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In Re Petition for Substantive Certification of Borough of Montvale

386 N.J. Super. 119, 899 A.2d 327 (App. Div. 2006)

AFFORDABLE HOUSING; COAH—A property owner is not entitled to a hearing before the Council on Affordable Housing as to whether certain regulations would reduce its ability to develop its property where the property owner failed to raise the issues during mediation or to support its objections to the compliance report with any competent evidence.

A municipality petitioned for substantive certification of its fair share housing plan. A property owner’s thirty-two acres were zoned for an inclusionary development that would yield thirty-nine affordable units. The property owner filed objections. After lengthy proceedings, the New Jersey Council on Affordable Housing (COAH) voted to approve the petition and issued the resolution granting substantive certification.

The property owner appealed COAH’s grant of substantive certification to the municipality as arbitrary, capricious, and unreasonable. Further the property owner argued that COAH’s grant constituted an abuse of the agency’s authority and discretion because COAH erroneously failed to abide by its own regulations, failed to afford the property owner due process and fundamental fairness in COAH’s administrative process, and unjustifiably reached conclusions unsupported by the administrative record.

The Appellate Division concluded that COAH’s decision was supported by substantial credible evidence and was neither arbitrary nor capricious.

The property owner argued that it was entitled to a hearing on whether certain regulations would reduce its ability to develop its property. However, the Appellate Division found that the property owner had not satisfied the threshold requirements for a plenary hearing. It noted that the property owner provided nothing beyond its own general statements unsupported by an expert report or other legally competent evidence. Thus, the Court concluded that where the property owner failed to raise the issue during mediation, and where it failed to support its objections to the compliance report with any competent evidence, the agency properly denied a hearing.

Furthermore, the Court found the property owner’s argument to be misplaced. The property owner relied on a case where the issue of whether COAH was required to consider information that had indicated that a municipality’s compliance plan did not comply with COAH regulations. However, the Court explained that the cited case stood for the proposition that COAH could not turn a blind eye to evidence of potential environmental impediments to development. It ruled that the cited case did not mean that COAH was required to hold an evidentiary hearing based on unsupported, self-serving statements by an interested property owner.

The property owner did not submit legally competent evidence or any evidence to support its position that the certain regulations would prevent development of his property at the designated density. Moreover, COAH made inquiry of the municipality and consulted with the regulatory body before responding to the property owner’s comments. COAH was required to acknowledge and investigate the issue of the possible impact of the regulations on the property owner’s property, and it did so. While the Court recognized that COAH could have investigated further, the absence of evidence from the property owner to support its position compelled the Court to find that COAH response was sufficient.

Accordingly, the Appellate Division affirmed the order of COAH approving the municipality’s petition for substantive certification of its fair housing plan.


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