In the Matter of Adoption of N.J.A.C. 19:3, 19:4, 19:5 and 19:6 by the New Jersey Meadowlands Commission 393 N.J. Super 173 (App. Div. 2007)

August 2007Newsletters In The Zone

Printer Friendly

As seen in the In The Zone newsletter.

In A-4174-03T3, the Fair Share Housing Center (“FSHC”) sought that the master plan and zoning amendments recently adopted by the New Jersey Meadowlands Commission (“Commission”) be invalidated and for the case to be transferred to the Law Division for remedial proceeding to be conducted with a Special Master. In the Matter of Adoption of N.J.A.C. 19:3, 19:4, 19:5 and 19:6 by the New Jersey Meadowlands Commission 393 N.J. Super 173, 177 (App. Div. 2007)

In A-3107-04T1, the New Jersey Builders Association (“NJBA”) sought, in part, a judgment declaring that the Commission and the New Jersey Sports Authority (“Sports Authority”) through their respective land use regulations have a constitutional obligation under the Mount Laurel doctrine to provide realistic housing opportunities to New Jersey’s low-income and moderate-income households. (Id. at 178.) NJBA also sought to declare the present regulations of both state agencies unconstitutional, require that they develop remedial plans, and in the meantime, preserve scarce resources and restrain all development by either agency. (Id.)

Both appeals concern the State’s constitutional obligation to provide affordable housing pursuant to South Burlington County NAACP v.Township of Mount Laurel, 67 N.J. 151 (“Mount Laurel I”) cert. denied and appeal dismissed, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d. 28 (1975), and South Burlington County NAACP v.Township of Mount Laurel, (“Mount Laurel II”) 92 N.J. 158 (1983). (Id. at 177.) These appeals were consolidated as to the Court’s opinion.

The Commission was created in 1968 as part of the Hackensack Meadowlands Reclamation and Development Act. (N.J.S.A. 13:17-1 et. seq.) It is responsible for the zoning and development of approximately 21,000 contiguous acres located in fourteen municipalities. The Commission has no regulatory control over land outside of its district. However, within its district, the Commission is responsible for the “orderly and comprehensive development” that takes the protection of the environment into account, but meets, among other needs, the urgent need for “residential” development. (N.J.S.A. 143:17-1.) (Id. At 180.)

The Sports Authority is charged with the responsibility for developing one or more stadiums, coliseums, arenas, pavilions, stands, field houses, playing fields, recreation centers and the like on a site consisting of approximately 700 acres located in the Meadowlands District and entirely within East Rutherford. The Sports Authority in 2002 began planning a project entitled “Xanadu,” which is a major redevelopment of the Sports Complex into a year round venue where many diverse sports, entertainment, and recreation tenants would be assembled in a single, dynamic setting, including office and hotel uses. The construction of Xanadu began in March 2005. The project will generate about 20,000 construction jobs and about the same number of permanent jobs. (Id. At 184.)

The Council on Affordable Housing (“COAH”) in December 2004 adopted its third round of rules to calculate affordable housing needs from 1999 to 2014 and establish criteria for satisfaction of the need between 2004 and 2014. The third round of rules required that municipalities provide one affordable housing unit for every 25 newly created jobs in a non-residential development. (N.J.A.C. 5:94-2.1.) (Id. at 179.)

Another panel of the Appellate Division, however, found that COAH’s third round growth share approach was inconsistent with the Mount Laurel doctrine. (In re Adoption of N.J.A.C. 5:9-4 and 5:9-5, 390 N.J. Super. 1 (App. Div. 2007). Such panel ordered COAH to substantially revise its third round rules, while staying applications to COAH for substantive certification and builders’ remedy lawsuits against municipalities whose applications for substantive certification would be affected by the decision. (Id.) Subsequently that panel issued an order staying invalidation of any municipal ordinance in effect at the time of issuance of the opinion, while adding that the validity of any ordinance should be tested on a case-bycase basis after COAH promulgates new rules in accordance with the court’s opinion.

As a result of the court-ordered reworking of the third round of rules, the court was satisfied that the actions against the Commission should be transferred to it for further rule-making proceeding to be completed upon promptly after COAH acts. The court agreed with the Commission’s claim that it has no Mount Laurel responsibilities under the New Jersey Fair Housing Act, (N.J.S.A. 52:27D-301 et. seq., but found that the Commission is constitutionally obliged to do more than merely assist municipalities in the manner indicated by N.J.A.C. 19:4-3.8. (Id. at 179.)

The court, however, found that with respect to the Sports Authority, the Legislature gave them the power to determine the location, type, and character of its projects, notwithstanding any land use plan, zoning regulation, building code, or similar regulation adopted by the state or other political subdivision. (N.J.S.A. 5:10-5(x).) (Id. at 184.) The Legislature has a plan for the Sports Complex and that plan as set out in N.J.S.A. 5:190-6(a)(1), does not appear to include onsite affordable housing. The court compared the relatively small amount of land involved as to the Sports Authority of 700 acres as to the 21,000 acres zoned by the Commission, and the Sports Authority’s determination that it should limit its planning and development to the purposes listed in N.J.S.A. 5:10-6(a)(1), and as a result found that dismissal of the complaint appropriate. (Id. at 186.)