Opinion
DOCKET NO. A-4940-11T1
08-15-2013
DONALD NUCKEL, NORTH VILLAGE I, L.L.C., NORTH VILLAGE II, L.L.C. and GILBERT MANOR, L.L.C, Plaintiffs-Appellants, v. BOROUGH OF LITTLE FERRY, THE BOROUGH OF LITTLE FERRY PLANNING BOARD, Defendants-Respondents
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.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Ashrafi and Guadagno.
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. PER CURIAM
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:
S. Burlington Cnty. N.A.A.C.P. v. Twp. of Mt. Laurel (Mt. Laurel I), 67 N.J. 151 (1975); S. Burlington Cnty. N.A.A.C.P. v. Twp. of Mt. Laurel (Mt. Laurel II), 92 N.J. 158 (1983).
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 aNuckel 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.
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.
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.
I.
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.
Mr. Koenig passed away on September 15, 2012. Obituary, Stuart R. Koenig, Esq. Law Partner Prominent in Land Use, Municipal Law, Honored by Colleagues for Professional Excellence, N.J. Star Ledger, Sept. 20, 2012, at 30.
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 second plan, noting that in his view, a fourteen-story building that "came up to . . . River Street" was "really not appropriate."
Nuckel next presented the testimony of Arthur Bernard, a licensed professional planner. Bernard testified that the neighborhood was suitable for "high rise development" given the taller height limits in the neighboring municipalities. On cross-examination, however, he acknowledged that such large buildings would be "clearly different" from anything else in the area.
In his testimony as owner of the property, Nuckel conceded on cross-examination that he did not know exactly how many units he would need to build to make his proposals financially viable, but that "probably we can do it with a little less height than 14 stor[ies]."
Little Ferry also produced the testimony of an expert planner, Elizabeth McKenzie. On the issue of suitability, McKenzie testified that the proposals were "certainly not consistent with anything that [has] been developed anywhere in Little Ferry[,] or in . . . the abutting portions of the surrounding communities." In her opinion, the size of the project went "far beyond" what was necessary to satisfy Little Ferry's second-round Mount Laurel obligation, although she conceded that, if it were determined that Little Ferry had to meet a "very high" fair share obligation, it might be forced to "accept a height that [it is not] prepared to accept." She also testified that the borough council was considering permitting heights of between six and eight stories adjacent to the Hackensack River. On the topic of the surrounding neighborhoods, McKenzie considered the 150-foot height limitation in nearby Hackensack to be of little relevance, because the area was zoned for "offices and hotels," and because little development had actually occurred in the area.
Koenig testified as the special master. Consistent with his report, he recommended that the builder's remedy sought by Nuckel be denied. In his view, a development of the size Nuckel was proposing went well beyond Little Ferry's fair share obligation for newly-constructed affordable housing. He also testified that the proposed fourteen-story development was not consistent with the neighborhood. He "did not observe any buildings in the municipality or the surrounding area of [Nuckel's] sites which were greater than three stories." Koenig was also concerned about the rights of the tenants already living at North Village I and II, and he suggested it would be "counter-intuitive" to replace viable, well-maintained units of housing, already being utilized by many people of modest means, with a larger project containing roughly the same amount of affordable housing.
After considering the testimony and other evidence, Judge Harris granted a builder's remedy to Nuckel, issuing a written opinion on March 18, 2008. The judge noted that the precise number of new affordable housing units in Little Ferry's fair share obligation was uncertain because the third round regulations and methodology adopted by the Council on Affordable Housing (COAH) pursuant to the Fair Housing Act, N.J.S.A. 52:27D-301 to -329, had been invalidated by this court. See In re Adoption of N.J.A.C. 5:94 and 5:95, 390 N.J. Super. 1 (App. Div.), certif. denied, 192 N.J. 71 (2007). Determining Little Ferry's "new construction obligation" to be "not less than twenty units and not more than twenty-eight," Judge Harris approved a builder's remedy with the density of Nuckel's second proposal, 630 new units, of which ninety-five were to be affordable housing. In Judge Harris's view, this remedy would provide a "generous, but not overboard" contribution to Little Ferry's fair share obligation.
Because the parties have not contested on appeal the issue of Little Ferry's fair share obligation, we have not included here testimony at the trial on that issue. To establish the fair share obligation, Judge Harris largely accepted Koenig's recommendations, setting Little Ferry's new construction obligation at between twenty and twenty-eight units, the number being imprecise because the status of third-round regulations was in flux. Judge Carver's compliance opinion set the number for newly constructed affordable housing as twenty-eight for Little Ferry's second-round Mount Laurel obligation.
Judge Harris's decision, however, came with a restriction on the development Nuckel and his experts proposed: the height of the proposed structures would not exceed eight stories. The judge observed that Little Ferry objected more strenuously to the height of the proposed fourteen-story high-rise buildings than to the density the project would create, and that limiting the height to eight stories would "eliminate even a scintilla of detriment to the municipality." Judge Harris's decision was memorialized in an order dated April 10, 2008.
On April 30, 2008, Nuckel moved for reconsideration of the height limitation. Nuckel's engineering expert, Bertin, stated in a certification that the eight-story limitation would result in the classification of the development as "mid-rise" rather than "high-rise," triggering higher parking space requirements. Bertin calculated that the smaller buildings would require 477 extra parking spaces to satisfy the RSIS. A certification from Conrad Roncati, Nuckel's architect, estimated that constructing the additional parking spaces would add more than $20 million to the cost of the development. Judge Harris denied Nuckel's motion for reconsideration, although a formal order to that effect is not included in our record. Nuckel did not seek leave to appeal from the orders setting the height limitation or denying his motion for reconsideration.
Before a compliance hearing was conducted, see N.J.A.C. 5:94-1.4, Nuckel moved to withdraw his property from the builder's remedy. In a certification in support of the motion, Nuckel stated:
Based on the height restrictions imposed by this Court's April 10, 2008 Order and the various bulk restrictions contained in an ordinance . . . and other regulatory restrictions, including but not limited to the [RSIS] and NJDEP Waterfront DevelopmentBy order dated December 19, 2008, Judge Harris granted the motion, permitting Nuckel "to withdraw with prejudice his request for a builder's remedy." The judge further ordered Little Ferry to adopt an alternate compliance plan, excluding the builder's remedy he had granted, to be presented to the court no later than April 21, 2009.
regulations, Plaintiffs are unwilling to demolish any portion of the existing, well maintained, DCA certified, fully rented, 408 unit complex on the Property and are unable to develop the property for low and moderate income housing.
Little Ferry adopted a new zoning ordinance, attempting to comply with the court's orders invalidating its zoning ordinance and requiring an alternate compliance plan. The new ordinance permitted a fourteen-story structure in the zoning district in which Nuckel's property is located, subject to several restrictions including a maximum density of forty units per acre, and a requirement that twenty-five percent of the rental units be dedicated to affordable housing. In May 2009, Nuckel and 110 Bergen filed separate complaints seeking to invalidate the new zoning ordinance. Little Ferry repealed the ordinance in July 2010.
Little Ferry then entered into a settlement with 110 Bergen. On January 7, 2011, the Little Ferry Borough Council adopted a resolution to enter into a developer's agreement with 110 Bergen that would provide an opportunity for construction of affordable housing. The agreement stated that 110 Bergen could build a mixed-use development with buildings of up to fourteen stories, which would include twelve units of affordable housing "or whatever number units that may be deemed necessary but not to exceed 28 units." Little Ferry submitted its alternate compliance plan to the court, and a hearing was held before Judge Carver on May 20, 2011.
The hearing included only three witnesses relevant to this appeal: expert planners McKenzie and Bernard and special master Koenig. McKenzie testified that the agreement with 110 Bergen provided for a flexible number of affordable units up to twenty-eight, the amount necessary to fulfill Little Ferry's second-round obligation. Although she conceded that nothing in the agreement required 110 Bergen actually to develop the property, McKenzie's understanding of the agreement was that, if and when 110 Bergen decided to build, it was required to provide affordable housing units as agreed. McKenzie stated her opinion that the agreement provided a "realistic" opportunity for affordable housing to be built, and that "the fact that 110 Bergen acquired the property and removed the structures on it . . . is evidence of [its] commitment to develop the property."
Testifying on behalf of Nuckel, Bernard raised several objections to the compliance plan. First, he stated that the type of development the agreement contemplated was achieved by overlay zoning, which is disfavored by COAH. Second, he expressed concern that the 110 Bergen site might have contamination that would require lengthy clean-up, reducing the chance that the property would be developed in the near future. Third, Bernard thought the agreement provided no "firm commitment" to build affordable housing, in that it did not require development, and it set no timetable for construction. He conceded on cross-examination that property owners generally do not enter into development agreements with municipalities unless they intend to develop their properties.
"Overlay zoning" refers to additional or alternative conditional regulations superimposed over existing zoning regulations applicable to an area. See Weeden v. City Council of Trenton, 391 N.J. Super. 214, 225 (App. Div.), certif. denied, 192 N.J. 73 (2007).
Finally, Koenig testified and recommended approval of the plan. He indicated that the agreement was "very clear" that 110 Bergen was required to provide affordable housing "no matter what [it] develop[s] on this site."
In a comprehensive written opinion dated February 10, 2012, Judge Carver found that the agreement with 110 Bergen provided a "realistic opportunity for the creation of the twenty-one affordable housing units required to satisfy the balance of the municipal Prior and Second Round obligation." The court approved Little Ferry's fair share plan. On April 26, 2012, the court entered a Judgment of Compliance and Repose, ending the litigation. Nuckel filed a timely notice of appeal.
The additional number of units in Little Ferry's second-round fair share obligation were to be provided by other properties.
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Two other related lawsuits are relevant to the arguments on appeal. On June 2, 2011, Nuckel filed a complaint challenging the adoption of Little Ferry's fair share plan on procedural grounds. On April 27, 2012, a few weeks after Judge Carver's opinion approving the fair share plan, Nuckel filed a complaint challenging the overlay zoning ordinance adopted to facilitate the 110 Bergen agreement.
II.
A.
By this appeal, Nuckel seeks to revive the builder's remedy claim that he was permitted to withdraw with prejudice more than four years ago. He contends that limiting the building height to eight stories was an abuse of the court's discretion in awarding him a builder's remedy. Little Ferry argues in response that Nuckel waived a claim of error in imposing that limitation because he requested dismissal of his claim for a builder's remedy, and also that the height restriction was not an abuse of the court's discretion. Nuckel replies that he never withdrew his request for a builder's remedy, only his request as limited by the height restriction.
A party may not appeal from an order to which it consented. See, e.g., Bass v. DeVink, 336 N.J. Super. 450, 455 (App. Div.), certif. denied, 168 N.J. 292 (2001); Zinkerman v. Taft Stores, Inc., 30 N.J. Super. 322, 324 (App. Div. 1954). Although Nuckel did not consent to the restriction of a builder's remedy to eight-story structures, he consented to, and in fact requested, dismissal of his builder's remedy claim. The trial court properly entered an order dismissing that claim with prejudice.
A litigant may not appeal a claim that was voluntarily withdrawn and dismissed. By agreeing to dismiss his builder's remedy claim, Nuckel waived any appeal from the underlying orders preceding dismissal of that claim, including the height restriction in the builder's remedy order. See Wein v. Morris, 194 N.J. 364, 380-85 (2008). Waiver is defined as a "voluntary and intentional relinquishment of a known right." Knorr v. Smeal, 178 N.J. 169, 177 (2003); accord Shotmeyer v. N.J. Realty Title Ins. Co., 195 N.J. 72, 89 (2008). In this context, voluntarily waiving a claim or issue does not necessarily mean the party is satisfied with the outcome, just that the "objecting party has made an election which is binding." Highgate Dev. Corp. v. Kirsh, 224 N.J. Super. 328, 334 (App. Div. 1988).
Having concluded that Nuckel waived his builder's remedy claim, we need not address whether the restriction of the proposed buildings to eight stories was an abuse of Judge Harris's discretion in fashioning an appropriate builder's remedy.
B.
We also reject Nuckel's contention that special master Koenig should have been disqualified. He argues that Koenig had a conflict of interest because he represented the New Jersey State League of Municipalities, of which Little Ferry is a member, in a challenge to COAH's third-round affordable housing regulations. Koenig argued the case as amicus curiae on behalf of the League and the New Jersey Institute of Local Government Attorneys, and he also participated in the preparation of the amicus brief. See In re Adoption of N.J.A.C. 5:94 and 5:95, supra, 390 N.J. Super. at 10. In a certification responding to Nuckel's motion to disqualify him, Koenig stated that he was not paid either for arguing the COAH case or for his part in writing the brief, an assertion which Nuckel has not challenged.
The Supreme Court specifically approved the use of special masters to assist the court in fashioning remedies in the complex world of Mount Laurel litigation. Mount Laurel II, supra, 92 N.J. at 281-85. In Deland v. Township of Berkeley Heights, 361 N.J. Super. 1, 12 (App. Div.), certif. denied, 178 N.J. 32 (2003), we concluded that "strict conflict of interest rules should apply to Mount Laurel special masters," and that masters are subject to "substantially the same conflict of interest rules as judges."
Accordingly, Rule 1:12-1(g) governs, providing that a master should be disqualified "when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." Actual prejudice is not the test; a special master should be disqualified if a party could have an objectively reasonable belief that the proceedings were tainted by an appearance of impropriety. See DeNike v. Cupo, 196 N.J. 502, 517 (2008).
Deland is the only case to consider the issue of disqualification in the Mount Laurel context. There, the special master was a planner who had previously worked on Mount Laurel cases for two developers that were financially associated with an individual who also had a financial interest in one of the properties that was the subject of the current litigation. Deland, supra, 361 N.J. Super. at 6, 10-11. We held that the special master should have refrained from providing recommendations about the subject property. Id. at 12-13.
Koenig's appointment does not raise the same appearance of bias. Koenig did not represent clients with a financial interest in any of the properties or entities involved in this case. Although he did provide limited representation to the League of Municipalities, that fact does not make Little Ferry Koenig's former client. An organization is a distinct entity from its members for legal and conflict purposes. J.G. Ries & Sons, Inc. v. Spectraserv, Inc., 384 N.J. Super. 216, 222 (App. Div. 2006); RPC 1.13(a) ("A lawyer employed or retained to represent an organization represents the organization as distinct from its . . . members . . . ."). In J.G. Ries, supra, 384 N.J. Super. at 229, the court found no conflict where the same law firm represented a plaintiff, and both the plaintiff and the defendant in that action were members of an organization the law firm also represented. Because Koenig did not have a lawyer-client relationship with Little Ferry, his role as special master did not create an appearance of impropriety.
Nuckel's attempt to disqualify Koenig fares no better based on the legal position Koenig took in the COAH litigation, In re Adoption of N.J.A.C. 5:94 and 5:95, supra, 390 N.J. Super. 1. That litigation involved challenges to the third-round COAH regulations. As Judge Harris stated when denying the motion to disqualify Koenig, this case dealt with Little Ferry's lack of compliance with its second-round obligations. The legal argument Koenig made in the other litigation had no direct relevance to the issues in this case.
While recognizing that special masters must be "impartial," our Supreme Court has noted that, in Mount Laurel litigation, special masters play a more involved role than traditional masters. Mt. Laurel II, supra, 92 N.J. at 282. Mount Laurel masters are sought out because of their particularized expertise in a specialized and complicated area of law, and it is highly unlikely that the court will find an individual who is both qualified and has no history of representation of or involvement in issues that affect municipalities or developers. As the Supreme Court stated in describing court-appointed trial experts in Mount Laurel litigation: "There are experts in this field who are prepared to testify, who have studied this subject matter for many years, and who will not be in the pay of any of the parties, although their general bias may be well known. They should be liberally used by the trial court." Id. at 293 (footnote omitted).
While Koenig may have taken particular legal positions in the past, he was not connected to either party, and there is no indication that he was biased against either party. As to any general leanings, the trial court was more than competent to evaluate Koenig's advice, and it did reject a good deal of his views. See id. at 288 n.42 ("[N]either the parties [n]or the court need accept the master's suggestions or recommendations. The master may well have substantial influence on the outcome but only because his expertise is persuasive to the defendant, or because defendant believes he will be persuasive to the court.").
Koenig did not have a disqualifying relationship and had not taken legal positions in other cases that raised an objectively reasonable appearance of impropriety in his role as special master in this litigation. We find no error in the court's denial of Nuckel's motion to disqualify Koenig.
C.
Challenging the compliance judgment issued by Judge Carver, Nuckel contends that the developer's agreement with 110 Bergen, as incorporated into Little Ferry's fair share plan, does not provide a realistic opportunity for the construction of affordable housing. He argues that: (1) the agreement contemplates the use of overlay zoning, which COAH disfavors; (2) the 110 Bergen property lacks adequate sewer infrastructure; (3) the site is located in a flood plain; (4) the property is contaminated; and (5) Little Ferry ignored Nuckel's offer to provide six to eight units of affordable housing on his property as currently developed.
A municipality has a constitutional obligation to provide a "realistic opportunity" for the development of its fair share of affordable housing. Mt. Laurel II, supra, 92 N.J. at 221. Whether an opportunity is "realistic" is determined in a practical and objective way: "whether there is in fact a likelihood — to the extent economic conditions allow — that the lower income housing will actually be constructed." Id. at 222. "Municipalities need not guarantee that the required amount of affordable housing will be built, but must only adopt land use ordinances that create a realistic opportunity to meet the regional need and their own rehabilitation share." In re Adoption of N.J.A.C. 5:94 & 5:95, supra, 390 N.J. Super. at 54.
Nuckel rests his main objection on a close reading of the agreement between 110 Bergen and Little Ferry. The main operative provision of that agreement states that "110 Bergen Turnpike agrees to build as part of the Development twelve (12) affordable housing units or whatever number of units may be deemed necessary but not to exceed 28 units." This provision is conditioned upon "the approval of the Little Ferry Planning Board" and any other relevant agencies of 110 Bergen's proposal for a high-rise hotel and related commercial development. Another paragraph of the agreement states:
The terms and conditions of this settlement do not require 110 Bergen Turnpike to actually develop the 110 Bergen Turnpike Property, but only set forth the requirements, inclusive of building . . . affordable housing units . . . if and when 110 Bergen Turnpike actually develops the 110 Bergen Turnpike Property after the Approval on the terms set forth herein.
Nuckel challenges Little Ferry's reading of the agreement as requiring affordable housing no matter what 110 Bergen decides to build. He argues that, if 110 Bergen does not seek approval from the planning board for a project similar to its mixed-use hotel proposal, it has not obtained "Approval," and is therefore not required by the agreement to build affordable housing. Related to that argument, Nuckel points out that COAH has expressed its disapproval of the use of overlay zoning that does not require the development of affordable housing. N.J.A.C. 5:97-5.3(b)(3). The reason is that the developer may choose to develop within the underlying zoning regulations, which may not require an affordable housing set-aside.
However, Little Ferry's planner, McKenzie, testified that, because the agreement requires 110 Bergen to provide affordable housing if and when it develops its property, the use of overlay zoning does not allow alternative development of the property without affordable housing. She further testified that there was sufficient incentive to utilize the overlay zoning regulations because the underlying zoning district — highway commercial — has a four-story height limit that would not be suited for the hotel development 110 Bergen intended to build.
Little Ferry need not guarantee that affordable housing will be developed. It must only provide a realistic opportunity for affordable housing. The zoning ordinance here, combined with the agreement expressing 110 Bergen's intent to build a high-rise development, does just that. The only way 110 Bergen can build the development it desires is by proceeding under the overlay zoning ordinance, which will require it to satisfy Little Ferry's affordable housing obligation. Furthermore, 110 Bergen had already demonstrated its intent to proceed with development of the property by undertaking the serious step of clearing the existing structures from it. As Nuckel's planner conceded on cross-examination, entering into a development agreement and clearing land are generally not steps undertaken by someone without an intent to develop the property.
Next, Nuckel speculates that the sewer lines running to the property "may be totally inadequate" to service the upcoming development. He argues that it is "unknown what kind of reconstruction could possibly be required" and "[w]hile there may be no problem, the obstacle to a project of this size and intensity could be practically insurmountable." Nuckel cites N.J.A.C. 5:97-3.13(a)(3), a COAH regulation that requires a site designated to provide affordable housing to have "[a]dequate sewer and water capacity." See also In re Petition for Substantive Certification, Twp. of Southampton, 338 N.J. Super. 103 (App. Div.) (remanded for consideration of suitability of rural site for development of affordable housing where no water or sewer service was available), certif. denied, 169 N.J. 610 (2001).
Here, the 110 Bergen site is served by both sewer and water infrastructure. The Bergen County Utilities Authority already services the developments in the area, including Nuckel's property. As Little Ferry points out, Nuckel's engineer testified at the builder's remedy trial that there was currently reserved capacity at the sewer plant. Thus, although the fair share plan candidly acknowledged there "is no information as to the adequacy of the pipe sizes to handle additional flows," this one factor does not mean a realistic opportunity does not exist for the 110 Bergen project to be built. Working sewer lines exist at the site with reserved capacity at the sewer plant, and there is nothing preventing Little Ferry from expanding the lines should the need arise.
Nuckel contends that 110 Bergen's proposal is not economically viable because its property is located in a flood plain and will also require clean-up of contamination. These concerns are speculative. The fair share plan specifically represents that "the presence of the flood plain will not preclude the type of development contemplated." Nor do environmental problems create an insurmountable obstacle to development of affordable housing. Koenig testified that he was unaware of any contamination except concrete and asphalt millings dumped at the site. The trial court did not err in concluding that contamination of the site does not preclude a finding that it is suitable for an affordable housing development and that Little Ferry's plan creates a realistic opportunity for the construction of such housing.
We do not find sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), in Nuckel's claim that Little Ferry was required to consider his offer to provide six to eight affordable units immediately as a substitute for its fair share plan.
In sum, Judge Carver did not err in rejecting Nuckel's arguments and granting Little Ferry a judgment of compliance.
Finally, Nuckel argues that we should remand to the Law Division for consolidation of this case with his two later-filed cases challenging Little Ferry's overlay zoning ordinance and procedural aspects of the Planning Board's adoption of the fair share plan.
Where possible, a final judgment of compliance should not be entered before adjudicating all the "zoning and planning issues implicated" by a fair share plan. See East/West Venture v. Boro of Fort Lee, 286 N.J. Super. 311, 328 (App. Div. 1996). All Mount Laurel issues should be decided, if possible, without multiple appeals. But there is little to be gained from choosing not to decide the issues Nuckel has raised on this appeal. As Nuckel concedes, the procedural context in which this case arose meant that "the court was not in a position to consolidate all the matters and rule on the land-use and zoning issues before issuing its opinion and entering final judgment." We will not delay deciding this appeal while other litigation that Nuckel himself has instituted progresses through the trial court.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION