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In re Petition of Howell Township

371 N.J. Super. 167, 852 A.2d 258 (App. Div. 2004)

COAH—Even though the Council on Affordable Housing may have taken much, much too long to review a municipality’s petition, a court will not require the Council to dismiss the matter; rather, it can order the Council to expedite its proceedings and adhere to a court ordered schedule.

The Council on Affordable Housing (COAH) granted substantive certification to a municipality for its affordable-housing compliance plan. The plan included a rezoning of a tract of land on which a developer proposed to construct affordable housing units. A property owner in the municipality, who was also proposing to construct a development of affordable-housing units, appealed the COAH’s grant and argued that the municipality’s site was not feasible. The Appellate Court reversed the certification and remanded the matter.

Following those proceedings, the COAH attempted to obtain additional information regarding the viability of the municipality’s site. After its own investigation, it concluded that the site was suitable. However, after receiving the comments from the opposing property owner, the COAH changed its position and directed the municipality to devise a new compliance plan and re-petition for substantive certification. Regardless, the issue became moot when the municipality decided to adopt a plan that did not involve the site in question. By the time this decision was made, nearly two years had passed since the remand. For that reason, the owner filed motions to intervene and to dismiss the municipality’s petition; COAH denied them.

The Appellate Division affirmed COAH’s denial. First, the Court noted that COAH solicited the owner’s views as to how the remand should be conducted, considered the evidential materials it submitted, and ruled on the merits of his motions. Once the municipality submitted its re-petition for substantive certification, the owner then occupied the status of an objector in the proceedings before COAH. Thus, the owner was entitled to mediation of his objections. For those reasons, the Court held that the owner had essentially the same rights as an objector before the COAH as an intervenor would have in Superior Court.

The owner also claimed that COAH’s failure to make any finding concerning the suitability of the site for almost two years, and the municipality’s decision to adopt a new compliance plan that did not include the site, required COAH to grant the owner’s motion to dismiss the municipality’s motions to dismiss. The Court held that there was no abuse of discretion in COAH’s decision to deny the motion to dismiss. The primary cause of the delay was not something the municipality did or failed to do, but rather the shifting positions of the COAH as to the site. In addition, both parties submitted substantial documentation, requiring substantial time to review. Throughout this process, the municipality had no way of knowing whether COAH would reaffirm or reject its decision to include the site in its compliance plan. For these reasons, the Court held that it would have been unfair to deprive the municipality of the opportunity to have its compliance plan reviewed.

The Appellate Division noted, however, that the only action taken by the COAH for the fourteen months after its receipt of the owner’s objections was the preparation of a pre-mediation report that was sent to the municipality. The COAH’s only explanation for this delay was staff turnover. In fact, by the time COAH received the owner’s objections two years had passed since the remand. During that period, there had been several inadequately explained delays in COAH’s reconsideration of the municipality’s plan. Furthermore, when the owner filed his appeal, the COAH should have realized that the matter was a priority. Accordingly, the Court held that the COAH’s delay was unjustified. However, it refused to grant the owner’s motion to dismiss the case because, to do so, would have punished the municipality for COAH’s mistake. Instead, COAH was ordered to complete the proceedings in accordance with a schedule created by the Court.


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