DONALD NUCKEL, NORTH VILLAGE I, L.L.C., NORTH VILLAGE II, L.L.C. and GILBERT MANOR, L.L.C., Plaintiffs-Appellants,
BOROUGH OF LITTLE FERRY, THE BOROUGH OF LITTLE FERRY PLANNING BOARD, Defendants-Respondents
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 13, 2013
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0717-06.
Ira E. Weiner argued the cause for appellants (Beattie Padovano, L.L.C., attorneys; John J. Lamb, of counsel; Mr. Weiner, of counsel and on the brief; Daniel L. Steinhagen, on the brief).
Joseph G. Monaghan argued the cause for respondent Borough of Little Ferry.
Giblin & Giblin, attorneys for respondent, Borough of Little Ferry Planning Board, joins in the brief of the Borough of Little Ferry.
Archer & Greiner, P.C., attorneys for respondent 110 Bergen Turnpike, L.L.C., joins in the brief of Borough of Little Ferry.
Before Judges Graves, Ashrafi and Guadagno.
Plaintiffs, Donald Nuckel and business entities that he owns or controls (collectively "Nuckel"), filed a Mount Laurel complaint alleging that defendants, Borough of Little Ferry and its related entities and individuals, had failed to satisfy their constitutional duty to provide affordable housing for low and moderate income persons in the borough and its region. Nuckel succeeded in invalidating Little Ferry's zoning ordinances, and the case proceeded to the builder's remedy stage. In a written opinion dated March 18, 2008, Judge Jonathan N. Harris described the remedy Nuckel sought as follows:
This is an unusual Mount Laurel builder's remedy action insofar as it seeks to transform land that already enjoys high-density residential development into even higher density residential development. Plaintiffs seek a judicial determination that they shall be entitled to replace a portion of their well-maintained garden apartment complex consisting of 208 dwelling units (approximately twenty-five units per acre) with mid- and high-rise residential multi-family use (plus some ancillary retail use) consisting of 630 dwelling units at a density of approximately seventy-six dwelling units per acre.
Nuckel proposed to replace a garden apartment community called North Village I, and part of an adjoining garden apartment community known as North Village II, with several fourteen-story and mid-rise buildings. Little Ferry opposed the builder's remedy, objecting in particular to the high-rise buildings.
Judge Harris struck a compromise, granting Nuckel a builder's remedy but limiting the height of the proposed structures to eight stories. Nuckel then decided that the height restriction made his plan financially unfeasible. Since he preferred to retain the already profitable garden apartments, he moved to withdraw his property from the builder's remedy the court had granted. Judge Harris granted his motion and dismissed with prejudice his claim for a builder's remedy.
Mount Laurel litigation continued against the borough, both by Nuckel and other developers. The borough entered into a settlement and an agreement with another developer, 110 Bergen Turnpike, LLC ("110 Bergen"), to include affordable housing within its proposed project for a fourteen-story hotel and other commercial uses. Judge Alexander H. Carver, III, who took over the case after Judge Harris was appointed to the Appellate Division, held a hearing and entered a final judgment of Mount Laurel compliance for Little Ferry.
Nuckel now appeals from both the final judgment of compliance and the limitation earlier imposed on the builder's remedy he had sought. We affirm all aspects of the trial court's decisions.
Nuckel's property is located in Little Ferry's multi-family zoning district, just west of the Hackensack River. North Village I and II are comprised of twenty-two two-story buildings containing 408 apartments. Nearby zoning districts, including across the river in Hackensack, permit industrial and commercial uses and taller buildings.
Nuckel filed the complaint that started this Mount Laurel litigation in January 2006. He sought to demolish buildings in North Village I and II containing 208 of the apartments and to build in their place two fourteen-story apartment buildings and other structures, including commercial retail space. Following discovery, Judge Harris granted partial summary judgment to Nuckel in September 2007, declaring that Little Ferry's zoning ordinance and land use regulations violated the Mount Laurel doctrine. The same order denied Nuckel's request for summary judgment as to a builder's remedy, and it scheduled a plenary hearing on that issue for October 2007. The court also appointed Stuart Koenig, Esquire,  as special master to assist the parties and the court in resolving the remaining issues in the litigation. Nuckel moved to disqualify Koenig. Judge Harris denied Nuckel's motion and then conducted a four-day bench trial to address an appropriate remedy.
Nuckel's first witness was Calisto Bertin, a licensed professional engineer. Bertin described two alternate proposals for the builder's remedy. The first was to raze the buildings in North Village I and replace them with two fourteen-story buildings, with parking on the first three levels and residences on levels four and above. The buildings would house 840 apartments and 1, 300 parking spaces. The number of parking spaces in this proposal exceeded the 935 spaces that would be required in the development under the Residential Site Improvement Standards (RSIS). The buildings would be approximately 140 feet high, which would compare favorably with the maximum height permitted in the industrial zone in Hackensack just north of the property, which permits a "variety of business uses and hotels up to 150 feet tall." Bertin conceded, however, that none of the buildings in the neighboring zones approach the 150-foot height limit.
Bertin's second proposal utilized two more acres of land and consisted of four buildings rather than two. To allay concerns about a "canyon effect with . . . tall buildings right by the road, " the fourteen-story buildings were moved back toward the river, while two four-story buildings were planned adjacent to the street. The proposal also included retail space on the lower level of the buildings, and a total of 630 apartment units. Bertin anticipated that ninety-five of those units (fifteen percent of 630) would be set aside for affordable housing. When asked which plan he favored, Bertin chose the ...