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Greek v. Township of South Brunswick

Decided: June 16, 1992.

FRANK A. GREEK & SONS, INC., DKM PROPERTIES CORPORATION, RICHARD V. NELSON, I. HELLER CONSTRUCTION COMPANY, INC. AND M. ALFIERI COMPANY, INC., PLAINTIFFS-RESPONDENTS,
v.
THE TOWNSHIP OF SOUTH BRUNSWICK IN THE COUNTY OF MIDDLESEX, THE TOWNSHIP COMMITTEE OF SOUTH BRUNSWICK AND THE PLANNING BOARD OF THE TOWNSHIP OF SOUTH BRUNSWICK BOARD OF ADJUSTMENT, DEFENDANTS-APPELLANTS. TIMBER PONDS, INC., PLAINTIFF-RESPONDENT, V. TOWNSHIP OF SOUTH BRUNSWICK, IN THE COUNTY OF MIDDLESEX, THE TOWNSHIP COMMITTEE OF SOUTH BRUNSWICK AND THE PLANNING BOARD OF THE TOWNSHIP OF SOUTH BRUNSWICK BOARD OF ADJUSTMENT, DEFENDANTS-RESPONDENTS. MORRIS INDUSTRIAL BUILDERS, INC., PLAINTIFF-RESPONDENT, V. TOWNSHIP OF SOUTH BRUNSWICK, IN THE COUNTY OF MIDDLESEX, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF SOUTH BRUNSWICK, THE PLANNING BOARD OF THE TOWNSHIP OF SOUTH BRUNSWICK, DEFENDANTS-APPELLANTS. FRANK DIMISA, D/B/A FOX RUN II, AND MCCAMPBELL DEVELOPMENT, INC., A NEW JERSEY CORPORATION, RESPONDENTS, V. THE TOWNSHIP OF HOLMDEL, IN THE COUNTY OF MONMOUTH, THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF HOLMDEL AND THE PLANNING BOARD OF THE TOWNSHIP OF HOLMDEL, APPELLANTS. EUGENE J. LONG, RESPONDENT, V. THE TOWNSHIP OF CHESTER, IN THE COUNTY OF MORRIS, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND THE MAYOR AND TOWNSHIP COUNCIL OF THE TOWNSHIP OF CHESTER, DEFENDANTS. CHESTERFIELD FARMS, DIRAJE CORPORATION, CHESTNUT RUN LIMITED PARTNERSHIP, CUSTOM LIVING HOMES, INC., TWIN BROOKS LIMITED PARTNERSHIP, ARTHUR N. FURHMAN, KENDALL WOODS LIMITED PARTNERSHIP AND KENDALL CONSTRUCTION CORPORATION, PLAINTIFFS, V. THE TOWNSHIP OF CHESTER IN THE COUNTY OF MORRIS, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY AND THE MAYOR AND TOWNSHIP COUNCIL OF THE TOWNSHIP OF CHESTER, DEFENDANTS. REALTY TRANSFER COMPANY LIQUIDATING TRUST, PLAINTIFF, V. TOWNSHIP OF CHESTER, COUNTY OF MORRIS, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY AND THE TOWNSHIP COUNCIL OF THE TOWNSHIP OF CHESTER, DEFENDANTS. CHERRY HILL PROPERTIES CORPORATION, RESPONDENT, V. THE TOWNSHIP OF CHERRY HILL IN THE COUNTY OF CAMDEN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND THE TOWNSHIP COUNCIL OF THE TOWNSHIP OF CHERRY HILL, APPELLANTS, AND COUNCIL ON AFFORDABLE HOUSING (COAH), INTERVENOR-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County (A-6073-90T3; A-6080-90T3) Monmouth County (A-205-91T3) Morris County (A-206-91T3), Camden County (A-394-91T3; A-429-91T3).

Bilder, Stern and Keefe. The opinion of the court was delivered by Keefe, J.A.D.

Keefe

The opinion of the court was delivered by

KEEFE, J.A.D.

After the Supreme Court issued its decision on December 13, 1990, in Holmdel Builders Ass'n v. Township of Holmdel, 121 N.J. 550, 583 A.2d 277 (1990), the Council On Affordable Housing (COAH) issued an "Administrative Order" (AO) on January 28, 1991, announcing its intention to adopt regulations with respect to mandatory development fees designed to establish "standards and criteria for such ordinances" and "how fees collected prior to the Holmdel decision are to be handled." The AO also provided that municipalities which had collected such fees prior to the Holmdel decision could retain the fees in a separate, interest bearing account "provided that the municipality adopts and submits to COAH a duly adopted resolution of the municipal governing body expressing its intent to submit its ordinance to COAH immediately upon COAH promulgation of comprehensive regulations that set standards for such ordinance." About the same time or shortly thereafter, plaintiff developers and builders in these consolidated matters*fn1 either reactivated suits that had been previously stayed or instituted actions against the defendant municipalities to recover fees paid by plaintiffs under the municipalities' invalidated development fee ordinances. In each case, the defendant municipality relied upon the AO as a defense. COAH was permitted to intervene in each case and either moved for a stay of the proceedings pending promulgation of the regulations or a transfer to the Appellate Division, contending that any challenge to the validity of the AO must be heard in this court. Plaintiffs

and defendant municipalities cross-moved for summary judgment.

On June 14, 1991, the Law Division Judge in the matters involving the Township of Chester denied COAH's motion to transfer to the Appellate Division, holding that the provisions of R. 2:2-3(a)(2) were not applicable to these circumstances. He concluded that "the Supreme Court has decided that the ordinances are invalid and that the fees collected pursuant to those ordinances were invalidly collected and they go back to either developer or some derivative person appropriately thereunto authorized." He further decided that there was no way in which COAH could adopt a regulation or regulations which could result in the "resuscitation of these invalidly adopted ordinances." However, the Judge stopped short of granting summary judgment to the plaintiffs finding that "there still are open questions about who gets the money." Finally, he directed the parties to attempt to enter into a stipulation concerning terms for the refund. When he later learned that such a stipulation could not be agreed upon, he scheduled an evidentiary hearing to determine the amount owed to the individual plaintiffs. We granted COAH's motion for leave to appeal that interlocutory order and stayed the trial court proceedings pending appeal.

On July 15, 1991, the trial Judge in the matter involving the Township of Holmdel addressed motions similar to those presented in the Township of Chester cases. He understood the Supreme Court's decision in Holmdel to say that the individual builders were entitled to start their own actions for a return of the money but did not interpret the decision to hold that the builders were entitled to a return of the monies as a matter of law and without the development of a full record. He considered the AO to be advisory and denied COAH's motion to transfer the matter to the Appellate Division and/or stay the proceedings pending decision on COAH's motion to obtain leave to appeal in the Township of Chester case. Instead, he elected to press forward with the litigation and

scheduled a pretrial conference. We granted COAH's motion for leave to appeal and stayed the trial court proceedings pending appeal.

On July 30, 1991, the trial Judge in the matters involving the Township of South Brunswick entertained motions involving arguments similar to those presented in the Chester and Holmdel matters. He denied COAH's motion to stay the cases and/or transfer them to the Appellate Division finding that the AO did not rise to the level of rule-making or quasi -judicial action. He further found "as a matter of law that any regulation, even one validly adopted in futuro and validly adopted by the municipality, would constitute an ex post facto rule or regulation, and you cannot now resuscitate that which was exacted illegally in the first place." Thus, he entered summary judgment in favor of the plaintiffs in those cases and ordered that the monies on deposit with the Township be returned to them. COAH and the Township of South Brunswick filed separate notices of appeal from this final judgment. Thereafter, we entered a stay pending appeal.*fn2

Finally, on August 2, 1991, the trial Judge in the matter involving the Township of Cherry Hill also denied COAH's motion for a stay and/or transfer to the Appellate Division. He concluded that no deference should be given to the AO and entered summary judgment in favor of plaintiffs ordering a return of the money with interest. He also determined that the Cherry Hill ordinance was invalid because the Township Council substantially altered it by passing a resolution after the first reading increasing the fee from one percent to three percent ...


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