Hayser, J.t.c., temporarily assigned
The opinion of the court was delivered by: Hayser
HAYSER, J.T.C., temporarily assigned
Plaintiffs bring this action seeking a determination as to the validity of Wall Township Ordinance No. 34-1987, hereinafter denoted as the "development fees ordinance," and if the ordinance is found to be invalid, plaintiffs further seek reimbursement for the fees actually paid under the voided enactment.
Essential facts are not in dispute.
Plaintiff Southport Development Group, Inc. is the owner of certain property denoted as Lot 3 of Block 352 of the Wall Township Tax Map, consisting of 3.65 acres. Plaintiff Club Development Group, Inc. is the owner of certain property denoted as Lot 9 of Block 273 of the Wall Township Tax Map, consisting of 1.63 acres.
On September 3, 1986, plaintiffs, or their predecessor in title in at least the case of plaintiff Club Development Group, Inc., were granted use variances by the Township's Zoning Board of Adjustment to construct multi-family developments. At that time, plaintiffs' properties were zoned B-2 and R-30, respectively. Plaintiffs received approval to construct townhouses in lieu of the permitted uses.
Among other conditions placed upon the approvals, was the requirement that 20% of the multi-family housing constructed by each plaintiff meet the requirements of low and moderate income housing as proposed in the defendant Township of Wall's Mt. Laurel fair share plan. *fn1 Alternatively, the condition provided that plaintiffs could make a cash contribution in lieu of constructing the required Mt. Laurel units if the Township adopted a development fees ordinance for this purpose. This condition in their approvals, voluntary or not, was never challenged, effectively making plaintiffs Mt. Laurel developers, indirectly, if not directly.
On December 9, 1987, Township Ordinance No. 34-1987, the development fees ordinance, was adopted. Plaintiffs did not challenge that ordinance before the present litigation. Plaintiffs, moreover, never formally challenged the imposition of the fees after the date they argue they were "imposed", on June 22, 1988, by letter of the Township's land use officer. Plaintiffs' Motion Brief, page 12. Fee payments were apparently made as early as April 11, 1989. Brief, (supra) , Exhibit B.
After a series of court hearings over a number of years, for which public notice was provided, defendant Township's fair share plan was approved in the Judgment of Repose entered on September 24, 1990. The development fees ordinance was an integral part of the fair share plan, designed to provide funding in meeting the Township's net fair share obligation through rehabilitation of existing housing stock and the transfer of a maximum of 50% of its net share obligation to assist other municipalities under regional development agreements.
Plaintiffs commenced the present action by filing a complaint in lieu of prerogative writs on April 17, 1991, relying, in part, upon the Supreme Court's decision in Holmdel Builders Association v. Township of Holmdel, (Holmdel), 121 N.J. 550, 583 A.2d 277 (1990), decided December 13, 1990.
On June 24, 1992, an earlier trial court Judge considered the parties' cross-motions for summary judgment. In a decision issued September 2, 1992, the earlier trial court decided, among other matters, that the time bar rule of R. 4:69-6(a) did not preclude the present challenge to the development fees ordinance, because plaintiffs' cause of action accrued only with the Holmdel decision; nor was this same rule to be applied to the Judgment of Repose in "the interest of sound Justice," pursuant to R. 4:69-6(c). However, the court also determined that the unchallenged variances that were granted, were not tainted under the principles set forth in Nunziato v. Edgewater Planning Board, 225 N.J. Super. 124, 541 A.2d 1105 (App. Div. 1988). *fn2
Finally, the court addressed the central issue presented in the motions, i.e. the validity of the development fees ordinance. Plaintiffs, apparently, argued that the ordinance need not necessarily be invalidated per se, but that they should only be required to pay what other developers paid under the Judgment of Repose, or as might be permitted under Council on Affordable Housing (COAH) regulations. The court determined, however, that under the Holmdel decision, the validity of the Wall development fees ordinance should be determined by COAH, once recently adopted regulations had withstood judicial scrutiny. *fn3 Nevertheless, the court decided this was to occur only after the court made further findings as to the voluntary nature of the fee payments in this case by plaintiffs, the treatment of other developers, what "density bonuses," if any, were received by plaintiffs under their variance approvals, and the effect of the Judgment of Repose.
Notwithstanding the earlier trial court's decision as to the summary judgment motions, the parties have filed new motions for summary judgment. *fn4 Plaintiffs contend that under Di Misa, they are entitled to reimbursement of all development fees paid during the "transitional period," i.e. December 13, 1990, when Holmdel was decided, and January 21, 1992, when COAH'S development fees regulations became effective; and for transfer to COAH as to a determination for the fees paid before December 13, 1990. Defendants bring a cross motion for dismissal of the complaint under the Holmdel and Di Misa decisions.
With this background, the court will address the issues raised by the parties' present motions.
A. The "Renewed" Motions for Summary Judgment and the "Law of the Case."
As indicated, plaintiffs moved before the earlier trial Judge in 1992 for a refund predicated upon the misapplication of the development fees ordinance to them, or, in the alternative, that the matter should have been referred to COAH for a determination as to any refund that they would be entitled to receive. In contrast, defendants argued, in their cross motion, that the Holmdel decision, relied upon by plaintiffs, was not controlling under the facts of this case. They argued that the ordinance had been applied appropriately, COAH's position was to accept "voluntary" fee arrangements and plaintiffs had agreed to the Mt. Laurel options governing their variance approvals. Finally, they argued that the ordinance was part of the comprehensive review and approval undertaken by Judge Serpentelli as reflected in the Judgment of Repose.
The court, essentially, decided earlier the entire matter should be transferred to COAH, once its regulations were in place, but only after the court engaged in further fact finding. Apparently, the parties felt the court could decide more, at least as to the validity of the development fees ordinance, particularly in view of the earlier court's decision not only to stay transfer of the matter to COAH, but also to engage in further fact finding. Their argument has not dimmed over the passage of time.
Normally, a renewal of a motion for summary judgment, in whole or in part, even when the order is interlocutory in nature, as when the motion is denied, is not favored, particularly when brought before another trial Judge, barring exceptional circumstances. Cineas v. Mammone, 270 N.J. Super. 200, 207-208, 636 A.2d 1071 (App. Div. 1994).
However, a number of things have changed since the earlier trial court's decision in 1992. The relevant COAH regulations are now fully effective, and, more importantly, due to the fortuitous, perhaps, delay for the parties in the further court fact finding, Di Misa has been decided and must be considered for its possible impact upon the matters presented.
Closely related to the policy of not encouraging the renewal of summary judgment motions before different Judges of co-ordinate jurisdiction, is the doctrine of the "law of the case." The "law of the case" doctrine, grounded upon the principle that relitigation of an issue should be discouraged, if possible, requires Judges to respect un-reversed decisions made during the trial as to questions of law. State v. Reldan, 100 N.J. 187, 203, 495 A.2d 76 (1985). However, the doctrine is discretionary, and the court is never irrevocably bound before its final decision; and the ...