Pascack Ass'n, Ltd. v. Mayor and Council of Washington Tp., Bergen County

• Decision Date: 23 March 1977
• Parties: PASCACK ASSOCIATION, LIMITED, Plaintiff-Appellant, v. MAYOR AND COUNCIL OF the TOWNSHIP OF WASHINGTON, BERGEN COUNTY, New Jersey, Defendants-Respondents. WALDY, INC., Plaintiff-Appellant, v. The BOARD OF ADJUSTMENT AND the TOWNSHIP COUNCIL OF the TOWNSHIP OFWASHINGTON, BERGEN COUNTY, New Jersey, and Washington Lakes Association, acorporation of the State of New Jersey, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 470

74 N.J. 470

379 A.2d 6

PASCACK ASSOCIATION, LIMITED, Plaintiff-Appellant, v. MAYOR AND COUNCIL OF the TOWNSHIP OF WASHINGTON, BERGEN

COUNTY, New Jersey, Defendants-Respondents.

WALDY, INC., Plaintiff-Appellant, v. The BOARD OF ADJUSTMENT AND the TOWNSHIP COUNCIL OF the

TOWNSHIP OFWASHINGTON, BERGEN COUNTY, New Jersey, and

Washington Lakes Association, acorporation of the State of

New Jersey, Defendants-Respondents.

Supreme Court of New Jersey.

Argued May 25, 1976.

Decided March 23, 1977.

Alan J. Werksman, Clifton, for plaintiffs-appellants (Werksman, Saffron, Cohen, Sylvester & Miller, Clifton, attorneys; Alan J. Werksman and Eugene P. Sylvester, Clifton, on the brief)

Leonard Adler, Englewood, for defendants-respondents Mayor and Council and Board of Adjustment of Washington Tp.

Peter A. Buchsbaum, Asst. Deputy Public Advocate, Trenton, for amicus curiae Public Advocate (Stanley C. VanNess, Public Advocate, attorney; Peter A. Buchsbaum, Carl S. Bisgaier, Deputy Director of Div. of Public Interest Advocacy, and Kenneth E. Meiser, Asst. Deputy Public Advocate, Trenton, on the brief).

No appearance was made on behalf of respondent Washington Lakes Ass'n.

The opinion of the court was delivered by

CONFORD, P. J. A. D., Temporarily Assigned.

This appeal projects the significant issue as to whether, in the wake of the decisions of this court imposing upon developing municipalities the obligation of providing by zoning for the opportunity to create housing for the low and moderate income segments of the population, see So. Burl. Cty. N. A. A. C. P. v. Tp. of Mt. Laurel, 67 N.J. 151, 336 A.2d 713 app. dism. and cert. den., 423 U.S. 808, 96 S.Ct. 18, 46 L.Ed.2d 28 (1975) (Mount Laurel, hereinafter); Oakwood at Madison Holding in the affirmative on the stated issues, the judgment of the Law Division mandated the grant of a building permit for such purpose to the appellant property owner with respect to its 30-acre tract of land. The Appellate Division reversed, and we granted certification to pass upon the important questions presented. 69 N.J. 73, 351 A.2d 2 (1975).

Inc. et al v. The Township of Madison, 72 N.J. 481, 371 A.2d 1192 (1977), (Oakwood at Madison, hereinafter) all municipalities, regardless of the state or character of their development, have an obligation to zone for multi-family housing on behalf of middle income occupants if there is a local and regional shortage of multi-family housing in general. More specifically, the issue is whether there is such [379 A.2d 8] an obligation on the part of a small municipality, developed substantially fully upon detached single-family dwellings and restricted accordingly in the residential provisions of its zoning ordinance.

The initial action herein was commenced in 1970 when plaintiff Pascack Association Limited ("Pascack") filed a complaint in lieu of prerogative writ, attacking the rezoning of its property to permit the additional use of officers and research (OR) and challenging the validity of the prior ordinance limiting its residential development to two-acre single-family lots. Thereafter, in August 1971, Waldy, Inc. ("Waldy"), contract purchaser of the property involved, after unsuccessfully applying for a variance to build a 520 unit garden apartment complex on the property, began an action to set aside the variance denial and challenge the entire ordinance for failing to make provision anywhere for multi-family and rental housing. Shortly thereafter the actions were consolidated for trial. In May 1972 by leave of court an amended complaint was filed by both plaintiffs joining as party-defendant the trustees of the Washington Lakes Association and contesting the validity of certain private deed restrictions on file with the Bergen County Clerk's Office, enforcement of which would On December 20, 1972, the trial court after a hearing issued a memorandum decision: (1) holding invalid the two-acre minimum lot size for single-family residences; (2) holding the entire Washington Township zoning ordinance invalid for failure to make any provision for "multiple and rental housing"; and (3) reversing the board of adjustment's denial of a recommendation for a use variance and remanding the application to the board for reconsideration.

preclude plaintiffs' proposed development on a portion of the tract.

The consequent judgment, entered January 16, 1973, restricted the invalidation of the ordinance to its prohibition of "multiple and rental housing" and the nullification of the lot size limitation. The order recited that it was a "final judgment" and that the court did not retain jurisdiction. There was no direction to the municipality to rezone within any specified period of time, as is customary in such situations.

On January 29, 1973, presumably in response to the judgment, the township passed Ordinance No. 73-1, rezoning a different 34-acre area (in diverse ownership) for multi-family residential use. On February 15, 1973 the board of adjustment again denied the application for a variance, and this decision was never appealed by plaintiffs.

On June 29, 1973, notwithstanding the trial court had not retained jurisdiction, plaintiffs moved in the action to compel the township to issue a building permit for the proposed 520-unit garden apartment complex. At the hearing on the motion, they charged that Ordinance 73-1 failed to "comply" with the court's prior judgment in that although 34 acres were zoned multi-family, in practical terms only 5 acres were available for multi-family construction and the zoning restrictions of the multi-family zone precluded construction meeting the economic and social needs of the area. The trial court agreed with this position, and on July 9, 1973 ordered the township to complete within 60 days "all rezoning required for compliance with the prior Judgment."

Defendants moved for an extension of time on the grounds that the township planning board had recommended adoption of an ordinance rezoning plaintiff's property and that litigation challenging Ordinance 73-1 was pending, but the motion was denied on August 1, 1973.

An appeal from both the July 9, 1973 and January 12, 1973 judgments was filed by the township on August 22, 1973. No timely rezoning having occurred, plaintiffs moved for an order directing the township to issue a building permit to plaintiffs for their proposed multi-family garden apartment complex. In response, the court in October 1973 appointed two planning experts to advise the court on whether Ordinance 73-1 complied with the court's January 1973 judgment, and, if not, to recommend a zoning plan which would so comply.

On January 9, 1974 the experts submitted their report and recommendations. They concluded that Ordinance 73-1 did not comply with the judgment and recommended inclusion of the plaintiffs' tract in the multi-family zone. In addition, they recommended densities in the multi-family zone of at least 6 and up to 9 units per acre. After a hearing on the report the trial court on February 26, 1974 filed an opinion, 131 N.J.Super. 195, 329 A.2d 89, ordering:

1) The issuance of a building permit to plaintiffs for construction of a two story garden apartment complex upon proper application by plaintiffs to all necessary agencies for site plan review;

2) The "maximum number" (sic ) of multi-family units permitted plaintiff as a matter of right should be no less than 9 per acre;

3) Certain specified regulatory provisions (e. g., minimum off-street parking facilities, number of bedrooms, minimum floor area) were attached to plaintiffs' permit.

On February 6, 1974, over objection by both the township and Washington Lakes Association, the court dismissed as of October 30, 1972, without prejudice, the complaint attacking the validity of the private deed restrictions of that Association.

Defendant township filed another appeal from the January 12, 1973 judgment and the July 9, 1973 order, as well as from the February 6, 1974 order. Plaintiffs cross-appealed from the apartment specifications set forth in the court's judgment.

Plaintiffs moved to dismiss those portions of the consolidated appeals seeking to review the January 12, 1973 judgment as beyond the 45-day time limit provided by the rules for appealing a final judgment. The Appellate Division reserved decision on the motion until determination of the entire appeal, and it ultimately denied the motion because of the "public importance" of the judgment.

Pending the appeal herein, this court decided Mount Laurel in March 1975. The Appellate Division invited supplemental briefs as to the effect of that ruling on the trial court's determination of the invalidity of the ordinance for failure to zone for multi-family housing. In reversing, the Appellate Division, in an unreported per curiam opinion, held that Mount Laurel was not applicable, primarily for the reason that that decision was not authoritative except as to developing municipalities a category not represented by the township. We have concluded that that determination was essentially correct, and affirm to that extent.

I

We direct our attention first to the trial court holding that the ordinance was defective in not providing for multi-family housing. This determination rested on certain essentially undisputed operative facts. The township comprises 1,984 acres or 31/4 square miles. It is one of a group of Bergen County residential communities popularly referred to as the Pascack Valley, of which Washington Township is southernmost. The residential nature of the township is almost exclusively single family, on lots ranging from 5000 sq. ft. to two acres or more. These residences take up 94.5% of the land; commercial uses occupy 3.25%, and there are no industrial or multi-family residential uses (except a few The 1970 census population was 10,577, with a projection for 1980 on the master plan (made in 1963) of 10,800. There were in 1970 2,742 dwelling units. The growth...