Hayser, J.t.c., temporarily assigned
The opinion of the court was delivered by: Hayser
HAYSER, J.T.C., temporarily assigned
Does a municipality have any obligation to facilitate, if not assist, the development of low and moderate income housing in a neighboring municipality? In the final analysis, that is the issue presented in this matter. *fn1 It is essentially a legal issue, but there are factual aspects that must also be addressed in reaching a Conclusion in a given case.
Plaintiff Samaritan Center, Inc. (Samaritan) is a non-profit corporation organized to provide, among other things, housing for low income and other needy persons in western Monmouth County. Plaintiff Tracy Station Associates (Tracy Station) is the owner of certain real property and possesses, as a successor in interest, certain development approvals that include, arising from a final Mount Laurel Consent Order, a component to enable the construction of low and moderate income housing, whether voluntary or not. Southern Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp., 92 N.J. 158, 279, 456 A.2d 390 (1983). (Mount Laurel II).
Both plaintiffs have their projects located in the defendant Township of Manalapan (Township). The Township is apparently cooperating with these projects, at least to the extent of meeting its constitutional obligation under Mount Laurel II as determined in the Mount Laurel housing component of the earlier Consent Order, wherein, effectively, a 20% set aside for low and moderate income housing construction was required of Tracy Station's predecessors.
In addition, the Township is donating certain public lands to Samaritan for the purpose of constructing residential housing for a project to be denoted as "New Beginnings." The project will involve the construction of single family homes, with sixty-seven units restricted for low and moderate income needs. There will also be twenty other units constructed with limited time constraints on resale. Final site plan approval for this project is pending before the Township's Planning Board. Tracy Station's project consists of 140 approved townhouses, 20% of which, or twenty-eight units, are reserved for low and moderate income housing under the previously required set aside.
Plaintiffs have entered into an agreement to share the costs of providing required water and sewer services to their sites, which are in close proximity to each other. The issue that has given rise to this litigation concerns the provision of such utility services for plaintiffs' projects.
Water service is to be provided by the Gordons Corner Water Company (Gordons Corner), a private water company operating under its franchise within the jurisdictional limits of the Township. Connection to the projects' water supplier could be accomplished by either of two alternatives.
The first alternative is to connect the project through an existing back-up line owned and operated by the defendant Borough of Englishtown (Englishtown). The Englishtown line, in turn, is connected to a water line of Gordons Corner, a distance of approximately 800 feet from the Tracy Station property. *fn2
The second alternative is to connect to the Gordons Corner water line directly from the Tracy Station property, a distance of approximately 4,500 feet. This required, however, the successful negotiation of various access easements and the future construction of a pump station to bypass the sewer connections of defendant Western Monmouth Utilities Authority (WMUA), which construction is apparently not acceptable to the utilities authority. Apparently, the need for the pump station arose while easements were being acquired, due to changes in the Matchaponix Pond which the line must cross.
Other alternatives will still involve the need, at least, to construct an approximately 4,500 foot connection line, but, in fact, the combined distance for both projects to the nearest direct water connection would be approximately 5,400 feet. Both the Township and Gordons Corner have conceptually approved the provision of water service, subject, of course, to the necessary connection to a water supply being provided.
Sewer service is to be provided by the WMUA, which has also granted conceptual approval for same. Connection for sewer service can, also, be provided by either of two alternatives.
The first alternative is to connect the project to an Englishtown sewer line located approximately 1,700 feet from the Tracy Station property. This sewer line, in turn, connects to WMUA lines for ultimate treatment at its regional facility.
The second alternative is to connect directly to WMUA line some 6,200 feet from the Tracy Station property. This option, however, requires the acquisition of necessary access easements and the construction of the pump station, previously disapproved by the utilities authority.
Other alternatives, if any, would require the construction of, at least, a 6,200 foot connection line.
Plaintiffs' engineer has estimated the cost savings, if permitted to construct water and sewer lines connected to Englishtown's lines, the shortest distances, will be $412,888 This has not been disputed. However, plaintiffs point out that they are faced with a more significant problem than the need to simply control expenses for the housing projects. Construction for the Samaritan project is dependent upon a variety of public and private sources for its funding, including a community block grant from the United States Department of Housing and Urban Development (HUD), which will expire in May, 1997, if not expended. This grant alone represents $260,000 of the total public financing of $2,300,000 that has been raised for this $10,000,000 project. Another governmental grant of $334,000 will also expire at that time. Grants were sought in accordance with the budgetary requirements of the project. Therefore, the remaining time, it is argued, is critical, especially if alternative easements must be obtained or a pump station constructed, over WMUA disapproval under the non-Englishtown alternatives.
Englishtown was contacted by plaintiffs, requesting the desired connections, but those requests were denied. This litigation resulted, in which the municipality raises a number of arguments in support of its denial of the requested connections. *fn3
The first argument raised by Englishtown is a procedural one. It asserts that plaintiffs are seeking relief pursuant to R. 4:52-1, i.e. an interlocutory injunction, to achieve final relief in the form of permanent sewer and water connections, all without benefit of a required fact-finding hearing.
In fact, plaintiffs are seeking a mandatory injunction pursuant to R. 4:67. *fn4 R. 4:52 is, indeed, designed to provide for interim relief in an injunction action. However, under R. 4:67-1(b), there can be no doubt that plaintiffs are seeking final injunctive relief predicated upon the finding that Englishtown's obligation to facilitate the projects is required under a constitutional imperative, arguing that the matter also can be disposed of in a summary manner. While the matter has been raised under the service provisions of R. 4:52-1(a), see, however, R. 1:6-2 (a) which provides that "an application to the court shall be ... in special cases, by order to show cause". See also R. 1:6-2 (a)
The important public issue presented in the present matter, warranted proceeding by order to show cause and not by motion. See also R. 1:1-2. Moreover, even in a claimed summary proceeding, the court is still required to conduct a trial on the return date and resolve any "genuine issue as to any material fact." R. 4:67-5.
Nevertheless, Englishtown argues that under Crowe v. De Gioia, 90 N.J. 126, 447 A.2d 173 (1982), plaintiffs are not entitled to the relief of a mandatory injunction. Although Crowe dealt with the issue of a preliminary injunction, the factors for a consideration of a preliminary or final injunction are similar. CIBA-Geigy Corp. v. Bolar Pharmaceutical Co., Inc., 747 F.2d 844 (3rd Cir. 1984), cert. denied, 471 U.S. 1137, 105 S. Ct. 2678, 86 L. Ed. 2d 696, (1985).
Englishtown argues that plaintiffs can demonstrate no irreparable harm, and that monetary damages are their relief. It contends that this action is premature because the Council on Affordable Housing (COAH) has not yet approved The Township's fair share and housing plan, of which the plaintiffs' projects form a part, although Tracy Station already possesses a set aside requirement. Englishtown also argues that it would be an undue hardship to require it to participate in plaintiffs' undertakings, when the legal right to compel such action is unsettled.
Much of Englishtown's argument, however, may be summarized as follows:
Englishtown, should not be forced to participate in a plan in which the Plaintiffs and the Township of Manalapan decided which sites should be utilized to fulfill Manalapan's Mount Laurel requirements. There has been no showing by the Plaintiffs that the choice of these sites comports with "sound municipal planning" or that no other sites are available which would not require an encroachment upon the Borough of Englishtown ... The citizens of Englishtown should not be made to suffer from a decision in which they had no choice.
... The Court must consider the effect allowing such a remedy at this point in time will have upon this, and other "neighboring" municipalities in the future. If these Plaintiffs are allowed to use Englishtown as a conduit, what is to prevent future developers from seeking such relief. Such a course of action unduly burdens Englishtown who has its own fair share requirements to meet and who must preserve the integrity of its infrastructure to provide for and protect the health and safety of its present and future residents.
[Englishtown's Trial Memorandum, pages 9 and 16. *fn5
As will be discussed further in this opinion, monetary damages are not the substitute for meeting a long and firmly established public policy goal of achieving safe, sanitary, decent housing for the most needy. Moreover, monetary damage claims have to be predicated upon the failure to permit the connections, which would be the claimed wrongful act. The presence of an issue as to the public interest is, moreover, an additional factor to be weighed in this case. Gruntal & Co. v. Steinberg, 843 F. Supp. 1 (D.C.N.J. 1994); Securities and Exchange Commission v. Northeastern Financial Corp., 268 F. Supp. 412 (D.C.N.J. 1967). What COAH will ultimately approve will not be deterred by plaintiffs' projects, and COAH is more likely to respond negatively if water and sewer service is not reasonably available. N.J.A.C. 5:92-13; N.J.S.A. 52:27D-311(4); Allan-Deane Corp. v. Bedminster Tp., 205 N.J. Super. 87, 115, 122, 500 A.2d 49 (Law Div. 1985).
It must also be remembered that Tracy Station already possesses an approval requirement to address the housing needs of COAH's target groups, and Samaritan's sole reason for constructing such housing goes to the very heart of its existence, with or without COAH involvement. Moreover, the Samaritan property is zoned for low and moderate income housing. However, if such is truly Englishtown's concern, any relief granted can be conditioned upon COAH's approval of Manalapan's fair share and housing plan.
Englishtown additionally argues that there are a number of significant health and safety issues that must be addressed before plaintiffs can be provided ...