berkeley family apartments, dec. 7, 2015 nj appellate court decision
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Berkeley Family Apartments, Dec. 7, 2015 NJ Appellate Court decisionTRANSCRIPT
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3042-14T4
BERKELEY FAMILY APARTMENTS, LLC,
Plaintiff-Appellant,
v.
THE TOWNSHIP OF BERKELEY and
THE PLANNING BOARD OF THE
TOWNSHIP OF BERKELEY,
Defendants-Respondents.
__________________________________
Argued November 12, 2015 – Decided
Before Judges Alvarez, Ostrer and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L-
3288-14.
Richard J. Hoff, Jr., argued the cause for
appellant (Bisgaier Hoff, LLC, attorneys;
Mr. Hoff, on the briefs).
Gregory P. McGuckin argued the cause for
respondents (Dasti, Murphy, McGuckin, Ulaky,
Koutsouris & Connors, attorneys; Mr.
McGuckin, of counsel; Christopher J. Dasti,
on the brief).
Adam M. Gordon argued the cause for amici
curiae Fair Share Housing Center, New Jersey
State Conference of the National Association
for the Advancement of Colored People and
Latino Action Network (Fair Share Housing
Center, attorneys; Mr. Gordon, on the
brief).
PER CURIAM
December 7, 2015
A-3042-14T4 2
Plaintiff Berkeley Family Apartments, LLC appeals from a
March 9, 2015 order denying its motion to compel defendant
Township of Berkeley (the Township) to adopt a resolution of
need in connection with plaintiff's proposed affordable housing
project, and granting the Township's motion to dismiss
plaintiff's complaint that sought to require the Township to
approve the resolution. We affirm.
I.
After the devastation caused by Hurricane Sandy on October
29, 2012, the New Jersey Housing and Mortgage Finance Agency
(HMFA) began offering subsidies in the form of loans to
developers of eligible affordable and mixed-income rental
housing through the Fund for Restoration of Multi-Family Housing
(FRM) program.1
The FRM program allows developers to apply
directly to HMFA for Federal Low Income Housing Tax Credits.2
Plaintiff is a wholly owned subsidiary of Walters Homes,
Inc., a residential housing developer. Plaintiff is the
"contract purchaser" of approximately 13.05 acres in the
Township's Highway Business (HB) Zone. From February 2014
1
This program was made possible by federal funds received by New
Jersey under the Disaster Relief Appropriations Act of 2013,
Pub. L. No. 113-2, 127 Stat. 4.
2
HMFA awards these credits in cycles, which the agency refers to
as "tranches."
A-3042-14T4 3
through September 2014, the Township's Mayor, Carmen Amato,3
met
several times with one of plaintiff's owner, Joseph Del Duca, to
discuss plaintiff's plans to build an affordable housing project
in the HB Zone. In a certification submitted in support of the
Township's motion to dismiss plaintiff's complaint, Amato stated
that the Township "was considering Master Plan and Zoning
amendments in [the Township's] entire HB Zoning District in the
hopes that some additional federal funding might make its way
to" the Township. However, Amato stated that he told Del Duca
that he could make no commitments to any project proposed by
plaintiff because "the final determination on this or any
similar project" could only be made by the Township Council.
Del Duca identified two parcels of land in the HB Zone
which plaintiff did not own, but represented it might be able to
acquire, as possible sites for plaintiff's project. When
plaintiff was unable to acquire either of the sites, Del Duca
suggested that plaintiff could acquire the 13.05 acre property
for the project. Amato advised Del Duca that "this property was
much more problematic in that there were more residential homes
in the general vicinity, and the traffic along State Highway
Route 9 at that location was already unbearable." However,
Amato told Del Duca "that if he wished to obtain site control
3
The mayor is not a member of the Township Council.
A-3042-14T4 4
[of that property], that was his prerogative, and the Township,
as with any other developer, would give him the opportunity to
present his case to the public and various public officials that
this project was a benefit to [the] Township."
In his certification, Amato stated, "at no time did I, or
anyone on behalf of [the] Township enter into an agreement,
contract or promise that the Township would do whatever Walters
Homes or [plaintiff] needed or required in order to complete its
project." Amato also certified that he "specifically advised
. . . Del Duca that if there was a large ground swell of
opposition from the public, the Township Council would in all
likelihood not support [plaintiff's] project."
After weighing its options, plaintiff proposed building an
affordable housing project on the property it had contracted to
purchase in the HB Zone. The project would consist of eighty-
eight affordable, residential, multi-family units in eleven
buildings; a clubhouse; and a garage for maintenance equipment.
Plaintiff planned to use federal tax credits obtained through
the FRM program to fund the project.
In order to qualify for the tax credits offered through the
FRM program, plaintiff had to submit and receive approval from
HMFA for both an "Initial Application" and a "Supplemental
Application." On September 10, 2014, HMFA approved plaintiff's
A-3042-14T4 5
Initial Application and placed plaintiff in the "pipeline" for
consideration of its Supplemental Application for the tax
credits. Before submitting its Supplemental Application,
plaintiff had to obtain a resolution from the Township granting
preliminary and/or final site plan approval for the project and
a resolution of need for the project from the Township.
With regard to the required resolution of need, N.J.S.A.
55:14K-6(c) states:
No application for a loan for the
construction, improvement or rehabilitation
of a housing project containing rental units
to be rented at below market rates to be
located in any municipality shall be
processed unless there is already filed with
the secretary of [HMFA] a certified copy of
a resolution adopted by the municipality
reciting that there is a need for such
housing project in the municipality.
Stanley Slachetka, the Township's consulting planner,
submitted a certification concerning the need for additional
affordable housing units in the Township. Slachetka certified
that, as calculated by the Council on Affordable Housing (COAH),
the Township's maximum fair share obligation was 736 units.
However, Slachetka stated that the Township was "currently
entitled to 1383 affordable housing credits for new affordable
units, which is more than double" the Township's fair share
A-3042-14T4 6
obligation.4
Slachetka also certified that, in an April 2014
rule proposal, "COAH assigned the Township a zero-unit
obligation for the period between 1999 and 2014, and a 30-unit
obligation for the period between 2014 and 2024."5
Plaintiff did
not submit a certification disputing Slachetka's calculations.
Nevertheless, plaintiff drafted a resolution of need. In
pertinent part, the resolution of need stated:
WHEREAS, pursuant to the HMFA
Requirements, the governing body of the
[m]unicipality hereby determines that there
is a need for this housing project in the
[m]unicipality.
NOW, THEREFORE, BE IT RESOLVED by the
Council of the Township of Berkeley (the
"Council") that:
1) The Coun[ci]l finds and determines
that the eighty-eight (88) unit family
apartment project previously defined as the
Project proposed by [plaintiff] meets or
will meet an existing housing need;
2) The Council does hereby adopt the
within [r]esolution and makes the
4
Slachetka stated that "[t]he affordable units in [the Township]
are comprised of various housing types, including single-family
residential units, 100[%] affordable housing projects, age-
restricted and 'family' rental units, housing for its special
needs population, multi-family rental housing, and housing for
older families and seniors."
5
Slachetka certified that "[i]n response to [that] rule
proposal, [the] Fair Share Housing Center[,] [which participated
as amicus curiae in this appeal] submitted an expert report
[that also] calculat[ed] the Township's Round 3 (1999-2024)
obligation to be zero units."
A-3042-14T4 7
determination and findings herein contained
by virtue of, pursuant to, and in conformity
with the provisions of the HMFA Law to
enable the [HMFA] to process [plaintiff's]
application for [HMFA] funding to finance
the [p]roject.
According to Amato, plaintiff wanted the Township Council
to adopt the resolution of need prior to plaintiff's submission
of its application for site plan approval to the Township
Planning Board. Amato stated that "[t]he Township Council would
not agree to do so, since the public would not yet have had an
opportunity to weigh in on [plaintiff's] proposal. Amato
certified that
Del Duca made the conscious decision that he
would proceed with his Planning Board
application without a "[r]esolution of
[n]eed" . . . because he believed there
would be little or no public opposition, and
that he could convince the public that this
was a worthy project for the citizens of
[the] Township.
On September 22, 2014, the Township adopted Ordinance No.
2014-25-OA (the Ordinance), which added two new conditional uses
to the HB Zone. In pertinent part, the Ordinance provided:
Multi-family residential housing
developments shall be a conditional use in
the HB District under either of the
following two development scenarios and
subject to the respective conditions for
each scenario as follows:
(a) Multi-family residential housing-mixed
use subject to the . . . conditions
[set forth in the Ordinance].
A-3042-14T4 8
(b) Multi-family residential housing
financed by means of the Federal Tax
Credit Program authorized by 26 U.S.C.
§ 142 et seq., subject to the . . .
conditions [set forth in the
Ordinance].
Plaintiff filed an application for preliminary site
approval for its proposed project to the Township Planning
Board. At a public meeting on October 2, 2014, the Planning
Board considered and denied the application, which was strongly
opposed by members of the public who appeared at the meeting.
On October 31, 2014, plaintiff filed a complaint in lieu of
prerogative writs against the Township and its Planning Board in
which it sought an order vacating the Planning Board's denial of
its application, and "[d]irecting the Township, on or before
December 31, 2014[,] to adopt all necessary resolutions and/or
ordinances in order to ensure [p]laintiff's submission of a
complete Supplemental Application for the Project pursuant to
the FRM program[.]"
On November 21, 2014, the trial judge remanded plaintiff's
application for preliminary site approval to the Planning Board
for reconsideration at its next meeting on December 4, 2014. At
that meeting, the Planning Board approved plaintiff's site plan
application. Having obtained site plan approval, plaintiff
A-3042-14T4 9
still needed to obtain a resolution of need for the project from
the Township Council.
On December 8, 2014, the Township Council approved
Resolution #14-457-R. This resolution was entitled, "Requesting
the Ocean County Natural Lands Trust to Participate in the Open
Space Acquisition of Certain Properties Located in Berkeley
Township." Del Duca certified that he was fearful that this
resolution applied to plaintiff's property and that the Township
Council would not provide plaintiff with a resolution of need
concerning the project.
On December 15, 2014, plaintiff's attorney sent a letter to
the Township's attorney "request[ing] that the [Township]
Council approve the [r]esolution [of need] at its December 22,
2014 meeting." The letter also warned that "[i]f the [Township]
Council fail[ed] or refuse[ed] to adopt the [r]esolution at its
December 22, 2014 meeting, [plaintiff] will construe such
failure or refusal as an effective denial of the [r]esolution
and [plaintiff] will proceed accordingly." The Township Council
did not consider or take any action concerning plaintiff's
request for a resolution of need for the project at its December
22, 2014 public meeting.
On December 23, 2014, plaintiff filed an amended complaint
in lieu of prerogative writs against the Township and, on
A-3042-14T4 10
January 5, 2015, plaintiff filed a motion on short notice
seeking to compel the Township to adopt the resolution of need.
On February 5, 2015, the Township filed a cross-motion to
dismiss the complaint for failure to state a claim.
On February 6, 2015, plaintiff filed an amended four-count
complaint against the Township. In count one, plaintiff alleged
that "[t]he Township's failure to adopt the [r]esolution of
[n]eed for the [p]roject [was] contrary to the Township's own
zoning regulations, New Jersey law, New Jersey public policy[,]
and is otherwise arbitrary, capricious and/or unreasonable."
Plaintiff sought an order "[d]irecting the Township . . . to
adopt the [r]esolution of [n]eed to ensure [p]laintiff's
submission of a complete Supplemental Application for the
[p]roject pursuant to the FRM program[.]"6
Following oral
argument, the trial judge issued a comprehensive sixteen-page
written opinion denying plaintiff's motion for mandamus.
6
In count two, plaintiff asserted that the Township should also
be required to enter into a Payment in Lieu of Taxes (PILOT)
arrangement with it "so as to assist with the construction of
the [p]roject." However, it voluntarily withdrew this
contention at oral argument. In counts three and four,
plaintiff alleged that the Township's actions violated the New
Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, and the Law
Against Discrimination, N.J.S.A. 10:5-1 to -49. The judge
dismissed these counts of the complaint and plaintiff has not
contested that ruling on appeal. Therefore, we do not address
these issues in this opinion. See Grubb v. Borough of
Hightstown, 353 N.J. Super. 333, 342 n.1 (App. Div. 2002).
A-3042-14T4 11
The judge rejected plaintiff's contention that the approval
of the resolution of need was a "ministerial act" that could be
compelled through a writ of mandamus. The judge found that the
resolution plaintiff sought required the Council to specifically
find that plaintiff's proposed project was "needed" because it
"meets or will meet an existing housing need[.]" He also
observed that "N.J.S.A. 55:14K-6(c) provides that the
municipality has discretion to decide whether 'there is a need
for such housing project in the municipality[,]'" and that
"[t]he [use of the] term . . . 'such' indicates that the
decision [on a] [r]esolution of [n]eed is project[-]specific."
Thus, the judge concluded "that the adoption of a [r]esolution
of [n]eed is not a ministerial act, but an administrative act
that involves the Township's exercise of discretion."
In so ruling, the judge rejected plaintiff's claim that the
Township's decision to revise its zoning Ordinance for the HB
Zone to permit plaintiff to pursue its application was
tantamount to a determination by the Township that there was a
need for the project in the zone. The judge stated:
[T]he Ordinance is a zoning ordinance
regulating zoning matters rather than a
decision on housing need itself. An
approval under a zoning ordinance does not
mandate an approval of [a r]esolution of
[n]eed. The Township retains the discretion
to grant or deny a [r]esolution of [n]eed
based on its decision as to whether a
A-3042-14T4 12
specific project meets the Township's
housing need under the particular
circumstances.
The judge found that plaintiff's alternate argument, that
the Township should be equitably estopped from denying the
resolution of need, also lacked merit. Plaintiff asserted that
the Township's adoption of the Ordinance "invite[d] plaintiff to
rely on the Ordinance to proceed with its affordable housing
project application . . . ." Noting that the equitable estoppel
doctrine is applied only in limited circumstances against public
entities, the judge found no basis for invoking it against the
Township under the circumstances of this case. The judge
explained that it was simply "not reasonable for plaintiff to
rely on the adoption of the Ordinance in order to mandate that
the Township adopt a [r]esolution of [n]eed." The judge found
that plaintiff was "a seasoned developer" that understood that a
resolution of need was required as a prerequisite to an
application through HMFA. However, plaintiff decided to
"proceed[] with this project at its own peril[,]" knowing that
the Township might not approve the resolution. Moreover,
plaintiff did not dispute Amato's certification that the
Township never promised plaintiff that it would adopt a
resolution of need.
A-3042-14T4 13
Finally, the judge rejected plaintiff's claim that a
municipality must automatically issue a resolution of need
whenever the project involved the construction of affordable
housing units. The judge reiterated that the Township could not
be required to exercise its discretion in a specific manner and,
therefore, the issuance of a resolution of need was not
mandatory.7
Therefore, on March 9, 2015, the judge held that
plaintiff's complaint, which sought to require the Township to
adopt the resolution of need by a specific date, should be
dismissed. This appeal followed.
II.
On appeal, plaintiff argues that the judge erred in
dismissing its complaint. It asserts that, because the Township
adopted the Ordinance, which permitted multi-family residential
housing financed by means of federal tax credits, the judge
should have directed the Township to adopt a resolution
determining there was a need for plaintiff's project in the HB
Zone. We disagree.
7
The judge also found that the Township "is entitled to [over
1380] affordable housing credits, which is nearly double the
highest obligation of the Township's fair share[,]" and,
therefore, plaintiff did not establish that its project was
"needed" for the Township to meet its fair share obligation for
such units.
A-3042-14T4 14
We note at the outset that the Township filed a motion to
dismiss plaintiff's complaint, rather than a motion for summary
judgment. The primary distinction between a motion to dismiss
for failure to state a claim pursuant to Rule 4:6-2(e) and a
motion for summary judgment pursuant to Rule 4:46-2 "is that the
former is based on the pleadings themselves." Pressler &
Verniero, Current N.J. Court Rules, comment 4.1.2 on R. 4:6-2
(2016).
In assessing a Rule 4:6-2(e) motion, courts should view the
complaint indulgently, assume the truthfulness of the
allegations in the complaint, and afford the complainant every
reasonable inference. NCP Litig. Trust v. KPMG LLP, 187 N.J.
353, 365 (2006). A court's inquiry at such an early stage in
the proceedings is limited to the adequacy of the pleadings, not
the complaining party's ability to prove its allegations. See
Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739,
746 (1989).
If, however, a moving party relies on material outside the
pleadings, our rules provide that such motion should be "treated
as one for summary judgment and disposed of as provided by
[Rule] 4:46, and [that] all parties . . . be given reasonable
opportunity to present all material pertinent to such a motion."
R. 4:6-2. Thereafter, a motion for summary judgment will be
A-3042-14T4 15
granted only if the pretrial record "show[s] that there is no
genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of
law." R. 4:46-2(c).
Here, plaintiff and the Township each relied upon materials
outside the pleadings. Thus, the trial judge properly treated
the Township's motion as a motion for summary judgment. Cnty.
of Warren v. State, 409 N.J. Super. 495, 504 (App. Div. 2009),
certif. denied, 201 N.J. 153 (2010), cert. denied, Shope v. New
Jersey, 561 U.S. 1026, 130 S. Ct. 3508, 177 L. Ed. 2d 1092
(2010).
Our review of a ruling on summary judgment is de novo,
applying the same legal standard as the trial court. Townsend
v. Pierre, 221 N.J. 36, 59 (2015) (citing Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 405 (2014)). "Summary judgment
must be granted 'if the pleadings, depositions, answers to
interrogatories[,] and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law.'" Town of
Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)).
Thus, we consider, as the trial judge did, whether "'the
competent evidential materials presented, when viewed in the
A-3042-14T4 16
light most favorable to the non-moving party, are sufficient to
permit a rational factfinder to resolve the alleged disputed
issue in favor of the non-moving party.'" Ibid. (quoting Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). If
there is no genuine issue of material fact, we must then "decide
whether the trial court correctly interpreted the law."
Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App.
Div. 2007) (citing Prudential Prop. & Cas. Co. v. Boylan, 307
N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608
(1998)), certif. denied, 195 N.J. 419 (2008). We accord no
deference to the trial judge's conclusions on issues of law and
review issues of law de novo. Nicholas v. Mynster, 213 N.J.
463, 478 (2013).
Applying this well-established standard of review, we
discern no basis to set aside the trial judge's decision
dismissing plaintiff's complaint.
Plaintiff's complaint sought a writ of mandamus directing
the Township to adopt a resolution of need by plaintiff's self-
imposed deadline.8
8
It is unclear why plaintiff, in its December 15, 2014 letter,
demanded that the Township issue a resolution of need no later
than its December 22, 2014 public meeting. As noted above, HMFA
approves tax credits in tranches. At oral argument, plaintiff
represented that tax credits are still available through the FRM
(continued)
A-3042-14T4 17
A writ of mandamus is an order given by a
court to a government official "that
commands the performance of a specific
ministerial act or duty, or compels the
exercise of a discretionary function, but
does not seek to interfere with or control
the mode and manner of its exercise or to
influence or direct a particular result."
[In re Resolution of the State Comm'n of
Investigation, 108 N.J. 35, 45 n.7 (1987)
(quoting Switz v. Twp. of Middletown, 23
N.J. 580, 598 (1957)).]
An act or duty is "ministerial" in nature if it "'is
absolutely certain and imperative, involving merely the
execution of a set task, and when the law which imposes it
prescribes and defines the time, mode and occasion of its
performance with such certainty that nothing remains for
judgment or discretion.'" Vas v. Roberts, 418 N.J. Super. 509,
522 (App. Div. 2011) (quoting Ivy Hill Park Apartments v. N.J.
Prop. Liab. Ins. Guar. Ass'n, 221 N.J. Super. 131, 140 (App.
Div. 1987), certif. denied, 110 N.J. 188 (1988)). "Thus,
mandamus is an appropriate remedy '(1) to compel specific action
when the duty is ministerial and wholly free from doubt, and (2)
to compel the exercise of discretion, but not in a specific
manner.'" Ibid. (quoting Loigman v. Twp. Comm. of Middletown,
297 N.J. Super. 287, 299 (App. Div. 1997)).
(continued)
program and that the deadline for the submission of applications
for the third tranche does not expire until February 2016.
A-3042-14T4 18
Here, plaintiff asked the trial judge to issue an order
"[d]irecting the Township . . . to adopt the [r]esolution of
[n]eed" in the precise form it demanded. Applying the well-
established standards governing writs of mandamus set forth
above, we are satisfied that the trial judge properly concluded
that the adoption of a resolution of need under N.J.S.A. 55:14K-
6(c) is clearly not a ministerial act that can be compelled
through such a writ.
The resolution of need requirement set forth in N.J.S.A.
55:14K-6(c) was part of the New Jersey Housing and Mortgage
Finance Agency Law of 1983, L. 1983, c. 530, § 4 (1984). In re
Adoption of 2003 Low Income Hous. Tax Credit Qualified
Allocation Plan, 369 N.J. Super. 2, 24 (App. Div.), certif.
denied, 182 N.J. 141 (2004). "In enacting the law, the
Legislature found that changing market conditions had reduced
the availability of financing and construction of private-sector
housing in the State, resulting in an adverse effect on the
availability of affordable housing. (N.J.S.A. 55:14K-2[(a) and
(b))]." Ibid. Thus, the Legislature determined
that it was in the best interest of the
State for, among other steps, HMFA to: (1)
assure the availability of financing for the
rental, construction and rehabilitation of
new and existing residential structures; (2)
"[s]timulate the construction,
rehabilitation and improvement of adequate
and affordable housing . . . so as to
A-3042-14T4 19
increase the number of opportunities for
adequate and affordable housing . . . ,
particularly New Jersey residents of low and
moderate income"; and (3) "[a]ssist in the
revitalization of the State's urban areas
. . . ."
[Ibid. (quoting N.J.S.A. 55:14K-2(e)).]
To meet these statutory goals, the Legislature granted HMFA
the authority to provide loans and other financial assistance
for housing projects. Ibid. (citing N.J.S.A. 55:14K-5(y)).
"The agency may also 'administer and . . . enter into agreements
to administer programs of the federal government or any other
entity which are in furtherance of the purposes of the act
. . . .'" Ibid. (quoting N.J.S.A. 55:14K-5(dd)). Thus, HMFA
is authorized to award low-income housing tax credits under the
FRM program to qualified developers.
However,
HMFA's power to allocate low-income housing
tax credits is circumscribed by 26 U.S.C.A.
§ 42(m)(1)(B) and (C). Under that statute,
the agency is required to adopt a [Qualified
Allocation Plan] [(]QAP[)] that establishes
specific selection criteria and preference
standards that will guide it in the
allocation of tax credits to competing
housing sponsors, local agencies and private
developers. The agency must consider such
selection criteria as project location,
housing needs, project and sponsor
characteristics, tenant populations and
public housing waiting lists.
[Id. at 25 (internal citations omitted)
(citing 26 U.S.C.A. § 42(m)(1)(B) and (C)).]
A-3042-14T4 20
To assist it in determining which developers of proposed low
income housing projects should receive the tax credits, HMFA
requires each applicant to submit a resolution of need.
N.J.S.A. 55:14K-6(c). The resolution must be "adopted by the
municipality" and must set forth the municipality's
determination "that there is a need for such housing project in
the municipality." Ibid.
In view of these statutory requirements, it is clear that a
municipality's decision whether to adopt a resolution of need
concerning a housing project cannot be characterized as a
"ministerial act" that can be compelled through a writ of
mandamus. Rather, to enable HMFA to equitably allocate the
limited financial assistance available to developers under the
FRM program, N.J.S.A. 55:14K-6(c) requires the municipality to
make an independent determination of the need, if any, for the
project. Among other things, the municipality must examine the
facts and circumstances underlying the applicant's proposal and
make a reasoned determination whether there is a need for
additional affordable housing at that specific location in the
zoning district.
Thus, the outcome of the municipality's review of a request
for a resolution of need is not "absolutely certain and
imperative," and nothing in N.J.S.A. 55:14K-6(c) "prescribes and
A-3042-14T4 21
defines the time, mode and occasion" of the municipality's
decision. Vas, supra, 418 N.J. Super. at 522 (quoting Ivy Hill
Park Apartments, supra, 221 N.J. Super. at 140). Therefore, the
trial judge properly dismissed plaintiff's complaint seeking a
writ of mandamus to require the Township to grant it a
resolution of need.9
Plaintiff argues that the Township's decision to amend its
zoning ordinance to permit multi-family residential housing
projects financed through the use of federal tax credits was
tantamount to a declaration that the project was "needed" in the
HB Zone. Therefore, plaintiff asserts that the Township had no
choice but to immediately adopt a resolution of need for its
project. This argument lacks merit.
The Ordinance added multi-family residential housing
projects that would be financed through the use of federal tax
credits as "a conditional use" in the HB Zone. N.J.S.A. 40:55D-
3 defines a conditional use as:
a use permitted in a particular zoning
district only upon a showing that such use
in a specified location will comply with the
conditions and standards for the location or
operation of such use as contained in the
zoning ordinance, and upon the issuance of
9
We again note that plaintiff's complaint specifically, and
solely, sought an order directing the Township to issue it a
favorable resolution of need by the date of its artificial
deadline.
A-3042-14T4 22
an authorization therefor by the planning
board.
[(emphasis added).]
"Generally, a conditional use is 'suitable to a zoning district
but not to every location within that district.'" Coventry
Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285,
294 (1994) (quoting Cardinal Props. v. Westwood, 227 N.J. Super.
284, 287 (App. Div.), certif. denied, 111 N.J. 631 (1988)).
Thus, contrary to plaintiff's contention, the conditional
use for multi-family residential projects is merely "permitted"
in the HB zone. Nothing in the Ordinance (1) requires that such
projects be constructed, (2) evidences a determination by the
Township that these projects are "needed" in the HB Zone, or (3)
specifies that any particular project is "needed" at every
location in the district. Therefore, the adoption of the
Ordinance was not the equivalent of a resolution of need and the
judge properly denied plaintiff's demand for a writ of mandamus.
Citing several judicial decisions that are readily
distinguishable from the case at hand, plaintiff argues that
when the project involves the construction of affordable
housing, a municipality lacks the discretion to do anything but
issue all permits and resolutions needed to bring the project to
fruition. However, none of these cases involved a situation
where, as here, the applicant was seeking a writ of mandamus to
A-3042-14T4 23
require the municipality to take a specific action on its
request. Rather, in each case, the applicant was challenging a
decision actually made by the municipality after it had the
opportunity to fully consider the applicant's request.
For example, in Homes of Hope, Inc. v. Easthampton Township
Land Use Planning Board, the Planning Board considered the
plaintiff's application for a use variance to build eight
affordable multi-family housing units in a zone that only
permitted single family homes. 409 N.J. Super. 330, 334 (App.
Div. 2009). The Board found that the plaintiff's "proposed
affordable housing was not inherently beneficial, and thus
evaluated its use variance application in light of both the
positive and negative criteria, denying the application." Ibid.
We held that "[a]ffordable housing is an inherently beneficial
use," and remanded the matter to the Board for reconsideration
of plaintiff's application for a use variance. Id. at 336, 340.
Thus, this decision does not stand for the proposition that a
writ of mandamus may be issued to compel a municipality to take
any action demanded by an applicant in connection with its
proposed affordable housing project.
Menk Corporation v. Township Committee of Barnegat, 389
N.J. Super. 263 (Law Div. 2006), and Howell Properties, Inc. v.
Township of Brick, 347 N.J. Super. 573 (App. Div.), certif.
A-3042-14T4 24
denied, 174 N.J. 192 (2002), are also distinguishable from the
case at hand. In Menk, the Planning Board approved the
plaintiff's application to build "a 347-unit inclusionary
development that will provide thirty-five affordable housing
units." 389 N.J. Super. at 265. This approval was "subject to
the condition that the [municipality] would vacate three paper
streets located within [the] plaintiff's property." Id. at 266.
When the plaintiff asked the municipality to vacate the paper
streets, it advised plaintiff that it would not do so and
provided reasons for its decision. Ibid. The Law Division
reviewed the municipality's decision, found no legal basis for
it, and ordered the municipality to vacate the paper streets.
Id. at 271.
Contrary to plaintiff's contention in the present case, the
Law Division's order did not constitute a writ of mandamus
because the court did not direct the municipality to issue a
specific determination prior to the municipality reviewing and
making a decision on the applicant's request to vacate the paper
streets. Instead, the court reviewed the municipality's
decision, found it deficient, and ordered an appropriate remedy.
Similarly, in Howell Properties, supra, two municipalities
vacated streets that extended to the plaintiff's proposed major
subdivision which included affordable housing units. 347 N.J.
A-3042-14T4 25
Super. at 575, 577. As a result, plaintiff's property, which
was located in an adjoining town, was landlocked. Id. at 575-
78. The trial court reviewed the municipalities' actions, found
that they "denied plaintiff 'reasonable access . . . to public
streets[,]" and granted summary judgment to the plaintiff. Id.
at 578. We affirmed. Id. at 590. Thus, since this was not an
action seeking a writ of mandamus and plaintiff's reliance upon
this decision is also misplaced.
Plaintiff argues that the Township was estopped from doing
anything other than adopting a resolution of need for the
proposed project when plaintiff asked for it. Plaintiff
contends the Township's adoption of the Ordinance lulled it into
believing that a resolution of need would automatically be
issued. Again, we disagree.
Our Supreme Court has explained the doctrine of equitable
estoppel as follows: "'The essential principle of the policy of
estoppel . . . is that one may, by voluntary conduct, be
precluded from taking a course of action that would work
injustice and wrong to one who with good reason and in good
faith has relied upon such conduct.'" Middletown Twp.
Policeman's Benevolent Ass'n Local No. 124 v. Twp. of
Middletown, 162 N.J. 361, 367 (2000) (quoting Summer Cottagers'
Ass'n of Cape May v. City of Cape May, 19 N.J. 493, 503-04
A-3042-14T4 26
(1955)). While equitable estoppel may be invoked against a
municipality "where the interests of justice, morality[,] and
common fairness clearly dictate the course[,]" Gruber v. Mayor
of Raritan, 39 N.J. 1, 13 (1962), "[e]quitable estoppel is
'rarely invoked against a governmental entity.'" Middletown
Twp., supra, 162 N.J. at 367 (quoting Wood v. Borough of
Wildwood Crest, 319 N.J. Super. 650, 656 (App. Div. 1999)).
"However, equitable estoppel will be applied in the appropriate
circumstances unless the application would 'prejudice essential
governmental functions.'" Middletown Twp., supra, 161 N.J. 367
(quoting Wood, supra, 319 N.J. Super. at 656).
In determining whether the doctrine of equitable estoppel
applies within the zoning context, the Court has "held that when
a permit is issued validly or in good faith and the builder has
justifiably and in good faith relied on it to his substantial
detriment, the municipality is estopped from revoking the permit
absent fraud." Palatine I v. Planning Bd., 133 N.J. 546, 559
(1993) (plaintiff's supposed reliance on validity of a
preliminary site-plan approval did not warrant equitable
estoppel when its preliminary site-plan approval and
construction permit had expired), overruled in part by D.L. Real
Estate Holdings, LLC v. Point Pleasant Beach Planning Bd., 176
N.J. 126 (2003). The purpose of the equitable estoppel doctrine
A-3042-14T4 27
"is to balance fairly the developer's interest in a stable and
predictable regulatory climate with the municipality's interest
in promoting sound planning and growth." Id. at 560. "The
burden of proving a claim of equitable estoppel rests on
plaintiff." Id. at 562 (citing Virginia Constr. Corp. v.
Fairman, 39 N.J. 61, 70 (1962)).
Here, plaintiff failed to meet its burden of proof on its
equitable estoppel claim. Amato certified, without
contradiction, that neither he nor any other Township official
ever promised plaintiff that a resolution of need would be
automatically issued upon the adoption of the Ordinance or
plaintiff's receipt of site plan approval from the Planning
Board. Indeed, the record clearly demonstrates that plaintiff
was aware throughout the application process that the Township
would not consider plaintiff's request for a resolution of need
until after the public had the opportunity to comment. Under
these circumstances, the doctrine of equitable estoppel did not
require the Township to approve the resolution of need.
Finally, plaintiff argues that N.J.S.A. 40:55D-10.5
protects developers receiving preliminary site approval from
subsequent adverse zoning actions. Therefore, it contends that,
once it obtained site plan approval, the Township was required
A-3042-14T4 28
to automatically adopt a resolution of need for the project.
This argument lacks merit.
N.J.S.A. 40:55D-10.5 provides:
Notwithstanding any provision of law to
the contrary, those development regulations
which are in effect on the date of
submission of an application for development
shall govern the review of that application
for development and any decision made with
regard to that application for development.
Any provisions of an ordinance, except those
relating to health and public safety, that
are adopted subsequent to the date of
submission of an application for
development, shall not be applicable to that
application for development.
Because the Township did not amend the Ordinance for the HB Zone
after plaintiff obtained site plan approval, this statute is not
applicable to the facts of this case.
In sum, plaintiff was not entitled to a writ of mandamus
requiring the Township to immediately adopt a resolution of need
for plaintiff's project under N.J.S.A. 55:14K-6(c). Therefore,
we affirm the trial judge's decision dismissing plaintiff's
complaint.
Affirmed.