On March 19, 1985 the court commenced a hearing concerning the suitability of the sites owned by Orgo Farms and Greenhouses, Inc. (hereinafter Orgo) and Sea Gull, Ltd. Builders, Inc. (hereinafter Sea Gull) for development of Mount Laurel housing. The hearing was unusual in that the court does not normally determine the issue of suitability until such time as a compliance ordinance has been submitted. However, because the fair share was stipulated, the court sought to provide the township with guidance concerning its compliance package by passing upon the issue of suitability. This opinion will dispose of that issue.
Before doing so, a brief procedural history is helpful. In 1978 Orgo sued Colts Neck Township alleging that its zoning ordinance was exclusionary. On July 3, 1979 the trial judge declared the ordinance void for failure to provide an appropriate variety of housing. The judgment was affirmed by the Appellate Division. The trial judge did not, however, provide specific
relief for Orgo due to his finding that it had failed to exhaust its administrative remedies. Based upon that ruling Orgo made application to the board of adjustment which was denied.
The plaintiff appealed the denial of the variance. At the same time the township's petition for certification from the decision of the Appellate Division was pending. On January 20, 1983 the Supreme Court decided Southern Burlington Cty. N.A.A.C.P. v. Mt. Laurel Tp., 92 N.J. 158 (1983) (hereinafter Mount Laurel II) and on May 4, 1983 it remanded the Colts Neck case to this court for consideration in light of that decision. 93 N.J. 321. Shortly after the case was received by this court the township sought a ruling as a matter of law that Orgo would be precluded from receiving a builder's remedy because of its location in a limited growth area. The court denied that relief. Orgo Farms & Greenhouses v. Colts Neck Tp., 192 N.J. Super. 599 (Law Div.1983) Thereafter, the township sought relief from its prospective need obligation by seeking to move the State Development Guide Plan (hereinafter SDGP) growth line out of the township. A hearing was held in March 1984 concerning that issue. On April 5, 1984 the court denied that relief. On April 10, 1984 the court appointed Philip Caton, a professional planner, to evaluate the suitability of the sites involved in the litigation. His report was received on July 17, 1984. Thereafter, a trial was held concerning the suitability issue.
Notwithstanding the extensive testimony and post-trial briefs, there is a threshold issue which is dispositive of this aspect of the case. If Orgo is not entitled to a builder's remedy, the township is free to choose the Sea Gull property and such other sites as will satisfy its fair share. A plaintiff becomes entitled to a builder's remedy by satisfying a three-prong test as described in Mount Laurel II. 92 N.J. at 279-280. The plaintiff must succeed in litigation, propose to construct a substantial amount of lower income housing, and pursue a project that is not unsound from a planning or
environmental standpoint. Orgo, supra, 192 N.J. Super. at 603. The court holds that the Orgo project is contrary to sound land use planning and is therefore unsuitable. Thus, it fails to satisfy the third prong of the entitlement test and cannot qualify for a builder's remedy.
As pointed out in Orgo Farms & Greenhouses v. Colts Neck Tp., supra, the Orgo parcel is located virtually in the middle of the large limited growth area of Colts Neck Township. The court suggested in that opinion that the burden of proving the suitability of a site located in that area could be a very heavy one. "I would not hesitate to say that certainly the builder should be called upon to play a greater role in assisting the Court in its determination of the environmental and planning issues when the proposed development is in a limited growth area." Id. at 611.
The court recognizes that the continued viability of the SDGP designations has been questioned by Orgo. Indeed, our Supreme Court did contemplate that the SDGP would be revised by January 1, 1985. The court acknowledges that it now has "considerable discretion to vary the locus of the Mount Laurel obligation from that shown on the present SDGP concept map." Mount Laurel II, 92 N.J. at 242. However, no evidence was presented which would indicate that there has been any significant modification in land use development patterns within Colts Neck Township since the SDGP became a determinant of the Mount Laurel obligation. While the SDGP line may not be dispositive, there is no reason why the court cannot continue to utilize the purposes underlying the creation of the growth classifications and the delineation between growth and limited growth as long as the circumstances which supported that delineation continue. I need not repeat what was said in Mount Laurel II or in Orgo Farms & Greenhouses concerning the importance of controlling development in limited growth areas and channeling development into growth areas. The fact that January 1, 1985 has come and gone without the preparation of a new SDGP should not cause the court to throw
planning to the wind by allowing this predominantly undeveloped community to experience large scale development in the middle ...