Township of Denville, In re

Page 186

247 N.J.Super. 186

588 A.2d 1248

In re Petition for Substantive Certification Filed by the TOWNSHIP OF DENVILLE.

Superior Court of New Jersey Appellate Division.

Argued Oct. 17, 1990.

Decided March 26, 1991.

Stephen Eisdorfer, Asst. Deputy Public Advocate, for appellants Morris County Branch of the N.A.A.C.P. and the Public Advocate (Wilfredo Caraballo, Public Advocate, attorney; Stephen Eisdorfer on the briefs).

Geraldine Callahan, Deputy Atty. Gen., for respondent Council on Affordable Housing (Robert J. Del Tufo, Atty. Gen., attorney; Michael R. Clancy, Asst. Atty. Gen., of counsel; Geraldine Callahan and Donald M. Palombi, Deputy Atty. Gen., on the brief).

Stephan C. Hansbury, for respondent Township of Denville (Hansbury, Martin & Knapp, Morris Plains, attorneys; and relied upon the brief filed by the Attorney General).

Appellant Cali Associates has not filed a brief but will rely on the brief submitted by the Public Advocate.

Before Judges SHEBELL, HAVEY and SKILLMAN.

The opinion of the court was delivered by

HAVEY, J.A.D.

In this Mount Laurel litigation, the Public Advocate, on his own behalf and on behalf of the Morris County Fair Housing Council and Morris County Branch of the N.A.A.C.P., appeals from a grant of substantive certification by the Council on Affordable Housing (COAH) approving the Township of Denville's housing element and fair share plan. Appellants had filed an action in the Law Division against Denville claiming that the township's zoning violated the Mount Laurel ¹ mandate that it provide its fair share of low and moderate income housing. The matter was transferred from the Law Division to COAH following the Supreme Court's decision in Hills Dev. Co. v. Township of Bernards, 103 N.J. 1, 510 A.2d 621 (1986). While Denville's fair share plan was pending before COAH, appellant Cali Associates moved for a builder's remedy which COAH denied. Cali appeals from that denial and joins in the arguments raised by the Public Advocate. We have consolidated the appeals for purposes of this opinion.

The Public Advocate has raised an array of challenges to Denville's plan. However, the single contention addressed here is that COAH should have rejected Denville's proposed 201-unit development because the development is made up of all low and moderate income housing units and is "isolated" from other residential communities in Denville. According to the Public Advocate, this component of Denville's fair share plan will result in a "ghetto" of poor people and racial minorities, contrary to the Fair Housing Act of 1985 (FHA), N.J.S.A. 52:27D-301 to -329 state and federal civil rights laws and the federal and New Jersey constitutions. We hold that a development consisting of all Mount Laurel units is sustainable under the FHA. However, we remand to COAH for a determination as to the suitability of the proposed site for Mount Laurel housing.

Denville, a suburban municipality located in the northcentral section of Morris County, is part of the Northwest Housing Region, consisting of Essex, Morris, Sussex and Union Counties. See N.J.A.C. 5:92-2.1. In 1980, Denville had a population of 14,380. Blacks and Hispanics make up 1.1 percent of the population of the township and 64.1 percent of the low and moderate income households of the region.

COAH assigned Denville a fair share of 417 units, 31 representing indigenous need and 386 representing the present and prospective fair share of the region's need. Denville's plan, approved by COAH, includes a request for a 29-unit credit for rehabilitated units; the construction of 201 rental, low and medium income units on a 40-acre site in Denville; a regional contribution agreement (RCA) with Newark for the construction or rehabilitation of 136 units, an RCA with Boonton for the construction of 38 units, and a rental bonus credit of 13 units. ²

The 201-unit development, pertinent here, will consist of all low and moderate income units constructed on the "McGreevy" site, a 40-acre tract purchased by the township. Seventy-five units will be constructed by the Morris County Housing Authority under a $5.4 million grant from the Federal Housing and Urban Development Agency, and 126 rental units by St. Francis Lifecare, Inc. The proposed development will be subject to an "occupancy preference" under which 50 percent of the units are reserved for those who live or work in Denville. See N.J.A.C. 5:92-15.1.

On appeal, the Public Advocate raises the following points:

Point I--In determining whether to grant Denville Township's petition for substantive certification, the Council is obligated to determine not only whether the municipal housing element and fair share plan complies with the Council's own regulations and policies, but also whether it violates the New Jersey Constitution as construed in the Mt. Laurel decisions, the Fair Housing Act of 1985 and the relevant state and federal civil rights laws.

Point II--By failing to render specific findings of fact and conclusions of law and by failing to grant an evidentiary hearing on controverted issues, the Council violated principles of procedural fairness and due process and the requirements of the Fair Housing Act and the Administrative Procedure Act.

Point III--The Council unlawfully approved the housing element and fair share plan submitted by Denville Township which perpetuates exclusionary zoning in violation of the New Jersey Constitution and the Fair Housing Act of 1985.

Point IV--The housing element and fair share plan submitted by Denville Township constitutes illegal racial discrimination and therefore could not lawfully be approved by the Council on Affordable Housing.

A. The plan submitted by Denville Township incorporates criteria for selection of occupants of lower income housing that constitutes unlawful racial discrimination.

B. The plan submitted by Denville Township incorporates Regional Contribution Agreement between Denville Township and Newark that constitutes unlawful racial discrimination.

C. The various components of Denville Township's plan, taken together, have a magnified racially discriminatory effect.

Point V--The Council unlawfully approved the housing element and fair share plan submitted by Denville Township which creates an isolated and insular "ghetto" of poor people and racial minorities in violation of the New Jersey Constitution and the Fair Housing Act of 1985 and state and federal civil rights laws.

Point VI--Because it does not provide one housing unit in the receiving municipality for each unit credited to the sending municipality, the proposed Regional Contribution Agreement between Denville and Boonton violates the Fair Housing Act and the New Jersey Constitution and could not lawfully be approved by the Council.

The contentions raised in Points I through IV challenge the "residency preference" and Newark-RCA components of Denville's plan. We reject the contentions substantially for the reasons expressed in our opinion in In re Petition for Substantive Certification filed by the Township of Warren, 247 N.J.Super. 146, 588 A.2d 1227 (App.Div.1991).

In Point V, the Public Advocate argues that Denville's "100-percent lower income project to be located [on] a single 40-acre site," which is "isolated" from other residential developments, will result in an "insular enclave of poor people and racial minorities." The Public Advocate asserts that if the occupants of the development "fairly reflect" the racial makeup of the low and moderate income population of the region, the development will have a population that is 64.1 percent black and Hispanic. Such a development, it is argued, is contrary to "sound regional planning" and in violation of state and federal civil rights laws and the federal and New Jersey constitutions.

I

We do not agree with the Public Advocate that COAH was required to reject Denville's proposal because of the potential for an undue concentration of minorities. The Mount Laurel doctrine was conceived in order to dismantle economic barriers resulting from exclusionary zoning, which effectively deprived the poor of realistic housing opportunity. Mount Laurel I, supra, 67 N.J. at 173-87, 336 A.2d 713. In order to "put some steel" into that doctrine, the court in Mount Laurel II devised a mechanism to enforce each municipality's constitutional obligation to provide "a realistic opportunity for the construction of its fair share of the present and prospective regional need for low and moderate income housing." 92 N.J. at 200, 205, 456 A.2d 390. Thus, the doctrine's primary focus is to cure economic discrimination, not to assure that the cure results in economic or racial balance. In accomplishing that mission, Mount Laurel is essentially race-neutral. ³

The FHA, the legislative response to the Mount Laurel problem, carries out the Supreme Court's mandate. N.J.S.A. 52:27D-301 to -329. Under the FHA, COAH is empowered to create a regulatory scheme by which it determines whether a municipality's proposed housing element creates a realistic opportunity for the construction of affordable housing, consistent with its constitutional obligation. See N.J.S.A. 52:27D-302, -303, -307. Thus, COAH's primary focus is not on the racial makeup of the probable occupants of Mount Laurel housing, but whether the plan adheres to sound regional planning and satisfies the constitutional obligation "enunciated by the Supreme Court." N.J.S.A. 52:27D-303.

In any event for the reasons expressed in our opinion in In re Petition for Substantive Certification filed by the Township of Warren, supra, 247 N.J.Super. at 165-170, 588 A.2d at 1237-1239, we reject the Public Advocate's assertion that Denville's plan violates the equal protection clauses of the federal and New Jersey constitutions, the Law Against Discrimination, N.J.S.A. 10:5-1 to -42, and the federal Fair Housing Act, 42 U.S.C.A. §§ 3601 to 3631. There is no showing here of a discriminatory intent in...