court was unwilling to extend the obligation. Even though there is a substantial overlap between the procedures set forth in the Highlands Act for the adoption of the regional master plan and the APA’s rules, the Highlands Council was only required to use the rules in the Highlands Act. It noted that when there are two statutes dealing with the same subject and there is an inconsistency in their provisions, the provisions of the more specific statute (in this case, the Highlands Act) prevail over the more general statute (in this case, the APA). With respect to the Executive Order, the Court noted that a governor’s executive order cannot direct a state agency to take action inconsistent with the enabling statute. However, the Court read the executive order as merely a directive for the COAH and the Highlands Council to engage in an interactive process that could resolve in the COAH proposing amendments to its third round rules, but those rules would need to be adopted in accordance with the APA or be subject to challenge. Thus, the Court agreed that the second resolution and guidelines did not comply with APA requirements and were invalid.


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