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Elon Associates, L.L.C. v. Township of Howell

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 31, 2007

ELON ASSOCIATES, L.L.C., PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF HOWELL, PLANNING BOARD OF THE TOWNSHIP OF HOWELL, AND NEW JERSEY COUNCIL ON AFFORDABLE HOUSING, DEFENDANTS-RESPONDENTS.
ELON ASSOCIATES, L.L.C., PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF HOWELL AND PLANNING BOARD OF THE TOWNSHIP OF HOWELL, DEFENDANTS-RESPONDENTS.
ELON ASSOCIATES, L.L.C., PLAINTIFF-RESPONDENT,
v.
TOWNSHIP OF HOWELL AND PLANNING BOARD OF THE TOWNSHIP OF HOWELL, DEFENDANTS-APPELLANTS.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. MON-L-742-01 and MON-L-5032-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 25, 2007

Before Judges Wefing, Parker and Yannotti.

These consolidated appeals are part of continuing litigation between a developer, Elon Associates (Elon), and the Township of Howell (Township), arising from the Township's efforts to secure second cycle substantive certification from the Council on Affordable Housing (COAH).*fn1 We have addressed aspects of this controversy on four previous occasions, resulting in two published and two unpublished opinions. After we reversed COAH's grant of second cycle substantive certification to the Township, the matter is once again pending before COAH.

In these appeals, Elon challenges two orders entered in the Law Division: an order entered on January 21, 2005, denying Elon's motion to reinstate an exclusionary zoning complaint originally filed in 2001; and an order entered on May 13, 2005, refusing to award Elon a builder's remedy in an action in lieu of prerogative writs. The Township appeals from an order entered on June 10, 2005 denying the Township's motion to strike portions of the May 13, 2005 order.

Elon's arguments are based on the premise that exclusionary zoning litigation brought pursuant to the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329, should be tried under the facts and law as they existed at the time the case was filed, not as they exist following COAH review. Because Elon presents no legal support for its argument and because Elon's position runs contrary to the purposes of the FHA, we reject Elon's arguments and affirm the order of January 21, 2005. We affirm the order of May 13, 2005, except for Paragraph 3, which we reverse and vacate. The June 10, 2005 order is reversed and vacated.

I.

In October 1989, COAH granted substantive certification for a compliance plan that provided the Township with protection from exclusionary zoning litigation from 1989 to 1995. In re Twp. of Howell Petition for Substantive Certification, No. A-1586-98 (App. Div. March 20, 2001) (slip op. at 2), certif. denied, 169 N.J. 608 (2001). The plan required the re-zoning of several sites in the Township for inclusionary development, including a fifty-eight-acre tract commonly known as the Weiner site. Ibid. In June 1989, the Township Planning Board "granted subdivision and preliminary site plan approval for a" development on the Weiner site that was to include seventy-nine affordable housing units. Ibid.

In February or March 1995, the Township petitioned COAH for second cycle substantive certification. Ibid. The second cycle compliance plan included credits for the seventy-nine proposed, but not yet built, affordable housing units on the Weiner site. Id. at 2-3. The Township subsequently submitted several plan revisions, but none altered the development slated for the Weiner site. Id. at 3. On April 3, 1998, Elon filed a motion to intervene in the COAH proceedings, accompanied by supporting documents that cast doubt on the feasibility of the Weiner development. Ibid. On May 6, 1998, COAH denied Elon's motion to intervene and granted the Township conditional second cycle substantive certification. Id. at 5.

On October 7, 1998, COAH adopted a resolution granting final substantive certification to the Township's compliance plan. Ibid. Elon appealed COAH's decision, arguing that COAH abused its discretion in denying the motion to intervene and acted arbitrarily and capriciously in concluding that the Weiner site was suitable for the development of affordable housing. Id. at 5-6.

On February 13, 2001, while its appeal was still pending, Elon filed a complaint, MON-L-742-01, in the Law Division, alleging that the Township's second cycle plan did not create a realistic opportunity for the provision of affordable housing contrary to N.J.S.A. 52:27D-317. The complaint asserted that the Weiner site was constrained by wetlands and lack of sewer infrastructure, in contrast to the Elon property which was immediately available and approvable for inclusionary development. Elon sought to void COAH's grant of substantive certification and demanded a builder's remedy "in the form of site specific relief" that re-zoned its property "to allow for a 240 unit inclusionary development with a [twenty percent affordable housing] set aside."

On March 20, 2001, we reversed COAH's grant of substantive certification, finding that "the factual materials Elon submitted in support of its motion raise[d] serious questions as to whether Howell's plan complies with COAH's regulations and provides a realistic opportunity for satisfaction of Howell's affordable housing obligation." Twp. of Howell, supra, slip op. at 6. We remanded the case to COAH for further consideration. Ibid.

In response to the remand, COAH requested additional information from the Township concerning the suitability of the Weiner site for high-density residential development. In re March 22, 2002 Motion to Dismiss and Intervene in the Petition of Howell Twp., 371 N.J. Super. 167, 172 (App. Div.), certif. denied, 182 N.J. 140 (2004). While the additional materials were under review, Elon moved to intervene in the proceedings before COAH and to dismiss the Township's petition for substantive certification. Id. at 174.

On January 8, 2003, "COAH adopted an order that required [the Township] to amend its compliance plan and re-petition for substantive certification." Id. at 175. The order also denied Elon's motions to intervene and to dismiss the Township's petition. Ibid. On January 31, 2003, the Township "filed a repetition for substantive certification that deleted the Weiner site from its compliance plan." Ibid.

On February 6, 2003, Elon filed an appeal addressing COAH's delay in completing its review on remand. Ibid. Shortly thereafter, Elon "filed a motion for summary disposition" seeking an order requiring COAH to issue an opinion within thirty days or, alternatively, terminating COAH's jurisdiction and transferring the matter back to the Law Division. Id. at 175-76. We denied the motion on April 2, 2003. Id. at 176. For the next several months, COAH failed to take any action regarding the Township's re-petition for substantive certification. Ibid.

On July 14, 2004, we affirmed COAH's denial of Elon's motions to intervene and to dismiss the Township's petition. Ibid. We also denied Elon's request to terminate the proceedings before COAH and its claim for site-specific relief. Id. at 177. We agreed with Elon, however, that "there ha[d] been an unjustifiable delay [in the] proceedings on remand" and ordered COAH to complete the proceedings in accordance with a fixed time schedule. Ibid.

Meanwhile, shortly after the Township's petition was remanded to COAH, COAH moved in the Law Division to dismiss the complaint in MON-L-742-01 on the ground that COAH had "exclusive jurisdiction to consider whether the Township's plan satisfi[ed] its second cycle affordable housing obligations." Elon Assocs., L.L.C. v. Twp. of Howell, 370 N.J. Super. 475, 480 (App. Div.), certif. denied, 182 N.J. 140 (2004).

On July 24, 2002, the Law Division heard arguments on the motion and dismissed the complaint on procedural grounds. Analogizing the matter to proceedings that occur in bankruptcy cases, the court stated that it would allow for reinstatement of the complaint without penalty if "there are still issues that need to be litigated" after COAH issued a final decision. When Elon's counsel asked whether reinstatement would be on the basis of facts as they existed on February 13, 2001, the court replied:

I thought about trying to . . . craft all sorts of language. And the simple answer is there's no way to craft the language. The best way and the way that I am going to do it is what I said, without penalty. Because none of us can foresee what the future is going to bring. And I think if that were the situation . . . without penalty, means just that, without penalty. It will be back. And that's the way we treat the bankruptcy cases. You'll be back just as if whatever happened hadn't happened without any penalty.

The court entered an order on July 24, 2002, dismissing the complaint in MON-L-742-01 "subject to re-instatement without penalty at the conclusion of the COAH proceedings." The judge subsequently denied Elon's motion for reconsideration. Elon Assocs., supra, 370 N.J. Super. at 480. Elon appealed from this dismissal of its complaint. Ibid.

On July 1, 2004, we affirmed the dismissal, reasoning that "nothing in the language of the FHA or its underlying policies . . . would support the conclusion that its exhaustion of administrative remedies requirements are inapplicable when a petition for substantive certification is remanded to COAH for reconsideration or revision." Id. at 483. Thus, we concluded that "even though [Elon's] action was maintainable as of the date it was filed, our remand to COAH reinstated the exhaustion of administrative remedies requirements of N.J.S.A. 52:27D-309(b) and N.J.S.A. 52:27D-316(b)." Id. at 484.

On October 5, 2004, COAH completed the remand proceedings by adopting a resolution granting substantive certification for the Township's compliance plan. In re the Re-Petition of Howell Twp. for Substantive Certification, No. A-1445-04 (App. Div. June 28, 2006) (slip op. at 6). The affordable housing plan that COAH approved did not include any development on the Weiner tract. Id. at 3-6. Elon filed a notice of appeal challenging COAH's grant of substantive certification. Id. at 6.

On December 10, 2004, Elon's counsel wrote to the Law Division requesting re-instatement of its complaint and was advised to file a motion. Elon then moved to reinstate the complaint. The motion was heard on January 21, 2005 and denied. The court rejected Elon's argument that the time of decision rule should govern the controversy. Concluding that there was no basis to Elon's argument, the court observed: "If the [c]court were to reach a contrary conclusion, it would, as I suggested, compel Howell Township and COAH to defend a Fair Share Plan that both COAH and now the Township . . . have rejected in favor of a more suitable plan that has itself secured COAH's substantive certification." The court commented that if it accepted Elon's position, it would be "turning the Fair Housing Act on its head." Noting that "common sense should be a factor," the court found the previous order ambiguous, at best, and concluded that it provided no basis for an automatic reinstatement of the complaint.

On January 21, 2005, the court entered an order memorializing its decision. On March 7, 2005, Elon filed a notice of appeal (A-3237-04T2).

While the litigation in MON-L-742-01 was proceeding, on October 25, 2001, Elon filed a complaint in lieu of prerogative writs, MON-L-5032-01. The complaint alleged that following the Appellate Division's March 20, 2001 reversal of COAH's grant of substantive certification, the Township improperly adopted ordinances revising the zoning of Elon's property from one unit per two acres to one unit per six acres. The complaint claimed procedural irregularities in the enactment of the ordinances; violations of the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163; willful, malicious and bad faith behavior by the Township; and violation of Elon's civil rights. The complaint demanded that the ordinances be invalidated, that Elon be awarded compensatory and punitive damages, and that a special master be appointed to recommend new zoning standards for Elon's property. The complaint did not, however, request a builder's remedy.

In the pretrial order entered on January 3, 2003, the Law Division listed twenty-eight issues, including:

13) Does the re-zoning of the Elon property under the ordinance violate the Township's duty and authority to zone under the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. ("MLUL"), the Fair Housing Act, N.J.S.A. 52:27D-301 et. seq. ("NJFHA"), and the State Constitution that all towns must affirmatively provide for their fair share of low and moderate income housing?

The court's inclusion of this issue was apparently based on Elon's assertion in its "Factual and Legal Contentions," that the Township "acted in an affirmatively exclusionary fashion when, during August and September 2001, [it] adopted six (6) acre minimum lot size zoning . . ."

MON-L-5032-01 was tried before the court on January 21, 2005, after which the court rendered a written decision declaring the ordinances invalid because the Township failed to complete a re-examination report of its master plan before down-zoning Elon's property. In a supplemental opinion rendered on January 31, 2005, the court set forth additional findings of fact. With specific reference to the Elon tract, the court observed: "Although Elon offered to develop this site for affordable housing, the site might not qualify under COAH guidelines without obtaining waiver relief because the site is located in PA-4B area of the State Plan."

On February 22, 2005, the court entered final judgment in MON-L-5032-01 declaring that the ordinances imposing six-acre zoning on Elon's property were invalid and unenforceable. Elon's request for site-specific relief through re-zoning of its property at a development density of ten multi-family units per acre was denied.

Elon moved for reconsideration of the denial of site-specific relief. That motion was heard on May 13, 2005. Elon argued that the ordinances should be declared exclusionary and a builder's remedy should be granted. When the court appeared confused as to why Elon was raising Mount Laurel*fn2 issues in its action in lieu of prerogative writs, counsel explained that Elon's motion for reinstatement of its exclusionary zoning claim in MON-L-742-01 had been denied. In rendering its decision, the court stated that it did not rule on the Mount Laurel issues in MON-L-5032-01 because they were encompassed in MON-L-742-01.

The order entered on May 13, 2005 in MON-L-5032-01 stated that Elon was "not yet entitled to site specific relief and the re-zoning of its property," but provided in Paragraph 3 that "[p]laintiff may move to re-instate Docket No. MON-L-742-01 before the designated Mt. Laurel judge for this vicinage."

The Township subsequently moved to vacate Paragraph 3 of the May 13, 2005 order, arguing that Paragraph 3 was improper because Elon's pending appeal of the January 21, 2005 order divested the Law Division of jurisdiction over that issue. The Planning Board further argued that none of the relevant parties were served with notice of the May 13, 2005, proceedings. The motion was denied in an order entered on June 10, 2005.

On June 7, 2005, Elon moved before us for summary disposition of its appeal of the January 21, 2005 order in MONL-742-01. The appeal was docketed as A-3237-04T2 and the motion was denied. On June 17, 2005, the Township filed a notice of appeal from the June 10, 2005 order in MON-L-5032-01; it was docketed as A-5660-04T2. On June 24, 2005, Elon filed a separate notice of appeal from the May 13, 2005 order, which was docketed as A-5592-04T2. We granted the Township's motion to consolidate A-3237-04T2, A-5592-04T2, and A-5660-04T2.

On June 28, 2006, while these appeals were pending, we decided Elon's appeal from COAH's October 5, 2004, grant of second cycle substantive certification of the Township's affordable housing plan. In re the Re-Petition of Howell Twp. for Substantive Certification, No. A-1445-04T5, supra. Although we found adequate support for most aspects of COAH's decision, we reversed the grant of substantive certification as it pertained to the number of units credited to the Township for age-restricted units. Id. at 19-25. We specifically rejected Elon's argument that COAH should be divested of jurisdiction and the matter transferred to the Law Division for a hearing on whether Elon is entitled to site-specific relief. Id. at 25. We noted:

[T]he Township should be afforded an opportunity to amend its plan to provide an additional 38 units of affordable housing to address the shortfall resulting from our decision. Howell has the responsibility to determine in the first instance how it will satisfy its obligation for affordable housing. Hills Dev. Co. v. Bernards Twp., 103 N.J. 1, 22 (1986); N.J.S.A. 52:27D-311(a). We recognize that the proceedings on Howell's "second cycle" plan have been protracted but we are not convinced that COAH's erroneous decision to waive its regulation on age-restricted units justifies denying the Township an opportunity to amend its plan to provide for the additional units. [Id. at 25-26.]

Accordingly, the matter was remanded to COAH for further proceedings. Id. at 26.

II.

The Township now argues that the present appeals should be stayed pending the resolution of the reopened proceedings before COAH. The fact that Elon is pursuing exclusionary zoning litigation while the Township's petition for substantive certification is pending before COAH places this matter on the same procedural footing as the appeal in Elon Assocs., supra, 370 N.J. Super. at 475. In that case, we held that the FHA's requirement of exhaustion of administrative remedies was applicable, even though Elon had filed its Law Division action while substantive certification was in place, because the substantive certification was reversed on appeal and the matter remanded to COAH. Id. at 478. The same situation exists here. Elon's motion to reinstate MON-L-742-01 occurred while substantive certification was in place, but that substantive certification was subsequently reversed and the matter remanded to COAH. The questions of whether the Law Division erred in denying Elon's motion to reinstate the exclusionary zoning action in MON-L-742-01 and in refusing to reach the exclusionary zoning issue in MON-L-5032-01 are, therefore, technically moot and could be dismissed or stayed pending the conclusion of COAH's review.

We will, however, address them on their merits because the issues raised are "capable of repetition yet likely to evade review". See State in the Interest of J.G., 151 N.J. 565, 575 (1997) (considering a technically moot issue because of need to resolve it before it arises in similar cases); In re the Comprehensive Investigation of the Sch. Dist. of Newark, 276 N.J. Super. 354, 358 (App. Div. 1994) (considering a technically moot issue because it was capable of repetition and "an issue of public importance"). The viability of Elon's original N.J.S.A. 52:27D-317 action, MON-L-742-01, will likely arise again in this matter and, given the number of applications from various municipalities currently pending before COAH, it represents a question of public importance.

Moreover, none of the orders challenged in these appeals affects the proceedings currently before COAH. Regardless of the outcome here, Elon will be required to await the conclusion of the COAH process before it can once again pursue an action in the Law Division under N.J.S.A. 52:27D-317. Given the complex procedural history of this matter, resolution of these issues will facilitate subsequent review of COAH's action on the Township's petition for substantive certification.

III.

Elon argues that the Law Division erred in its January 21, 2005 order denying Elon's motion to reinstate its exclusionary zoning complaint in MON-L-742-01. Elon maintains that in entering the January 21 order, the court clearly "intended that Elon would be entitled to a trial on its complaint in Docket No. MON-L-742-01 at the end of COAH proceedings if Elon failed [as it turned out] to achieve the relief it sought in the administrative process."

Elon further argues that the court abused its discretion by requiring it to move for reinstatement of MON-L-742-01 -- rather than automatically reinstating the complaint -- and by refusing to assign the matter to the designated Mt. Laurel judge in the vicinage who had handled the matter previously.*fn3 Citing examples of cases wherein the same judge who issued a ruling on an initial motion rendered a decision on a subsequent motion, Elon argues that the Mt. Laurel judge's "utter familiarity with the matter and issues" provided a compelling reason to transfer the motion to him. Elon also cites R. 1:13-7(a) in support of its contention that the matter should have been assigned to the Mt. Laurel judge. We find no merit in this argument and affirm without further discussion of this issue. R. 2:11-3(e)(1)(E).

With respect to Elon's argument that the Law Division erred in denying its motion to reinstate its complaint in MON-L-742-01, in essence Elon argues that it is entitled to pursue its builder's remedy lawsuit under the facts and law as they existed on the date its complaint was filed. Elon raised this argument previously in Elon Assocs., and we rejected it, finding that Elon was required to exhaust its administrative remedies before it could pursue its Mt. Laurel claims under N.J.S.A. 52:27D-317. 370 N.J. Super. at 484.

In Elon Assocs., we based our conclusion largely on the reasoning of Sod Farm Assocs. v. Twp. of Springfield, 366 N.J. Super. 116, 125 (App. Div. 2004), wherein we held that plaintiffs who sought to raise Mount Laurel issues in an action in lieu of prerogative writs were required to first exhaust their administrative remedies before COAH. Noting the State's strong policy preference for resolving exclusionary zoning disputes through COAH mediation and review, the court recognized COAH's exclusive primary jurisdiction over Mount Laurel compliance issues. Ibid. We cautioned:

Assumption by the courts of [COAH's] functions fosters the potential for mischief and the prospect of conflicting and contradictory results in the court system and in the administrative proceedings. Moreover, it would eventually lead to the court having to micromanage quotas and policies which the Legislature entrusted to COAH. [Id. at 130.]

Elon attempts to distinguish the matter at hand from Sod Farm based on differences in procedural posture and facts. We soundly rejected that argument in Elon Assocs., stating:

The only distinction between Sod Farm and this case is that in Sod Farm the petitioning municipality and COAH determined that the compliance plan should be reconsidered or revised, while in the present case this court directed COAH to reconsider Howell's compliance plan. We perceive no reason why an issue of allocation of jurisdiction between COAH and the Law Division or exhaustion of administrative remedies should be viewed differently in this case than in Sod Farm solely because COAH's reconsideration of Howell's compliance plan (and the resulting revisions in Howell's plan) is at the direction of this court rather than on the initiative of COAH or Howell. In our view, the legislative policies to assign primary responsibility for enforcement of municipal affordable housing obligations to COAH and to avoid the potential for conflicting decisions by COAH and the Law Division are equally applicable in both situations. [370 N.J. Super. at 484 (emphasis added).]

If we were to allow Elon to pursue its complaint under the facts and law as they existed prior to the COAH proceedings, it would "foster the potential for mischief" and potentially lead to conflicting decisions by COAH and the Law Division. It would also undercut the deference afforded COAH to resolve exclusionary zoning disputes and assert the primacy of the builder's remedy as the method of achieving fair share housing. Accordingly, the January 21, 2005 order is affirmed.

IV.

In its appeal from the order of June 10, 2005, the Township argues that the judge had no jurisdiction over MON-L-742-01. It also argues that the order of May 13, 2005, was improper because the adverse parties in MON-L-742-01 did not receive notice that the court would consider reinstating the complaint. We agree with the Township that the Law Division erred in refusing to reconsider its May 13, 2005 order and we vacate Paragraph 3 of the May 13, 2005 order.

At the June 10, 2005 hearing on the Township's motion for reconsideration, the court stated that it had been unaware that another judge had already ruled on the motion for reinstatement. The record of the May 13, 2005 motion hearing, however, indicates that the court was aware of the pending appeal; nevertheless, it issued an order affecting the status of MON-L-742-01.

Rule 2:9-1(a) provides that "[e]xcept as otherwise provided by R. 2:9-3 (criminal actions), 2:9-4 (bail), 2:9-5 (stay pending appeal), 2:9-7 and 3:21-10(d), the supervision and control of the proceedings on appeal or certification shall be in the appellate court from the time the appeal is taken or the notice of petition for certification filed." "[T]he ordinary effect of the filing of the notice of appeal is to deprive the court below of jurisdiction to act further in the matter under appeal unless directed to do so by the appellate court." Pressler, Current N.J. Court Rules, comment 1 on R. 2:9-1(a) (2007).

On March 7, 2005, Elon filed a notice of appeal from the order entered on January 21, 2005 dismissing the complaint in MON-L-742-01. Elon did not seek a temporary remand prior to the May 13, 2005 motion hearing in MON-L-5032-01. When the court entered the order addressing Elon's motion to reinstate the complaint in MON-L-742-01, the January 21, 2005 order dismissing that complaint was pending appeal. The Law Division, therefore, lacked jurisdiction to act on the matter. R. 2:9-1(a).

At the June 10, 2005 motion hearing, the court did not specifically address the Planning Board's argument that all of the relevant parties had not been served with notice of the May 13, 2005 motion to reinstate the complaint in MON-L-742-01. The Township is correct, however, in its assertion that lack of notice provides an independent basis to vacate Paragraph 3 of the May 13, 2005 order.

The complaint in MON-L-742-01 named the Township and COAH as defendants. The first amended complaint added the Planning Board. The only defendant present at the May 13, 2005, hearing, however, was the Township, represented by its municipal attorney, rather than special counsel retained for the exclusionary zoning matter.

"It is fundamental that with certain exceptions, a party making a motion in a civil matter must serve all parties who had appeared not later than 14 days before the return date." Zoning Bd. of Adj. v. Serv. Elec. Cable Television of N.J., Inc., 198 N.J. Super. 370, 378 (App. Div. 1985). Due process demands that a trial court dismiss or at least postpone a decision on a motion where proper service has not been effected. Id. at 379; see also, Zukerman v. Piper Pools, Inc., 232 N.J. Super. 74, 82-83 (App. Div. 1989), certif. denied, 138 N.J. 394 (1992) (holding that entry of an order in a cause without notice to all parties is generally not proper because notice is an essential requirement of due process).

Accordingly, we vacate Paragraph 3 of the May 13, 2005 order in MON-L-5032-01 because the trial court lacked jurisdiction to reinstate the complaint in MON-L-742-01, which was pending appeal, and the relevant parties were not served. The June 10, 2005 order denying the Township's motion to strike Paragraph 3 of the May 13 order is vacated as well.

V.

Elon next argues that the Law Division erred in MON-L-5032-01 by "refusing to adjudicate the issues framed in the pretrial order pertaining to exclusionary zoning conduct and in refusing to award site specific relief." It claims that by declining to decide all critical issues in the case, the court created the "subsequent mischief" that generated these appeals.

Elon urges us to exercise original jurisdiction under R. 2:10-5 and award site-specific relief. It maintains that it is entitled to such relief because, while the Township was without substantive certification, it down-zoned 2000 acres of property to thwart the construction of affordable housing. It contends that the evidence set forth at the trial in MON-L-5032-01 clearly demonstrated the suitability of the Elon site for high density, multi-family inclusionary development.

The Township responds that Elon has asserted this identical argument on numerous occasions before us, the Law Division, and COAH. Noting that the trial court's decision in MON-L-5032-01 was based entirely on the fact that the Township did not perform a periodic review of its master plan before re-zoning the Elon site, the Township argues that Elon should not be permitted to broaden that decision beyond the scope of a prerogative writs action. It asserts that the Elon site is not appropriate for high-density development because it lacks sewer infrastructure and it is designated as PA-4 by the State Development and Redevelopment Plan.*fn4 It observes that in order for the site to be approved for inclusionary development, COAH would have to waive its requirement that all development conform with the State Plan. We agree. There was simply no basis in the facts or the law for the Law Division to grant site-specific relief on Elon's complaint in MON-L-5032-01.

Elon's complaint in lieu of prerogative writs, MON-L-5032-01, was filed on October 25, 2001, while the Township's second cycle petition was pending before COAH. Because the matter was under COAH's jurisdiction, Elon could not have raised an exclusionary zoning builder's remedy claim. Sod Farm, supra, 366 N.J. Super. at 129; N.J.S.A. 52:27D-316. The complaint in MON-L-5032-01, in fact, asserted no claim pursuant to Mount Laurel or N.J.S.A. 52:27D-317, nor did it request relief in the form of a builder's remedy. It merely asserted Elon's right to challenge the validity of a municipal zoning ordinance. See Sartoga v. Borough of W. Paterson, 346 N.J. Super. 569, 577-78 (App. Div.) (discussing litigant's right to file prerogative writs action challenging zoning ordinance enacted to implement a certified housing plan), certif. denied, 172 N.J. 357 (2002).

Elon argues that the exclusionary zoning claim was framed as an issue in the pretrial order in MON-L-5032-01, thereby incorporating it into that action. The impropriety of amending a pleading in this manner aside, a careful reading of the pretrial order in MON-L-5032-01 indicates no intent to expand the scope of the prerogative writs action. The only reference to the Township's affordable housing requirements appears in Issue 13 of the pretrial order and refers to the ordinances' failure to comply with the MLUL, the FHA and the New Jersey Constitution. Thus, the pretrial order merely restated Elon's claim that the ordinances were void as contrary to law; it made no reference of a builder's remedy.

The first time Elon sought consideration of an exclusionary zoning claim in MON-L-5032-01 was at the May 13, 2005 motion hearing. But by May 13, 2005, MON-L-742-01 had already been tried and decided and was pending appeal.

We find no basis for exercising original jurisdiction or awarding site-specific relief. As we stated in In re March 22, 2002 Motion, supra, 371 N.J. Super. at 186,

[E]ven if Elon had prevailed in Mount Laurel litigation against Howell, it would be entitled to the "site specific relief" of a "builder's remedy" only if its site was suitable for a high-density residential development that includes affordable housing. In addition, Howell would be entitled to an evidentiary hearing before this relief could be awarded because it contests the suitability of Elon's site for such development. Therefore, we reject Elon's claim for site-specific relief.

Moreover, in its supplemental opinion of January 31, 2005, the trial court observed that the Elon site might not qualify for inclusionary development under COAH guidelines without first obtaining waiver relief. Thus, the trial of Elon's action in lieu of prerogative writs did not resolve the question of the site's suitability for affordable housing. That issue should be addressed in a plenary hearing, assuming the trial court were to reinstate Elon's exclusionary zoning suit. We express no view as to whether reinstatement should be granted or whether site-specific relief is available under these circumstances.

VI.

To summarize our decision here: (1) we affirm the order of January 21, 2005; (2) we affirm the order of May 13, 2005, except for Paragraph 3; (3) we reverse and vacate Paragraph 3 of the May 13, 2005 order; and (4) we reverse and vacate the June 10, 2005 order.

Affirmed in part; reversed in part.


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