New Jersey Builders Ass'n v. New Jersey Council on Affordable Housing

915 A.2d 23, 390 N.J. Super. 166, 2007 N.J. Super. LEXIS 17
CourtNew Jersey Superior Court Appellate Division
DecidedJanuary 24, 2007
StatusPublished
Cited by22 cases

This text of 915 A.2d 23 (New Jersey Builders Ass'n v. New Jersey Council on Affordable Housing) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New Jersey Builders Ass'n v. New Jersey Council on Affordable Housing, 915 A.2d 23, 390 N.J. Super. 166, 2007 N.J. Super. LEXIS 17 (N.J. Ct. App. 2007).

Opinion

The opinion of the court was delivered by

GRALL, J.A.D.

Plaintiff New Jersey Builders Association (NJBA) filed an action in the Law Division to obtain public records held by defendant New Jersey Council on Affordable Housing (COAH), Department of Community Affairs. NJBA asserted rights of access under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law. NJBA alleged that “without any legal justification,” COAH said it would provide the information beyond the seven-day deadline provided in OPRA, N.J.S.A. 47:1A-5(I).1 Judge Feinberg dismissed NJBA’s complaint after COAH produced the documents it had and created additional documents responsive to NJBA’s demands for information. The judge determined that NJBA was not a prevailing party entitled [171]*171to fees pursuant to N.J.S.A. 47:lA-6. NJBA appeals from the order denying its request for fees.

We granted the New Jersey Press Association (Press Association) leave to participate as amicus curiae. After oral argument, we directed NJBA to provide transcripts of the hearing that led to the dismissal of its complaint and directed both parties to provide additional briefs discussing the relevance of this court’s decision in MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super. 534, 546, 868 A.2d 1067 (App.Div.2005), which was issued after Judge Feinberg denied NJBA’s fee application. Those briefs were filed on October 2, 2006.

We hold that NJBA was not entitled to fees as a prevailing party under OPRA. N.J.S.A. 47:lA-6. Because NJBA’s request did not specifically identify the documents it sought, as required by N.J.S.A. 47:1A-5(f), OPRA did not require COAH to produce the records within seven business days, N.J.S.A. 47:lA-5(i). Moreover, NJBA’s request required COAH’s custodian to survey COAH employees, gather responsive information and produce new documents. Because OPEA does not require an agency to perform such tasks and because NJBA needed more than ten business days to review COAH’s response, COAH established that compliance within seven business days would “substantially disrupt” COAH’s operations. N.J.S.A. 47:lA-5(g). Accordingly, pursuant to N.J.S.A. 47:lA-5(g), COAH was authorized to offer a “reasonable solution” — production at a later date — that accommodated the needs of NJBA and COAH. COAH established that its response was “authorized by law,” and, for that reason, NJBA was not entitled to an attorney’s fee pursuant to N.J.S.A. 47:lA-6.

The essential facts are undisputed. On October 6,2003, COAH proposed new rules for determination of fair-share housing obligations. 35 N.J.R. 4636(a). On August 16, 2004, COAH repro-posed those rules. 36 N.J.R. 3691(a).

On August 19, 2004, NJBA submitted a request for government documents using a “Government Eecords Bequest Form” made available by COAH. The form provides space for “Eecord Ee-[172]*172quest Information.” COAH’s form directs: “To expedite the request, be as specific as possible in describing the records being requested.” In the space provided, NJBA simply referenced “Attachment ‘A,’” which is a five-page document listing thirty-eight separate requests all of which include a request for “any and all documents and data.” A thirty-ninth request asked COAH to advise where documents not in the possession of DCA, COAH or its consultant, Dr. Burehell, could be obtained.

NJBA’s thirty-eight requests describe the documents and data sought as those “used” or “considered” by COAH or “support[ing],” “demonstrat[ing],” “justifying]” or “verifying]” various determinations relevant to COAH’s determinations about fair-share housing obligations. For example, NJBA’s tenth request was for “[a]ny and all documents and data which [were] relied upon, considered, reviewed, or otherwise utilized by any employee or staff member of COAH or DCA, or by Dr. Burehell in calculating the second proposed third round affordable housing methodology and the regulations proposed on July 13, 2004 to be published in August 2004.”

On August 27,2004, within six business days of NJBA’s request, COAH’s “Records Custodian” responded. The custodian’s response advises that NJBA’s “submission” includes thirty-nine “separate requests for information,” and explains that “due to the enormity of the request, COAH requires additional time with which to assess the submittal and gather the relevant information.” The custodian informed NJBA that COAH could not provide the information until September 20, 2004.

NJBA notified COAH that it would agree to the September 20 date only if COAH agreed to extend the period for public comment on its proposed regulations. The last of four public hearings on COAH’s proposal was scheduled for September 29, 2004, and the public comment period was scheduled to close on October 15, 2004. 36 N.J.R. 3691(a).

On September 9, 2004, NJBA commenced this action in the Law Division to enforce its rights under OPRA and the common law. [173]*173The Law Division set a briefing schedule and a return date of October 13,2004.

By letter dated September 14, 2004, COAH responded to many of NJBA’s requests. Several responses referred NJBA to materials published in “N.J.A.C. 5:94,” the proposed rules, the “Comment and Response Document” and Appendices and Tables accompanying COAH’s rule proposal. COAH also invited NJBA to arrange an appointment to review public comments. In other instances, COAH either provided the documents or indicated that it had no documents of the sort requested in its possession. COAH also advised that it would submit additional responsive information, which was in the possession of Dr. Burchell, by September 20,2004.

On September 20, 2004, COAH’s offices were closed due to flooding in Trenton. On September 21, 2004, Dr. Burehell’s materials, which included materials he produced to respond to NJBA’s information request, were sent to NJBA.

On October 6, 2004, the tenth business day after NJBA claims that it received COAH’s response, NJBA asked the judge to postpone the October 13, 2004 hearing because its expert needed more time to review the materials and list “items that [NJBA] believes COAH must still respond to by October 13, 2004.” That request was granted.

Five days later, on October 11, 2004, NJBA’s expert identified two deficiencies and made two demands. NJBA’s first demand was: “COAH must provide the research literature or statistical analyses it used to conclude that the proposed formula accurately estimates substandard housing occupied by the poor or explicitly admit that there is no basis to its formula.” NJBA’s second demand was similar. NJBA noted that because COAH had not made specified calculations available, “it [was] impossible to evaluate the soundness or the accuracy of its determinations.” Asserting that COAH must have performed certain calculations and applied specific criteria, NJBA’s expert asked for those calculations and criteria. NJBA summarized his demand: “It is antiei-[174]*174pated that COAH has a chart, similar to its October 1993 Municipal Number Summary, that must be shared with NJBA. In the alternative, COAH should explicitly admit that it has no data or any explanation as to the manner in which it recalculated the 1987-1999 prospective need.”

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Bluebook (online)
915 A.2d 23, 390 N.J. Super. 166, 2007 N.J. Super. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-jersey-builders-assn-v-new-jersey-council-on-affordable-housing-njsuperctappdiv-2007.