On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-2848-94.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, Seltzer and C.L. Miniman.
Defendants, Township of Randolph and Township of Randolph Planning Board, appeal from orders entered on December 15, 2003, May 26, 2004, and June 12, 2006. Essentially, those orders determined that the Law Division had jurisdiction to enforce a mediated settlement agreement that resolved disputes respecting the right of plaintiffs, Baker Residential Limited Partnership and Randolph Mountain Partnership, to construct a housing project with an affordable housing component within defendants' jurisdiction. The orders also provided that the project would be governed by the municipal codes in effect when the project was first approved in accordance with the settlement. We affirm.
Although we do not view the legal principles governing the resolution of this appeal as overly complex, the factual and procedural background necessary to an understanding of the issues require an extended recitation. Those facts are set forth in our prior unpublished opinion, Randolph Mountain Industrial Complex v. Planning Board of Randolph, No. A-845-OO (App. Div. June 5, 2002), and we quote relevant sections of that opinion to provide the background of this dispute:
[Plaintiffs] own a 60.8-acre tract in Randolph Township known as Lot 6 and Lot 9 in Block 199. The property has both wetlands and steep slopes. . . .
Prior to 1984, most of the site was zoned R-2, single-family residential, with a 25,000 minimum lot-area requirement; a portion of Lot 6 was zoned I-Industrial.
. . . As a result [of the Supreme Court decision in South Burlington County, N.A.A.C.P. v. Township of Mount Laurel, 92 N.J. 158 (1983)], a settlement agreement was entered into between the parties on August 31, 1984, under which the Township agreed to re-zone various parcels, including a portion of [plaintiffs'] property, for multi-family housing with a density of ten units per acre. . . .
On June 23, 1987, [plaintiff and defendant] entered into a COAH [Council On Affordable Housing] mediation agreement that included the subject property in [defendants'] fair-share plan. See N.J.S.A. [52:]27D-315a. Under that agreement, the Township agreed to re-zone forty acres of [plaintiffs'] property, primarily Lot 6, as "R-5 Multi-Family Residential District" for multi-family inclusionary development; the remaining portion of the subject property was to be zoned R-2. The agreement further provided that [plaintiffs] would be given permission to construct 276 units on the 40 acres, of which 55 units would be low- and moderate-income housing.
[Plaintiffs] had objected to the proposed zoning because it prohibited development above the 600-foot contour line of the site. However, an executive summary prepared by COAH dated September 22, 1987, recommending approval of [defendants'] application for substantive certification of its Housing Element and Fair Share Plan states that "[d]uring mediation, the Township agreed to provide relief from this agreement, if necessary, in order to permit the developer to construct 55 low and moderate income housing units as part of a 20% set aside."
. . . Thereafter, the Township adopted Ordinance #14-88, rezoning, inter alia, [plaintiffs'] property in accordance with the COAH mediation agreement and consistent with COAH's substantive certification.
On June 12, 1989, [defendants] passed a resolution approving the site-plan application of Randolph Mountain for construction of 232 multi-family units on the subject site, of which 48 would be affordable to low- and moderate-income families. The development was to take place on a 35.3-acre portion of the subject property within the R-5 zone. . . .
. . . However, the approved project became unbuildable because of subsequent determinations by the [Department of Environmental Protection], delineating larger areas of the property as wetlands and establishing the need for significant buffers and transition areas.
In November 1993, [plaintiffs] submitted an application to [defendants], seeking to amend the site plan approval granted by the Board on June 12, 1989. That application provided for construction of 165 multi-family units, 25 of which would constitute affordable low- and moderate-income housing units. Municipal officials advised [plaintiff] that the submission would be considered a "new" application, not an "amended" application. The import of such a determination is that it would subject the proposed project to then-current development regulations of the Township, most notably more restrictive steep-slope provisions.
On May 23, 1994, after two hearings, [defendants] ruled that [plaintiffs'] 1993 submission was a new, not amended, application and, therefore, [defendants'] current land-use and steep-slope ordinances would be applied. [Defendants'] steep-slope ordinance applicable to [plaintiffs'] 1993 submission created far more significant restrictions on [plaintiffs'] property then did the Township's prior steep-slope ordinance. . . . Application of the provisions of the 1994 ...