On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1559-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
In this Mount Laurel litigation, the Township of Hazlet and the Township of Hazlet Planning Board (Hazlet) appeal from an order of the trial court granting a builder's remedy to plaintiff developer, Elegant Properties, LLC (Developer), that permits the Developer to construct a forty-eight dwelling unit condominium complex with a twenty-percent set-aside for affordable housing on a lot of approximately four and one-half acres, located on Poole Avenue near its intersection with New Jersey State Highway Route 36 in Hazlet. On appeal, Hazlet presents the following arguments:
POINT I THE TRIAL COURT DID NOT SET FORTH FINDINGS OF FACT OR CONCLUSIONS OF LAW TO SUPPORT THE BUILDER'S REMEDY.
POINT II THE TRIAL COURT IMPROPERLY GRANTED PARTIAL SUMMARY JUDGMENT INVALIDATING HAZLET'S ZONING ORDINANCE.
POINT III THE TRIAL COURT IMPROPERLY GRANTED A BUILDER'S REMEDY PRIOR TO A REVISION OF THE ZONING ORDINANCE.
We remand, finding this appeal to have been prematurely filed under standards established in South Burlington County N.A.A.C.P. v. Mount Laurel Township, 92 N.J. 158, 218, 285 (1983) (Mount Laurel II).
The irregularly-shaped property in question, located at 780 Poole Avenue, lies between a commercial area located to the north fronting on Route 36, a trailer park to the west that also fronts on Route 36, and a residential area located to the south and, across Poole Avenue, to the east. The development is envisioned as consisting of four buildings ranged around a central street extending at right angles from Poole Avenue. The property contains isolated wetlands, but the Developer had obtained a Letter of Interpretation and General Permit GP-6 from the New Jersey Department of Environmental Protection to develop the site, which is served by public water and sewer service. The property lies in Metropolitan Planning Area PA1, shown as an area into which development is to be directed on the State Development and Redevelopment Plan adopted by the New Jersey Planning Commission pursuant to the State Planning Act, N.J.S.A. 52:18A-196 to -207.
The site was at one time zoned B-H, Business Highway, and was intended for commercial use, but was never developed as such. According to the Developer's complaint in this matter, in or around December 2003, an application for a commercial use was filed by an entity known as Aldi Food. In response to local opposition to the application, on May 4, 2004, the property was rezoned, in a manner inconsistent with Hazlet's Master Plan, as R-100, permitting the development of single-family homes on 12,500 square foot lots. To settle a dispute with a prior landowner, on January 25, 2005, the property was rezoned as R-70, allowing for development of single-family homes on 7,000 square foot lots.
The property was thereafter sold to the Developer, which sought a use variance to permit the construction of forty-four stacked townhouses. The project was later reduced to twenty-seven side-by-side townhouses in three buildings, each containing nine units. Following hearings before Hazlet's Zoning Board of Adjustment, the application was denied on June 13, 2006. In response to the Board's action, the Developer filed an action in lieu of prerogative writs challenging the Board's resolution as arbitrary.
While the 2006 action was pending, the Developer obtained approval to construct a conforming eleven-lot residential subdivision. However, the litigation continued, and a tentative settlement was reached whereby the land would be rezoned as a Medium Density Residential Transition (MDRT) District, and the Developer would pay an affordable housing development fee in satisfaction of Hazlet's growth share obligation. Although Hazlet's Planning Consultant, Marcia Shiffman, recommended adoption of the proposed MDRT plan as providing an appropriate transition between commercial and residential uses and an opportunity to address Hazlet's unaddressed affordable housing obligations, the zoning ordinance was not ...