explaining that where regulation is contrary to legislative policies underlying agency’s implementing statute or where regulation “does not comport with [the statute’s] central purpose,” it will be invalidated
How later courts described this case
- explaining that where regulation is contrary to legislative policies underlying agency’s implementing statute or where regulation “does not comport with [the statute’s] central purpose,” it will be invalidated
- observing that “principle of judicial deference to agency action is particularly well-suited to our review of administrative regulations adopted by COAH to implement the [FHA]”
- invalidating occupancy preference regulation allowing municipalities to set aside fifty percent of fail’ share housing for low- and moderate-income persons who lived or worked in town
- invalidating occupancy preference regulation allowing municipalities to set aside fifty percent of fair share housing for low- and moderate-income persons who lived or worked in town
Written by the judges who cited it.
The opinion
POLLOCK, J.,
concurring.
I concur in that part of the majority opinion that invalidates N.J.A.C. 5:92-15.1 as inappropriate rulemaking by the Council *43 on Affordable Housing (COAH) under the Fair Housing Act, N.J.S.A. 52:27D-301 to -329 (the Act). I agree that the regulation does not further the legislative policies of the Act and that it is inconsistent with COAH’s methodology for calculating regional fair share of low- and moderate-income housing. As the majority states, “The occupancy-preference regulation itself cannot be sensibly reconciled with the overall regulatory scheme that has been adopted by COAH to implement the Fair Housing Act and therefore cannot coexist within the present regulatory framework.” Ante at 29, 622 A.2d at 1271. Consequently, I agree with the majority “that the occupancy-preference regulation is invalid and cannot survive in its present context as a valid exercise of agency rule-making.” Ante at 31, 622 A.2d at 1272. Having reached that conclusion, I believe it is unnecessary and unwise for the Court to proceed to decide that the regulation is unconstitutional. Ante at 34-36, 622 A.2d at 1274-1275; see Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 109 , 609 A.2d 11 (1992) (Pollock, J., concurring) (“Established jurisprudential principles counsel that a court should not decide a case on a constitutional basis when a non-constitutional basis is available.”). Unnecessary, because the regulation is invalid for other reasons; unwise, because a constitutional decision may inhibit other branches and levels of government from taking action to vindicate the Mount Laurel obligation without judicial intervention.
I am encouraged, however, by the latitude that the Court’s opinion accords to other branches and levels of government in implementing the Mount Laurel, doctrine. As the Court recognizes, COAH, without offending that doctrine, might design a limited preference for otherwise-qualified households, such as those consisting of long-time residents who are retired or disabled. Ante at 36, 40, 622 A.2d at 1275, 1275. COAH’s administrative powers are well-suited for designing legitimate preferences that balance local needs with regional obligations.
*44 This Court has shown great deference to the Act, Hills Dev. Co. v. Township of Bernards, 103 N.J. 1, 21-25 , 510 A.2d 621 (1986), and to COAH’s implementation of it, Van Dalen v. Township of Washington, 120 N.J. 234, 244-47 , 576 A.2d 819 (1990). Notwithstanding the invalidity of the challenged regulation, I still assume that COAH “will pursue the vindication of the Mount Laurel obligation with determination and skill. If it does, that vindication should be far preferable to vindication by the courts, and may be far more effective.” Hills Dev. Co., supra, 103 N.J. at 21 , 510 A.2d 621 . Consistent with that assumption, I believe the Court need not burden COAH with a constitutional constraint.
GARIBALDI, J., joins in this concurrence.
POLLOCK and GARIBALDI, JJ., concur in result.
For reversal and remandment — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN — 7.
For affirmance — None.