On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-573-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Messano.
Plaintiff K-Land Corp. appeals from the motion judge's dismissal of its complaint against defendants Township of Marlboro and the Township of Marlboro Planning Board (collectively, Marlboro), and his transfer of the litigation to the Council on Affordable Housing (COAH). We have considered the arguments raised in light of the motion record and applicable legal standards. We reverse.
We recite the facts as alleged in the complaint. Plaintiff is the owner of 18.03 acres of property identified on Marlboro's tax map as Block 132, Lot 18 (the Property) that it acquired in March of 2002. Following its purchase, plaintiff proposed to Marlboro that the Property be developed as age-restricted housing with a substantial percentage of units set-aside for low and moderate income households.*fn1
On November 7, 2002, plaintiff commenced Mount Laurel*fn2 litigation alleging Marlboro had failed to engage in good faith negotiations for the development of the Property. The lawsuit claimed that the Property was suitable for inclusionary development and sought a builder's remedy for a proposed residential development with a maximum density of twelve units per acre and a set-aside of twenty percent affordable units. After filing the litigation, plaintiff elected not to prosecute the lawsuit because preliminary negotiations with Marlboro appeared fruitful.*fn3
On or about July 6, 2004, plaintiff and Marlboro reached an agreement for the development of the Property to include 365 residential units, thirty-three percent of which would be set aside as affordable units. Marlboro included the Property and the development plan as part of its second round compliance plan submitted to COAH in July 2004. The Property's inclusion in the compliance plan reflected Marlboro's commitment to amend the existing zoning plan to allow for development of the project.
On July 27, 2004, Marlboro petitioned COAH for substantive certification of its proposed plan. However, because numerous individuals and groups filed objections with COAH, the mediation and review period mandated by the Fair Housing Act, N.J.S.A. 52:27D-301 through -329, was triggered. During this process, plaintiff and Marlboro attempted to address the objectors' concerns regarding the density of the proposed development by agreeing to amend the initial agreement and reduce the total units to be constructed.
On August 11, 2005, Marlboro adopted Resolution #2005-319 that endorsed the revised agreement. In addition, the resolution "authorized" Marlboro's attorney to enter into a [s]ettlement [a]greement between [Marlboro] and [plaintiff] to reflect the following terms and conditions:
(1) [Marlboro] will amend its Affordable Housing Plan to include [plaintiff's] property developed with 245 market rate units, 49 affordable age-restricted units and the funding of 71 [regional contribution agreements] at an amount to be determined and approved by COAH; (2) [Marlboro] will agree to introduce zoning ordinances to allow those uses and bulk and density requirements necessary to implement the aforementioned development of the Property;
(3) and any other necessary terms and conditions to implement the settlement as approved by [Marlboro's] Attorney and/or required by COAH.
Subsequently, on October 21, 2005, COAH issued a mediation report that discussed plaintiff's original development plan, objections that had been made, and the revised plan. The report concluded, "Should Marlboro include [the Property] in its petition for the third round, Marlboro must demonstrate that the site meets the suitability criteria set forth in N.J.A.C. 5:94-4.5."*fn4
Plaintiff contends that Marlboro agreed to include the Property and the revised development proposal in its comprehensive third round submission for substantive certification. However, on December 15, 2005, Marlboro's Township Council approved Resolution #2005-482 that rescinded Resolution #2005-319. This second resolution included another property, the Stattel Farm Project, in Marlboro's housing plan and deleted plaintiff's property from the plan. The resolution explained the change was required by a number of factors including: COAH's requirement that the Stattel Farm Project be included in the plan; the proximity between plaintiff's property, the Stattel Farm Project and other approved developments; the "high density proposed" for plaintiff's property; and the inclusion of the Stattel Farm Project with the other ...