On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
Antell, Brody and D'Annunzio. The opinion of the court was delivered by Brody, J.A.D.
[215 NJSuper Page 185] We granted defendant Township of Gloucester leave to appeal in this exclusionary zoning case. In keeping with the Supreme Court's opinion in Hills Dev. Co. v. Bernards Tp. in Somerset Cty., 103 N.J. 1 (1986), the trial judge granted Gloucester's motion to transfer the case to the Council on Affordable Housing (the Council). Gloucester appeals from a portion of the order that made the transfer "subject to the condition that the Defendant pay the costs incurred by the Plaintiffs from November 2, 1985, primarily with regard to their participation
in the site suitability hearing."*fn1 We provided in our order granting Gloucester's motion for leave to appeal that the appeal shall have no effect on the transfer. We reverse the condition in the order requiring Gloucester to pay costs.
These two actions, consolidated in the trial court, were commenced during the summer of 1984. On June 19, 1985, the parties agreed that Gloucester's fair share of low and moderate income housing units was 470. At that point the judge had to approve the agreement, resolve a dispute over whether plaintiffs' sites were suitable and fashion a builder's remedy if plaintiffs prevailed. On July 2, 1985, the Fair Housing Act (the Act), N.J.S.A. 52:27D-301 et seq., became effective. It provided that any party to an exclusionary zoning case commenced more than 60 days before the effective date of the Act could move to transfer the case to the Council. "In determining whether or not to transfer, the court shall consider whether or not the transfer would result in a manifest injustice to any party to the litigation." N.J.S.A. 52:27D-316a.*fn2
Gloucester did not move to transfer until March 3, 1986, 11 days after the Supreme Court held in Bernards that "the Legislature intended all pending Mount Laurel cases to be transferred, except where unforeseen and exceptional unfairness would result." Bernards, 103 N.J. at 49 (emphasis in original). Bernards rejected the argument that a manifest injustice would result from transferring cases that had advanced in court almost to completion. Id. at 51.
Once a case has been transferred, the municipality must "file a housing element and fair share plan with the council within
five months from the date of transfer, or promulgation of criteria and guidelines by the council . . . whichever occurs later . . . [or] jurisdiction shall revert to the court." N.J.S.A. 52:27D-316a.*fn3 The Court made it clear, however, that once a municipality transferred its case to the Council an attempt by it to return the case to court shortly before the Council was to take final action "would constitute a gross perversion of the purposes of the Act, as well as an imposition on both the courts and the Council." Bernards, 103 N.J. at 58.
Thus by moving to transfer, Gloucester essentially submitted to the ultimate jurisdiction of the Council. Should it later attempt to return the case to court, the court could then consider the imposition of costs. See R. 4:37-4 (a court may order payment of costs of an action that a plaintiff had voluntarily dismissed if the plaintiff commences a new action based on the same claim).
The trial judge assessed costs because he believed that Gloucester should have moved to transfer the case soon after the Act was adopted in July 1985 rather than soon after Bernards was decided in February 1986. He noted that if Gloucester had acted earlier, plaintiffs would not have incurred the expenses attendant upon an adjudication of the site suitability issue which was tried for three days and decided in plaintiffs' favor in an oral opinion rendered February 11, 1986. Gloucester moved for transfer 20 days later.
The Act does not place a deadline within which a municipality must move to transfer exclusionary zoning cases that were "instituted more than 60 days before the effective date of this act." N.J.S.A. 52:27D-316a. Nevertheless, the trial judge retroactively imposed a deadline of four months from ...