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Morris County Fair Housing Council v. Boonton Township

Decided: May 1, 1987.

MORRIS COUNTY FAIR HOUSING COUNCIL, MORRIS COUNTY BRANCH OF THE NATIONAL ASSOCIATION FOR ADVANCEMENT OF COLORED PEOPLE AND ALFRED A. SLOCUM, PUBLIC ADVOCATE OF THE STATE OF NEW JERSEY, PLAINTIFFS, AND JOHN AND SALVATORE CORTESE, HOLLOW HILL ASSOCIATES AND SENTRY-MORRIS ASSOCIATES, PLAINTIFFS-INTERVENORS,
v.
BOONTON TOWNSHIP, CHATHAM TOWNSHIP, CHESTER TOWNSHIP, DENVILLE TOWNSHIP, EAST HANOVER TOWNSHIP, FLORHAM PARK BOROUGH, HANOVER TOWNSHIP, HARDING TOWNSHIP, JEFFERSON TOWNSHIP, KINNELON BOROUGH, LINCOLN PARK BOROUGH, MADISON BOROUGH, MENDHAM BOROUGH, MENDHAM TOWNSHIP, MONTVILLE TOWNSHIP, MORRIS TOWNSHIP, MORRIS PLAINS BOROUGH, MOUNTAIN LAKES BOROUGH, MOUNT OLIVE TOWNSHIP, PARSIPPANY-TROY HILLS TOWNSHIP, PASSAIC TOWNSHIP, PEQUANNOCK TOWNSHIP, RANDOLPH TOWNSHIP, RIVERDALE BOROUGH, ROCKAWAY TOWNSHIP, ROXBURY TOWNSHIP AND WASHINGTON TOWNSHIP, DEFENDANTS, AND SOUTHWEST MORRIS TOWNSHIP HOMEOWNERS ASSOCIATION, DEFENDANT-INTERVENOR. MURWIN DEVELOPMENT CORP., A NEW JERSEY CORPORATION, PLAINTIFF, V. THE TOWNSHIP OF MORRIS, IN THE COUNTY OF MORRIS, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MORRIS AND THE PLANNING BOARD OF THE TOWNSHIP OF MORRIS, DEFENDANTS. HOLLOW HILL ASSOCIATES, A GENERAL PARTNERSHIP UNDER THE LAWS OF NEW JERSEY, PLAINTIFF, V. TOWNSHIP OF MORRIS, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND THE MORRIS TOWNSHIP PLANNING BOARD, DEFENDANTS



Skillman, J.s.c.

Skillman

[220 NJSuper Page 392] This is a Mount Laurel case. See Southern Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp., 67 N.J. 151 (1975), cert. den. 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975) (Mount Laurel I); Southern Burlington Cty. N.A.A.C.P. v. Mount

Laurel Tp., 92 N.J. 158 (1983) (Mount Laurel II). The background of this case has been described in Borough of Morris Plains v. Dep't of Public Advocate, 169 N.J. Super. 403 (App.Div.1979), certif. den. 81 N.J. 411 (1979); Morris Cty. Fair Hous. Council v. Boonton Tp., 197 N.J. Super. 359, 363 (Law Div.1984), aff'd 209 N.J. Super. 108 (App.Div.1986) and Morris Cty. Fair Housing Council v. Boonton Tp., 209 N.J. Super. 393, 441-443 (Law Div.1985), aff'd in part, rev'd in part sub nom. Hills Development Co. v. Bernards Tp., 103 N.J. 1 (1986). The claims of the Morris County Fair Housing Council, the Morris County Branch of the NAACP and the Public Advocate against Morris Township were the subject of a settlement agreement dated March 29, 1984. A separate settlement agreement dated April 13, 1984 was entered into between Morris Township and Charles Development Corporation, which provided, among other things, for the rezoning of Charles Development's land for Mount Laurel housing. These settlement agreements were approved by this court, subject to certain conditions, by oral opinion dated July 6, 1984, which was embodied in an order dated July 31, 1984. Upon satisfaction of the conditions imposed for approval of the settlements, a final judgment was entered on August 20, 1984 which incorporated the settlement agreement. This judgment was affirmed by the Appellate Division on March 31, 1986 in an opinion reported at 209 N.J. Super. 108 (App.Div.1986).

Hollow Hill, the owner of one of the properties rezoned for Mount Laurel housing under the settlement agreement, filed a separate action on April 11, 1986, alleging among other things that Morris Township had violated its settlement agreement with the Public Advocate. Both Hollow Hill and Sentry Morris, the owner of another of the properties rezoned for Mount Laurel housing, also were permitted by order dated August 13, 1986 to intervene as plaintiffs in the Morris County Fair Housing Council suit. Murwin Development Corporation, the successor in interest to Charles Development Corporation, was substituted as plaintiff in that action, and all three actions against

Morris Township were later consolidated by order entered on October 8, 1986.

Murwin, Hollow Hill and Sentry Morris all filed motions for relief in aid of litigants' rights, returnable before this court on August 1, 1986, which alleged that Morris Township had violated the settlement agreement by the failure of the planning board to expeditiously process applications for approval of their site plans for Mount Laurel housing developments. In an oral opinion issued on August 1, 1986, this court concluded that Morris Township had violated the settlement agreement. Specifically, it was found that the planning board was not devoting sufficient time to hearing applications for approval of site plans for Mount Laurel developments. Accordingly, the board was ordered to hold at least three hearings a month, each at least three hours long, devoted exclusively to consideration of Mount Laurel applications. This decision was embodied in an order entered August 13, 1986.

Nine months have passed since the court granted relief in aid of litigants' rights designed to enforce the obligation undertaken by Morris Township to expeditiously process applications for the approval of site plans for Mount Laurel developments. Only one of the applications for approval of a site plan for a Mount Laurel development which was pending last August has been decided during that time. That application, filed by Hollow Hill, was denied on January 27, 1987. The board has not yet completed its hearings on the other two applications.

Motions for additional relief in aid of litigants' rights, returnable April 24, 1987, were filed by Murwin, Hollow Hill and Sentry Morris. These motions were joined by John and Salvatore Cortese, the proposed developers of another of the properties in Morris Township rezoned for Mount Laurel housing, who were permitted to intervene as plaintiffs by order dated March 17, 1987. The Public Advocate, on behalf of himself, the Morris County Fair Housing Council and the Morris County

Branch of the NAACP, also has filed a motion for relief in aid of litigants' rights.

All moving parties allege that Morris Township has violated the settlement agreement entered into with the Public Advocate and this court's final judgment of August 20, 1984. All moving parties contend that relief in aid of litigants' rights in addition to that granted by this court's order of August 13, 1986 should be ordered. However, the nature and scope of relief sought by the moving parties is somewhat different.

The Public Advocate seeks an order containing the following terms:

1. The Planning Board should be required to decide all development applications for residential developments in the affordable housing zones (RH-5 and RH-16) on their merits within 95 days of the filing of complete applications. The determination should include decisions on any requests for waivers or variances. Failure to decide an application on the merits within this period of time should be deemed approval. No extensions should be permitted except on leave granted by the Court on the grounds that the delay was outside the control of the planning board.

2. The Planning Board should be required to adopt reasonable procedural rules to ensure determinations with the 95-day time limit, including but not limited to:

a. Requiring that all opinions offered by the Planning Board's experts or by experts for any of the parties be filed in writing within 30 days of the filing of a complete application. If the application is amended during the course of proceedings, any supplemental expert reports should be required to be filed within 30 days of the filing of the amendment.

b. Requiring that written statements be submitted in lieu of oral testimony by any witness.

c. Requiring that cross-examination be restricted to relevant, non-repetitive questions and that a party be permitted to cross-examine a witness only if he or she first makes a showing that cross-examination is likely to lead to relevant and probative evidence.

3. The Planning Board should be required to adopt a final written resolution on the merits of the application within 21 days after completion of public hearings.

4. The Court should establish a procedure for judicial review of denials of development applications and approvals subject to unreasonable conditions. The procedure should provide that review may be by motion under R. 1:10-5. It should provide for appointment of a special master, who will review the application, the record before the Planning Board, and the decision of the Planning Board and will recommend to the Court a) whether the decision of the

Planning Board is consistent with the judgment and justified on adequate planning grounds and b) if the denial was not justified, on what conditions approval should be granted. The procedure should provide that, following the filing of the special master's report, the Court will hold a hearing and will determine whether the application was properly denied and, if not, upon what conditions it should be granted.

Murwin Development Corporation seeks an order providing:

1. With respect to any development application proposed to include lower income housing, the Morris Township Planning Board shall require the Township engineer and other Township consultants to submit written comments to the Board and the applicant within 30 days of the receipt of new or revised plans;

2. With regard to any development application which is proposed to include lower income housing, the Morris Township Planning Board shall allow representatives of the applicant to confer with Township consultants outside the context of public hearings;

3. With regard to any development application which is proposed to include lower income housing, the Morris Township Planning Board shall not allow any interested party to ask additional questions of an applicant's witness after that interested party had previously concluded cross-examination; and

4. With regard to any development application which is proposed to include lower income housing, the Morris Township Planning Board shall render a decision on any ordinance interpretation question or requested ...


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