On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1906-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Espinosa and Kennedy.
Plaintiffs appeal from an order that dismissed their action in lieu of prerogative writs for failure to exhaust administrative remedies. We affirm.
In February 2005, the Marlboro Planning Board adopted its Comprehensive Master Plan (Master Plan), pursuant to N.J.S.A. 40:55D-89 of the New Jersey Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. The planning board recommended that defendant, the Township of Marlboro (the "Township" or "Marlboro")*fn1 rezone certain township lots as Land Conservation Zone Districts (LC Districts), which allow for a single-family home on a minimum of five-acre lots. For lots greater than ten acres, LC Districts permit a "cluster option of 55,000 square foot lots with a minimum open space set-aside of 40%[.]" After an earlier effort to adopt an ordinance that implemented these recommendations was invalidated on procedural grounds, defendants adopted Ordinance 2006-15 (the Ordinance) in July 2006.
Plaintiffs own two parcels of land in Marlboro, Lot 53, Block 206, and Lot 18, Block 207, which consist of approximately seventy-eight acres (the Property).*fn2 Prior to the adoption of the Ordinance, the two parcels were zoned R-80, which allowed for single-family homes on a minimum of approximately two-acre plots. The Ordinance expanded the LC Districts and as a result, both of plaintiffs' parcels were included in the LC Districts.
In September 2006, plaintiffs filed an action of lieu of prerogative writs, challenging the application of the Ordinance to the parcels they own. Plaintiffs alleged that their property had been identified by defendant as "a site to be developed for the production of affordable housing" in defendant's December 2005 Third Round Housing Element and Fair Share Plan (HE/FSP) to satisfy its Mount Laurel*fn3 obligations. Plaintiffs stated that the construction of affordable housing would require "a substantially higher development density than is permitted under the LC Zone[,]" and that the inclusion of the Property in the HE/FSP was in contradistinction to its inclusion in the LC Zone. Accordingly, plaintiffs alleged that the LC Districts Zoning designation was arbitrary, capricious and unreasonable as applied to the Property. Plaintiffs sought the invalidation of the Ordinance, an injunction against defendant's adoption of any land use regulation that would restrict the Property to low density residential development, remanding the matter to defendant and requiring the adoption of land use regulations that would permit plaintiffs' "appropriate use and development." Plaintiffs also sought a declaratory judgment that the Ordinance represented a taking without just compensation.
Although it appears that plaintiffs had some plans for development of the Property, it is undisputed that they did not seek any approval from the Township's Zoning Board of Adjustment or planning board for development of the Property after the Ordinance was adopted and before instituting suit.
There followed five years of discovery and motion practice, some of which concerned failures by Marlboro to provide discovery. In July 2010, plaintiffs filed a motion for summary judgment. Defendant filed a cross-motion, in which it raised the argument for the first time that plaintiffs' complaint should be dismissed because they had failed to exhaust administrative remedies prior to instituting suit. The trial court denied plaintiffs' motion for summary judgment, a decision plaintiffs do not appeal. The court granted Marlboro's cross-motion for summary judgment and denied plaintiffs' motion for reconsideration.
In this appeal, plaintiffs argue that the trial court erred in granting summary judgment to defendant because (1) it was "a gross and shocking miscarriage of justice" to dismiss the suit for failure to exhaust administrative remedies after more than five years of litigation and (2) administrative review would have been futile. We have reviewed the record and these arguments in light of the applicable legal principles and are satisfied that they lack merit.
Plaintiffs' action in lieu of prerogative writs was governed by Rule 4:69-5, which provides:
Except where it is manifest that the interest of justice requires otherwise, actions under [R.] 4:69 shall not be maintainable as long as there is available a right of review before an ...