On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2349-05.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 11, 2007
Before Judges Skillman, Yannotti and LeWinn.
The issue presented by this appeal is whether a Mount Laurel action brought by a developer is subject to dismissal if the defendant-municipality can establish that the developer did not attempt in good faith to obtain relief without litigation. We conclude that a developer's obligation to seek relief from the zoning applicable to its property without litigation is relevant only to the developer's entitlement to a builder's remedy. A developer does not have to make this showing in order to have standing to maintain a Mount Laurel action. Therefore, the trial court erred in dismissing this action based on its finding that the plaintiff-developer had not attempted to obtain relief without litigation.
Plaintiff Oceanport Holding is the contract purchaser of a three-acre parcel of land in the Borough of Oceanport. The site has frontage on two waterways and is currently used for a marina. The site is located within a residential zone, where the minimum lot size is 120 by 100 feet, with a two-story maximum height. The surrounding neighborhood consists of residential properties that have been developed at a density of approximately 3.3 units per acre.
On February 11, 2005, plaintiff submitted a concept plan to Oceanport's governing body, which proposed construction of a six-story condominium structure that would contain sixty residences, 20% of which would be affordable to low and moderate income households. Plaintiff indicated that its proposed development project would require a change in zoning and inquired whether the governing body would entertain a request for such a change.
The governing body referred plaintiff's concept plan to the Oceanport Planning Board for review. The Board subsequently indicated that it would entertain a development application by plaintiff.
On March 14, 2005, plaintiff responded that its development project could proceed only if the site was rezoned and that it did not intend to submit any application in addition to the concept plan previously submitted to the governing body. Plaintiff also reiterated its request for rezoning of the site for "affordable housing purposes."
At a Board meeting held on April 13, 2005, plaintiff indicated that it would submit a formal site plan if its property were rezoned to allow the type of development outlined in its concept plan. At the conclusion of this meeting, the Board voted to recommend against rezoning plaintiff's property.
The governing body scheduled the Board's recommendation for discussion at a "workshop meeting" on May 16, 2005 and a formal vote on May 19, 2005. However, the governing body subsequently deferred consideration of the Board's recommendation after its attorney recused himself due to a conflict of interest.
On May 26, 2005, plaintiff filed this action against Oceanport and its planning and zoning boards. Plaintiff's complaint challenged the constitutionality of Oceanport's zoning ordinance on the ground that it does not provide a realistic opportunity for creation of Oceanport's fair share of housing affordable to low and moderate income households, as required under the Mount Laurel cases*fn1 and the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329, and its implementing regulations. The complaint sought a declaration of invalidity of Oceanport's zoning ordinance and a "builder's remedy" under which plaintiff would be allowed to proceed with its development project.
Plaintiff filed a motion for a partial summary judgment declaring Oceanport's zoning ordinance to be unconstitutional. The motion also sought a declaration of plaintiff's entitlement to a builder's remedy, unless defendants establish that plaintiff's proposed project is "clearly contrary to sound land use planning[.]" Defendant filed a cross-motion for summary judgment which sought, among other things, dismissal of plaintiff's complaint on the ground that ...