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Henry J. Bonnabel v. Township of River Vale

December 21, 2011

HENRY J. BONNABEL, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF RIVER VALE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, COUNTY OF BERGEN; THE MAYOR AND COUNCIL OF THE TOWNSHIP OF RIVER VALE; AND THE PLANNING BOARD OF THE TOWNSHIP OF RIVER VALE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4531-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 5, 2011

Before Judges Sabatino and Ashrafi.

Plaintiff Henry J. Bonnabel, a developer and the owner of property in River Vale, appeals the trial court's orders dismissing, without prejudice, his "builder's remedy"*fn1 lawsuit against defendants, the Township of River Vale, its Mayor, and its Council (collectively "the Township defendants") and the Planning Board of River Vale ("the Planning Board"). The trial court dismissed this lawsuit at the behest of the Township defendants because there is other litigation pending that will affect the legal standards applicable to plaintiff's demand for a builder's remedy. For the reasons stated in this opinion, the dismissal order is vacated and the matter is remanded to the Law Division for further proceedings consistent with this opinion.

I.

Although we need not say much about the substance of the parties' various disputes, the matter arises out of the Township's obligation and efforts to provide affordable housing. Plaintiff seeks to build affordable housing units on his parcels and to have them rezoned by the Township for that purpose. The Township, meanwhile, has attempted to satisfy its affordable housing obligation through a housing plan it submitted to the Council on Affordable Housing ("COAH").*fn2 Plaintiff's property is not included in the Township's plan.

On March 10, 2010, COAH issued a resolution, granting the Township so-called "third round" substantive certification pursuant to N.J.A.C. 5:96-6.2(a). The resolution required the Township, within forty-five days, (1) to execute a developer's agreement for municipally sponsored projects at two particular sites (the "Kirk" and "Mesker" sites, which are not owned by plaintiff), and (2) to adopt a Fair Share Ordinance ("FSO").*fn3

In addition to the present builder's remedy case, plaintiff is pursuing related litigation involving the Township in two other proceedings. First, plaintiff is appealing COAH's administrative agency decision to grant the Township a time waiver with respect to its plan. See In re Decision of COAH on Waiver from Requirement of N.J.A.C. 5:97-6.7(D)(5), No. A-5604-09 ("the COAH waiver appeal").*fn4 Plaintiff also filed a separate complaint in the Law Division ("the FSO case"), an action in lieu of prerogative writs against the Township in which he alleges certain defects in the Township's adoption of the FSO.*fn5

On April 22, 2010, pursuant to N.J.A.C. 5:96-15.2(a),*fn6

Michael D. Kauker, a professional planner for River Vale, wrote a letter to COAH's Acting Executive Director, requesting additional time to finalize the developer's agreements for the Kirk and Mesker sites. Specifically, Kauker requested a forty-five-day extension on the Kirk property's developer's agreement and a sixty-day extension on the Mesker property's.

On April 26, 2010, more than forty-five days after COAH had granted it third-round substantive certification, the Township adopted the first two sections of the FSO as Ordinance 231-2010.*fn7

On May 10, 2010, the Township adopted the remaining sections of the FSO as Ordinance 235-2010. Later that month, the Township executed a corresponding developer's agreement for each site.

On June 8, 2010, the Township defendants moved to dismiss plaintiff's builder's remedy action. The motion was held and the case was temporarily placed on the inactive list because the parties were exploring a potential global settlement to resolve all three of plaintiff's ...


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