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Preservation Lands, LLC v. Township of Princeton

A-3634-03T2 (N.J. Super. App. Div. 2005) (Unpublished)

COAH; BUILDER’S REMEDIES; FAIR HOUSING — A court may not rule on a municipality’s fair housing obligations without the municipality first developing a fair housing plan and submitting it to the Council on Affordable Housing for approval.

Two development companies owned contiguous land in a municipality. Part of the land was in the municipality’s residential senior citizen zone. The municipality adopted an ordinance that rezoned the land from the senior citizen zone into a single family zone. It removed multi-family housing as a permitted use. It also reduced the maximum number of units permitted in a single development. Prior to enacting the ordinance, the municipality had obtained substantive certification from the Council on Affordable Housing (COAH) of its fair housing plan. COAH’s certification was set to expire and instead of requiring the municipality to apply for a certification based on a new housing plan, COAH granted an extension of certification. As a result, the developers filed a complaint challenging COAH’s certification extension. The lower court held that the certification extension was invalid and ordered COAH to adopt new regulations regarding applications for new certifications, and the municipality appealed. In addition, the companies filed a separate complaint in lieu of prerogative writs challenging the ordinance. They argued that the ordinance was invalid because the municipality failed to comply with its fair housing obligations in enacting the ordinance by not applying to COAH for certification of a new housing plan. The lower court dismissed the complaint as premature, finding that the developers could not establish that the municipality failed to meet its fair housing duties before the municipality adopted a new housing plan. They appealed.

The Appellate Division affirmed the lower court’s ruling. It also found that the developer’s suit was premature. It ruled that the municipality had to first apply to COAH for certification of a new fair housing plan before the developers could contend that the municipality was not meeting its fair housing obligations. The Court found that the developers were attempting to circumvent the role of COAH by asking the Court to rule on the municipality’s fair housing duties before they were addressed by COAH. The Court further held that the action was premature because the developers’ prior case challenging COAH’s certification extension was still pending on appeal.

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