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Dalen v. Washington Township

Decided: April 12, 1989.

JOHN G. VAN DALEN, ON HIS OWN BEHALF AND AS CO-TRUSTEE WITH JOHN P. CHESTER OF CHESTER AND VAN DALEN ASSOCIATES, INC. EMPLOYEES' RETIREMENT TRUST, CHESTER AND VAN DALEN ASSOCIATES, A NEW JERSEY PARTNERSHIP, PLAINTIFF-APPELLANT,
v.
WASHINGTON TOWNSHIP, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY LOCATED IN MORRIS COUNTY, NEW JERSEY, DEFENDANT-RESPONDENT



On appeal from a resolution of the Council on Affordable Housing granting substantive certification.

Antell, Dreier and Brochin. The opinion of the court was delivered by Antell, P.J.A.D.

Antell

[232 NJSuper Page 206] Plaintiff is the owner of 127 acres of land in Washington Township. He appeals from a resolution of the Council on Affordable Housing (COAH) dated February 16, 1988, which grants substantive certification of defendant's housing element and fair share plan pursuant to the Fair Housing Act, N.J.S.A. 52:27D-314. The resolution, passed pursuant to an opinion dated January 4, 1988, approved for inclusionary development a 500-acre site which failed to encompass plaintiff's land. On this appeal, plaintiff challenges COAH's action on the ground that it denied him a builder's remedy within the meaning of Southern Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp., 92 N.J. 158, 279-280 (1983) (Mount Laurel II), and refused to allow his challenge to defendant's "growth area" delineation in its petition for substantive certification.

When the Supreme Court filed its opinion in Mount Laurel II on January 20, 1983, plaintiff had a use variance application pending before defendant Washington Township's Zoning Board of Adjustment. That application was denied in March 1983, and on July 15, 1983, plaintiff filed a Superior Court complaint against defendant which challenged the constitutionality of its land use ordinance and sought a builder's remedy under Mount Laurel II.

From February 1 to February 9, 1984, plenary hearings were held to determine whether a State Development Guide Plan (SDGP) growth area existed in the Township to help define the nature and extent of defendant's regional fair share obligation. On February 9, 1984, the Law Division ruled that a growth area was located within the Township and delineated the area to be included among the factors which go into formulating defendant's fair share obligation.

On June 11, 1984, a hearing was held to determine defendant's fair share obligation and its compliance therewith. On December 6, 1984, the court assessed defendant's fair share at 227 units and held that its land use scheme failed to comply with Mount Laurel II. The court allowed defendant 90 days to submit revisions of its land use regulations and appointed a master to assist the municipality in rezoning to conform with the court's order and to report to the court with respect to granting plaintiff a builder's remedy. The opinion of the Law Division is reported at 205 N.J. Super. 308 (Law Div.1984).

On July 2, 1985, the Fair Housing Act was adopted and on July 12, 1985, defendant moved thereunder to have the case transferred to COAH. The master's report was filed on August 9, 1985. Although the Law Division denied defendant's transfer motion on October 25, 1985, it reconsidered on April 2, 1986, and, pursuant to Hills Dev. Co. v. Bernards Tp. in Somerset Cty., 103 N.J. 1 (1986), transferred the case to COAH. We affirmed the Law Division's decision to transfer

the matter to COAH and the Supreme Court denied certification on January 20, 1988.

In the interim, on January 5, 1987, defendant filed its housing element and fair share plan with COAH pursuant to the Fair Housing Act, and on January 16, 1987, published notice of its petition for substantive certification pursuant to N.J.S.A. 52:27D-313. Plaintiff filed its objection to defendant's petition on March 2, 1987, and COAH thereafter initiated the mediation and review process between the parties pursuant to N.J.S.A. 52:27D-315.

On June 30, 1987, COAH, in a letter written to plaintiff's counsel, indicated it would not consider plaintiff's challenge to the "growth area" delineation. Finding mediation efforts unsuccessful, on June 22, 1987, COAH, pursuant to N.J.S.A. 52:27D-315c, transferred the matter to the Office of Administrative Law as a contested case. On July 31, 1987, the Administrative Law Judge (ALJ), in an initial decision, concluded that plaintiff was not entitled to a builder's remedy.

On August 2, 1987, COAH heard oral arguments regarding plaintiff's motion for "prioritization" of his site or other appropriate site-specific relief. In its written opinion of January 4, 1988, COAH denied plaintiff's motion and concluded that a builder's remedy would only be awarded where the municipality's actions frustrated COAH's "statutory obligation to ensure the creation of a realistic and workable plan."

With respect to plaintiff's appeal from the COAH resolution under review, to the extent that it denies plaintiff a builder's remedy, the resolution is affirmed substantially for the reasons stated in COAH's written opinion of January 4, 1988. See also Hills Dev. Co. v. Bernards Tp. in Somerset Cty., 103 N.J. 1, 55 (1986) ("No builder with the slightest amount of experience could have relied on the remedies provided in Mount Laurel II in the ...


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