Fair Share Hous. Ctr. v. The Zoning Bd. of City of Hoboken
| Decision Date | 09 June 2022 |
| Docket Number | A-1553-17,A-1499-17,A-1540-17,A-1530-17,A-1500-17,A-1501-17 |
| Parties | FAIR SHARE HOUSING CENTER, INC., Plaintiff-Respondent, v. THE ZONING BOARD OF THE CITY OF HOBOKEN, Defendant-Respondent, and ADVANCE AT HOBOKEN, LLC, Defendant/Third-Party Plaintiff-Respondent/ Cross-Appellant, v. CITY OF HOBOKEN and THE MAYOR and COUNCIL OF THE CITY OF HOBOKEN, Third-Party Defendants- Appellants/Cross-Respondents. CITY OF HOBOKEN, Defendant-Appellant/ Cross-Respondent, v. ARTISAN HOBOKEN APARTMENTS, LLC, Defendant-Respondent/ Cross-Appellant. FAIR SHARE HOUSING CENTER, INC., Plaintiff-Respondent, v. THE ZONING BOARD OF THE CITY OF HOBOKEN, Defendant-Respondent, and 1415 PARK AVENUE, LLC and BIT INVESTMENT SIXTY-ONE, LLC, Defendants/Third-Party Plaintiffs-Respondents /Cross-Appellants, v. CITY OF HOBOKEN and THE MAYOR and CITY COUNCIL OF THE CITY OF HOBOKEN, Third-Party Defendants- Appellants/Cross-Respondents. FAIR SHARE HOUSING CENTER, INC., Plaintiff-Respondent, v. THE ZONING BOARD OF THE CITY OF HOBOKEN, Defendants-Appellants/ Cross-Respondent, and 9TH MONROE, LLC and 900 MONROE HOBOKEN, LLC, Defendants/Third-Party Plaintiffs-Respondents/ Cross-Appellants, v. CITY OF HOBOKEN and THE MAYOR and CITY COUNCIL OF THE CITY OF HOBOKEN, Third-Party Defendants- Appellants/Cross-Respondents. FAIR SHARE HOUSING CENTER, INC., Plaintiff-Respondent, v. THE ZONING BOARD OF THE CITY OF HOBOKEN, Defendant- Appellant/ Cross-Respondent, and NEW JERSEY CASKET COMPANY, INC., Defendant-Respondent/ Cross-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
3
Argued January 8, 2020
Decided September 30, 2020
Remanded by Supreme Court July 9, 2021
Resubmitted May 26, 2022
On appeal from the Superior Court of New Jersey, Law Division Hudson County, Docket Nos. L-3643-11, L-5052-11, L-0733-12, L-1978-12 and L-4563-15.
Weiner Law Group, LLP, attorneys for appellants/cross-respondents City of Hoboken and
4
Mayor and Council of City of Hoboken (Ronald D. Cucchiaro, of counsel and on the briefs; Richard Brigliadoro, Donald A. Klein and R. Tombalakian, on the briefs).
Davison, Eastman, Munoz, Lederman & Paone, PA, attorneys for appellant/cross-respondent Zoning Board of the City of Hoboken (Dennis M. Galvin, on the briefs).
John J. Curley, LLC, attorneys for respondent/cross-appellant Artisan Hoboken Apartments (John J. Curley, of counsel and on the briefs; Jason M. Hyndman, on the briefs).
Gibbons PC, attorneys for respondent/cross-appellant Advance at Hoboken LLC (Jennifer Phillips Smith and Cameron W. MacLeod, on the briefs).
Connell Foley LLP, attorneys for respondents/cross-appellants 1415 Park Avenue, LLC, 9th Monroe, New Jersey Casket Company, 900 Monroe Hoboken and BIT Investment (Kevin J. Coakley and Nicole B. Dory, of counsel and on the briefs; Michael Affrunti, on the briefs).
Kevin D. Walsh, attorney for appellant/respondent Fair Share Housing Center, Inc.
Before Judges Haas, Mawla and Mitterhoff.
This matter returns to us following a remand by the Supreme Court for consideration of "the merits of the substantive arguments raised by
5
[respondents[1], which arguments were not adjudicated" in our prior opinion, Fair Share Housing Center v. Zoning Board of Hoboken, (Fair Share Housing II), No. A-1499-17 (App. Div. Sept. 30, 2020) "based on [our] holding on procedural grounds." Fair Share Hous. Ctr. v. Zoning Bd. of Hoboken, 247 N.J. 391 (2021); Fair Share Hous. Ctr. v. Zoning Bd. of Hoboken, 247 N.J. 392 (2021); Fair Share Hous. Ctr. v. Zoning Bd. of Hoboken, 247 N.J. 393 (2021). The Court also directed that we consider certain documents respondents included in their appendices concerning the question of whether there was a need for additional affordable housing in the City of Hoboken (City). Ibid. During the course of the remand, we granted respondents 1415 Park Avenue, LLC, BIT Investment Sixty-One LLC, 9th Monroe, LLC, and New Jersey Casket Company, Inc.'s (the 1415 Park respondents) motion to supplement the record to include additional documentation relating to the City's affordable housing need.
We have carefully considered the four substantive arguments respondents raised in Fair Share Housing II. For the reasons that follow, we conclude that respondents failed to show they detrimentally relied on the City's failure to apply
6
its 1988 Affordable Housing Ordinance (AHO) to prior developments. Because the provision of affordable housing is an essential municipal function, the trial court erred in holding that the City was equitably estopped from applying the ten percent set-aside required by the AHO. The court also erred in concluding the AHO could not be applied to respondents under the doctrine of selective enforcement because this doctrine only applies to a "class-of-one," and because there was no evidence in the record of any animus toward respondents by the City.
We also reject respondents' contention that the City did not have the authority to require them to provide affordable housing because Hoboken did not have a need for additional units. Neither the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329, nor Mount Laurel[2] case law bar a municipality from requiring developers to provide affordable housing units over and above the affordable housing need established by the Council on Affordable Housing (COAH).
Finally, respondents argue they would suffer a taking of their property if the AHO were enforced because the AHO did not contain the requisite
7
"compensating benefits" for the required set-asides. This argument lacks merit because the resolutions approving respondents' applications permitted them to increase the density of their developments and granted each of them a use variance. Therefore, respondents did receive valuable, compensating benefits.
We begin by setting forth the pertinent procedural history. In July 2011, Fair Share Housing Center, Inc. (Fair Share) filed a complaint in lieu of prerogative writs for declaratory and injunctive relief against Advance at Hoboken, LLC (Advance) and the City's Zoning Board, challenging the Board's approval of Advance's final site plan application for failure to require a ten percent affordable housing set-aside as required by the City's AHO. Fair Share filed similar complaints in 2011 and 2012 regarding final site plan approvals granted to 1415 Park Avenue, LLC (1415 Park), 9th Monroe, LLC (9th Monroe), and New Jersey Casket Company, Inc. (N.J. Casket). The record does not contain an answer from the Zoning Board.
Advance filed an answer and a third-party complaint against the City alleging that the AHO was null and void because it was not approved by COAH. In addition, Advance claimed that: (1) the City engaged in selective enforcement of the AHO in violation of 42 U.S.C. § 1983 and the New Jersey
8
Civil Rights Act, N.J.S.A. 10:6-1 to -2; (2) requiring a ten percent affordable housing set-aside without any benefit constituted inverse condemnation; and (3) the City was estopped from enforcing the AHO because it did not seek to enforce the ordinance before 2011.
1415 Park and 9th Monroe filed nearly identical third-party complaints against the City. The City filed answers to the third-party complaints. N.J. Casket filed an answer but no third-party complaint.
On June 1, 2012, the trial court rendered a decision declaring the AHO invalid because it had not been certified by COAH. On the same date, the court entered an order enjoining the City and the Zoning Board from enforcing the AHO, and dismissed the complaints filed by Fair Share in the Advance and 1415 Park litigation in their entirety, with prejudice. The court denied Fair Share's motion for reconsideration on November 9, 2012, and issued a final judgment on the same date, which replaced the June 1, 2012 order that had stated that all counts in the third-party complaints had been resolved, and reiterated the dismissal of the Fair Share complaints with prejudice.
The trial court also issued an order granting final judgment to 9th Monroe and dismissed Fair Share's complaint against 9th Monroe with prejudice. A
9
similar order of final judgment was entered as to N.J. Casket. Fair Share and the City filed notices of appeal in all the actions.
On July 28, 2015, this court reversed the order invalidating the AHO. We remanded the matter "to the trial court for such further proceedings as may be necessary to address and adjudicate to finality the remainder of the issues raised by defendants/third-party plaintiffs." Fair Share Hous. Ctr. v. Zoning Bd. of the City of Hoboken, (Fair Share Housing I), 441 N.J.Super. 486, 513 (App. Div. 2015), certif. denied, 224 N.J. 246 (2016).
In November 2015, the City filed a complaint against Artisan Hoboken Apartments, LLC (Artisan), the purchaser of the N.J. Casket property, seeking the developer's compliance with the AHO. Artisan filed an answer in January 2016, which included a counterclaim alleging an unconstitutional taking. On December 1, 2016, the Artisan action was ordered consolidated with the other cases.
In addition, BIT Investment Sixty-One, LLC (BIT) and 900 Monroe Hoboken, LLC (900 Monroe), as successors to 1415 Park and 9th Monroe, respectively, were added as defendants-third party plaintiffs. The court denied the City's motion to remand the matters to the Zoning Board.
10
After additional discovery had been taken, Fair Share, the City, and respondents all moved for summary judgment. The court heard oral argument on September 29, 2017. On October 16, 2017, the court issued a decision and signed orders granting respondents' motions for summary judgment.
The City, Fair Share, and the Zoning Board filed notices of appeal from these orders....
To continue reading
Request your trial