On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Morris County.
Approved for Publication September 24, 1997.
Before Judges Havey, Brochin and Kestin. The opinion of the court was delivered by Kestin, J.A.D.
The opinion of the court was delivered by: Kestin
The opinion of the court was delivered by
The Collinsville Civic and Improvement League (League) and the Township of Morris (Township), defendants in separate actions brought by the County of Morris (County), appeal from a judgment entered by the trial court on March 18, 1995. We consolidate the appeals for the purposes of this opinion. The issues on appeal were adjudicated by the trial court in an order entered on October 31, 1994, but other questions remained to be addressed before the matter could be considered final and ripe for appeal. R. 2:2-3(a)(1).
The issues on appeal have their genesis in an exclusionary zoning suit against the Township. That matter was settled in 1984 with the entry of a final judgment of compliance pursuant to Southern Burlington County N.A.A.C.P. v. Mt. Laurel Tp., 92 N.J. 158, 350-51, 456 A.2d 390 (1983) (Mt. Laurel II). That final judgment was based upon an earlier court-approved settlement. The judgment established the Township's fair share of the regional need for affordable housing for six years, into 1990, subject to the Township's obligation then to "assess its fair share of housing needs to determine whether an opportunity for additional low and moderate income units is necessary and, if so, to create such additional opportunity."
The John Street tract, which is the subject matter of this appeal, was designated in the judgment and settlement as land rezoned for inclusionary development which would generate low and moderate income housing units. *fn1 The obligations of the parties in the event that such rezoned land ceased to be available for development were established:
In the event that any site rezoned under this agreement ceases to be available for development pursuant to the provisions adopted under section 3(a) of this agreement because of development for other purposes, condemnation, state or federal prohibitions or restrictions upon development or any other reason, the municipality upon written notice to and with the approval of plaintiffs, shall rezone sufficient other developable land pursuant to this provision to make it realistically likely that a sufficient number of units affordable to low and moderate income households will be constructed to satisfy the municipality's fair share.
Provision was also made for modification:
The low and moderate income housing amendments as set forth in Exhibits "A" and "B" shall not be repealed, amended, or modified without the express consent of the plaintiffs, through their counsel, the Department of the Public Advocate, except as provided for elsewhere in this agreement. In the event of any breach of any provision of this agreement, the plaintiffs may seek relief by way of any remedy provided by law. The owners or assignees of the lands which are rezoned by this amendment are also recognized as third party beneficiaries with authority to enforce the terms of this settlement agreement.
Following upon the trial court's entry of its final judgment of compliance, based upon its finding that the settlement was "fair, adequate and reasonable", we affirmed. Morris Cty. Fair Housing Council v. Boonton Tp., 209 N.J. Super. 108, 506 A.2d 1284 (App. Div. 1986).
In October 1993, the County purchased the sixteen-acre John Street tract from the developer as the location for a new county jail. The purchase was contingent upon the issuance of all siting approvals and permits for the contemplated construction. In issuing the required freshwater wetlands permit, the Department of Environmental Protection (DEP) imposed a condition that "prior to construction, the [County] shall submit proof from the Court Master that this is no longer an affordable housing site." Accordingly, the County filed the complaint in this matter, seeking judgment, inter alia, validating the siting procedures used as consistent with law; declaring that the County had complied with DEP's affordable housing condition; and declaring that the County's intended use of the John Street site for the jail superseded the 1984 settlement and judgment designating the site as a location for affordable housing. Ultimately, the relief sought was granted. The siting issues are not before us in this appeal, and we disregard them for the purposes of focusing on the only issues we are called upon to address, having to do with the trial court's determinations relative to the affordable housing issues and with the relief it ordered in that regard.
The Township, in its answering pleading, sought a judgment by way of counterclaim barring the construction of the county jail on the John Street site, based upon an allegation that the need for affordable housing outweighed the need for a jail. In the alternative, the Township sought a judgment requiring that the County "relieve the Township . . . fully and completely and indemnify the Township . . . from any further obligations either with respect to zoning other parcels in the Township . . . for low and moderate housing or otherwise indemnifying the Township . . . from the consequences of the relief sought by the County and requiring the County . . . to actually construct on premises owned by the County . . . the number of displaced low and moderate units." Further in the alternative, the Township sought an order relieving it of the fair share unit obligation attributable to the site.
In a cross-claim against the Morris County Fair Housing Council (FHC) and the Morris County N.A.A.C.P. (NAACP), both plaintiffs in the original suit and named defendants in this action, *fn2 the Township sought a judgment declaring that it had met its obligations under the 1984 judgment of compliance, relieving it from any further liability thereunder, and transferring all issues bearing upon its fair share obligations to the Council on Affordable Housing (COAH). In their joint answer and cross-claim, the FHC and the NAACP sought a determination that the affordable housing needs established in the 1984 judgment superseded the County's need for a jail at the specific site, or, if such a determination was not forthcoming, an order directing the Township to designate alternative affordable housing sites.
The League, an unincorporated association of residents of the neighborhood immediately adjacent to the John Street site, by way of cross-claim against the Township, sought an affirmation of the Township's fair share obligation as established in the 1984 judgment, along with a dismissal of the Township's alternative claim for relief that it be relieved of its fair share obligation.
The trial court disposed of the issues bearing upon the Township's affordable housing/fair share obligations in its October 31, 1994 order. In an oral opinion on October 14, 1994, Judge Stanton held that the Township had substantially complied with its obligations established in the 1984 judgment of compliance and was free to address its future affordable housing obligations through COAH. His order provided in pertinent part:
1. The Court finds that the Township of Morris has in good faith endeavored to comply with the August 20, 1984 Final Judgment of Compliance. . . . While the judgment has not been fully implemented it has served its fundamental purpose.
2. The Court does specifically further find that circumstances have substantially changed since 1984 with the passage of time, changes in legal modalities and the realization of important rights.
3. The August 20, 1984 Judgment of Compliance . . . [is] no longer [a] useful mechanism for determining what should be done in Morris Township with respect to affordable housing and accordingly [is] determined to be of no further force and effect. The important issues of affordable housing shall hereafter be addressed pursuant to the Fair Housing Act and the Council On Affordable Housing. Within 90 days . . . Morris Township shall submit to the Council on Affordable Housing its fair share housing plan under N.J.S.A. 52:27D-311 and shall seek substantive certification under N.J.S.A. 52:27D-313.
Only the League and the Township have appealed. The League, in its appeal, argues:
I. THE TRIAL COURT'S VACATION OF THE FINAL JUDGMENT WAS IMPROPER BECAUSE THE REQUIREMENTS OF RULE 4:50-1 WERE NOT MET.
II. THE COURT'S VACATION OF THE SETTLEMENT AGREEMENT ALSO VIOLATED WELL ESTABLISHED PRINCIPLES OF INTERPRETATION AND ENFORCEMENT OF SETTLEMENT AGREEMENTS.
III. THE COURT FAILED TO HOLD AN EVIDENTIARY HEARING AND IMPROPERLY TOOK JUDICIAL NOTICE OF CIRCUMSTANCES IN MORRIS TOWNSHIP THAT IT CONCLUDED JUSTIFIED VACATING ...