Agenda - Planning Commission - 11/12/2015

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September 25, 2015 1 Volume 9 ( Issue 18 Zoning Bulletin for substantive certification but COAH had found the submission did not meet necessary criteria and that therefore the Ordinance was not under COAH jurisdiction. The trial court invalidated the City's Ordinance as "null, void, and unenforceable as a matter of law." The court enjoined the City from enforcing "any requirement" of the Ordinance on the Developers to construct affordable housing units and/or collect from the Developers "any monetary contribution" re- lated to affordable housing. Fair Share and the City appealed. The appeals were consolidated. On appeal, they argued that the trial court erred in holding that all munici- pal affordable housing ordinances require review by COAH whether or not the municipality is under COAH jurisdiction seeking substantive certification. Fair Share and the City maintained that the trial court "failed to appreciate the voluntary nature of COAH's jurisdiction, and the alternative route the FHA provides to municipalities" (under N.J.S.A. 52:27D-313(a)). On the other hand, on appeal, the Developers argued that COAH's involvement was required in all matters affecting affordable housing, and that since COAH had not approved the City's Ordinance, the Ordinance was invalid and unenforceable against them. DECISION: Judgment of Superior Court, Law Division, re- versed and matter remanded. The Superior Court of New Jersey, Appellate Division, concluded that the trial court erred in invaliding the City's zoning approval condi- tions related to compliance with the City's affordable housing Ordi- nance's provisions as to the Developers. The appellate court held that "[t]here is no provision in the FHA or regulations promulgated by COAH requiring municipalities to submit all ordinances that impact a municipality's affordable housing obligation to COAH for approval." Rather, found the court, the "substantive certification" provided by COAH to those municipalities seeking its protection from builder's remedy suits is "entirely voluntary." The trial court's decision had invalidated the section in the City's Ordinance that provided for voluntary payments by developers in lieu of compliance with the Ordinance's affordable housing requirements. In the interest of clarity, the appellate court also expressly reversed that portion of the trial court's decision. The court held that "payment in lieu" provisions in affordable housing ordinances do not need COAH approval. The court found that although COAH has jurisdiction over "development fees," COAH has regulatory oversight of "payments in lieu" only when a municipality seeks substantive certification. The court found support for its holding under both the FHA (see N.J.S.A. 52:27D-329.3(a)) and COAH regulations (see N.J.A.C. 5:97-8.3(b)). In summary, the court concluded that the payment in lieu section of the 4 © 2015 Thomson Reuters