Opinion
DOCKET NO. A-3223-10T1 DOCKET NO.A-3224-10T1
01-25-2013
IN RE NEW JERSEY HIGHLANDS WATER PROTECTION AND PLANNING COUNCIL APPROVAL OF THE PETITION FOR PLAN CONFORMANCE FOR THE TOWN OF CLINTON, HUNTERDON COUNTY. IN RE NEW JERSEY HIGHLANDS WATER PROTECTION AND PLANNING COUNCIL APPROVAL OF THE PETITION FOR PLAN CONFORMANCE FOR THE BOROUGH OF HIGH BRIDGE, HUNTERDON COUNTY.
Kevin D. Walsh argued the cause for appellant Fair Share Housing Center in A-3223-10 and A-3224-10. Lewin J. Weyl, Deputy Attorney General, argued the cause for respondents New Jersey Highlands Water Protection and Planning Council and the Council on Affordable Housing in A-3223-10 and A-3224-10 (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Matthew T. Kelly, Deputy Attorney General, on the brief). Gebhardt & Kiefer, PC, attorneys for respondent Town of Clinton in A-3223-10, rely on the brief of the New Jersey Highlands Water Protection and Planning Council. Steven Firsker argued the cause for respondent Borough of High Bridge in A-3224-10 (Greenbaum, Rowe, Smith & Davis, LLP, attorneys; Mr. Firsker, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Koblitz and Accurso.
On appeal from the adoption of Resolution 2011-2 and Resolution 2011-3, New Jersey Highlands Water Protection and Planning Council and New Jersey Council on Affordable Housing.
Kevin D. Walsh argued the cause for appellant Fair Share Housing Center in A-3223-10 and A-3224-10.
Lewin J. Weyl, Deputy Attorney General, argued the cause for respondents New Jersey Highlands Water Protection and Planning Council and the Council on Affordable Housing in A-3223-10 and A-3224-10 (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Matthew T. Kelly, Deputy Attorney General, on the brief).
Gebhardt & Kiefer, PC, attorneys for respondent Town of Clinton in A-3223-10, rely on the brief of the New Jersey Highlands Water Protection and Planning Council.
Steven Firsker argued the cause for respondent Borough of High Bridge in A-3224-10 (Greenbaum, Rowe, Smith & Davis, LLP, attorneys; Mr. Firsker, on the brief). PER CURIAM
The Fair Share Housing Center (the Center) has filed two separate appeals. In each, the Center challenges a resolution of the Highlands Water Protection and Planning Council (the Council) conditionally approving a municipality's master plan and land use regulations as conforming with the Council's regional master plan (RMP) for the Highlands. Resolution 2011-2 approves the petition of the Borough of High Bridge (High Bridge), and Resolution 2011-3 approves the petition of the Town of Clinton (Clinton).
The Center is "a public interest organization that acts as an advocate for affordable housing policies." In re Highlands Master Plan, supra, 421 N.J. Super. at 621. The Council does not challenge the Center's standing to appeal its approval of these resolutions.
Resolution 2011-2, N.J. Highlands Council, 4 (Jan. 20, 2011), http://www.highlands.state.nj.us/njhighlands/about/calend/2011_m eetings/012011_resolution_highbridge.pdf (hereinafter Resolution 2011-2).
Resolution 2011-3, N.J. Highlands Council, 4 (Jan. 20, 2011), http://www.highlands.state.nj.us/njhighlands/about/calend/2011_m eetings/012011_resolution_clintontown.pdf (hereinafter Resolution 2011-3).
In each appeal the Center asserts the Council was required, but failed, to adopt "the substantive and procedural requirements that form the plan conformance process" in accordance with the rule-making procedures of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15. On that ground, the Center urges us to invalidate these resolutions, and compel the Council to comply with the APA.
The Center does not present any argument specific to the Council's approval of the Clinton or High Bridge petition. The legal and factual issues concern the Council's implementation and administration of the Highlands Water Protection and Planning Act (the Highlands Act), N.J.S.A. 13:20-1 to -35. Accordingly, consolidation of the appeals is appropriate. Because the Center has not overcome the presumption of validity afforded agency action, we affirm.
At oral argument on these appeals, we granted the Council leave to file a supplemental brief addressing arguments based on facts and documents not included in the Center's opening briefs and its 281-page appendix for High Bridge and 203-page appendix for Clinton. The appendix to the reply brief is 199 pages for High Bridge and for Clinton. Following the submission of the Council's supplemental brief, the Center filed a motion in each of its appeals for leave to respond, and its motion brief provided that response. We reserved that motion for resolution in this opinion, and now grant it in the interest of avoiding distracting quibbling about the adequacy of the Center's first brief that is wholly unrelated to the merits of the case. Thus, we have considered the portion of the Center's motion brief that responds to the Council's supplemental brief; nothing else in the brief has sufficient merit to warrant comment in a written opinion. R. 2:11-3(e)(1)(E).
I
The Highlands Act
Through the Highlands Act, the Legislature "delegated responsibility for land use planning in the Highlands Region . . . to the Highlands Water Protection and Planning Council (the Council), N.J.S.A. 13:20-4." In re Highlands Master Plan, 421 N.J. Super. 614, 618 (App. Div. 2011). The Highlands Region includes the land "in eighty-eight municipalities" and seven counties. Ibid.; see also N.J.S.A. 13:20-2, -7. The Highlands Act was adopted to address the threat to natural resources and the State's drinking water supply posed by rapid and uncoordinated development occurring in the Highlands Region under a system that left development to property owners and local planners. N.J.S.A. 13:20-2.
The Council's primary responsibilities include development of the RMP and review of petitions submitted by local governments for approval of their local master plans and land use regulations as conforming with the RMP. N.J.S.A. 13:20-8 to -12 (RMP development); N.J.S.A. 13:20-14 to -15 (conformance process). The RMP uses the term "Plan Conformance" to refer to the process through which a local government brings its master plan and land use regulations into compliance and the Council approves them as conforming with the RMP. Highlands Regional Master Plan.
Highlands Regional Master Plan, N.J. Highlands Council, 366 (2008), http://www.highlands.state.nj.us/njhighlands/master/ rmp/final/highlands_rmp_112008.pdf (hereinafter RMP).
The breadth and complexity of the Council's charge and the ramifications of its determinations would be difficult to overstate. In re Highlands Master Plan, supra, 421 N.J. Super. at 622-23 (discussing the "broad ramifications" of a decision invalidating the RMP and the variety of topics included in the Council's "regional land use planning responsibilities"). The region is divided into two areas — a preservation area and a planning area. N.J.S.A. 13:20-3, -7. Conformance with the RMP is mandatory in the preservation area and optional in the planning area. N.J.S.A. 13:20-14 to -15. Land in Clinton lies in both areas; all of High Bridge is in the planning area.
The Highlands Act establishes different goals for land in preservation and planning areas. Summarizing, the goals in the preservation area are: protection and enhancement of water quality and promotion of water conservation; protection of all other resources; preservation of land in its natural state, farmland, historic sites and recreational opportunities; promotion of brownfield remediation and redevelopment of agricultural, horticultural, recreational and cultural uses that are compatible with protecting the environment; and limiting construction and development "incompatible with preservation." N.J.S.A. 13:20-10b.
The goals in the planning area are similar. They are: protecting and enhancing water; protecting and maintaining the "essential character" of the region; preserving and promoting compatible uses; promoting "smart growth" by providing "appropriate patterns of residential, commercial, and industrial development"; and promoting a sound and balanced transportation system that is consistent with that smart growth. N.J.S.A. 13:20-10c.
The Council does not have the authority to achieve those goals by amending local master plans or land development regulations. Under the Highlands Act, that is to be done primarily by the region's numerous municipalities. N.J.S.A. 13:20-14 to -15. Even in the preservation area where conformance with the RMP is mandatory, the Council cannot unilaterally implement the RMP unless the municipality fails to adopt and enforce a revised master plan or development regulations. N.J.S.A. 13:20-14d.
To facilitate and encourage municipal efforts to bring local master plans and development regulations into conformity with the RMP, the Highlands Act requires the Council to provide technical assistance and benefits for participating municipalities. These include: grants and technical assistance, N.J.S.A. 13:20-13k, -18; entitlement to a "strong presumption of validity" of its local master plan and development regulations, N.J.S.A. 13:20-22; and legal representation in defense of certain actions taken in accord with the RMP, N.J.S.A. 13:20-20.
Plan conformance grants, those available to municipalities and counties for revising master plans and development regulations to conform with the RMP, "pay for the reasonable expenses . . . and shall be distributed according to such procedures and guidelines as may be established by the council." N.J.S.A. 13:20-18b.
The mandatory elements of the RMP are set forth in N.J.S.A. 13:20-11, but the list is not exclusive. The statute provides that the RMP "need not necessarily be limited to" those matters. N.J.S.A. 13:20-11a; see also N.J.S.A. 13:20-12 (setting forth the mandatory components of the land use capability map which, pursuant to N.J.S.A. 13:20-11a(6)(a), must be included in the RMP).
Pertinent to the plan conformance process and the grant program that facilitates and encourages compliance, the RMP must include a "financial component," detailing, among other things, "the cost of implementing the [RMP]" and the available "planning grants and other State aid for local government units," N.J.S.A. 13:20-11a(2)(a)-(b); "a component to provide for the maximum feasible local government and public input into the council's operations, which shall include a framework for developing policies for the planning area in conjunction with those local government units in the planning area who choose to conform to the [RMP]," N.J.S.A. 13:20-11a(3); a "coordination and consistency component which details the ways in which local, State, and federal programs and policies may best be coordinated to promote the goals, purposes, policies, and provisions of the [RMP]," N.J.S.A. 13:20-11a(4); and a smart growth component addressing multiple topics — such as development, infrastructure, transportation, housing, economic development, recycling and brownfields — that includes both a "land use capability map," N.J.S.A. 13:20-11a(6)(a), and "model minimum standards for municipal and county master planning and development regulations outside of the preservation area . . . where appropriate [to encourage] the adoption of such standards," N.J.S.A. 13:20-11a(6)(f).
In addition, the land use capability map that is part of the smart growth component of the RMP required by N.J.S.A. 13:20-11a(6)(a), must include a provision for "implementing the [RMP] by the State and local government units in the preservation area." N.J.S.A. 13:20-12. As part of the smart growth component of the RMP, the implementing provisions "shall be used" for advisory purposes only in the planning area. N.J.S.A. 13:20-11b.
The Highlands Act also sets forth the process for plan conformance. N.J.S.A. 13:20-14 addresses the process for the preservation area, and N.J.S.A. 13:20-15 addresses the process in the planning area.
Municipalities with land in the preservation area are obligated to conform with the RMP in that area. Within nine to fifteen months of the adoption of the RMP or a subsequent revision of the RMP, a municipality with land in the preservation area must submit, according to a schedule provided by the Council, proposed revisions of its master plan and development regulations for the preservation area "as may be necessary in order to conform them with the goals, requirements, and provisions of the [RMP]." N.J.S.A. 13:20-14a. Upon receipt, the Council must review the municipality's petition, conduct a public hearing and act to "approve, reject, or approve with conditions the revised plan and development regulations." Ibid. If the Council elects to reject or approve with conditions, it must identify the changes necessary for approval, and the municipality must adopt and enforce those changes. Ibid.
To gain the Council's approval of its plans as conforming with the RMP, a municipality with land in the planning area opting to participate begins by adopting an ordinance stating its intention to "revise its master plan and development regulations . . . to conform with the goals, requirements, and provisions of the [RMP]." N.J.S.A. 13:20-15a(1). The municipality must revise "its master plan and development regulations in accordance with the framework adopted by the council pursuant to [N.J.S.A. 13:20-14a, which is discussed above]." N.J.S.A. 13:20-15a(1). Upon receipt of the municipality's revisions and consultation with the State Planning Commission and a public hearing, the Council must act on the petition by approving, rejecting, or approving it with conditions. Ibid. As with petitions for the preservation area, the Council is required to identify changes necessary for approval when it conditionally approves or rejects a petition. N.J.S.A. 13:20-15a(2). Again, approval entitles the municipality to the same benefits as approval of a plan submitted for the preservation area. N.J.S.A. 13:20-15a(3).
II
The Council's Adoption of the RMP, Plan Conformance Guidelines
and Grant Program Documents
After about two years of work that included dissemination of drafts, receipt of comments and public hearings, on July 17, 2008, the Council adopted the RMP and Plan Conformance Guidelines (PCGs), setting forth the standards and procedures for plan conformance approval. Resolution 2008-27; see also RMP, supra, at 366-75 (addressing plan conformance, consistency and coordination and grants); Plan Conformance Guidelines (providing an overview of plan conformance and describing the plan conformance process, documents to be submitted, the review process and a checklist). Prior to final adoption, the Council released four drafts of the PCGs for public review and comment and posted them on the Council's website in October 2006, January and November 2007 and July 2008. See Released Documents Related to 2008 RMP Approval (listing releases from July 2006 through December 2008); Resolution 2008-27, supra; Resolution 2007-25; Resolution 2006-30. The Council gave notice and opportunity to respond to drafts of the RMP and PCGs. Draft Highlands Regional Master Plan - November 2006 Comment and Response Document (summarizing and responding to comments on the 2006 RMP); Draft Highlands Regional Master Plan - November 2007 Comment and Response Document (same respecting the 2007 draft RMP). When the final draft of the RMP was released for public comment, it was released with technical documents, including the PCGs. See Resolution 2008-27, supra. The final RMP and PCGs took effect on September 8, 2008, and the Council disseminated and posted the RMP and PCGs as adopted on September 16, 2008. Released Documents, supra.
Resolution 2008-27, N.J. Highlands Council (July 17, 2008), http://www.highlands.state.nj.us/njhighlands/about/calend/2008_m eetings/resolution_2008_27.pdf (hereinafter Resolution 2008-27).
Plan Conformance Guidelines, N.J. Highlands Council (2008), http://www.highlands.state.nj.us/njhighlands/master/highlands_pl an_conformance_guidelines.pdf (hereinafter PCGs).
Released Documents Related to 2008 RMP Approval, N.J. Highlands Council, http://www.highlands.state.nj.us/njhighlands /master/chronological.html (last visited Jan. 14, 2013) (hereinafter Released Documents).
Resolution 2007-25, N.J. Highlands Council (Nov. 19, 2007), http://www.highlands.state.nj.us/njhighlands/about/calend/2007_m eetings/resolution_25_11_19.pdf.
Resolution 2006-30, N.J. Highlands Council (Nov. 30, 2006), http://www.highlands.state.nj.us/njhighlands/about/calend/2006_m eetings/resolution_2006_30.pdf.
Draft Highlands Regional Master Plan - November 2006 Comment and Response Document, N.J. Highlands Council (Nov. 2006), http://www.highlands.state.nj.us/njhighlands/master/draft_rmp_co mment_response_doc_2006.pdf (hereinafter 2006 Response Document).
Draft Highlands Regional Master Plan - November 2007 Comment and Response Document, N.J. Highlands Council (Nov. 2007), http://www.highlands.state.nj.us/njhighlands/master/draft_rmp_2007_comment_response.pdf (hereinafter 2007 Response Document).
The PCGs, as adopted by the Council in September 2008, are a component of the RMP. In response to a comment suggesting issuance of "a 'Plan Conformance Guidelines' manual outlining the procedures and requirements for Plan Conformance along with timelines and costs . . . before adoption of the Regional Master Plan," the Council indicated that the RMP "identif[ies] all mandatory components of Plan Conformance." 2007 Response Document, supra, at 213. The Council, however, also stated that the mandatory components would "also be compiled and provided in a user-friendly format in the Plan Conformance Guidelines and Plan Conformance standards and model ordinances and planning documents." Ibid.
The PCGs are referenced seven times in the final RMP. RMP, supra, at 302, 339, 367, 368, 370, 372, 374. The RMP indicates that the Council will distribute the PCGs "outlining the procedures for Plan Conformance" and providing "additional detail on Conformance elements" and "descriptions and criteria for all . . . grant programs that will be available . . . in support of Plan Conformance." Id. at 367. It also states that the PCGs will: be distributed upon adoption of the RMP, id. at 368; provide a detailed list of the information that must be supplied with a petition, ibid.; and include a table specifying policies and objectives that are immediate mandatory requirements, id. at 370, 372-73. In addition, the RMP and PCGs indicate that the Council will provide models for revising local master plans and development regulations required by N.J.S.A. 13:20-6p. Id. at 367-68; PCGs, supra, at 9-12; see also N.J.S.A. 13:20-6p (requiring the Council to develop model land ordinances and other development regulations for "consideration and possible adoption by municipalities in the planning area" along with guidance and technical assistance).
Both the RMP and PCGs discuss the approval process. RMP, supra, at 372-73; PCGs, supra, at 2-5, 7-16. These documents address procedures for conformance in the preservation and planning areas. RMP, supra, at 372-73; PCGs, supra, at 7-16. They also provide for immediate and long-term mandatory elements of conformance and for discretionary elements that are "part of the Council's future vision of the Highlands." RMP, supra, at 374.
The plan conformance process begins with the Council providing information by disseminating explanatory documents and technical information and conducting "overview" meetings to explain the plan conformance process. See RMP, supra, at 367; PCGs, supra, at 7-9. A municipality required or opting to participate files a notice of intent to pursue plan conformance and prepares a municipal self-assessment report. RMP, supra, at 369; PCGs, supra, at 8, 10. The RMP and the PCGs describe available technical and financial assistance, such as grants. RMP, supra, at 373-75; PCGs, supra, at 5-6. Plan analysis and conformance grants finance the costs of a municipality's initial assessment and the preparation and filing of its notice of intent. RMP, supra, at 374. In addition, there are grants for immediate and long-term mandatory elements of conformance, and incentive grants for elements of conformance that are discretionary. RMP, supra, at 374-75. With respect to plan analysis and conformance grants, the PCGs reiterate the statutory standard for the grant amount — reasonable costs. RMP, supra, at 420; PCGs, supra, at 5.
The PCGs also address the Council's obligations in reviewing municipal petitions for plan conformance. The PCGs provide for the Council's executive director to review a petition for completeness, update the Council on the status of the review and prepare a report with recommendations, and advise a participating municipality of the benefits of compliance that will be available if the Council approves its petition and the municipality complies with any conditions it imposes. PCGs, supra, at 15-16.
The executive director must release his or her initial report and schedule a time for the public hearing and comment before issuance of a final report to the Council. The Council then must act on the final report by resolution adopted after opportunity for public comment, and the executive director must provide public notice of the Council's determination within fifteen days of its action. PCGs, supra, at 15-16.
After adopting the RMP and PCGs, the Council adopted another resolution, Resolution 2008-73, authorizing its executive director to develop a Plan Conformance Grant Program. According to the Council, the Plan Conformance Grant Program
Resolution 2008-73, N.J. Highlands Council (Dec. 18, 2008), http://www.highlands.state.nj.us/njhighlands/about/calend/2008_m eetings/2008_73.pdf.
splits Plan Conformance into the following seven steps or modules for administering the authorized grant funding: (1) and (2) Highlands municipal build-out analysis and report; (3) housing element and fair share plan; (4) Highlands environmental resource inventory; (5) master plan Highlands element; (6) Highlands Area land use
ordinance; and (7) municipal Petition for Plan Conformance.
[Resolution 2011-2, supra; Resolution 2011- 3, supra.]
Although the modules were created to facilitate grant distribution and the date for submission of plans addressing the preservation area has passed, the "required contents of a Petition for Plan Conformance" presently includes "materials as described in the 2009 Plan Conformance Grant Program - 'Module 7-Municipal Petitions for Plan Conformance' and 'County Petition for Plan Conformance.'" Plan Conformance. Module 7 requires petitions to contain materials from Modules 2 through 6. Thus, Modules 2 through 7 are currently required in a plan conformance petition.
Plan Conformance, N.J. Highlands Council, http://www.state. nj.us/njhighlands/planconformance/ (last visited Jan. 14, 2013).
The Council issued the seven Modules at different times, the first in January and the last in September 2009. All of them were issued after adoption of the RMP and PCGs.
III
Approval of These Petitions
Because some of its land is in the preservation area, Clinton was obligated to conform with the RMP in the portion of the municipality in that area. In contrast, High Bridge's conformance with the RMP was voluntary because its land is wholly within the planning area.
The Center's challenge to the resolutions approving the Clinton and High Bridge petitions does not turn on the facts specific to either approval. The Center does not point to any deficiency in either Clinton's or High Bridge's petition or in the process by which either was approved.
In any event, there is no question that the Center had and took the opportunity to participate in the process that led to the approval of both petitions. The minutes of the January 20, 2011 Council meeting, at which these petitions and three others were considered, reflect that the Center submitted comments on both. Final Consistency Review and Recommendations Report: Petition for Plan Conformance: Town of Clinton, Hunterdon County; Final Consistency Review and Recommendations Report: Petition for Plan Conformance: Borough of High Bridge, Hunterdon County. The Center's sole objection was the same in both cases — "reliance on the Highlands Build-out numbers for calculating the [Borough's and] Town's fair share obligation of affordable housing." New Jersey Highlands Water Protection and Planning Council Minutes of the Meeting of January 20, 2011. Although others spoke on these petitions during the public-hearing portion of the January 11, 2011 Council meeting, the Center did not. Id. at 12-13 (High Bridge), 14-15 (Clinton).
Final Consistency Review and Recommendations Report: Petition for Plan Conformance: Town of Clinton, Hunterdon County, N.J. Highlands Council, 23 (Jan. 11, 2011), http://www.highlands. state.nj.us/njhighlands/hunterdon_county/clinton_town/1a_Town_of _Clinton_Final_Consistency_Review_Report.pdf.
Final Consistency Review and Recommendations Report: Petition for Plan Conformance: Borough of High Bridge, Hunterdon County, N.J. Highlands Council, 20 (Jan. 11, 2011), http://www.highlands.state.nj.us/njhighlands/hunterdon_county/high_bridge/1 a_%20High_%20Bridge_%20Final_%20Consistency_%20Review_%20Report. pdf.
New Jersey Highlands Water Protection and Planning Council Minutes of the Meeting of January 20, 2011, N.J. Highlands Council, 10-11, 16 (Feb. 2, 2011), http://www.highlands.state.nj.us/njhighlands/about/calend/2011_meetings/012011_minute s.pdf (discussing High Bridge and then Clinton objections).
Similarly, there is no question that the Council addressed the Center's written objections. Recognizing that the Center had an appeal pending before this court relating to a calculation of fair share obligations using the Highlands Council's build-out numbers, the Council conditioned its approval of both Clinton's and High Bridge's petition on "achieving and retaining compliance with the Fair Housing Act [(FHA)]." Id. at 11 (High Bridge), 16 (Clinton).
The condition of compliance with the FHA attached to these approvals presently has no practical effect. As a consequence of the Supreme Court's stay of a decision of this court invalidating a substantial component of the Council on Affordable Housing's (COAH) revised third round rules, "the main components of [COAH's] revised third round rules are not presently in effect." See In re Highlands Master Plan, supra, 421 N.J. Super. at 628 n.2 (discussing In re adoption of N.J.A.C. 5:96 and 5:97, 416 N.J. Super. 462 (App. Div. 2010), certif. granted, 205 N.J. 317 (2011)).
In an unpublished opinion on a prior appeal filed by the Center, we stated that the Council's executive director can address the invalidation of measures adopted by COAH and referenced in instructions related to Module 3 by advising the municipalities that the information about COAH's requirements is no longer accurate. In re Adoption of Module 3 Housing Element and Fair Share Plan Instructions By the Executive Director of the Highlands Council, No. A-6430-08 (App. Div. Apr. 15, 2011) (slip op. at 5-6). Although that unpublished decision does not have precedential value, it is binding on the Center because it was a party to the case. See R. 1:36-3; Raymond v. N.J. State Parole Bd., 221 N.J. Super. 381, 385 n.1 (App. Div. 1987).
IV
Discussion
As noted at the outset of this opinion, the Center contends that the Council has "violated the APA and state and federal guarantees to due process by failing to adopt the substantive and procedural requirements that form the plan conformance process" in compliance with the APA.
A. The RMP and PCGs as adopted in 2008.
With respect to the substantive and procedural standards set forth in the RMP and PCGs as adopted in July 2008, we conclude that the question is governed by In re Highlands Master Plan, supra, 421 N.J. Super. at 625, an opinion authored by Judge Skillman. In that appeal, filed by the Center, the panel rejected the Center's claim that the APA applied to the RMP and held that the "Legislature required the RMP to be adopted in accordance with the specific procedures set forth in the Highlands Act itself, rather than the general procedures governing agency rule-making set forth in the APA." Ibid. On this appeal, the Center does not contend that the Council failed to adopt the RMP or the 2008 PCGs in accordance with the procedures of the Highlands Act, and its briefs include no argument suggesting that In re Highlands Master Plan is wrongly decided. In any event, there is no basis for disagreeing with that decision.
In its opening briefs, the Center suggests that the PCGs adopted with the RMP in 2008 are not properly deemed a part of the RMP, and, therefore, are not controlled by In re Highlands Master Plan. We reject this claim. While the Highlands Act lists mandatory components, it expressly provides that the RMP "need not necessarily be limited to" the mandatory items. N.J.S.A. 13:20-11a. Given the Council's authority to include components that are not mandatory in the RMP, the Council's incorporation in the RMP of the PCGs governing the preservation and planning areas is consistent with the Highlands Act.
Furthermore, the Legislature directed the Council to include in the RMP a "provision for implementing the [RMP] by the State and local government units in the preservation area," N.J.S.A. 13:20-12, and provided that the plan for the provisions for the preservation area could be used for advisory purposes in the planning area. N.J.S.A. 13:20-11b. Thus, the Council's determination to address plan conformance in the planning area in the PCGs and as a component of the RMP is not inconsistent with N.J.S.A. 13:20-11. To the extent that the Center argues that it is, we reject that claim.
Finally, adoption of the PCGs as a component of the RMP is consistent with the Council's obligations to include in the RMP "a framework for developing policies for the planning area in conjunction with those local government units in [that] area who choose to conform to the [RMP]," N.J.S.A. 13:20-11a(3); to "detail[] the ways in which local, State, and federal programs and policies may best be coordinated to promote the goals, purposes, policies, and provisions of the [RMP]," N.J.S.A. 13:20-11a(4); and to provide "model minimum standards for municipal and county master planning and development regulations outside of the preservation area . . . where appropriate [to encourage] the adoption of such standards," N.J.S.A. 13:20-11a(6)(f). That is what the PCGs do.
The Center argues that because the Council's enumerated "powers, duties and responsibilities" require it to adopt, amend or repeal, pursuant to the APA, "such rules and regulations as may be necessary in order to exercise its powers and duties and perform its responsibilities under" the Highlands Act, N.J.S.A. 13:20-6y, it was required to follow APA rule-making when it adopted the PCGs. We addressed that statutory provision in In re Highlands Master Plan, however, concluded that the specific procedures for adoption of the RMP control, rather than the APA. 421 N.J. Super. at 625. Here, the PCGs derive from the RMP and the Highlands Act's provisions on plan conformance. See N.J.S.A. 13:20-14 to -15. Thus, N.J.S.A. 13:20-8 and N.J.S.A. 13:20-9, not the APA, control the PCGs adopted with and as a component of the RMP.
Contrary to the Center's claim, a determination that the Highlands Act governs the procedure for adoption of the PCGs and RMP does not render the Council's authority to promulgate rules on other matters, according to APA rule-making, superfluous. The Highlands Act expressly requires the Council to accomplish some tasks by promulgating rules in accordance with the APA, see, e.g., N.J.S.A. 13:20-6x, and the Council has responsibilities beyond the adoption of the RMP and review of petitions for plan conformance that may require rule-making. See, e.g., N.J.S.A. 13:20-16 to -17.
For the foregoing reasons, we rely on In re Highlands Master Plan, and hold that the Legislature did not require the Council to follow "the general procedures governing agency rule-making set forth in the APA" in adopting the 2008 PCGs as a component of the RMP and in accordance with the procedures set forth in the Highlands Act. 421 N.J. Super. at 625.
B. Additions to the PSGs subsequent to the 2008 adoption.
In its reply briefs, the Center contends that its appeals focus "largely on additional regulations adopted without any public process months and years after the adoption of the RMP." Quite obviously, the rule established by In re Highlands Master Plan does not apply to measures not adopted with and as a component of the RMP or to any subsequent additions to the RMP adopted without "public hearings" required by N.J.S.A. 13:20-8 for amendment of the RMP.
In furtherance of this argument, the Center focuses on "seven modules of instructions and other informal notices that function as rules, all of which were issued after the RMP was adopted." As noted above, the modules were adopted after the RMP, between January and September 2009. The Center does not cite or present any discernible argument concerning any other post-RMP "rules."
With respect to the modules, the question is whether due process or the APA required formal rule-making or whether the informal action taken by the Council was sufficient. The inquiry is guided by well-settled principles.
Agency action is presumed valid and a challenger bears the burden of rebutting that presumption. Gloucester Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983); In re Proposed Xanadu Redevelopment Project, 402 N.J. Super. 607, 632 (App. Div.), certif. denied, 197 N.J. 260 (2008). "[I]t is within the agency's discretion 'to select those procedures most appropriate to enable the agency to implement legislative policy,'" so long as the action is consistent with "due process" and the APA. In re Request for Solid Waste Util. Customer Lists, 106 N.J. 508, 519-20 (1987) (quoting Texter v. Human Servs. Dep't, 88 N.J. 376, 385 (1982)). Where the APA does not require rule-making, an agency may act informally. Id. at 518. Permissible "informal agency action includes investigating, publicizing, planning, and supervising a regulated industry." Id. at 519.
For the most part, the Center's arguments are fairly characterized as broad assertions that the Council has not adopted any regulations. These are the few exceptions. The Center notes that Module 1 identifies "two tasks that must be performed by a person with a New Jersey Professional Planning or Engineering License" and provides that a petition for approval will be deemed incomplete if "protocols" found in the module are not followed. It further asserts that "three tasks included in Module 2 result in a Build Out Report issued by the Highlands Council that the municipality is required to use to project prospective development." With respect to Module 4, the Center's objection is that it "includes a technical proficiency requirement and a schedule for completion." The fault the Center finds with Module 5 is that it "regulates the manner in which 'municipal master plans' are brought 'into alignment with the [RMP]'" and "regulates density of development." The objection to Module 6, which requires municipalities to submit "draft ordinances," is that it was "amended to eliminate certain requirements in response to public comments in September 2009." With respect to Module 7, the Center provides a description of its content but does not point to any particular aspect it deems objectionable.
The standards governing rule-making require a more rigorous inquiry.
The determination whether administrative agency action constitutes adoption of a "rule" is governed by the APA's definition of this term and the amplification of this definition in Metromedia v. Director, Division of Taxation, 97 N.J. 313, 331-32 (1984). The pertinent part of N.J.S.A. 52:14B—2(e) defines "rule" to mean "each agency statement of general applicability and continuing effect that implements or interprets law or policy." Metromedia identified six factors that should be considered in determining whether an agency pronouncement is a "rule" under this definition:
[Whether it] (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii)
constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy."[A]n agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process."
[In re Highlands Master Plan, supra, 421 N.J. Super. at 630-31 (alterations in original) (citations omitted).]
The Highlands Act is "new and innovative legislati[on]," and, for that reason, deference to the Council's selection to proceed with these instructional modules as it did is "especially appropriate." See Van Dalen v. Washington Twp., 120 N.J. 234, 246 (1990). While the first three characteristics of rule-making identified in Metromedia appear to be implicated by the modules, that is not enough. As our discussion of the Highlands Act and the RMP and PCGs demonstrates, the enabling act, RMP and PCGs are detailed and comprehensive. In the absence of any argument as to how any module includes a directive not otherwise "expressly provided by or clearly and obviously inferable from the enabling statutory authorization"; reflects an administrative policy "not previously expressed" in the RMP or PCGs as adopted in 2008; or materially or significantly changes the Council's position on any point or interpretation of law or general policy stated in RMP or PCGs, we conclude that the Center has failed to overcome the validity of the Council's choice to provide these instructions on plan conformance informally. The providing of instruction on the essential requirements of plan conformance can be viewed as actions related to the Council's obligations to investigate, publicize, plan, and supervise to achieve the complex goals of the Highlands Act. See Solid Waste, supra, 106 N.J. at 518-19.
Without doubt the requirement that technical work be done by a qualified professional is wholly consistent with and clearly inferable from the Highlands Act, which references technical assistance throughout.
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We have considered the Center's due process argument, and conclude that it lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). It is apparent that the statutory procedures for adoption of the RMP and PCGs afforded the process due, and no deviation from the policies and provisions stated in the RMP and PCGs is apparent.
Our disposition of the appeals makes any discussion of the Council's additional claims unnecessary. Those claims are that these appeals are barred by the entire controversy doctrine and that N.J.S.A. 52:14-34.4 governs notice of its grant programs. Nothing in this opinion should be understood as approving informal amendment of the RMP.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION