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Dynasty Building Corp. v. Borough of Upper Saddle River

Decided: October 29, 1993.

DYNASTY BUILDING CORPORATION, PLAINTIFF-RESPONDENT,
v.
BOROUGH OF UPPER SADDLE RIVER, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; THE MAYOR AND COUNCIL OF THE BOROUGH OF UPPER SADDLE RIVER; AND THE PLANNING BOARD OF THE BOROUGH OF UPPER SADDLE RIVER, DEFENDANTS-RESPONDENTS, AND UNITED CITIZENS OF UPPER SADDLE RIVER; BOROUGH OF RAMSEY; CONCERNED CITIZENS OF UPPER SADDLE RIVER AND RAMSEY; EFSHER PROPERTY ASSOCIATES,*FN* DEFENDANTS-INTERVENORS-APPELLANTS



On appeal from the Superior Court, Law Division, Bergen.

Michels, Skillman and Kestin. The opinion of the court was delivered by Kestin, J.A.D.

Kestin

[267 NJSuper Page 612] Plaintiff filed suit in October 1988 claiming a right to the builder's remedy established in Southern Burlington County

N.A.A.C.P. v. Township of Mount Laurel, 92 N.J. 158, 456 A.2d 390 (1983) (Mt. Laurel II). On October 6, 1989, the trial court entered an order embodying a finding that the Borough of Upper Saddle River (Borough) had engaged in exclusionary zoning, directing the Borough to revise its zoning ordinances and land use regulations to comport with its constitutional obligations, and appointing a master to assist the Borough in meeting that goal and to advise the court in the matter.

Soon thereafter, on December 7, 1989, the intervention motion of Fox Hill-Winding Way Homeowners Association, Inc., presently known as United Citizens of Upper Saddle River (United Citizens), was granted. The order expressly provided that the court might, in the future, "bar or limit" United Citizens' "participation in any phase of the case in which its interests are adequately represented by the Borough of Upper Saddle River or the Planning Board of the Borough of Upper Saddle River." On November 12, 1991, the trial court also granted the intervention motions of the Borough of Ramsey (Ramsey) and Concerned Citizens of Upper Saddle River and Ramsey (Concerned Citizens). That order embodied two limitations. First, "the participation of these intervenors [was] limited solely to the issues of suitability of the parcels of land on East Crescent Avenue for Mt. Laurel development." Additionally, the court noted that it might in the future "bar participation [of Ramsey and Concerned Citizens] when their interests are represented by other parties to this action."

The issues pertaining to the development of plaintiff's site were settled. The Borough submitted its compliance plan on February 24, 1992. United Citizens then moved to dismiss the complaint; for leave to depose the Borough's municipal planner, the mayor, a member of the municipal council, and the court-appointed master; and for leave to participate in the matter as a party defendant. All aspects of the motion were denied except that the deposition of the municipal planner was permitted.

A compliance hearing was held in July 1992. A decision was rendered on August 7 and a formal judgment was entered on November 9, 1992. The judgment, approving the compliance plan with 119 low and moderate income housing units, contained certain conditions among which was a provision requiring the Borough and Ramsey to

revise and update their intermunicipal agreement governing the providing of sewer service by Ramsey (the 1979 Ten Cees Agreement) to accommodate Upper Saddle River's Compliance Plan consistent with the decision of the Court, which revision and modification shall be accomplished by October 15, 1992.

Defendants-intervenors appeal from the entry of the judgment of compliance and repose. Plaintiff has not participated in the appeal.

Our review of the record as illuminated by the arguments of the parties discloses that most of the issues advanced by defendants-intervenors do not establish a basis for undoing what the trial court and the parties accomplished in this proceeding. The evidence supports the determinations that the compliance plan is fair and reasonable, embodying realistic means by which the Borough may discharge its constitutional and statutory responsibilities to provide for low and moderate income housing; and, with the possible exception of one set of issues relating to sewer service, that the inclusionary sites are suitable for the type of development contemplated. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84, 323 A.2d 495 (1974). The manner in which the trial court limited the scope of participation of United Citizens and Concerned Citizens was fair and appropriate, in no significant way restricting their opportunity to advance the legitimate interests of the persons they represented. Neither did the discovery limitations nor an order denying United Citizens' motion to supplement the record (which was also denied on appeal) unduly impede these intervenors from making appropriate showings on material issues.

We also do not see the trial court as having erred conceptually when it determined that the scope of Ramsey's intervention would be limited. We are ...


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