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K-Land No. 54, LLC v. Township of North Brunswick

July 22, 2009

K-LAND NO. 54, LLC, PLAINTIFF-RESPONDENT,
v.
TOWNSHIP OF NORTH BRUNSWICK, A MUNICIPAL CORPORATION; THE PLANNING BOARD OF THE TOWNSHIP OF NORTH BRUNSWICK; AND MICHAEL PROIETTI, ZONING OFFICIAL OF THE TOWNSHIP OF NORTH BRUNSWICK, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6359-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 15, 2009

Before Judges Carchman and Parrillo.

Defendant Township of North Brunswick (Township), the Township's Planning Board (Board) and Zoning Official Michael Proietti (collectively defendants) appeal from a November 13, 2007 order of the Law Division finding that a particular zoning use was permitted and directing that a zoning permit be issued to plaintiff K-Land No. 54, LLC (the Kaplan Group). We affirm.

Plaintiff is the owner of a 23.83 acre parcel of property that is part of a larger, 404-acre tract originally known as the Manor Realty Tract -- a planned unit development in North Brunswick spawned from a Mount Laurel suit. The present matter arises from plaintiff's attempt to seek a zoning permit to develop approximately 180,000 square feet of commercial space on its parcel.

By way of background, in 1984, the Urban League of Greater New Brunswick sued the Township to compel it to provide low and moderate income housing in accordance with the requirements of S. Burlington County NAACP v. Mount Laurel Twp., 92 N.J. 158 (1983). A developer, Brunswick Manor Associates (Brunswick Associates), joined the Urban League as a plaintiff in that lawsuit. Brunswick Associates was comprised of members of the Halpern Group, the Wilf Group, and plaintiff Kaplan Group. At the time of the lawsuit and for almost two decades thereafter, Brunswick Associates owned the Manor Realty Tract.

In September 1984, the parties reached an agreement, embodied in a Consent Order dated September 10, 1984, which directed the Township to enact a zoning ordinance so that the "mixed use residential and non-residential development" of the Manor Realty Tract contemplated by the consent order could be effected. The consent order set forth the number of affordable housing units to be constructed, the location where the units were to be constructed, and a schedule for construction of the units.

In accordance with the requirements of the consent order, the Township enacted a planned unit development ordinance, known as the "PUD-II Planned Unit Development" Ordinance (the Ordinance or PUD-II Ordinance), on February 4, 1985. The ordinance was enacted to effectuate the rezoning of the Manor Realty Tract contemplated by the consent order and thus established a new zone for the Manor Realty Tract, known as the "PUD-II Zone." Additionally, the ordinance established the permitted residential and non-residential uses in the PUD-II Zone (§205-87.3), the development standard for the zone, as well as the procedures for pursuing development within the zone.

As a result of ongoing negotiations between Brunswick Associates and the Township, in August 1994, the PUD II ordinance was amended to limit the total number of residential units to 1,975 with a gross density of approximately 13.5 units per acre, to provide that 348 units would be built which would qualify as affordable housing, with 1/3 of these units affordable to low-income households and 2/3 affordable to moderate income households. In addition, and significant for present purposes, the 1994 amendments also required that the net non-residential development would consist of approximately 138 acres which would result in a minimum of 1,500,000 square feet of non-residential space, not exceeding 100 feet in height, with commercial uses limited to 33 1/3% of non-residential floor space (§205-87.4(b)(1)).*fn1

At present, the Manor Realty Tract is partially developed with a planned unit residential development known as "Renaissance." The tract also currently houses 160,000 square feet of non-residential development, all of which is commercial.

Sometime in 2000, Brunswick Associates split and divided ownership of the Manor Realty Tract. Plaintiff acquired ownership of a 23.82 acre portion of the Manor Realty Tract, and an approximately 30-acre parcel of the remaining non-residential real-estate was transferred to the successor of the Halpern/Wilf Group from the original Brunswick Associates joint venture.

Thereafter, on November 18, 2005, plaintiff's CEO, Michael Kaplan, wrote the Township's zoning officer (Proietti) advising that plaintiff sought to construct a commercial/retail development on its parcel that would contain approximately 180,000 square feet of floor space, and requesting that Proietti confirm that plaintiff's plans constitute a permitted use under the PUD-II. On February 1, 2006, plaintiff sent copies of the concept development plans to the Planning Board, requesting an informal review meeting. In November of 2006, plaintiff again requested an informal review meeting with the Planning Board, and, on January 31, 2007, Kaplan submitted his third request. Plaintiff finally received a response on February 2, 2007, wherein the Township informed plaintiff that informal review would be delayed, explaining further:

A serious evaluation of the best use of the remaining land in the... development is underway. We are aware of your present proposal... The development in question has a long and complicated legal and planning background. There are many legal and land issues to be addressed. The Township intends to proceed in a deliberate, considered fashion. As you ...


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