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Rosenshein Associates v. Borough of Palisades Park

September 26, 1997

ROSENSHEIN ASSOCIATES, PALISADES PARK SQUARE CORPORATION AND ROSENSHEIN FIRST DEVELOPMENT CORP., PLAINTIFFS-RESPONDENTS,
v.
BOROUGH OF PALISADES PARK, DEFENDANT-APPELLANT, AND MAYOR AND COUNCIL OF THE BOROUGH OF PALISADES PARK, PLANNING BOARD OF THE BOROUGH OF PALISADES PARK AND ZONING BOARD OF THE BOROUGH OF PALISADES PARK, DEFENDANTS, AND DAVID H. BEREZIN, AMELIA BENEDUCI, DOMINIC PICINICH AND GORDANA PICINICH, INTERVENORS/CROSS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Approved for Publication September 27, 1997.

Before Judges Pressler, Wallace and Carchman. The opinion of the court was delivered by Carchman, J.

The opinion of the court was delivered by: Carchman

The opinion of the court was delivered by

CARCHMAN, J.S.C. (temporarily assigned).

Defendant Borough of Palisades Park (Borough) and intervenors David H. Berezin, Amelia Beneduci, Dominic Picinich and Gordana Picinich (intervenors) appeal from a judgment of the Law Division granting to plaintiffs, Rosenshein Associates, Palisades Park Square Corporation and Rosenshein First Development Corp. (plaintiffs) relief a) declaring the Borough's land use ordinances unconstitutional; b) mandating a review of the ordinances to comply with Southern Burlington County N.A.A.C.P. v. Mount Laurel Township, 92 N.J. 158, 456 A.2d 390 (1983) (Mt. Laurel II); and c) granting a builder's remedy. The trial court determined that such relief was necessary to meet the constitutional mandate of Mt. Laurel. We affirm.

The subject property consists of thirteen separate lots totalling 16.46 acres on a tract known as the "Long Swamp." Approximately 6.5 acres are upland or buildable property and the remainder are wetlands and not buildable. Significantly, this property represents the last remaining vacant land available for development in the Borough.

This action was commenced in 1990. In September, 1990, Judge Murphy granted the intervenors leave to intervene. In 1991, the trial Judge granted plaintiffs' motion for partial summary judgment and determined that the Borough's ordinances failed to provide a realistic opportunity for the construction of low and moderate income housing. The trial commenced in 1995. After hearing from conflicting experts presented by both sides, the trial Judge first determined the Borough's fair share requirement and, thereafter, considered the suitability of the property for housing. Finally, the Judge awarded a builder's remedy to plaintiffs.

In 1990, the Borough's fair share requirement under Mount Laurel II was determined by the Council on Affordable Housing (COAH) to be 222 units. In 1994, during the pendency of this action, COAH revised the fair share allocation and reduced the Borough's obligation to 28 units which was further reduced by the trial Judge to 23 units resulting from a rehabilitation credit for five units.

The court-appointed master, Philip Caton, a professional planner who has served as a court-appointed master in numerous Mt. Laurel cases, opined that the property was suitable for residential development and ultimately recommended that plaintiffs' proposal of two eight-story residential apartment structures consisting of 140 units in one building and 64 units in the other was a reasonable development of the property and consistent with Borough development. Caton noted, and the trial Judge found, that the proposed development would satisfy the Borough's Mt. Laurel obligation in full. The trial Judge adopted the recommendations of the master and awarded a builder's remedy consistent with those recommendations including granting to the Borough the option of having the affordable units set aside as part of the proposed development or receiving a cash contribution of $10,000 per affordable unit to be used for rehabilitation of existing housing units.

During the course of this litigation, plaintiffs' financial condition was raised as an issue. The record demonstrates that plaintiffs suffered from financial difficulties resulting in the filing of Chapter 11 proceedings in the United States Bankruptcy Court. Among plaintiffs' outstanding obligations are payment of municipal property taxes. While disputing a significant increase in the assessment of their property from $791,400 to $7,230,600 over a two-year period, plaintiffs have failed to pay property taxes. At the time of trial, plaintiffs' property tax obligation to the Borough exceeded 1.3 million dollars. Plaintiffs challenged the tax assessments, and that issue is now being adjudicated in an adversary proceeding pending in the Bankruptcy Court.

On appeal, the Borough raises the following legal arguments:

I -

THE BUILDER'S REMEDY SHOULD BE RECONSIDERED BASED ON RESPONDENTS' FINANCIAL INABILITY TO PROVIDE A REALISTIC OPPORTUNITY FOR THE CONSTRUCTION OF THE BOROUGH'S FAIR ...


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