Case Law Summaries

In re Petition For Substantive Certification, Twp. of Southampton, County of Burlington, N.J.

• Opinion Date: March 20, 2001
• Real Property Law
• E-Mail

AFFORDABLE HOUSING—The Council on Affordable Housing should not disregarded or give only perfunctory consideration to information supplied by a property owner or other interested parties concerning the feasibility of a compliance plan simply because such a party has not filed a timely objection to the plan.

The Council on Affordable Housing (COAH) granted a municipality substantive certification for a compliance plan that provided the municipality with protection from exclusionary zoning litigation for a given number of years. It determined that the municipality’s affordable housing obligation could be satisfied by rezoning, but because there was no public water or sewer service in the area to be rezoned, the municipality was able to obtain a “durational adjustment.” This allowed postponed satisfaction of its affordable housing obligation until water and sewer service became available. At the end of the “durational adjustment” period, the municipality petitioned for substantive certification of a new compliance plan which was rejected. It then filed for another plan, and that application was rejected. Ultimately, the municipality reapplied with a further revised plan, and the COAH planner submitted a report recommending that the municipality be granted conditional substantive certification. A few days later, the owner of the largest lot in the zone that had been designated for affordable housing, sent a letter to COAH which stated that “the bulk of the 56 acres” on which housing was proposed to be built was “subject to wetlands designation and that only approximately 24 of the 56 acres is buildable.” Then, a contract purchaser of the land sent a letter to COAH which also alleged that the proposed zone could not realistically achieve the development anticipated and yield the designated number of affordable units. The next day, the COAH executive director denied the contract purchaser’s request to postpone consideration of the municipality’s petition. The day after that, COAH voted to grant conditional substantive certification to the municipality’s latest compliance plan. Three months later, COAH voted to grant final substantive certification. Two weeks after that, the contract purchaser submitted a motion for reconsideration accompanied by a memorandum by its planner alleging additional reasons why the municipality’s plan should have been rejected. Eventually, COAH denied the contract purchaser’s motion for reconsideration on the grounds that COAH would essentially be retroactively allowing the contract purchaser to intervene as an objector in this matter. COAH’s contention was that such an action would be a contravention of a New Jersey statute “that there are 45 days from the date of a municipal petition for substantive certification to file an objection.” Under the applicable statute, any party that opposes the grant of certification must file an objection within 45 days of publication of the notice of petition. COAH, when filing a timely objection, must meet with the objectors and the municipality in an attempt to mediate a resolution of the dispute. If the mediation is unsuccessful, COAH must transfer the matter to the Office of Administrative Law as a “contested case.” “However, even if not objection is filed, COAH may grant substantive certification only if it finds that ‘[t]he municipality’s fair share plan is consistent with the rules and criteria adopted by [COAH] and not inconsistent with achievement of the low and moderate income housing needs of the region ... .” It must also find that the “plan make[s] the achievement of the municipality’s fair share of low and moderate income housing realistically possible.” Consequently, the Court held that “COAH should not disregard or give only perfunctory consideration to information supplied by a property owner or other interested party concerning the feasibility of a compliance plan simply because that party has not filed a timely objection to the plan.” The Court concluded that the factual materials submitted by the contract purchaser raised serious questions as to whether the municipality’s compliance plan conformed with COAH regulations, or whether the plan provided for a realistic opportunity for the construction of affordable housing. According to the Court, COAH’s receipt of information from the contract purchaser should have triggered a full-scale inquiry concerning the viability of the municipality’s compliance plan.

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