the hills development company, plaintiff-respondent, … · monroe de-velopment associates,...

LEXSEE 510 A2D 621

THE HILLS DEVELOPMENT COMPANY, PLAINTIFF-RESPONDENT,v. THE TOWNSHIP OF BERNARDS IN THE COUNTY OF SOMERSET,

A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY,THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF BERNARDS,THE PLANNING BOARD OF THE TOWNSHIP OF BERNARDS, AND

THE SEWERAGE AUTHORITY OF THE TOWNSHIP OF BERNARDS,DEFENDANTS-APPELLANTS. HELEN MOTZENBECKER, PLAIN-

TIFF-RESPONDENT, v. MAYOR AND COUNCIL OF THE BOROUGHOF BERNARDSVILLE AND THE BOROUGH OF BERNARDSVILLE,

DEFENDANTS-APPELLANTS. URBAN LEAGUE OF GREATER NEWBRUNSWICK, A NONPROFIT CORPORATION OF THE STATE OFNEW JERSEY, CLEVELAND BENSON, JUDITH CHAMPION, BAR-

BARA TIPPETT AND KENNETH TUSKEY, ON THEIR OWN BEHALFAND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAIN-

TIFFS-RESPONDENTS, AND FANNIE BOTTS, LYDIA CRUZ ANDJEAN WHITE, PLAINTIFFS, v. THE MAYOR AND COUNCIL OF THEBOROUGH OF CARTERET, MAYOR AND COUNCIL OF THE BOR-OUGH OF DUNELLEN, TOWNSHIP COMMITTEE OF THE TOWN-SHIP OF EAST BRUNSWICK, TOWNSHIP COMMITTEE OF THE

TOWNSHIP OF EDISON, MAYOR AND COUNCIL OF THE BOROUGHOF HELMETTA, MAYOR AND COUNCIL OF THE BOROUGH OF

HIGHLAND PARK, MAYOR AND COUNCIL OF THE BOROUGH OFJAMESBURG, TOWNSHIP COMMITTEE OF THE TOWNSHIP OF

MADISON, MAYOR AND COUNCIL OF THE BOROUGH OF METU-CHEN, MAYOR AND COUNCIL OF THE BOROUGH OF MIDDLESEX,MAYOR AND COUNCIL OF THE BOROUGH OF MILLTOWN, TOWN-

SHIP COMMITTEE OF THE TOWNSHIP OF MONROE, TOWNSHIPCOMMITTEE OF THE TOWNSHIP OF NORTH BRUNSWICK, TOWN-SHIP, TOWNSHIP COMMITTEE OF THE TOWNSHIP OF PISCATA-WAY, TOWNSHIP COMMITTEE OF THE TOWNSHIP OF PLAINS-

BORO, MAYOR AND COUNCIL OF THE BOROUGH OF SAYREVILLE,MAYOR AND COUNCIL OF THE CITY OF SOUTH AMBOY, TOWN-SHIP COMMITTEE OF THE TOWNSHIP OF SOUTH BRUNSWICK,

MAYOR AND COUNCIL OF THE BOROUGH OF SOUTH PLAINFIELD,MAYOR AND COUNCIL OF THE BOROUGH OF SOUTH RIVER,MAYOR AND COUNCIL OF THE BOROUGH OF SPOTSWOOD,

TOWNSHIP COMMITTEE OF THE TOWNSHIP OF WOODBRIDGE,DEFENDANTS, AND TOWNSHIP COMMITTEE OF THE TOWNSHIPOF CRANBURY, DEFENDANT-APPELLANT. GARFIELD AND COM-PANY, PLAINTIFF-RESPONDENT, v. MAYOR AND THE TOWNSHIPCOMMITTEE OF THE TOWNSHIP OF CRANBURY, A MUNICIPAL

CORPORATION, AND THE MEMBERS THEREOF; PLANNINGBOARD OF THE TOWNSHIP OF CRANBURY, AND THE MEMBERSTHEREOF, DEFENDANTS-APPELLANTS. CRANBURY LAND COM-

PANY, A NEW JERSEY LIMITED PARTNERSHIP, PLAINTIFF-RESPONDENT, v. CRANBURY TOWNSHIP, A MUNICIPAL CORPO-

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

RATION OF THE STATE OF NEW JERSEY LOCATED IN MIDDLESEXCOUNTY, NEW JERSEY, DEFENDANT-APPELLANT. LAWRENCE

ZIRINSKY, PLAINTIFF-RESPONDENT, v. THE TOWNSHIP COMMIT-TEE OF THE TOWNSHIP OF CRANBURY, A MUNICIPAL CORPORA-TION, AND THE PLANNING BOARD OF THE TOWNSHIP OF CRAN-

BURY, DEFENDANTS-APPELLANTS. TOLL BROTHERS, INC., APENNSYLVANIA CORPORATION, PLAINTIFF-RESPONDENT, v.

TOWNSHIP OF CRANBURY IN THE COUNTY OF MIDDLESEX, AMUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, THETOWNSHIP COMMITTEE OF THE TOWNSHIP OF CRANBURY ANDTHE PLANNING BOARD OF THE TOWNSHIP OF CRANBURY, DE-

FENDANTS-APPELLANTS. MORRIS COUNTY FAIR HOUSINGCOUNCIL, MORRIS COUNTY BRANCH OF THE NATIONAL ASSO-CIATION FOR THE ADVANCEMENT OF COLORED PEOPLE ANDSTANLEY C. VAN NESS, PUBLIC ADVOCATE OF THE STATE OFNEW JERSEY, PLAINTIFFS-RESPONDENTS, v. BOONTON TOWN-

SHIP, CHATHAM TOWNSHIP, CHESTER TOWNSHIP, EAST HANO-VER TOWNSHIP, FLORHAM PARK BOROUGH, HANOVER TOWN-SHIP, HARDING TOWNSHIP JEFFERSON TOWNSHIP, KINNELON

BOROUGH, LINCOLN PARK BOROUGH, MADISON BOROUGH,MENDHAM BOROUGH, MENDHAM TOWNSHIP, MONTVILLE

TOWNSHIP, MORRIS TOWNSHIP, MORRIS PLAINS BOROUGH,MOUNT OLIVE TOWNSHIP, PARSIPPANY-TROY HILLS TOWNSHIP,

PASSAIC TOWNSHIP PEQUANNOCK TOWNSHIP, RANDOLPHTOWNSHIP, RIVERDALE BOROUGH, ROCKAWAY TOWNSHIP,

ROXBURY TOWNSHIP AND WASHINGTON TOWNSHIP, DEFEN-DANTS, AND DENVILLE TOWNSHIP, DEFENDANT-APPELLANT.

AFFORDABLE LIVING CORPORATION, INC., A NEW JERSEY COR-PORATION, PLAINTIFF-RESPONDENT, v. MAYOR AND COUNCIL OF

THE TOWNSHIP OF DENVILLE, DEFENDANT-APPELLANT, ANDSHONGUM-UNION HILL CIVIC ASSOCIATION, A NOT-FOR-PROFIT

CORPORATION, INTERVENOR-RESPONDENT. ANGELO CALI,PLAINTIFF-RESPONDENT, v. THE TOWNSHIP OF DENVILLE, IN

THE COUNTY OF MORRIS: A MUNICIPAL CORPORATION OF NEWJERSEY, THE MUNICIPAL COUNCIL OF THE TOWNSHIP OF DEN-VILLE, AND THE PLANNING BOARD OF THE TOWNSHIP OF DEN-

VILLE, DEFENDANTS-APPELLANTS. SIEGLER ASSOCIATES, APARTNERSHIP EXISTING UNDER THE LAWS OF THE STATE OF

NEW JERSEY, PLAINTIFF-RESPONDENT, v. MAYOR AND COUNCILOF THE TOWNSHIP OF DENVILLE, DEFENDANT-APPELLANT.

MAURICE SOUSSA AND ESTHER H. SOUSSA, PLAINTIFFS-RESPONDENTS, v. THE TOWNSHIP OF DENVILLE, A MUNICIPALCORPORATION OF THE STATE OF NEW JERSEY, SITUATED INMORRIS COUNTY, AND THE DENVILLE TOWNSHIP PLANNING

BOARD, DEFENDANTS-APPELLANTS. STONEHEDGE ASSOCIATES,PLAINTIFF-RESPONDENT, v. THE TOWNSHIP OF DENVILLE, IN

THE COUNTY OF MORRIS, A MUNICIPAL CORPORATION OF THESTATE OF NEW JERSEY, THE MUNICIPAL COUNCIL OF THETOWNSHIP OF DENVILLE & THE PLANNING BOARD OF THE

TOWNSHIP OF DENVILLE, DEFENDANTS-APPELLANTS. REAL ES-

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

TATE EQUITIES, INC., PLAINTIFF-RESPONDENT, v. MAYOR ANDCOUNCIL OF THE TOWNSHIP OF HOLMDEL, DEFENDANT-

APPELLANT. NEW BRUNSWICK-HAMPTON, INC., PLAINTIFF-RESPONDENT, v. MAYOR AND COUNCIL OF THE TOWNSHIP OF

HOLMDEL, DEFENDANT-APPELLANT. PALMER ASSOCIATES ANDGIDEON ADLER, PLAINTIFFS-RESPONDENTS, v. MAYOR AND

COUNCIL OF THE TOWNSHIP OF HOLMDEL, DEFENDANT-APPELLANT. URBAN LEAGUE OF GREATER NEW BRUNSWICK, A

NONPROFIT CORPORATION OF THE STATE OF NEW JERSEY,CLEVELAND BENSON, JUDITH CHAMPION, BARBARA TIPPETT

AND KENNETH TUSKEY, ON THEIR OWN BEHALF AND ON BEHALFOF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-

RESPONDENTS, v. THE MAYOR AND COUNCIL OF THE BOROUGHOF CARTERET, TOWNSHIP COMMITTEE OF THE TOWNSHIP OFCRANBURY, MAYOR AND COUNCIL OF THE BOROUGH OF DU-NELLEN, TOWNSHIP COMMITTEE OF THE TOWNSHIP OF EASTBRUNSWICK, TOWNSHIP COMMITTEE OF THE TOWNSHIP OF

EDISON, MAYOR AND COUNCIL OF THE BOROUGH OF HEL-METTA, MAYOR AND COUNCIL OF THE BOROUGH OF HIGHLANDPARK, MAYOR AND COUNCIL OF THE BOROUGH OF JAMESBURG,

TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MADISON,MAYOR AND COUNCIL OF THE BOROUGH OF METUCHEN, MAYOR

AND COUNCIL OF THE BOROUGH OF MIDDLESEX, MAYOR ANDCOUNCIL OF THE BOROUGH OF MILLTOWN, TOWNSHIP COM-

MITTEE OF THE TOWNSHIP OF NORTH BRUNSWICK, TOWNSHIP,TOWNSHIP COMMITTEE OF THE TOWNSHIP OF PISCATAWAY,TOWNSHIP COMMITTEE OF THE TOWNSHIP OF PLAINSBORO,

MAYOR AND COUNCIL OF THE BOROUGH OF SAYREVILLE,MAYOR AND COUNCIL OF THE CITY OF SOUTH AMBOY, TOWN-SHIP COMMITTEE OF THE TOWNSHIP OF SOUTH BRUNSWICK

AND MAYOR AND COUNCIL OF THE BOROUGH OF SOUTH PLAIN-FIELD, MAYOR AND COUNCIL OF THE BOROUGH OF SOUTHRIVER, MAYOR AND COUNCIL OF THE BOROUGH OF SPOTS-

WOOD, TOWNSHIP COMMITTEE OF THE TOWNSHIP OF WOOD-BRIDGE, DEFENDANTS, AND TOWNSHIP COMMITTEE OF THE

TOWNSHIP OF MONROE, DEFENDANT-APPELLANT. MONROE DE-VELOPMENT ASSOCIATES, PLAINTIFF-RESPONDENT, v. MONROETOWNSHIP, DEFENDANT-APPELLANT. LORI ASSOCIATES, A NEWJERSEY PARTNERSHIP, AND HABD ASSOCIATES, A NEW JERSEYPARTNERSHIP, PLAINTIFFS-RESPONDENTS, v. MONROE TOWN-

SHIP, A MUNICIPAL CORPORATION OF THE STATE OF NEW JER-SEY, LOCATED IN MIDDLESEX COUNTY, NEW JERSEY, DEFEN-

DANT-APPELLANT. GREAT MEADOWS COMPANY, A NEW JERSEYPARTNERSHIP; MONROE GREENS ASSOCIATES, AS TENANTS IN

COMMON; AND GUARANTEED REALTY ASSOCIATES, INC., A NEWJERSEY CORPORATION, PLAINTIFFS-RESPONDENTS, v. MONROE

TOWNSHIP, A MUNICIPAL CORPORATION OF THE STATE OF NEWJERSEY, LOCATED IN THE STATE OF NEW JERSEY, LOCATED INMIDDLESEX COUNTY, NEW JERSEY, DEFENDANT-APPELLANT.MORRIS COUNTY FAIR HOUSING COUNCIL, MORRIS COUNTY

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

BRANCH OF THE NATIONAL ASSOCIATION FOR THE ADVANCE-MENT OF COLORED PEOPLE AND STANLEY C. VAN NESS, PUBLIC

ADVOCATE OF THE STATE OF NEW JERSEY, PLAINTIFFS-RESPONDENTS, v. BOONTON TOWNSHIP, CHATHAM TOWNSHIP,

CHESTER TOWNSHIP, DENVILLE TOWNSHIP, EAST HANOVERTOWNSHIP, FLORHAM PARK BOROUGH, HANOVER TOWNSHIP,HARDING TOWNSHIP, JEFFERSON TOWNSHIP, KINNELON BOR-OUGH, LINCOLN PARK BOROUGH, MADISON BOROUGH, MEND-

HAM BOROUGH, MENDHAM TOWNSHIP, MONTVILLE TOWNSHIP,MORRIS TOWNSHIP, MORRIS PLAINS BOROUGH, MOUNT OLIVE

TOWNSHIP, PARSIPPANY-TROY HILLS TOWNSHIP, PASSAICTOWNSHIP, PEQUANNOCK TOWNSHIP, RIVERDALE BOROUGH,ROCKAWAY TOWNSHIP, ROXBURY TOWNSHIP AND WASHING-

TON TOWNSHIP, DEFENDANTS, AND RANDOLPH TOWNSHIP, DE-FENDANT-APPELLANT. RANDOLPH MOUNTAIN INDUSTRIAL

COMPLEX, A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT, v. THE BOARD OF ADJUSTMENT OF THE TOWNSHIPOF RANDOLPH, DEFENDANT, AND THE TOWNSHIP OF RANDOLPH,

A MUNICIPAL CORPORATION OF THE COUNTY OF MORRIS,STATE OF NEW JERSEY, DEFENDANT-APPELLANT. URBAN

LEAGUE OF GREATER NEW BRUNSWICK, A NONPROFIT CORPO-RATION OF THE STATE OF NEW JERSEY, CLEVELAND BENSON,

JUDITH CHAMPION, BARBARA TIPPETT AND KENNETH TUSKEY,ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMI-

LARLY SITUATED, PLAINTIFFS-RESPONDENTS, v. THE MAYORAND COUNCIL OF THE BOROUGH OF CARTERET, TOWNSHIP

COMMITTEE OF THE TOWNSHIP OF CRANBURY, MAYOR ANDCOUNCIL OF THE BOROUGH OF DUNELLEN, TOWNSHIP COM-MITTEE OF THE TOWNSHIP OF EAST BRUNSWICK, TOWNSHIP

COMMITTEE OF THE TOWNSHIP OF EDISON, MAYOR AND COUN-CIL OF THE BOROUGH OF HELMETTA, MAYOR AND COUNCIL OFTHE BOROUGH OF HIGHLAND PARK, MAYOR AND COUNCIL OF

THE BOROUGH OF JAMESBURG, TOWNSHIP COMMITTEE OF THETOWNSHIP OF MADISON, MAYOR AND COUNCIL OF THE BOR-

OUGH OF METUCHEN, MAYOR AND COUNCIL OF THE BOROUGHOF MIDDLESEX, MAYOR AND COUNCIL OF THE BOROUGH OFMILLTOWN, TOWNSHIP COMMITTEE OF THE TOWNSHIP OF

MONROE, TOWNSHIP COMMITTEE OF THE TOWNSHIP OF NORTHBRUNSWICK, TOWNSHIP, TOWNSHIP COMMITTEE OF THE

TOWNSHIP OF PISCATAWAY, TOWNSHIP COMMITTEE OF THETOWNSHIP OF PLAINSBORO, MAYOR AND COUNCIL OF THE

BOROUGH OF SAYREVILLE, MAYOR AND COUNCIL OF THE CITYOF SOUTH AMBOY, TOWNSHIP COMMITTEE OF THE TOWNSHIP

OF SOUTH BRUNSWICK, MAYOR AND COUNCIL OF THE BOROUGHOF SOUTH RIVER, MAYOR AND COUNCIL OF THE BOROUGH OF

SPOTSWOOD, TOWNSHIP COMMITTEE OF THE TOWNSHIP OFWOODBRIDGE, DEFENDANTS, AND MAYOR AND COUNCIL OF THE

BOROUGH OF SOUTH PLAINFIELD, DEFENDANT-APPELLANT.AMG REALTY COMPANY, A PARTNERSHIP ORGANIZED UNDERTHE LAWS OF THE STATE OF NEW JERSEY AND SKYTOP LAND

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

CORP., A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT,v. THE TOWNSHIP OF WARREN, A MUNICIPAL CORPORATION OFTHE STATE OF NEW JERSEY, DEFENDANT-APPELLANT. TIMBER

PROPERTIES, PLAINTIFF-RESPONDENT, v. THE TOWNSHIP OFWARREN, THE PLANNING BOARD OF THE TOWNSHIP OF WARREN

AND THE WARREN TOWNSHIP SEWERAGE AUTHORITY, DEFEN-DANTS-APPELLANTS. URBAN LEAGUE OF GREATER NEW

BRUNSWICK, A NONPROFIT CORPORATION OF THE STATE OFNEW JERSEY, CLEVELAND BENSON, JUDITH CHAMPION, BAR-

BARA TIPPETT AND KENNETH TUSKEY, ON THEIR OWN BEHALFAND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAIN-

TIFFS-RESPONDENTS, v. THE MAYOR AND COUNCIL OF THE BOR-OUGH OF CARTERET, TOWNSHIP COMMITTEE OF THE TOWN-

SHIP OF CRANBURY, MAYOR AND COUNCIL OF THE BOROUGH OFDUNELLEN, TOWNSHIP COMMITTEE OF THE TOWNSHIP OF EAST

BRUNSWICK, TOWNSHIP COMMITTEE OF THE TOWNSHIP OFEDISON, MAYOR AND COUNCIL OF THE BOROUGH OF HEL-

METTA, MAYOR AND COUNCIL OF THE BOROUGH OF HIGHLANDPARK, MAYOR AND COUNCIL OF THE BOROUGH OF JAMESBURG,

TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MADISON,MAYOR AND COUNCIL OF THE BOROUGH OF METUCHEN, MAYOR

AND COUNCIL OF THE BOROUGH OF MIDDLESEX, MAYOR ANDCOUNCIL OF THE BOROUGH OF MILLTOWN, TOWNSHIP COM-MITTEE OF THE TOWNSHIP OF MONROE, TOWNSHIP COMMIT-

TEE OF THE TOWNSHIP OF NORTH BRUNSWICK, TOWNSHIP,TOWNSHIP COMMITTEE OF THE TOWNSHIP OF PLAINSBORO,

MAYOR AND COUNCIL OF THE BOROUGH OF SAYREVILLE,MAYOR AND COUNCIL OF THE CITY OF SOUTH AMBOY, TOWN-SHIP COMMITTEE OF THE TOWNSHIP OF SOUTH BRUNSWICK

AND MAYOR AND COUNCIL OF THE BOROUGH OF SOUTH PLAIN-FIELD, MAYOR AND COUNCIL OF THE BOROUGH OF SOUTHRIVER, MAYOR AND COUNCIL OF THE BOROUGH OF SPOTS-

WOOD, TOWNSHIP COMMITTEE OF THE TOWNSHIP OF WOOD-BRIDGE, DEFENDANTS, AND TOWNSHIP COMMITTEE OF THE

TOWNSHIP OF PISCATAWAY, DEFENDANT-APPELLANT. ROBERTE. RIVELL, PLAINTIFF-APPELLANT, v. TOWNSHIP OF TEWKSBURY,A MUNICIPAL CORPORATION LOCATED IN HUNTERDON COUNTY,NEW JERSEY, DEFENDANT-RESPONDENT. J.W. FIELD COMPANY,

INC., AND JACK W. FIELD, PLAINTIFFS-RESPONDENTS, v. THETOWNSHIP COUNCIL OF THE TOWNSHIP OF FRANKLIN AND THE

TOWNSHIP OF FRANKLIN, SOMERSET COUNTY, DEFENDANTS-APPELLANTS. JZR ASSOCIATES, INC., A PARTNERSHIP, PLAIN-TIFF-RESPONDENT, v. TOWNSHIP OF FRANKLIN; MAYOR ANDCOUNCIL AND PLANNING BOARD, DEFENDANTS-APPELLANTS.FLAMA CONSTRUCTION CORPORATION, A CORPORATION OF

THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MAYORAND COUNCIL OF THE TOWNSHIP OF FRANKLIN AND THE TOWN-

SHIP OF FRANKLIN, SOMERSET COUNTY, DEFENDANTS-APPELLANTS. WHITESTONE CONSTRUCTION, INC., PLAINTIFF-RESPONDENT, v. MAYOR AND COUNCIL OF THE TOWNSHIP OF

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

FRANKLIN, AND TOWNSHIP OF FRANKLIN, DEFENDANTS-APPELLANTS. BRENER ASSOCIATES AND HELEN BRENER SMITH,

PLAINTIFFS-RESPONDENTS, v. TOWNSHIP OF FRANKLIN IN THECOUNTY OF SOMERSET, A MUNICIPAL CORPORATION OF THESTATE OF NEW JERSEY, THE TOWNSHIP COMMITTEE OF THE

TOWNSHIP OF FRANKLIN, AND THE PLANNING BOARD OF THETOWNSHIP OF FRANKLIN, DEFENDANTS-APPELLANTS, AND THE

TOWNSHIP OF FRANKLIN SEWERAGE AUTHORITY AND THEFRANKLIN TOWNSHIP WATER UTILITY, DEFENDANTS. RAKECO

DEVELOPERS, INC., A CORPORATION OF THE STATE OF NEWJERSEY, PLAINTIFF-RESPONDENT, v. MAYOR AND COUNCIL OFTHE TOWNSHIP OF FRANKLIN AND THE TOWNSHIP OF FRANK-

LIN, DEFENDANTS-APPELLANTS. WOODBROOK DEVELOPMENTCOMPANY, INC., A CORPORATION ORGANIZED UNDER THE LAWS

OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v.TOWNSHIP OF FRANKLIN, SOMERSET COUNTY, DEFENDANT-

APPELLANT. LEO MINDEL, PLAINTIFF-RESPONDENT, v. TOWN-SHIP OF FRANKLIN, A MUNICIPAL CORPORATION LOCATED INSOMERSET COUNTY, NEW JERSEY, DEFENDANT-APPELLANT.

R.A.S. LAND DEVELOPMENT COMPANY, INC., A CORPORATIONORGANIZED UNDER THE LAWS OF THE STATE OF NEW JERSEY,

PLAINTIFF-RESPONDENT, v. TOWNSHIP OF FRANKLIN, SOMERSETCOUNTY, DEFENDANT-APPELLANT. JOPS COMPANY, PLAINTIFF-RESPONDENT, v. THE TOWNSHIP OF COUNCIL OF THE TOWNSHIP

OF FRANKLIN, THE TOWNSHIP OF FRANKLIN, SOMERSETCOUNTY, AND THE PLANNING BOARD OF THE TOWNSHIP OF

FRANKLIN, DEFENDANTS-APPELLANTS

Nos. A-122, A-123, A-124, A-125, A-126, A-127, A-128, A-129, A-130, A-131,A-132, A-133

Supreme Court of New Jersey

103 N.J. 1; 510 A.2d 621; 1986 N.J. LEXIS 868

January 6, 1986and January 7, 1986, Argued in Part and Submitted in PartFebruary 20, 1986, Decided

SUBSEQUENT HISTORY: Costs and fees pro-ceeding at, Remanded by Urban League of GreaterNew Brunswick v. Township Committee of Cran-bury, 222 N.J. Super. 131, 536 A.2d 287, 1987 N.J.Super. LEXIS 1429 (N.J. Super. Ct. App. Div.,1987)

PRIOR HISTORY: [***1] On certification tothe Superior Court, Law and Chancery Divisions.Southern Burlington County NAACP v. Mt. Laurel,92 N.J. 158, 456 A.2d 390, 1983 N.J. LEXIS 2344(1983)

Morris County Fair Housing Council v. BoontonTownship, 209 N.J. Super. 393, 507 A.2d 768, 1985N.J. Super. LEXIS 1651 (N.J. Super. Ct. Law Div.,1985)

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant townshipschallenged, on certification, the orders of variousSuperior Court, Law and Chancery Divisions (NewJersey) that largely refused to transfer pending and

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

future litigation concerning the obligation to createof low and moderate income housing to the Councilon Affordable Housing under the Fair Housing Act,N.J. Stat. Ann. § 52:27D-311 et seq., and contendedthat the Act was unconstitutional.

OVERVIEW: The Council on Affordable Housingwas created in the Fair Housing Act, N.J. Stat. Ann.§ 52:27D-311 et seq., in response to litigation onthe constitutional obligation to create a realistic op-portunity for the construction of low and moderateincome housing. Appellant townships challengedthe validity of the denial of various motions totransfer litigation to the Council under the Act. Thecourt ordered all of the cases transferred, as theAct's purpose was to transfer all such cases, exceptwhere unforeseen and exceptional unfairness, notapplicable here, would result. Further, the Act wasconstitutional. It did not delay the constitutionalobligation as there was no such timetable implicittherein and it was designed to satisfy this obligationwithin a reasonable time period. The builder's rem-edy moratorium applied to litigation, not Councilmatters and was never part of the constitutional ob-ligation. It was speculation to claim that the Actwould not achieve the construction of lower incomehousing. The Act provided many incentives that thejudicial remedy did not have. Finally, judicial re-view of ordinances was provided for under the Act.

OUTCOME: The court ordered that all of the casesconcerning the constitutional obligation to create arealistic opportunity for the construction of low andmoderate income housing be transferred to theCouncil on Affordable Housing because they fellunder the Fair Housing Act and they did not involveunforeseen and exceptional unfairness. The Act wasconstitutional.

COUNSEL: James E. Davidson argued the causefor appellants (A-122) (Farrell, Curtis, Carlin &Davidson and Kerby, Cooper, Schaul & Garvin,attorneys; James E. Davidson, Arthur H. Garvin,III, and Howard P. Shaw on the briefs).

Edward J. Buzak argued the cause for appellant (A-128) (Edward J. Buzak, attorney; Edward J. Buzak,Valerie K. Bollheimer and Deborah McKenna Zip-per, on the brief).

Stephan F. Hansbury argued the cause for appellant(A-125) (Harper & Hansbury, attorneys).

William C. Moran, Jr. and Ronald L. Reisner ar-gued the cause for appellant (A-124) (Huff, Moran& Balint, attorneys).

Thomas J. Beetel argued the cause for appellant (A-132) (Thomas J. Beetel, attorney; Thomas J. Beeteland Robert M. Purcell, on the brief).

J. Albert Mastro submitted a brief on behalf of ap-pellants (A-123).

Ronald L. Reisner submitted a brief on behalf ofappellant (A-126) (Gagliano, Tucci, Iadanza andReisner, attorneys; S. Thomas Gagliano, of coun-sel).

Mario Apuzzo submitted a letter brief on behalf ofappellant (A-127).

[***2] Frank A. Santoro submitted a brief on be-half of appellant (A-129).

John E. Coley, Jr. submitted briefs on behalf of ap-pellants (A-130) (Kunzman, Coley, Yospin & Bern-stein, attorneys; Steven A. Kunzman, on the briefs).

Philip Lewis Paley submitted briefs on behalf ofappellant (A-131) (Kirsten, Friedman & Cherin,attorneys; Philip Lewis Paley and Lionel J. Frank,on the briefs).

Thomas J. Cafferty submitted briefs on behalf ofappellant Franklin Township (A-133) (McGimpsey& Cafferty, attorneys; Thomas J. Cafferty, A. F.McGimpsey, Jr., and David Scott Mack, on thebriefs).

William T. Cooper submitted a letter on behalf ofappellant Franklin Township Planning Board (A-133) relying on the briefs of the other appellant onthe appeal.

Richard Dieterly argued the cause for respondent(A-132) (Gebhardt & Kiefer, attorneys; RichardDieterly and Sharon Handrock Moore, on thebriefs).

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

Irwin I. Kimmelman, Attorney General of New Jer-sey, argued the cause pro se as an intervenor-respondent in all appeals (Irwin I. Kimmelman, At-torney General of New Jersey, attorney; Michael R.Cole, First Assistant [***3] Attorney General, andDeborah T. Poritz, Deputy Attorney General, ofcounsel; Edward J. Boccher, Michael J. Haas, RossLewin, and Nancy B. Stiles, Deputy Attorneys Gen-eral, on the brief).

Stephen Eisdorfer, Assistant Deputy Public Advo-cate, argued the cause for respondents MorrisCounty Fair Housing Council, et al. (A-125) andsubmitted a brief as to that appeal and all other ap-peals on behalf of the Public Advocate (Alfred A.Slocum, Acting Public Advocate, attorney).

John M. Payne argued the cause for respondentsUrban League of Greater New Brunswick, et al. (A-124/127/129/131) on behalf of the American CivilLiberties Union of New Jersey (John M. Payne andEric Neisser, attorneys).

Carl S. Bisgaier argued the cause for respondentCranbury Land Co. (A-124) and submitted briefs onbehalf of respondents Real Estate Equities, Inc. (A-126) and Monroe Development Association (A-127) (Bisgaier and Pancotta, attorneys).

William S. Warren argued the cause for respondentGarfield & Co. (A-124) (Warren, Goldberg, Ber-man & Lubitz, attorneys).

Henry A. Hill argued the cause for respondent (A-122) (Brener, Wallack & Hill, attorneys; [***4]Henry A. Hill, Thomas F. Carroll and Guliet D.Hirsch, on the brief).

Guliet D. Hirsch argued the cause for respondentStonehedge Associates (A-125) and submitted letterbriefs on behalf of respondent Brener Associates(A-133) (Brener, Wallack & Hill, attorneys).

Douglas K. Wolfson argued the cause for respon-dent Siegler Associates (A-125) and a joint briefwas submitted by Douglas K. Wolfson, on behalf ofrespondents Helen Motzenbecker (A-123), SieglerAssociates (A-125), Rakeco Developers, Inc. (A-133), and New Brunswick-Hampton, Inc. (A-126),

Francis P. Linnus on behalf of respondent JZR As-sociates, Inc. (A-133) and Frederick C. Mezey onbehalf of respondent Flama Construction Co. (A-133) (Greenbaum, Rowe, Smith, Ravin, Davis &Bergstein, Lanfrit & Linnus, and Mezey & Mezey,attorneys; Douglas K. Wolfson, Jeffrey R. Surenian,Francis P. Linnus, Mark A. Razzano, Frederick C.Mezey , and Jeffrey L. Shanaberger, on the brief).

Richard T. Sweeney argued the cause for respondentRandolph Mountain Industrial Complex (A-128)(Sears, Pendleton & Sweeney, attorneys).

Michael J. Herbert submitted letter briefs on behalfof [***5] respondent Lawrence Zirinsky (A-124)(Sterns, Herbert & Weinroth, attorneys).

Arthur Penn submitted a brief on behalf of respon-dent Affordable Living Corporation (A-125) (Shain,Scheffer & Rafanello, attorneys).

Nicholas E. Caprio submitted a letter brief on be-half of respondent Angelo Cali (A-125) (Harkavy,Goldman, Goldman & Caprio, attorneys).

Alan Ruddy submitted a brief on behalf of respon-dents Maurice and Esther Soussa (A-125) (Citrino,DiBiasi & Katchen, attorneys; Barney K. Katchen,of counsel).

Lewis Goldshore submitted a letter brief on behalfof intervenor-respondent Shongrum-Union HillCivic Association (A-125) (Goldshore & Wolfe,attorneys; Nielsen V. Lewis, of counsel and on thebrief).

J. Peter Sokol submitted a letter on behalf of re-spondents Palmer Associates, et al. (A-126), relyingon the briefs filed by the other respondents on theappeal (McOmber & McOmber, attorneys).

Arnold K. Mytelka submitted a letter brief on behalfof respondents Lori Associates and HABD Associ-ates (A-127) (Clapp and Eisenberg, attorneys).

Ronald L. Shimanowitz submitted a letter brief onbehalf of respondent Great [***6] Meadows Com-pany (A-127) (Hutt, Berkow & Jankowski, attor-neys).

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1986 N.J. LEXIS 868, ***

Joseph E. Murray submitted briefs on behalf of re-spondents AMG Realty Company and Skytop LandCorp. (A-130) (McDonough, Murray & Korn, at-torneys).

Raymond R. Trombadore submitted a letter on be-half of respondent Timber Properties (A-130) rely-ing on the briefs filed by the other respondents onthe appeal (Raymond R. and Ann W. Trombadore,attorneys).

Kenneth E. Meiser submitted briefs on behalf ofrespondent J.W. Field Company, Inc. (A-133)(Frizell & Pozycki, attorneys; Kenneth E. Meiserand David J. Frizell, on the briefs).

Herbert J. Silver submitted a letter on behalf of re-spondent Whitestone Construction, Inc. (A-133)relying on the briefs filed by the other respondentson the appeal. Allen Russ submitted a letter on be-half of respondent Jops Company (A-133), relyingon the briefs of the other respondents on the appeal.

Steven L. Sacks-Wilner, Chief Counsel, argued thecause for amici curiae New Jersey General Assem-bly and New Jersey Senate Minority in all appeals.

JUDGES: For reversal -- Chief Justice Wilentzand Justices Clifford, Handler, Pollock, O'Hern,[***7] Garibaldi and Stein. For affirmance --None. The opinion of the Court was delivered byWilentz, C.J.

OPINION BY: WILENTZ

OPINION

[*19] [**631] In this appeal we are calledupon to determine the constitutionality and effect ofthe "Fair Housing Act" (L.1985, c. 222), the Legis-lature's response to the Mount Laurel cases. 1 TheAct creates an administrative agency (the Councilon Affordable [*20] Housing) with power to de-fine housing regions within the state and the re-gional need for low and moderate income housing,along with the power to promulgate criteria andguidelines to enable municipalities within each re-gion to determine their fair share of that regionalneed. The Council is further empowered, on appli-cation, to decide whether proposed ordinances andrelated measures of a particular municipality will, if

enacted, satisfy its Mount Laurel obligation, i.e.,will they create a realistic opportunity for the con-struction of that municipality's fair share of the re-gional need for low and moderate income housing.Southern Burlington County N.A.A.C.P. v. MountLaurel, 92 N.J. 158, 208-09 (1983). The agency'sdetermination that the municipality's [***8] MountLaurel obligation has been satisfied will ordinarilyamount to a final resolution of that issue; it can beset aside in court only by "clear and convincingevidence" to the contrary. § 17a. The Act includesappropriations and other financial means designedto help achieve the construction of low and moder-ate income housing.

1 Burlington County N.A.A.C.P. v. MountLaurel, 67 N.J. 151 (1975) (Mount Laurel I),and Southern Burlington County N.A.A.C.P.v. Mount Laurel, 92 N.J. 158 (1983) (MountLaurel II).

In order to assure that the extent and satisfac-tion of a municipality's Mount Laurel obligation aredecided and managed by the Council through thisadministrative procedure, rather than by the courts,the Act provides for the transfer of pending and fu-ture Mount Laurel litigation to the agency. Transferis required in all cases except, as to cases com-menced more than 60 days before the effective dateof the Act (July 2, 1985), when it would result in"manifest injustice [***9] to any party to the litiga-tion." § 16.

The statutory scheme set forth in the Act is in-tended to satisfy the constitutional obligation enun-ciated by this Court in the Mount Laurel cases.Mount Laurel II, [**632] supra, 92 N.J. at 208;Mount Laurel I, Burlington County N.A.A.C.P. v.Mount Laurel, 67 N.J. 151, 174-75 (1975). The Actincludes an explicit declaration to that effect in sec-tion 3.

[*21] I.

Overview of Act; Summary of the Court's De-cision

The Act that we review and sustain today repre-sents a substantial effort by the other branches ofgovernment to vindicate the Mount Laurel constitu-tional obligation. This is not ordinary legislation.It deals with one of the most difficult constitutional,legal and social issues of our day -- that of provid-

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ing suitable and affordable housing for citizens oflow and moderate income. In Mount Laurel II, wedid not minimize the difficulty of this effort -- westressed only its paramount importance -- and we donot minimize its difficulty today. But we believethat if the Act before us works in accordance withits expressed intent, it will assure a realistic oppor-tunity for lower income housing [***10] in allthose parts of the state where sensible planning callsfor such housing.

Most objections raised against the Act assumethat it will not work, or construe its provisions sothat it cannot work, and attribute both to the legisla-tion and to the Council a mission, nowhere ex-pressed in the Act, of sabotaging the Mount Laureldoctrine. On the contrary, we must assume that theCouncil will pursue the vindication of the MountLaurel obligation with determination and skill. If itdoes, that vindication should be far preferable tovindication by the courts, and may be far more ef-fective.

Instead of depending on chance -- the chancethat a builder will sue -- the location and extent oflower income housing will depend on sound, com-prehensive statewide planning, developed by theCouncil and aided by the State Development andRedevelopment Plan (SDRP) to be prepared by thenewly formed State Planning Commission pursuantto L.1985, c. 395. Conceptually, the Fair HousingAct is similar to CAFRA (Coastal Area FacilityReview Act, N.J.S.A. 13:19-1 to -21), the PinelandsAct (Pinelands Protection Act, N.J.S.A. 13:18A-1 to-29), and the Meadowlands Act (Hackensack[***11] Meadowlands Reclamation & Develop-ment Act, N.J.S.A. 13:17-1 to -86), in its regional[*22] approach to questions of appropriate landuse. Its statewide scope is an extensive departurefrom the unplanned and uncoordinated municipalgrowth of the past.

The Council will determine the total need forlower income housing, the regional portion of thatneed, and the standards for allocating to each mu-nicipality its fair share. The Council is charged bylaw with that responsibility, imparting to it the le-gitimacy and presumed expertise that derives fromselection by the Governor and confirmation by theSenate, in accordance with the will of the Legisla-ture. Instead of varying and potentially inconsistentdefinitions of total need, regions, regional need, and

fair share that can result from the case-by-case de-terminations of courts involved in isolated litiga-tion, an overall plan for the entire state is envi-sioned, with definitions and standards that will havethe kind of consistency that can result only whenfull responsibility and power are given to a singleentity. Municipalities will have both the means andmotives to determine, using the same standards,what is required [***12] of them, what their fairshare is, and what combination of ordinances andother measures will achieve that fair share. Themeans consist of the rules, criteria, and guidelinesof the Council, along with the Council's determina-tion that the municipal fair share plan complies, or,if it does not, what steps must be taken. The mo-tives are the municipalities' strong preference toexercise their zoning powers independently andvoluntarily as compared to their open hostility tocourt-ordered rezoning; the motives also include themunicipalities' desire to avoid such litigation, a goalbest achieved by voluntary compliance [**633]through conformance with the standards adopted bythe Council.

The Council's work is intended to produce or-dinances and other measures that will fit together aspart of a statewide plan, among other things, a planthat provides a real chance, a realistic "likelihood,"Mount Laurel II, 92 N.J. at 222, for the constructionor rehabilitation of lower income housing. Andwhere necessary, financing may be available tohelp, for the [*23] Act includes appropriations andother financial measures that will provide neededsubsidies. §§ 20, 21, 33. [***13]

The Act recognizes that zoning and planningfor lower income housing is a long-range task, thatgoals must be changed periodically, revisions madeaccordingly, and results regularly evaluated. Thiscontinuing nature of the planning process is givenexplicit recognition in the Act. See, e.g., sections6a, 7.

When supplemented by the SDRP, the Actamounts to an overall plan for the state, rationallyconceived, to be implemented through governmen-tal devices that hold the promise that the outcome --the provision of lower income housing -- will sub-stantially conform to the plan. It is a plan adminis-tered by an administrative agency with a broadgrant of general power, providing the flexibilitynecessary for such an undertaking; it is a plan that

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1986 N.J. LEXIS 868, ***

will necessarily reflect competing needs and inter-ests resolved through value judgments whose publicacceptability is based on their legislative source.Most important of all to the success of the plan isthis public acceptance and, hence, the municipalacceptance that it should command.

That is the general outline of how this Act andthe Council created by it are intended to operate,and the results they are intended to achieve.[***14] It is a description at variance with the pre-diction of some who oppose the Act. Our opinionand our rulings today, significantly reducing thecourts' function in this field, are based on this out-line, based, that is, on the Council's ability, throughthe Act, to approach the results described above. If,however, as predicted by its opponents, the Act,despite the intention behind it, achieves nothing butdelay, the judiciary will be forced to resume its ap-propriate role.

This Act represents an unprecedented willing-ness by the Governor and the Legislature to face theMount Laurel issue after unprecedented decisionsby this Court. 2 Even with ordinary [*24] legisla-tion, the rule is firmly settled that a law is presumedconstitutional. Mahwah Township. v. BergenCounty Bd. of Taxation, 98 N.J. 268, 282 (1985);Paul Kimball Hosp. v. Brick Township., 86 N.J.429, 446-47 (1981); Brunetti v. New Milford, 68N.J. 576, 599 (1975); Harvey v. Essex County Bd.of Freeholders, 30 N.J. 381, 388 (1959). The par-ticularly strong deference owed to the Legislaturerelative to this extraordinary legislation is suggestedin the following language from [***15] MountLaurel II:

[A] brief reminder of the judicialrole in this sensitive area is appropri-ate, since powerful reasons suggest,and we agree, that the matter is betterleft to the Legislature. We act firstand foremost because the Constitutionof our State requires protection of theinterests involved and because theLegislature has not protected them.We recognize the social and economiccontroversy (and its political conse-quences) that has resulted in relativelylittle legislative action in this [**634]field. We understand the enormous

difficulty of achieving a political con-sensus that might lead to significantlegislation enforcing the constitutionalmandate better than we can, legisla-tion that might completely removethis Court from those controversies.But enforcement of constitutionalrights cannot await a supporting po-litical consensus. So while we havealways preferred legislative to judicialaction in this field, we shall continue -- until the Legislature acts -- to do ourbest to uphold the constitutional obli-gation that underlies the Mount Laureldoctrine. That is our duty. We maynot build houses, but we do enforcethe Constitution.

We note that [***16] there hasbeen some legislative initiative in thisfield. We look forward to more. Thenew Municipal Land Use Law explic-itly recognizes the obligation of mu-nicipalities to zone with regional con-sequences in mind, N.J.S.A. 40:55D-28(d); it also recognizes the work ofthe Division of State and RegionalPlanning in the Department of Com-munity Affairs (DCA), in creating theState Development Guide Plan (1980)(SDGP), which plays an importantpart in our decisions today. Our def-erence to these legislative and execu-tive initiatives can be regarded as aclear signal of our readiness to deferfurther to more substantial actions.

[*25] The judicial role, however,which could decrease as a result oflegislative and executive action, nec-essarily will expand to the extent thatwe remain virtually alone in this field.In the absence of adequate legislativeand executive help, we must givemeaning to the constitutional doctrinein the cases before us through our owndevices, even if they are relatively lesssuitable. That is the basic explanationof our decisions today. [92 N.J. 158,at 212-14 (footnote omitted).]

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1986 N.J. LEXIS 868, ***

2 One of the most experienced public inter-est attorneys in this field (now representing abuilder) described it as follows: "The Actstands today as the nation's foremost statelegislative effort to respond to the housingneeds of lower income persons. It is an ex-traordinary credit to the people of this Statethat the Act is law." Bisgaier, Plaintiff's Briefand Appendix in Opposition to Motion toTransfer at 13a, Urban League of GreaterNew Brunswick v. Carteret, (A-124-85).And one planner, often retained by theMount Laurel judges, noted, in reference toits provisions for financing, that "[t]his is thefirst substantial commitment of general-fundrevenues to low-income housing in New Jer-sey history." Mallach, From Mount Laurel toMolehill: Blueprint for Delay, N.J. Reporter,October 1985 at 27.

[***17] The basic explanation of today's deci-sion is the Act -- this substantial occupation of thefield by the Governor and the Legislature. Theyhave responded. It appears to be a significant re-sponse. It is a response more than sufficient to trig-ger our "readiness to defer." Id.

We hold that the Act is constitutional and orderthat all of the cases pending before us be transferredto the Council. Those transfers, however, shall besubject to such conditions as the trial courts mayfind necessary to preserve the municipalities' abilityto satisfy their Mount Laurel obligation. See infraat 61-63. In some of the cases before us, includingseveral where a builder's remedy was imminent,transfer will cause a substantial delay in ordinancerevisions and ultimate lower income housing con-struction. It is possible that during this time devel-opment might occur, making future construction oflower income housing impossible, or significantlyless probable. For instance, where there are veryfew tracts suitable for lower income housing, indus-trial, commercial, or non-lower income housingdevelopment on them could end the municipality'sfuture ability to meet its Mount [***18] Laurelobligation; similarly, where infrastructure capacityis limited, sewerage or other resources may be ex-hausted, precluding future Mount Laurel develop-

ment. The objective of these conditions is to pre-vent such use of scarce resources.

The balance of our opinion continues with thefacts and the procedural status of the argued cases(Part II), a fuller description of the Act (Part III), adetermination of the Act's constitutionality (PartIV), an analysis of the motions now before us totransfer matters to the Council (Part V), interpreta-tion of certain sections of the Act (Part VI), an out-line of possible [*26] conditions to be imposed onthe transferral of these matters, to be determined bythe trial courts on remand (Part VII), and a conclud-ing section (Part VIII).

II.

The Facts and the Procedural Status

There are twelve appeals pending before us,each involving the question of the validity [**635]of a trial court's decision on a motion to transferMount Laurel litigation to the Council. Transferwas denied in all but one.

We selected five of the twelve cases for oral ar-gument, designed and structured to cover all of theissues in all of the cases. [***19] The factual pres-entation that follows covers only the five cases thatwere argued. Our review of the record in the othercases makes it clear that in terms of our ruling to-day, there is no material difference in those cases. 3

The five cases specifically detailed involve Ber-nards, Cranbury, Denville, Randolph, and Tewks-bury Townships. Tewksbury is the one case beforeus in which transfer was granted.

3 The Appendix to our opinion describesthe other seven cases.

Cranbury is the oldest of the five. Its history isfound in Urban League of Greater New Brunswickv. Borough of Carteret, 142 N.J. Super. 11(Ch.Div.1976), rev'd, 170 N.J. Super. 461(App.Div.1979). The action was commenced in1974, before our decision in Mount Laurel I. Ourultimate determination in Mount Laurel II dealtwith this matter. There we held that Cranbury'sordinance, along with those of the other MiddlesexCounty municipalities before us, was invalid andremanded the case for trial in accordance with[***20] our numerous rulings in Mount Laurel II,92 N.J. at 350-51. On remand, a trial was held in

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April and May of 1984, the fair share determined,and an order entered on August 13, 1984, allowing90 days for rezoning. In April of 1985, the Master,appointed by [*27] the court in accordance withMount Laurel II, submitted a compliance report.The various reports of the parties' experts were ex-changed in July of 1985. The court scheduled ahearing for December 2, 1985, on the issue of thecompliance of the previously adopted ordinances.As a result of the subsequent events, mentioned be-low, that hearing was not held. It would have in-volved the measurement of the enacted ordinancesagainst the fair share, a determination of suitabilityof certain sites for low and moderate income hous-ing, the appropriate phasing in, if any, of the fairshare obligation, and, assuming the enacted ordi-nances were not approved, a determination of theappropriate revision.

It appears that had this Court not interfered, thiscase might have been completed, assuming furtherordinance revisions were required, by the beginningof this year. The claims of "manifest injustice" thatwould result [***21] from a transfer include thealleged delay in the construction of low and moder-ate income housing, the potential loss of suitablesites, and significantly increased infrastructure costsfor developers. Both the public interest plaintiffwho originally brought the suit and the builder-plaintiffs who joined it after Mount Laurel II claim"manifest injustice."

The Denville and Randolph cases were part ofthe Public Advocate's lawsuit against municipalitiesin Morris County. The action commenced in Octo-ber of 1978, between the decisions in Mount LaurelI and Mount Laurel II. The proceedings before thetrial court prior to Mount Laurel II were supple-mented after that decision by more discovery andfurther court conferences. By July of 1984, whenthe matter was set down for trial, only three of theMorris County municipalities remained in activelitigation of the case. Denville and Randolph weretwo of the three. After ten days of trial a tentativesettlement was reached and further trial proceedingswere stayed pending the implementation of that set-tlement.

[*28] On December 16, 1984, Denville indi-cated that it was no longer willing to abide by the[***22] settlement agreement. An additional dayof trial was held in January 1985 (there were 10

days of trial in 1984), Denville's fair share was de-termined, and the municipality was ordered to re-zone in conformance with Mount Laurel. A furtherinterlocutory order was entered in March 1985, ap-pointing a Master and requiring Denville to rezonein 90 days. The Master's report [**636] indicatedthat Denville's compliance plan would have resultedin only 12 additional lower income units (throughthe rehabilitation of 12 dilapidated units). Duringthis period following our Mount Laurel II decision(from April 1984 to July 1985), five developers in-tervened, claiming builder's remedies. Three of thesites controlled by those developers were foundsuitable for lower income housing by the Master.The basis for claiming "manifest injustice" lies inthe alleged delay in producing low and moderateincome housing caused by the transfer, as well as inthe builders' loss of expected profits.

Randolph had also reached a tentative agree-ment with the Public Advocate to settle the matter,but that settlement fell through too. There is an is-sue as to whether it fell through because of delays[***23] on the part of the Public Advocate, whichin turn led to problems concerning the sites, orwhether it was the problems concerning the sitesthat led to the delays. A developer interested in thematter claims that it withheld suit based onRandolph's assurance that it would receive satisfac-tory treatment after resolution of the suit brought bythe Public Advocate. That developer (RandolphMountain), whose prior status had been as an inter-venor, ultimately filed its own complaint after theadoption of the Act. The only claim of "manifestinjustice" lies in the alleged delay that would resultin the production of low and moderate incomehousing.

Tewksbury is the most recent of the pendingcases brought, having been filed on June 19, 1984.That suit resulted from the failure of Tewksbury'sproposed rezoning to include the developer's tract ina zone that would permit multiple dwelling [*29]housing at a density satisfactory to the developer.Extensive discovery has occurred. The trial date,formerly set for July 1985, was adjourned in orderto continue the settlement negotiations. There hasbeen no trial, nor any determination of constitution-ality, fair share, need to [***24] rezone, compli-ance, and so forth. The claimed "manifest injus-tice" in this case arises from the expected delay in

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the resolution of this matter resulting from a trans-fer to the Council, and includes the duplication ofefforts already spent in this litigation, the financialburden to the plaintiff resulting from his continuingmortgage obligation during the Council's process,the denial of the claimed due process right to have acourt ruling on the constitutionality of Tewksbury'sordinance, and the delay in realizing the opportunityfor affordable low and moderate income housing.

Bernards Township is the last matter on whichwe held oral argument. The suit before us is thesecond Mount Laurel suit brought by the developer,the first one having followed Mount Laurel I, thesecond, Mount Laurel II. The present suit was al-most settled without any trial or discovery. Basedon the apparent settlement, the municipality soughtan "immunity" order, a device designed by one ofthe trial court judges to give a municipality the op-portunity to rezone in accordance with the MountLaurel obligation without having to face numeroussuits by builders claiming a builder's remedy.[***25] 4 Through [**637] such [*30] an orderthe court allows the municipality 90 days to rezone(the municipality conceding the invalidity of itsthen zoning ordinance) either with or without abuilder's remedy, depending on whether a builder isa party or otherwise involved at that time. In themeantime (and this is the advantage of the order) nobuilders may commence suit. If the rezoning con-forms to the Mount Laurel obligation, the courtrenders a judgment protecting the municipality for asix year period against the requirement of any fur-ther relief, including any further builder's remedies.

4 In Mount Laurel II we held that a"builder's remedy" would ordinarily begranted where a developer had brought suitthat resulted in the invalidation of a munici-pal zoning ordinance on Mount Laurelgrounds and in the adoption of a conformingordinance. 92 N.J. 158 at 279-280. Assum-ing that the builder's tract and proposed pro-ject substantially conformed to sound zoningand planning and had no substantial adverseenvironmental impact, our decision in-structed the trial court to order the munici-pality to grant all necessary permits to buildthe project, provided that it contained a sub-stantial proportion of low and moderate in-come housing.

In Mount Laurel II we suggested that a20% figure would be a "reasonable mini-mum" in deciding what would be a "substan-tial proportion" in any given case. Id. at 279n. 3. As a matter of practice the grant ofbuilder's remedies has almost invariably beenfor projects 80% of whose units are middleincome or higher and 20% lower income.This has led to the conclusion that granting abuilder's remedy results in excessive growth,typically a requirement that the builder be al-lowed to construct 4 units of middle or upperincome housing for every unit of lower in-come housing that is required. By thatanalysis a Mount Laurel fair share of a cer-tain number of lower income units is viewedas requiring the municipality to build, in theaggregate, five times that number.

The requirement that a substantial pro-portion of the total units built consist oflower income units is known as a "manda-tory set aside."

[***26] The deadline in Bernards' immunityorder was extended from time to time to a date wellafter the effective date of the Act. Ultimately, Ber-nards decided not to go through with the settlementand thereafter filed a motion for transfer to theCouncil. The developer (Hills Development Com-pany) by that time had expended substantial sums.The municipality had adopted an ordinance thatappeared to comply with the Mount Laurel obliga-tion. The developer alleges not only substantialexpenditures that will be wasted if the builder'sremedy that was part of the settlement is notgranted, but further asserts that it has entered intonumerous contractual arrangements that will causeit serious harm if the project is delayed or prohib-ited. The potential of a two-year delay allegedlywould drastically affect the builder's business op-erations, which have depended on high-volumeproduction. The "manifest injustice," therefore, inthis matter consists not only of the delay in provid-ing low and moderate income units (Hills claims itcould produce [*31] 550 by 1990) but significantactual and potential damage to the builder.

As noted above the Act's effective date wasJuly 2, 1985. [***27] Shortly thereafter, variousmotions were made in numerous cases, pursuant tothe Act, to transfer the matters to the Council and

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1986 N.J. LEXIS 868, ***

hearings on those motions were held. In these fivecases the motion for transfer was granted only forTewksbury, and denied in the four others (as well asin all other cases before us). Following that denialmany municipalities sought leave to appeal to theAppellate Division along with a stay of further pro-ceedings at the trial level. In Tewksbury's case itwas the developer who appealed from the ordergranting transfer. We have certified all of theseappeals directly from the trial courts and, whererequested, have entered a stay of all further pro-ceedings at the trial level.

The issue before us in each of these cases is thetrial court's order on the motion for transfer. Nu-merous builders have also challenged the constitu-tionality of the Act, their position being that even iftransfer should have been granted, the matter shouldproceed in court since the Act is unconstitutional.Along with the attack on the Act in its entirety areclaims that various sections are unconstitutional.As suggested above the central issue in the transfermotions is [***28] the meaning of "manifest injus-tice."

III.

Description of Act

The Act provides a statutory method designedto enable every municipality in the state to deter-mine and to provide for its fair share of its region'sneed for low and moderate income housing. It cre-ates a Council to achieve this result. During [*32]the first seven months after its formation, 5 the[**638] Council is to divide the state into housingregions and determine, for each region (as well asfor the state itself), the present and prospective needfor low and moderate income housing, § 7a and b.It is also required during that period to adopt "crite-ria and guidelines" that will enable municipalities todetermine their fair share of their region's housingneed. § 7c. The Act contemplates that these crite-ria and guidelines, applied generally to all munici-palities in the state, will result in a tentative fairshare number for each municipality, calculated bythe municipality, and thereafter adjusted by the mu-nicipality in accordance with various specific fac-tors set forth in section 7c(2). One of those factorsis the consistency of the fair share determinationwith the SDRP, the overall master [***29] plan ofthe State. § 7c(2)(e). That provision, when read

together with this new State planning act, L.1985, c.395, contemplates the use of a statewide plan thatwill indicate where development and redevelop-ment is to take place or is to be encouraged, andwhere it is to be limited, including the appropriatekinds of development. The plan, insofar as theMount Laurel doctrine is concerned, can be thoughtof as probably largely replacing the initial conceptof "developing municipalities" and the subsequentuse of the State Development Guide Plan in deter-mining the locus of the Mount Laurel fair share ob-ligation. 6

5 Actually the seven month period runs ei-ther from January 1, 1986, or from the datewhen the last member of the Council is con-firmed, whichever is earlier. Since the lastmember of the Council was confirmed onJanuary 12, 1986, the seven month period ismeasured from January 1, 1986.6 Until the SDRP is completed, the Coun-cil, through the guidelines, criteria and ad-justments of section 7, presumably will de-termine the locus of the obligation and its in-tensity without the benefit of the Plan.

[***30] The power of the Council is ex-tremely broad. While it is required, in performingthese functions, to consider "pertinent researchstudies, government reports, decisions of otherbranches of government, implementation of theState Development [*33] and Redevelopment Plan. . . and public comment," § 7, it is not restricted toany particular approach to these matters nor to anyschool of thought espoused by groups of experts. Itis free to look at the matter and decide it based onits own determination of appropriate policy, giventhe purposes of the Act.

The Act contemplates that the Council will pe-riodically adjust its regional need figures. 7 In otherwords, the Council is not required to make a staticdetermination by August 1, 1986, but rather the firstdetermination of the major facts and standards thatwill enable municipalities to determine their fairshare at that time, the Council's determination to berevised "from time to time" in accordance withchanging needs and changing circumstances. § 7.The Act contemplates that the information and cri-teria adopted by the Council at any given time willresult in municipal fair share ordinances, revision of

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1986 N.J. LEXIS 868, ***

which [***31] should be considered after six years.That is the same period (six years) used in the Mu-nicipal Land Use Law requiring periodic revisionsof municipal master plans, N.J.S.A. 40:55D-89, andthe period used by this Court in Mount Laurel II,during which a zoning ordinance complying withthe Mount Laurel obligation would be protectedfrom attack. 92 N.J. at 291-92.

7 "It shall be the duty of the Council . . .from time to time . . . to (a) Determine hous-ing regions of the State, (b) Estimate the pre-sent and prospective need for low and mod-erate income housing at the State and re-gional level, (c) Adopt criteria and guide-lines" for determining municipal fair share. §7 to 7c (emphasis supplied).

Any municipality (assuming it has filed a reso-lution of participation, a housing element, and aproposed fair share housing ordinance implement-ing the housing element, § 9a) may petition theCouncil for "substantive certification" of the hous-ing element and ordinances. § 13. The housingelement [***32] "shall contain an analysis demon-strating that it will provide . . . a realistic opportu-nity [for its fair share of low and moderate [*34]income housing], and the municipality shall estab-lish that its land use and other relevant ordinanceshave been revised to incorporate provisions for lowand [**639] moderate income housing." § 11a. 8

The Council is required to issue "substantive certi-fication" if no objection to certification is filed withit within 45 days of publication of notice of the mu-nicipality's petition and if it finds that the fair shareplan "is consistent with the rules and criteriaadopted by the Council" and makes "the achieve-ment of the municipality's fair share of low andmoderate income housing realistically possible." §§14 to 14b. The municipality is to adopt all of itsproposed ordinances within 45 days after it receives"substantive certification." § 14.

8 The housing element takes on added im-portance by virtue of two significantamendments to the Municipal Land UseLaw, N.J.S.A. 40:55D-1 et seq. First, the Actprovides that any housing plan element con-tained in a municipality's Master Plan, underN.J.S.A. 40:55D-28, will be the same as thehousing plan under the Act. § 29. A second

change provides that no governing body mayadopt or amend a zoning ordinance, underN.J.S.A. 40:55D-62, until and unless a hous-ing plan has been adopted, and then only ifthe ordinance is "substantially consistent"with the housing plan, or if certain proce-dures are followed to justify any inconsis-tency. § 30.

[***33] If there are any objections to substan-tive certification, the Act mandates a "mediationand review" process. § 15a. If the objections can-not be resolved by this mediation process involvingthe Council, the municipality, and the objectors, thematter is referred to an Administrative Law Judge,heard as a contested matter, and expedited. § 15c.The final determination on the issue of substantivecertification is then made by the Council after re-ceipt of the Administrative Law Judge's initial deci-sion. Id.

These administrative proceedings achieve twomain goals. First, those municipalities that petitionthe Council and thereafter receive substantive certi-fication will promptly (within 45 days, § 14) enactthe proposed ordinances and other measures that ledto substantive certification, measures that presuma-bly will achieve a realistic opportunity for the con-struction of the [*35] municipalities' fair share oflow and moderate income housing. Second, in anylawsuit attacking a municipality's ordinances thathave received substantive certification as not incompliance with the Mount Laurel constitutionalobligation, the plaintiff will be required to provesuch [***34] noncompliance by clear and convinc-ing evidence, and the Council shall be made a partyto any such lawsuit. § 17a. The difficulties facingany plaintiff attempting to meet such a burden ofproof are best understood by noting the variety ofmethodologies that can be used legitimately to de-termine regional need and fair share as well as themany different ways in which a realistic opportu-nity to achieve that fair share may be provided. Ifthe Council conscientiously performs its duties, in-cluding determining regional need and evaluatingwhether the proposed adjustments and ordinancesprovide the requisite fair share opportunity, a suc-cessful Mount Laurel lawsuit should be a rarity.There is therefore a broad range of municipal actionthat will withstand challenge, given this burden ofproof.

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

Substantive certification becomes a most im-portant goal for any municipality concerned withthe potential result of Mount Laurel litigationbrought against it. By using the procedures of thestatute, the municipality will obtain the benefit ofthe Council's determination of both regional needand standards for determining its fair share of thatneed. By complying with the requirements [***35]for substantive certification the municipality will berelieved of the uncertainties and potential burdensof Mount Laurel litigation.

The fact that municipalities are not required bythis legislation to petition for substantive certifica-tion is somewhat less significant than appears atfirst glance. Substantive certification is of consid-erable importance. If the municipality fails to adopta resolution of participation within four months ofthe effective date of the Act, and then later fails tofile its fair share plan and housing element with theCouncil prior to the institution of Mount [**640]Laurel litigation, it may lose the benefit of substan-tive certification. § 9b. It will be subject to litiga-tion [*36] and the remedies provided by MountLaurel II, the replacement of which by the adminis-trative procedures of the Council was one of theprimary purposes of the Act. § 3. It can thereforefairly be assumed that most municipalities that havea potentially significant Mount Laurel obligationwill file their petition for substantive certification,their housing element, and fair share housing ordi-nance within a reasonable period of time [***36]after the Council's adoption of its criteria and guide-lines. 9

9 Indeed, 182 municipalities (as of Febru-ary 14, 1986) have already filed their noticeof intent (§ 9) to use the Council's proce-dures.

Thus, what appears at first to be simply an op-tion available to municipalities is more realisticallya procedure that practically all municipalities with asignificant Mount Laurel obligation will follow,both to determine and to satisfy their Mount Laurelobligation. Furthermore, it is a procedure that maybe concluded much more quickly than ordinaryMount Laurel litigation since the time periods pro-vided for are extremely short. For instance, theAdministrative Law Judge is required to render adecision within 90 days of "transmittal of the matter

as a contested case to the Office of AdministrativeLaw by the Council," § 15c; and the municipality isrequired to adopt its fair share housing ordinancewithin 45 days of the grant of substantive certifica-tion, § 14.

While there is the inevitable [***37] start-updelay (the Council's criteria and guidelines need notbe adopted until August 1, 1986, and the Act allowsmunicipalities five months after the adoption of thecriteria to complete the necessary and sometimestime-consuming process of shaping their ordinancesand housing elements, § 9a), it is quite possible thatonce the administrative gears start to move, a verysubstantial number of municipal fair share planswill be filed, certified, and thereafter adopted. Thatmeans, if the Act works according to its apparentintent, that within the not-too-distant future mostmunicipalities subject to Mount Laurel obligationswill have [*37] conforming ordinances in placeproviding a realistic opportunity for the construc-tion of their fair share of the region's need for lowand moderate income housing. Considering the factthat the Council has the power to refuse substantivecertification unless that opportunity is realistic, andthe further fact that various financial aids to con-struction are provided for in the Act, it also meansthat lower income housing should actually be built.

This statutory scheme addresses the main needsdelineated in our prior decisions on [***38] thismatter, namely, the consistency on a statewide basisof the determination of regional need, fair share,and the adequacy of the municipal measures. Fur-thermore, the decisions and actions by the Councilwill follow the contours of the SDRP (when com-pleted), explicitly designed for this purpose, amongothers. Revisions, adjustments, fine tuning -- all ofthe techniques available to an administrative agency-- can be implemented on a statewide basis as ex-perience teaches the Council what works and whatdoes not. The risk that discordant developmentmight result if Mount Laurel cases continue to bedecided by the courts is minimized by the consid-erations noted above, which lead to the conclusionthat most municipalities will use the Council's pro-cedures. Furthermore, the judiciary, assuming thestatutory plan functions reasonably effectively, willbe responsive to the actions of the Council and con-form its decisions in this field to the Council's vari-ous determinations.

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

There are other significant provisions of theAct. One allows municipalities to share MountLaurel obligations by entering into regional contri-bution agreements. § 12. This device requires ei-ther [***39] Council or court approval to be effec-tive. Under this provision, one municipality cantransfer [**641] to another, if that other agrees, aportion, under 50%, of its fair share obligation, thereceiving municipality adding that to its own. TheAct contemplates that the first municipality willcontribute funds to the other, § 12d, presumably tomake the housing construction possible and toeliminate any financial burden resulting from [*38]the added fair share. The provisions seem intendedto allow suburban municipalities to transfer a por-tion of their obligation to urban areas (see § 2g,evincing a legislative intent to encourage construc-tion, conversion, or rehabilitation of housing in ur-ban areas), thereby aiding in the construction ofdecent lower income housing in the area wheremost lower income households are found, provided,however, that such areas are "within convenientaccess to employment opportunities," and conformto "sound comprehensive regional planning." § 12c.

Probably the most significant provision in-volved in these appeals is section 16, dealing withthe transfer of Mount Laurel litigation to the Coun-cil. Section 16b requires that all [***40] such liti-gation commenced after the effective date of theAct (or no more than 60 days before that date) shall,on motion of any party, be transferred automaticallyto the Council. All of the procedures and determi-nations mentioned above leading to "substantivecertification" would be triggered and thereafter takeplace. 10 The courts, in other words, would havenothing more to do with the determination and sat-isfaction of the Mount Laurel obligation unless anduntil either a challenge was subsequently made tothat "substantive certification," or such certificationwas denied. As for Mount Laurel litigation com-menced more than 60 days before the effective dateof the Act, section 16 provides that all of thosecases, on motion of "any party to the litigation," arerequired to be transferred to the Council, unlesssuch transfer "would result in a manifest injustice toany party to the litigation." It is the meaning of thislatter clause and the phrase "manifest injustice" thatis one of the main issues before us.

10 A transfer motion under section 16, ifgranted, should also be regarded as a petitionfor substantive certification.

[***41] The last provision of the Act we shalldescribe concerns the builder's remedy. The Actprohibits any court from imposing a builder's rem-edy on a municipality until five months after the[*39] Council adopts its criteria and guidelines. §28. If the Council takes all the time allowed underthe Act for that purpose (it has until August 1, 1986,to adopt those criteria and guidelines), the builder'sremedy moratorium would expire on January 1,1987. That date is also the deadline for municipali-ties to file their housing element and fair sharehousing ordinance with the Council without the riskof a Mount Laurel lawsuit. § 9. This moratoriumagainst court issuance of a builder's remedy doesnot apply to any litigation commenced before Janu-ary 20, 1983, the date of our Mount Laurel II opin-ion, nor to any litigation in which there has been a"final judgment" with "all right to appeal ex-hausted." Id.

Since one of the issues claimed by some of theparties as being most important in determining"manifest injustice" is the delay said to be caused inthe satisfaction of the Mount Laurel obligation bytransfer to the Council, we should point out thevarious timetables [***42] that are relevant to thatclaim. Measured from today, a matter transferred tothe Council will presumably result in a conformingmunicipal housing element and fair share zoningordinances around September of 1987; 11 if theCouncil promulgates its criteria and guidelines inless than seven months, tha outside period wouldbecome that much shorter. If we [**642] aremeasuring, however, from a date after the Councilhas its guidelines and criteria in place, the time itwould take from the filing of a petition for substan-tive certification to the adoption of a conformingfair share housing ordinance could be considerablyshorter than the time for Mount Laurel litigation,which seems to require at least one-and-a-half totwo years' time for conclusion.

11 This was the estimate given by one ofthe trial courts below, on the assumption thatthe matter would require referral to an Ad-ministrative Law Judge pursuant to Section15c. The other trial court concluded, on a

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

similar assumption, that the Council wouldbe able to grant substantive certification bySeptember 1987, the conforming ordinancespresumably to be adopted thereafter.

[***43] [*40] If the critical issue is theamount of time it will take to litigate a particularMount Laurel case, resulting in a conforming ordi-nance, one must obviously look at its present status.If a compliance hearing is about to be held and theparties are close to agreement, the matter might beconcluded in a month. On the other hand, if no fairshare hearing has been held and there has been littlediscovery, a year might still be required.

It seems fair to conclude that the resolution ofmany of these matters before us would occur morequickly if transfer were denied. None of the forego-ing calculations takes into account the effect of anyappeals nor the probability that such appeals wouldbe forthcoming.

IV.

Constitutionality of Act

The main challenges to the Act's constitutional-ity are based on a measurement of the Act againstthe Mount Laurel constitutional obligation. It isalso asserted that this legislation impermissibly in-terferes with the Court's exclusive power over pre-rogative writ actions. We hold that the Act, as in-terpreted herein, is constitutional.

A major claim is that the Act is unconstitutionalbecause it will result in delay in the satisfaction[***44] of the Mount Laurel obligation. Thatclaim is based on a totally false premise, namely,that there is some constitutional timetable implicitin that obligation. The constitutional obligationitself, as we made clear in Mount Laurel I, was im-plicit in the police power exercised in all zoningdecisions, and inherent in our Constitution's guaran-tees of "substantive due process and equal protec-tion of the laws." Mount Laurel I, 67 N.J. at 174-75; Mount Laurel II, 92 N.J. at 208-09. The misun-derstanding we encounter today undoubtedly isbased on our many calls for swift action in MountLaurel II, on the various references to the delaypreviously experienced in the implementation of the[*41] Mount Laurel obligation in the courts, and onthe determination, reaffirmed in numerous places inMount Laurel II, not to allow any further delay. All

of these concerns were expressed when the consti-tutional obligation was being enforced only throughjudicial intervention. It was the total disregard bymunicipalities of the judiciary's attempts to enforcethe obligation, and the interminable delay wherelitigation was in process, that formed the back-ground [***45] for those comments.

Nowhere in the Mount Laurel II opinion isthere any suggestion that there was some deadlineafter which legislation would not be acceptable;nowhere is there the slightest suggestion that legis-lation, in order to be acceptable, would have to re-sult in ordinances or lower income housing by acertain date. What the opinion did contain, how-ever, was the strongest possible entreaty to the Leg-islature, seeking legislation on this subject. MountLaurel II, 92 N.J. at 212-14. It would be totally in-consistent with that entreaty now to rule that thiswelcome entry of the Legislature in this area of thelaw is somehow unconstitutional because the reme-dies of the Act, so long sought by the judiciary, willsomehow not result in ordinances or housingquickly enough.

The delay caused by the Act represents the timeneeded by the Council to do its job well. Further-more, it is quite possible that the Act will workmore quickly than the judicial procedure, will resultin more conforming municipal ordinances, in theaggregate, than would be obtained through litiga-tion, and may ultimately result in more lower in-come housing than the courts could [**643] have[***46] achieved. The work of this Act cannot bejudged by what it will accomplish in its first year,nor by its effect on a limited number of municipali-ties. It is its probable long-term impact and its im-pact on all municipalities that counts.

If delay is the factor that is to determine theAct's constitutionality, then, given the intractabilityof the problem and given the preferred legislativesolution, the question must be whether this Act ap-pears designed to accomplish satisfaction of the[*42] constitutional obligation within a reasonableperiod. We conclude that it does.

The next claim is that the builder's remedymoratorium is unconstitutional since that remedy ispart of the constitutional obligation. This claimsuffers from two deficiencies. First, the morato-rium on builder's remedies imposed by section 28 is

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

extremely limited, as explained infra at 60; ourcourts have, in analogous contexts, upheld thepower to enact a reasonable moratorium. Deal Gar-dens, Inc. v. Loch Arbor Bd. of Trustees, 48 N.J.492, 499 (1967); New Jersey Shore Builders v.Township of Ocean, 128 N.J. Super. 135, 137(App.Div.), certif. den., 65 N.J. 292 (1974). Second,[***47] and more significant, the builder's remedyitself has never been made part of the constitutionalobligation. In Mount Laurel II we noted that theconcept of a "developing municipality," wherebyonly municipalities so characterized had a MountLaurel obligation, was not of constitutional dimen-sion. It was simply a method for achieving the"constitutionally mandated goal" of providing arealistic opportunity for lower income housingneeded by the citizens of this state. As we therestated:

[T]he zoning power that the stateexercised through its municipalitieswould have constitutional validityonly if regional housing needs wereaddressed by the actions of the mu-nicipalities in the aggregate. Themethod selected by this Court inMount Laurel I for achieving thatconstitutionally mandated goal was toimpose the obligation on those mu-nicipalities that were 'developing.'Clearly, however, the method adoptedwas simply a judicial remedy to re-dress a constitutional injury.Achievement of the constitutionalgoal, rather than the method of reliefselected to achieve it, was the consti-tutional requirement. [92 N.J. at 237.]

That remains the law. It [***48] is the goal ofMount Laurel II that is of constitutional dimension,the provision of a realistic opportunity for lowerincome housing by the combined actions of thevarious governments in the State of New Jersey,leading to a satisfaction of the statewide need. Justas the "developing municipality" concept ceased,through our decision, to be acceptable (in its placewe used the State Development Guide Plan), so thebuilder's remedy has, for the time being, ceased to

[*43] be acceptable by virtue of the action of theLegislature imposing a moratorium.

It is also asserted that the Act simply will notachieve the construction of lower income housing,the claim not being that there will be a delay, butthat there will be no such housing. The argumenthas as its premises that the Act depends on the vol-untary cooperation of municipalities, that the lackof an assured builder's remedy will result in a totalloss of interest on the part of builders, which in turnwill mean that there will be no construction, and,ultimately, that there will never be lower incomehousing through any device other than a builder'sremedy. If true, this attack is substantial. Rightnow, however, [***49] it is speculation. At thispoint, the presumption of constitutionality mustprevail. The judiciary must assume, if the assump-tion is at all reasonable, that the Act will functionwell and fully satisfy the Mount Laurel obligation.That need not be a certainty. But before this Actmay be declared un constitutional on these grounds,the contention that it will not work must be close toa certainty. See Brunetti v. New Milford, supra, 68N.J. at 599 (a legislative enactment will not be de-clared void [**644] unless its "repugnancy to theConstitution is so manifest as to leave no room forreasonable doubt." Id.).

The Fair Housing Act has many things that thejudicial remedy did not have: it requires, in everymunicipality's master plan, as a condition to thepower to zone, a housing element that provides arealistic opportunity for the fair share; it has fund-ing; it has the kind of legitimacy that may generatepopular support, the legitimacy that comes fromenactment by the people's elected representatives; itmay result in voluntary compliance, largely un-achieved in a decade by the rule of law fashionedby the courts; it incorporates what will be a com-prehensive [***50] rational plan for the develop-ment of this state, authorized by the Legislature andthe Governor for this purpose; and it has all of theadvantages of implementation by an administrativeagency instead of by the courts, advantages that werecognized in our Mount Laurel opinions. In manyrespects [*44] the Act promises results beyondthose achieved by the doctrine as administered bythe courts. For that reason, we doubt that builderswill lose all interest.

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

Finally, various parties assert that the Act is un-constitutional, in whole or in part, because it inter-feres with this Court's exclusive control over ac-tions in lieu of prerogative writs. The New JerseyConstitution explicitly provides:

Prerogative writs are supersededand, in lieu thereof, review, hearingand relief shall be afforded in the Su-perior Court, on terms and in themanner provided by rules of the Su-preme Court, as of right, except incriminal causes where such reviewshall be discretionary. [N.J. Const. of1947 art. VI, § V, para. 4.]

On its face, this constitutional provision grants toall individuals a review "as of right," in the SuperiorCourt in any situation where, prior to 1947,[***51] they may have been entitled to a preroga-tive writ; and so the provision has been interpretedconsistently. See, e.g., In re Livolsi, 85 N.J. 576,593 (1981); Ward v. Keenan, 3 N.J. 298, 303-05(1949).

The essence of the present challenge to the Actunder this constitutional provision is that the Legis-lature interfered with this Court's function by dictat-ing the manner by which an action in lieu of pre-rogative writs may be maintained or the scope ofthe relief that a court may afford a party suing inlieu of prerogative writs. Specifically, these partieschallenge the burden of proof established for judi-cial proceedings, § 17, and the moratorium on anyjudicial grant of a builder's remedy. § 28.

In the instant setting, the relevant prerogativewrit -- i.e., the writ that would have been availableto parties challenging a municipal ordinance priorto 1947, and therefore the writ now superseded andprotected by our Constitution -- is that of certiorari.In re Livolsi, supra, 85 N.J. at 594 & n. 18. 12 Cer-tiorari [*45] has long been available in New Jer-sey to afford judicial review of administrativeagency actions in general and of municipal [***52]ordinances in particular. See, e.g., Hill v. Boroughof Collingswood, 9 N.J. 369, 377 (1952); Fischer v.Township of Bedminster, 5 N.J. 534, 540 (1950).Thus, all of the plaintiffs in the cases before uswould appear to have a constitutional right, under

Article VI, section V, paragraph 4, to judicial re-view of the municipalities' ordinances.

12 The three other prerogative writs --mandamus, prohibition, and quo warranto --are not, by their nature, applicable to actionschallenging zoning ordinances. See Livolsi,85 N.J. at 594 n. 18.

We do not find that the Act has interferedimpermissibly with this right to judicial review.Nothing in the Act precludes judicial review of anordinance once the Council has acted on it or if amunicipality is sued before it has acted, as providedin section 9b.

The burden of proof imposed by section 17 onany party challenging Council-approved housingelements and ordinances [**645] does not violatethat party's right to review under [***53] the Con-stitution. In the first place, certiorari is an "ex-traordinary common-law remedy of ancient origin,"limited to correction of illegal administrative ac-tions. McKenna v. New Jersey Highway Auth., 19N.J. 270, 274-75 (1955). We will not extend thisextraordinary remedy to bestow on the judiciary thepower to prohibit needed legislative solutions ofconstitutional deprivations. The presumption ofcorrectness attached to the Council's determinationsby virtue of section 17 will not strip the judiciary ofits historic powers to invalidate illegal -- let aloneunconstitutional -- actions; individuals will continueto be protected against invalid ordinances. Thestandard of section 17 is not different in kind fromthe general rules, often stated in our opinions, thatadministrative agency actions are presumed to bevalid, and that the burden of proving otherwise is onthose challenging such action. See, e.g., Doughertyv. Human Servs. Dept., 91 N.J. 1, 6 (1982). Wehave also stated that "[d]eference to an administra-tive agency is particularly appropriate where newand innovative legislation is being put into prac-tice." Newark Firemen's Mut. Benevolent [***54]Ass'n v. Newark, 90 N.J. 44, 55 [*46] (1982). Cer-tainly, the legislation before us is new and innova-tive, and we stand ready to defer, not only to theLegislature, as we do today, but also to the Council,when that body begins to act, at least until "clearand convincing evidence" leads us to a differentcourse.

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

There is the further suggestion that section 28,by imposing a moratorium on the judicial grantingof builder's remedies, violates Article VI by usurp-ing the judiciary's exclusive powers to prescribe therelief granted in any action in lieu of prerogativewrits. It is true that in Fischer v. Township of Bed-minster, supra, 5 N.J. at 541, we stated that: "Nei-ther the exercise of the power inherent in the oldSupreme Court by means of the prerogative writsnor the regulation of the remedy is subject to legis-lative control." Relying in part on this language,one of the trial judges below intimated that thebuilder's remedy moratorium would be unconstitu-tional because Article VI, section V, paragraph 4prohibits legislative interference with judicialremedies.

We are not persuaded. First, Fischer involved asituation wherein a legislative action [***55] --changing a statute of limitations -- would havecompletely foreclosed judicial review. Withoutpassing on Fischer's continued vitality, we note thatno such total preclusion of review is at issue here,as we stated above. Second, the history behind the1947 Constitution makes clear that the word "relief"in Article VI, section V, para. 4 was included torefer to "actions of original jurisdiction, such asmandamus and quo warranto," N.J. Const. Conven-tion of 1947, Vol. IV, at 538 (Comments of HerbertJ. Hannoch); in the case of certiorari, judicial re-view is the relief granted, with the concomitantpower in the courts to invalidate an administrativeaction. Finally, and most importantly, we havenever elevated the judicially created builder's rem-edy, in particular, to the level of a constitutionallyprotected right.

Both in Mount Laurel II and again today wehave asserted that the vindication of the Mount Lau-rel constitutional [*47] obligation is best left to theLegislature. Legislative action was the "relief" weasked for, and today we have it. The Constitutionallows "review, hearing and relief" "on terms and inthe manner provided by rules [***56] of the Su-preme Court." N.J. Const. of 1947 art. VI, § V,para. 4. Even if this language gave us the power torequire a builder's remedy in certain or all cases --which construction we doubt seriously -- we wouldnot now choose to exercise it. As a matter of com-ity, we would yield to the Legislature in this fieldeven if theoretically its exercise of power was in an

area reserved to the judiciary. See, e.g., Knight v.Margate, 86 N.J. 374, 390-91 (1981) (this Court hasauthority "to permit or accommodate the lawful andreasonable exercise of the powers of other [**646]branches of government even as that might impingeupon the Court's constitutional concerns in the judi-cial area"). 13

13 Other constitutional attacks asserted byvarious parties are either without merit orpremature, or both. We agree generally withJudge Skillman's treatment, in MorrisCounty Fair Housing Council v. BoontonTownship, 209 N.J. Super. 393 (LawDiv.1985), of the attack on the definition ofregion (§ 4b) (at 421-425); the requirementthat the Council must consider developmentapplications in projecting housing needs (§4j) (at 426-427); the adjustment of fair share(§ 7c(2) (b, g & e) (at 427-429); the creditingof "current" lower income housing againstthe fair share (at 429-430); the transfer ofpart of one municipality's fair share to an-other (at 431-432); the repose from furtherlitigation after settlement (§ 22) (at 432-433);and the Council's alleged lack of power torequire a builder's remedy or its equivalent(at 433-434). Furthermore, we find withoutmerit the argument that the builder's remedymoratorium violates due process.

[***57] V.

The Transfer Motions

All of the appeals before us, except one, aretaken by municipalities from the trial courts' denialof their motions to transfer Mount Laurel litigationto the Council. In the Tewskbury case, the one ex-ception, the developer is appealing from the trialcourt's grant of a motion to transfer the litigation to[*48] the Council. Section 16 of the Act governsthe issue and is here set forth in full in a mannerthat indicates its "original" form (the Senate substi-tute for two bills) along with its ultimate form re-sulting from an amendment in the course of pas-sage: 14

For those exclusionary zoning casesinstituted more than 60 days beforethe effective date of this act [no ex-

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

haustion of the review and mediationprocedures established in sections 14and 15 of this act shall be requiredunless the court determines that atransfer of the case to the council islikely to facilitate and expedite theprovision of a realistic opportunity forlow and moderate income housing]any party to the litigation may file amotion with the court to seek a trans-fer of the case to the council. In de-termining whether or not to transfer,the court shall consider [***58]whether or not the transfer would re-sult in a manifest injustice to anyparty to the litigation. If the munici-pality fails to file a housing elementand fair share plan with the councilwithin [four] five months from thedate of transfer, or promulgation ofcriteria and guidelines by the councilpursuant to section 7 of this act,whichever occurs later, jurisdictionshall revert to the court.

b. Any person who institutes liti-gation less than 60 days before the ef-fective date of this act or after the ef-fective date of this act challenging amunicipality's zoning ordinance withrespect to the opportunity to providefor low or moderate income housing,shall file a notice to request reviewand mediation with the council pursu-ant to sections 14 and 15 of this act.In the event that the municipalityadopts a resolution of participationwithin the period established in sub-section a. of section 9 of this act, theperson shall exhaust the review andmediation process of the council be-fore being entitled to a trial on hiscomplaint.

14 Bracketed material was eliminated anditalicized material added by amendments inthe course of passage. While the first para-

graph is not so labeled, it will be referred toas section 16a.

[***59] While this section could be read ascommitting the transfer issue to the general discre-tion of the trial court, the confinement of thatcourt's consideration of "manifest injustice" to suchinjustice caused only by transfer (and not by non-transfer) along with the Act's clear and strong pref-erence for Council rather than court treatment (the"preference" is set forth explicitly in section 3; theAct as a whole is better described as a "mandate"for administrative resolution), persuades us to adopta different reading. Section 16a, we conclude,[**647] means that transfer must be granted unlessit would result in manifest injustice to any party tothe litigation.

[*49] All of the cases before us were com-menced more than 60 days before the effective dateof the Act and hence are governed by section 16a.The propriety of their transfer, therefore, is deter-mined by the meaning of "manifest injustice to anyparty to the litigation." The two Mount Laureljudges in the cases before us ruled that a balancingof all relevant factors was needed to determine"manifest injustice." We disagree. The purposesand legislative history of the Act convince us thatthe Legislature [***60] intended all pendingMount Laurel cases to be transferred, except whereunforeseen and exceptional unfairness would result.

Specifically we conclude that "manifest injus-tice" should not be determined in the same way acourt decides whether to transfer any kind of case toan administrative agency; nor should it be deter-mined by balancing the injustice done by grantingtransfer against that done by denying transfer. Thestandard that we adopt measures only the injusticecaused by transfer and precludes transfer only ifthat injustice is unforeseen and exceptional.

The legislative history of the Act makes it clearthat it had two primary purposes: first, to bring anadministrative agency into the field of lower in-come housing to satisfy the Mount Laurel obliga-tion; second, to get the courts out of that field.

One of the two Senate Bills (S-2046) that werethe predecessors to the Senate Committee's substi-tute that ultimately became the law allowed for atransfer, in the Court's discretion, to be exercisedafter considering five factors: the age of the case,

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

the amount of discovery and other pretrial proce-dures that have taken place, the likely date of trial,[***61] the likely date by which administrativemediation and review can be completed, and"whether the transfer is likely to facilitate and ex-pedite the provision of a realistic opportunity forlow and moderate income [*50] housing." 15 TheSenate Committee substitute changed the transferprovision into that found supra at 48, the changeprohibiting transfer unless it "is likely to facilitateand expedite the provision of a realistic opportunityfor low and moderate income housing." The fivefactors were reduced to one, and only one. Theburden was on the party seeking the transfer toprove the factor's existence. The municipality hadto persuade the court that the transfer would facili-tate and expedite lower income housing.

15 The other predecessor Bill (S-2334),emphasizing a regional planning approach tothe Mount Laurel issue, is structured in away that does not require dealing with thetransfer problem.

The passage of the Bill in that form became thesubject of controversy. The Legislature, [***62]presumably aware that some municipalities were onthe brink of the award of a builder's remedy,changed the transfer provision so that the burden ofproof was on the party opposing transfer, not on themunicipality but on the plaintiff, and that burdenwas specifically to prove that the transfer "wouldresult in a manifest injustice to any party to the liti-gation."

The factor eliminated from consideration wasthe "facilitation" of lower income housing causedby transfer; it had been the presence of that factor,and no other, that would require transfer. Beforethe amendment the presumption was against trans-fer, proof of "facilitation" of lower income housingbeing required to obtain transfer; after the amend-ment, the presumption was in favor of transfer,proof of manifest injustice being required to preventit. Furthermore, there was no longer a balancing ofnumerous factors. The elimination of the explicitstandard of expediting lower income housing dem-onstrates the Legislature's awareness of the trans-fer's effect on the timing of lower income housingconstruction and the delay in such construction thatwould be caused by transfer. While the impact of

transfer [***63] [**648] on lower income hous-ing was to be [*51] considered -- and practicallyall parties agree on that 16 -- the delay in producinglower income housing could not constitute "mani-fest injustice." That delay, which had previouslybeen the sole factor, was eliminated and replaced by"manifest injustice." Hence the interpretation by thetrial courts of "manifest injustice" that, in effect,made delay in providing lower income housing thecritical factor is incorrect.

16 We therefore do not address the substan-tial argument that by using the phrase "mani-fest injustice to any party to the litigation,"the Legislature intended to foreclose anyconsideration of the transfer's effect on lowerincome citizens.

It should be emphasized that most pendingMount Laurel litigation is covered by section 16a,the "manifest injustice" section. It is thereforestrongly inferable that the dominant intent underly-ing this section was that "manifest injustice" wouldbe confined to the very narrowest, [***64] mostextreme situation. It is clear that the Legislaturenever intended the use of its "manifest injustice"standard to create the risk of the wholesale non-transfer of cases that has occurred in these appeals.

It would be ironic if the application of this Act,so long in coming, so outstanding compared to theinactivity of other states, were to be characterizedas "manifest injustice" simply because, in the mostlimited circumstances, its remedy was not immedi-ate; and ironic to label the inevitable initial delayingeffect of this law, so manifestly just in its unprece-dented attempt to provide lower income housing, asmanifestly unjust in that very respect.

The municipalities of this state, and the State it-self, are about to have the benefit of a coherent,consistent plan to provide a realistic opportunity forlower income housing. That legislative solutionmay work well. It certainly may differ from theprior judicial solution. Regions, regional need, fairshare, all may be different; the locus of the obliga-tion may be different; the timetable different; themethod of satisfying the obligation [*52] different;and compliance may in fact become voluntary. Aslower income [***65] housing is produced, thestate will be developed in accordance with a ra-tional comprehensive land-use state plan. It may be

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

that the method of providing lower income housingwill be more effective both in the total output andthe speed of construction. When all of the stan-dards of the Council are in place, Mount Laurelcases may move expeditiously: the expertise of ad-ministrators, and their power to make decisionsbinding on all municipalities, and to modify them,has a potential of being significantly more effectivethan case-by-case judicial disposition.

It was the State's intention that every munici-pality would have the benefit of this comprehensiveplan and its method of implementation. If any mu-nicipality does not receive the plan's benefit, it willbe deprived, and the statewide legislative solutionwill be impaired.

Given the potentially substantial scope of thedifferences between the ad hoc compulsion ofbuilder's remedies and the effectuation of a com-prehensive state plan, and the importance of allow-ing this plan to take effect, it is clear that someadded delay in providing lower income housingcould not have been intended to be included withinthe meaning [***66] of "manifest injustice." Therewas an obvious risk that such housing mandated bythe former judicial remedy might directly conflictwith the comprehensive state plan that had not yetbeen drawn up. From the Legislature's view, thedelay in effecting a builder's remedy was not onlynot manifestly unjust, but it was probably thoughtwise, and, in any event, was manifestly intended.Whatever else might have been intended to be in-cluded in determining "manifest injustice," the de-lay in a builder's remedy was not. That delay theLegislature most certainly sought, as evidenced bythe builder's remedy moratorium. 17

17 Most of the parties before us have con-cluded that the builder's remedy moratoriumwould apply to cases where transfer has beendenied, and we concur. As a practical mat-ter, then, even were transfer to be denied, theprovision of lower income housing would bedelayed up to a year. This consequence con-siderably dilutes the urgency that is the mainbasis for arguing against transfer.

[*53] [***67] [**649] Some plaintiffs havealso contended that bad faith is either an element of"manifest injustice" or that, even by itself, such badfaith might constitute "manifest injustice" sufficient

to disallow transfer in certain cases. From the pointof view of the State, however, instances of bad faithare irrelevant. The Legislature determined that thegoals of the Act were so important that it should, ineffect, be given retroactive force by the transferringof preexisting litigation to the Council. The impor-tance of these legislative objectives forecloses aresult that would deprive a municipality and its citi-zens of the Act's benefits because of the assertedbad faith of a municipal official.

Our conclusion is that the Legislature intendedto transfer every pending Mount Laurel action to theCouncil. The exception, where "manifest injustice"would occur, was based on the Legislature's con-cern that in some particular case, there might be acombination of circumstances, unforeseen but nev-ertheless possible, that rendered transfer so unjustas to overcome the Legislature's clear wish to trans-fer all cases. Thus, not confident of their knowl-edge of the specific facts [***68] of each of thesecases, legislators provided that transfer could bedefeated upon the showing of "manifest injustice."In our view, then, the Legislature did not contem-plate any particular class of cases or any particularcharacteristic as preventing transfer. The essence ofthe "manifest injustice" standard is its exclusion ofthe foreseen consequences, some undoubtedly un-fair, of transfer. The legislative intent was that onlyunforeseen and exceptional unfairness would war-rant the denial of a transfer motion.

[*54] None of the consequences brought toour attention in the cases before us meets that stan-dard. Delay in the production of housing, loss ofexpected profits, loss of the builder's remedy, sub-stantial expenditure of funds for litigation purposes,permit applications, on-site and off-site tract im-provements, purchase of property or options at aninflated price, contractual commitments: all of thesewere no doubt foreseen by the Legislature, were thelikely consequences of transfer, and were not in-tended to constitute "manifest injustice." And, al-though different in kind, the loss to various publicinterest groups and their counsel of a goal they havesought for many [***69] years, fought for formany years, and finally just about attained, that losswas similarly foreseen. While its personal impact ismuch clearer, since we can identify the very peoplewho are affected, its position in the hierarchy ofinterests falls far below that of the lower income

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

housing that has been delayed, a delay that we havedetermined was not intended to constitute "manifestinjustice."

The impact of transfer on a builder, of course, issomewhat different. The builder's loss of expectedprofits is discordant, under these circumstances,with the connotations of "manifest injustice." Thatloss is a risk to which builders are regularly ex-posed in a variety of circumstances.

It has been suggested that there is a differentkind of injustice here, for, as some have put it, thisCourt in Mount Laurel II "invited" the builders tobring these suits, solicited the "help" of the buildersin our effort to vindicate the constitutional obliga-tion. In effect, we are said to have asked them tojoin in a struggle to vindicate a constitutional inter-est. Those assertions remind us of the oppositeclaim, which is that we invented the remedial doc-trine not for the benefit of the poor, [***70] butfor the benefit of the builders. The truth is that wedevised a remedy that we believed would be effec-tive. We concluded that if it were possible forbuilders to profit from lower income housing, theywould pursue it, and further concluded that suchpursuit was likely to increase compliance withMount Laurel. [*55] We did not "hope" [**650]the builders would join in this effort, we expectedthat they would.

Nevertheless there is an obvious basis to abuilder's claim that pursuit of this litigation wasjustifiable, but if that suggestion is intended to cre-ate the image of an estoppel, there is no substanceto it. If there is any class of litigant that knows ofthe uncertainties of litigation, it is the builders.They, more than any other group, have walked therough, uneven, unpredictable path through planningboards, boards of adjustments, permits, approvals,conditions, lawsuits, appeals, affirmances, rever-sals, and in between all of these, changes in bothstatutory and decisional law that can turn a caseupside down. No builder with the slightest amountof experience could have relied on the remediesprovided in Mount Laurel II in the sense of justifia-bly [***71] believing that they would not bechanged, or that any change would not apply to thebuilders. If ever any doctrine and any remedy ap-peared susceptible to change, it was that decisionand its remedy. The opinion itself constituted thestrongest possible entreaty for legislative change.

We have attached an Appendix to this opinionindicating the factual circumstances of all of theother cases before us on this appeal. None of themincludes unforeseen loss amounting to exceptionalunfairness. No "manifest injustice" will result fromtheir transfer. 18

18 We fully understand that given the stan-dard set forth in this opinion, it is mostunlikely that "manifest injustice" will ever beproven in any of these cases. Certainly onthe record before us, it has not been.

There is one possible consequence of transfer,however, that we believe the Legislature did notforesee, one that it would have intended to consti-tute "manifest injustice," a consequence that wouldprobably be constitutionally impermissible. We[***72] refer to a transfer that does not simply de-lay the creation of a reasonable likelihood of lowerincome housing but renders [*56] it practicallyimpossible. That result would warrant, indeed re-quire, denial of transfer. It does not exist in any ofthe cases before us, and its occurrence is made evenless likely by our decision permitting the impositionof appropriate conditions on transfer. See Part VII,infra at 61.

We do not exclude the possibility that theremight be some other consequence or loss that mayamount to "manifest injustice." Like the Legisla-ture, we too cannot anticipate every conceivable setof circumstances that may affect a transfer motion.

We therefore order that all cases before us betransferred to the Council, subject to the conditionsmentioned infra at 61-63.

VI.

Interpretation of Certain Provisions of the Act

There are certain provisions of the Act thatshould be clarified and interpreted for the benefit ofboth the Council and those parties whose interestsmay be affected by the Act. Many of the mattersmentioned in this section are not strictly before usfor determination. Nevertheless, arguments havebeen addressed to [***73] them as being relevantto the legal effect and constitutionality of this newlegislation.

A. Powers of Council.

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

The basic power of the Council is to grant orwithhold substantive certification; the Council alsohas the further power to impose conditions on itsgrant and the implied power to accelerate its denial.We believe that the Council may use its power togrant or deny substantive certification in a multi-tude of ways in order to accomplish its mission ofbringing about statewide compliance with theMount Laurel obligation. That power is consider-able, since denial of substantive certification mayresult in Mount Laurel litigation brought by abuilder, a [*57] consequence that the Act was de-signed to avoid and that most municipalities want toavoid.

[**651] The Council has the implicit power tocondition substantive certification on the inclusionof ordinance provisions for "mandatory set asides ordensity bonuses." § 11a(1). The power of a mu-nicipality to include such provisions in its housingelement, indeed the requirement that it must con-sider them is explicit, id.; the sense and structure ofthe Act necessarily implies the power of the[***74] Council, in an appropriate case, to condi-tion substantive certification on such inclusion.

Accelerated denial of substantive certificationwould presumably be reserved for a specific kind ofcase, one where the circumstances strongly per-suaded the Council that its role in achieving com-pliance with Mount Laurel called for such unusualaction on its part.

The Council may have the power, once its ju-risdiction is invoked, to require the municipality topursue substantive certification expeditiously and toconform its ordinances to the determination implicitin the Council's action on substantive certification.19 While the language of the statute could support acontrary conclusion, that conclusion would allow amunicipality to use all of the energies of the Coun-cil, presumably for the purpose of determining itsMount Laurel obligation through the Council ratherthan the courts, all the way up to the point [*58] atwhich substantive certification is about to be deter-mined, and then to withdraw from the matter.While we do not pass on this question for all cases,it seems clear to us that all of the cases before ustoday fall into a special class: practically all of them[***75] have been in litigation for a considerableperiod of time; the cost of this litigation has beenconsiderable, the proceedings often complex, and in

many cases the ultimate disposition is not too faroff; furthermore, the prospect of producing lowerincome housing is likely. Under those circum-stances, the use by any of these municipalities be-fore us today of the procedures of the Council with-out thereafter complying with the Council's deter-mination would constitute a gross perversion of thepurposes of the Act, as well as an imposition onboth the courts and the Council. It would be be-yond the understanding of any citizen if our systemof government allowed a municipality, about toconform to the requirements of our Constitutionafter years of litigation for that purpose, to have itscase transferred to an administrative agency, alleg-edly for the purpose of meeting that same constitu-tional obligation in a different, yet permissible way,and thereafter, at the last moment, several yearslater, simply to walk away and say, in effect, "Ichoose not to comply with either the courts or theadministrative agency set up by the Legislature."We believe the Legislature never intended such[***76] a result and presume the Council will notpermit it.

19 The question here is whether a munici-pality can withdraw from the Council's juris-diction once it has been brought before theCouncil, either on its own petition or motion(and in that connection a municipality's suc-cessful transfer motion shall be regarded as apetition for substantive certification), or onthe petition of a party to litigation pursuantto section 16; or must it pursue the matter,and if substantive certification is granted,adopt the fair share ordinances that weresubmitted to the Council pursuant to section9 and that resulted in substantive certifica-tion; or if substantive certification is grantedon condition, then must the municipality re-vise the fair share ordinances to conform tothat condition and adopt them; and if sub-stantive certification is denied, must the mu-nicipality revise its fair share ordinances toconform to the requirements that are implicitin the denial so as to produce fair share ordi-nances that will result in substantive certifi-cation.

[***77] B. Effect of Judicial Proceedings.

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

While the Act requires the Council to "give ap-propriate weight to . . . decisions of other branchesof government", § 7, in carrying out its duties, in-cluding its determination of housing regions, pre-sent and prospective lower income need, its prom-ulgation of criteria and guidelines for determiningmunicipal fair share, and its provision of populationand household projections, there is no similar ex-press requirement in connection with any particularmunicipal [**652] proceeding before the Council.The Act does not deal expressly with the questionof what force and [*59] effect, if any, are to begiven to prior determinations in a particular MountLaurel litigation after its transfer to the Council.

Where no final judgment has been entered, webelieve the Council is not bound by any orders en-tered in the matter, all of them being provisionaland subject to change, nor is it bound by any stipu-lations, including a municipality's stipulation that itszoning ordinances do not comply with the MountLaurel obligation. The administrative remedies,and the administrative approach to that subject, maybe significantly different from [***78] the court's.Fair share rulings by the court, provisional builder'sremedies, site suitability determinations -- all ofthese may not be in accord with the policies andregulations of the Council. Similarly, stipulationsin Mount Laurel matters were undoubtedly basedon the assumption that the issues would be deter-mined by the court in accordance with Mount Lau-rel II. They presumably represented the litigant'sbelief that what was being stipulated would be ad-judicated in any event. It is not only, in a sense,unfair to the litigant to be bound by these interimadjudications and stipulations, it would also be in-consistent with the purposes of the Act, for thesedeterminations and stipulations may be inconsistentwith the comprehensive plan of development of thestate and the method of effectuating it.

In this regard, we note that general principles oflaw have long held that res judicata is applicableonly when a final judgment is rendered, and thedoctrine of collateral estoppel applies whenever anaction is "sufficiently firm to be accorded conclu-sive effect." Restatement (Second) of Judgments, §13 at 132. But this Court has also stated that collat-eral estoppel [***79] "is not mandated by constitu-tion or statute" and is "a doctrine designed to ac-complish various goals, a rule not to be applied if

there are sufficient countervailing interests." Matterof Coruzzi, 95 N.J. 557, 568 (1984). On this diffi-cult issue, and faced with this unprecedented Act,we conclude that there are sufficient "countervail-ing interests" -- in the form of the Council's [*60]need for flexibility, and the State's need for uni-formity -- to free the administrative agency of therequirements of collateral estoppel. At the sametime, we underscore that the agencies now involvedin this field are free to use the records developed inlitigation, including any interim orders or stipula-tions entered, for such purposes as they deem ap-propriate. We note that the Rules of Evidence, perse, will not apply in administrative proceedings un-der the Act. See N.J.S.A. 52:14B-10. Thus, again,technical legal rules will neither compel nor pre-clude the Council or the Administrative Law Judgeshearing cases under section 15 from considering therecords already developed in court proceedings.

C. Moratorium on Builder's Remedies.

As we now view the matter, the moratorium[***80] on builder's remedies, § 28, is of limitedimportance. Since it applies only to "litigation," itdoes not apply to matters that are before the Coun-cil. And while it applies to all pending litigation(except litigation commenced before January 20,1983, the date of Mount Laurel II), all of that litiga-tion may be transferred to the Council. Assumingthat there is nevertheless some litigation subject tothe moratorium that is not transferred to the Coun-cil, the moratorium applies and its effect is to pre-vent not only the direct grant of a builder's remedyto a particular plaintiff, but an indirect grant thatachieves the same result, whether intended or not.For example, as to that case and for the limited pe-riod (up to January 1, 1987), a court may not re-quire the inclusion of a mandatory set aside zonewithin an ordinance if the effect is substantially thesame as the grant of a builder's remedy, eventhough the beneficiary of that zone may not be aparty to the litigation. Given this very minimal ef-fect, we will not further dwell on section 28.

[**653] D. Power to Promulgate Rules.

Section 8 gives the Council express power toadopt procedural rules in accordance [***81] withthe Administrative Procedure [*61] Act. Section6a gives the Council power to "establish, and fromtime to time alter, such plan of organization as it

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

may deem expedient." And section 7c, discussedabove, gives the Council power to "adopt criteriaand guidelines." Implicit in these provisions -- in-deed, implicit throughout the entire Act, whosepurpose is in part to create an agency capable ofoverseeing the continuing resolution of a monumen-tal social task -- is the power, in the Council, topromulgate whatever rules and regulations may benecessary to achieve its statutory task. See, e.g.,A.A. Mastrangelo, Inc. v. Environmental ProtectionDept., 90 N.J. 666, 683-84 (1982) ("absence of anexpress statutory authorization will not precludeadministrative agency action where, by reasonableimplication, that action can be said to promote oradvance the policies and findings that served as thedriving force for the enactment of the legislation").

VII.

Conditions on Transfer

We have concluded that the Council has thepower to require, as a condition of its exercise ofjurisdiction on an application for substantive certifi-cation, that the applying municipality [***82] takeappropriate measures to preserve "scarce re-sources," namely, those resources that will probablybe essential to the satisfaction of its Mount Laurelobligation. In some municipalities it is clear thatonly one tract or several tracts are usable for lowerincome housing, and if they are developed, the mu-nicipality as a practical matter will not be able tosatisfy its Mount Laurel obligation. In other mu-nicipalities there may be sewerage capacity that, ifused, will prevent future lower income housing, ortransportation facilities, or water lines, or any oneof innumerable public improvements that are neces-sary for the support of housing but are limited insupply. It is only after a careful examination of themany circumstances that surround such matters thatone can make an informed decision [*62] onwhether further development or use of these facili-ties is likely to have a substantial adverse impact onthe ability of the municipality to provide lower in-come housing in the future.

Since the Council will not be able to exercise itsdiscretion until it has done the various things con-templated in the Act, for which a period of sevenmonths has been allowed, we believe [***83] theAct fairly implies that the judiciary has the power,upon transfer, to impose those same conditions de-

signed to conserve "scarce resources" that theCouncil might have imposed were it fully in opera-tion. Practically all of the parties before us, on bothsides, including counsel for the legislative membersand the Attorney General, as well as the Public Ad-vocate, have agreed that we have this power andthat we should exercise it.

We would deem it unwise to impose specificconditions in any of these cases without a muchmore thorough analysis of the record, including oralargument in each case on what conditions would beappropriate. "Appropriate" refers not simply to thedesirability of preserving a particular resource, butto the practicality of doing so, the power to do so,the cost of so doing, and the ability to enforce thecondition. Some cases may require further fact-finding to make these determinations. For thosereasons, we decline to impose any such conditionsdirectly. As to any transferred matter, any party tothe action may apply to the trial court (which shallretain jurisdiction for this limited purpose) for theimposition of conditions on the transfer. Notice[***84] of such application shall be given within30 days of today's decision. Those conditionsshould be designed not for the protection of anybuilder, but for the protection of the ability of themunicipality, pending the outcome of the Councilproceedings, to provide the realistic opportunity forlower income housing, as it may be [**654] re-quired to do in the near future. It would not, forinstance, be in accord with our intention to requirethat a particular tract not be developed for a certainperiod (simply because that is the tract selected bythe builder-plaintiff) if the fact is that there are in-numerable [*63] tracts that will serve the samepurpose even if that particular tract is developed.As stated before, these conditions are not for thebenefit of any builder, but simply designed to pro-tect and assure the municipality's future ability tocomply with a Mount Laurel obligation. Whether,and to what extent, such protection is necessary ordesirable may depend on various factors, includingthe likelihood that the municipality will actively tryto preserve -- or dissipate -- such scarce resources.Therefore, in determining the need for and scope ofsuch conditions, [***85] the trial court may con-sider, among other factors, the previous actions of amunicipality and its officials.

VIII.

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

Conclusion

By virtue of the Act, the three branches of gov-ernment in New Jersey are now committed to acommon goal: the provision of a realistic opportu-nity for the construction of needed lower incomehousing. It is a most difficult goal to achieve. It ispursued within an even larger context, for the im-plications of the State Development and Redevel-opment Plan legislation indicate significant move-ment by the State in the direction of regional plan-ning.

This Court will do its proper share in this coop-erative effort. While the Legislature has left a con-tinuing role under the Act for the judiciary in MountLaurel matters, any such proceedings before a courtshould conform wherever possible to the decisions,criteria, and guidelines of the Council. We do notbelieve the Legislature wanted lower income hous-ing opportunities to develop in two different direc-tions at the same time, contrary to sound compre-hensive planning. In that connection, courts will,pursuant to section 16b, transfer to the Council anyMount Laurel action hereafter commenced except[***86] where the Act clearly calls for retention(such as the petition for a declaratory judgment re-ferred to in Section 13).

We have been criticized strongly for activism inthis most sensitive and controversial area. We un-derstand that no one [*64] wants his or herneighborhood determined by judges. Our reasonsfor "activism," if that is what it was, are fully setforth in Mount Laurel II. We note only that for themany years from the day of Mount Laurel I to theday of Mount Laurel II there was no activism, andthere was no legislation, no ordinances, and nolower income housing.

Mount Laurel II will result in a fair amount oflow and moderate income housing. When varioussettlements are implemented, the effectiveness ofthe decision will become more apparent. As of thetime we entertained oral argument on the cases be-fore us (January 6 and 7, 1986), some twenty-twoMount Laurel cases had reached virtually final set-tlement. The total fair share under those settlementswas in excess of 14,000 units: given the terms ofthese settlements, it is highly probable that a sub-stantial portion will be built. Given the sensitivityand dedication of the three [***87] Mount Laurel

judges, we have no doubt that our directions inMount Laurel II were honored scrupulously andthat every development they allowed substantiallyconformed to sound zoning and planning and wouldhave no substantial adverse environmental impact.The earlier hope that these three judges would soondevelop a degree of consistency, uniformity and acommon approach to the definition of region, thecalculation of regional need, and the allocation ofthat need into municipal fair shares has been fullyrealized.

We would be remiss in not recognizing the verysubstantial contributions that the Mount Laureljudges have made in the interest of the just resolu-tion of Mount [**655] Laurel cases. Their innova-tive refinement of techniques for the process of liti-gation has given credibility to the implementationof the Mount Laurel doctrine. Measured againstone criterion, the advancement of the public inter-est, their achievements were extraordinary. Thethree oldest exclusionary zoning cases in the statehave been settled. Judge Gibson, on September 6,1985, approved a final settlement in Southern Bur-lington County N.A.A.C.P. v. Mount Laurel Town-ship [***88] , which gave Mount Laurel Township[*65] a six-year judgment of repose. Another ofthe Mount Laurel II cases, Urban League of EssexCounty v. Township of Mahwah, 92 N.J. 158, 332(1983), which this Court recognized had been goingon "for more than a decade," was settled this year.Likewise, the Bedminster litigation, filed in 1971, isnow resolved; Judge Serpentelli approved the set-tlement of this case and granted repose in AlanDeane v. Bedminster, 205 N.J. Super. 87 (LawDiv.1985). Moreover, as Judge Skillman noted inhis transfer decision, the Public Advocate reachedsettlements with all but two of the twelve MorrisCounty defendants in Morris County Fair HousingCouncil v. Boonton Township, 209 N.J. Super. 393,442 (Law Div.1985). Their work has required greatintelligence, dedication, independence, and courage.

No one should assume that our exercise of com-ity today signals a weakening of our resolve to en-force the constitutional rights of New Jersey's lowerincome citizens. The constitutional obligation hasnot changed; the judiciary's ultimate duty to enforceit has not changed; our determination to performthat duty has not changed. What [***89] haschanged is that we are no longer alone in this field.

103 N.J. 1, *; 510 A.2d 621, **;

1986 N.J. LEXIS 868, ***

The other branches of government have fashioned acomprehensive statewide response to the MountLaurel obligation. This kind of response, one thatwould permit us to withdraw from this field, is whatthis Court has always wanted and sought. It is po-tentially far better for the State and for its lowerincome citizens.

We therefore reverse the judgments below ex-cept for that in Tewksbury, which we affirm. Allcases are hereby transferred to the Council subjectto such conditions as the trial courts may hereafterimpose, all in accordance with the terms of thisopinion.

[*66] APPENDIX

HOLMDEL TOWNSHIP

The action against Holmdel Township's ordi-nance was initiated on February 28, 1984, by RealEstate Equities, and, on September 14, 1984, con-solidated with actions by Palmer Associates andNew Brunswick Hampton, Inc. On August 27,1984, Holmdel adopted Ordinance 84-7 in an at-tempt to meet its Mount Laurel obligation. On Sep-tember 20, 1984, a pretrial conference took placeand a pretrial order was entered setting the matterfor trial.

On October 10, 1984, Hazlet Township, adja-cent to Holmdel, filed [***90] suit against Holm-del alleging that Ordinance 84-7 was an improperattempt by Holmdel to shift its fair share obligationto Hazlet. That matter has been proceeding with theoriginal actions without a formal order of consoli-dation.

Trial on the fair share phase lasted from Octo-ber 15 through October 25, 1984. On November 3,1984, a Master was appointed, and on December21, 1984, the Master filed a partial report to thecourt. A hearing on the Master's partial report washeld on April 15, 1985, and on November 26, 1985,the Master filed a final report. The fair share obli-gation has not yet been determined.

On July 16, 1985, Holmdel filed a motion totransfer to the Council, which was heard on October11, 1985, and was denied in a formal order datedOctober 28, 1985.

[**656] Hazlet, deciding that its action againstHolmdel did not involve Mount Laurel litigation,

has not participated in any of the transfer proce-dures. Hazlet's action remains pending a determi-nation by the Council. This is essentially a non-Mount Laurel claim. We suggest that the Councilformally notify Hazlet of any proceeding involvingHolmdel, advise it of its possible effect on Hazlet'sinterests, [***91] and invite Hazlet to participate.We do not rule that upon such formal notice Hazletwill be bound by the Council's determination.

[*67] The "manifest injustice" claimed result-ing from a transfer of the Holmdel matter includesthe alleged delay in the construction of low andmoderate income housing, the loss of municipalresources such as utility capacity, the increased in-frastructure costs for developers, the loss of suitablebuilding sites, the loss to low and moderate incomepeople of the builders as a plaintiff class, and theincreased costs to plaintiffs in time and money ofsubmitting to the Council's process after litigationin the courts. Remaining in this matter is a deter-mination of Holmdel's fair share obligation, draftinga new ordinance, holding a compliance hearing,redrafting the new ordinance, and adoption of theordinance.

WARREN TOWNSHIP

The Warren Township matter was initiated byAMG Realty Company on December 31, 1980.Skytop Land Corporation was permitted to inter-vene as an original plaintiff on May 19, 1981. Bothplaintiffs own vacant developable land within War-ren. In a trial on May 27, 1982, before Mount Lau-rel II, Warren's Ordinance [***92] 79-3 was de-clared invalid and the Township was ordered to re-zone within nine months in accordance with MountLaurel I.

After numerous public hearings, Warrenadopted Ordinance 82-19 on or about December 2,1982. On January 17, 1983, both plaintiffs in theoriginal action were granted leave to file a supple-mental complaint challenging the new ordinance,and asking for a direct rezoning of their land. Thenew ordinance was also challenged by Mr. and Mrs.Bojczak, seeking to rezone their land from a resi-dential to a commercial use. Two other plaintiffswere allowed to intervent: Timber Properties, Inc.,and Joan H. Facey. Timber Properties, Inc. (Tim-ber), challenged Ord. 82-19, which prohibits Tim-ber's residential development of certain land it holds

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as contract purchaser and equitable owner at a fourunit per acre density. Timber also seeks a builder'sremedy and alleges that adequate sewage [*68]facility for its development is being denied arbitrar-ily by the Township Sewerage Authority. TheTownship, however, contends that Timber's requestfor additional sewerage capacity was too late sinceplans for the new sewerage plant were completed.A bid for construction of [***93] the new plantwas granted on October 6, 1981. Joan H. Facey, etal, are landowners in Warren who seek to reversethe change in the zoning of their property to permitnon-residential development. Under Ord. 82-19 theproperty was zoned for residential Mount Laureldevelopment.

On July 16, 1984, after a twenty-one day trial,the trial court issued an opinion holding that Ord.82-19 was unconstitutional. On August 1, 1984, thecourt, in an interim judgment, provided that (1)Warren Township's fair share obligation was 946low and moderate income housing units; (2) theplaintiffs are entitled to a builder's remedy; (3) aSpecial Master should be appointed to assist indrafting a compliance ordinance; and (4) the Town-ship must amend its zoning ordinance within 90days of the opinion (a subsequent extension grantedthe Township until November 30, 1984).

In early December 1984, the Township adopteda newly revised ordinance. The Master, however,has not reported to the court on this ordinance. Re-maining in this matter is the Master's review of theordinance; holding a compliance hearing; preparinga further revised ordinance if necessary; and adop-tion of the new ordinance [***94] if necessary.The claims of "manifest injustice" resulting from atransfer to the Council [**657] include the allegeddelay in the construction of low and moderate in-come housing; the loss of possible builder's remedyrelief to the plaintiffs-developers; the curtailed abil-ity of the plaintiff-developer, after years of litiga-tion, to participate in or give input to the Councilprocess; the increased costs for developers causedby delay; and the loss of the public interest incen-tive to achieve Mount Laurel housing. It is esti-mated that had a transfer not been granted, this casemight have been completed at the trial level in ap-proximately four months.

[*69] FRANKLIN TOWNSHIP

This action against Franklin Township wasfiled on January 27, 1984, by J.W. Field Co., andwas consolidated with ten subsequent actionsagainst Franklin. On July 12, 1985, Van Cleef, oneof the consolidated plaintiffs, filed a stipulation ofdismissal, leaving ten actions consolidated in thismatter.

After extensive discovery, trial commenced onSeptember 10, 1984. On the first day of trial,Franklin conceded the facial invalidity of its pre-July 12, 1984, ordinance in order for the court[***95] to consider the validity of a new ordinanceadopted on July 12, 1984. After a pretrial confer-ence on July 20, 1984, a ten-day trial on the fairshare issues was held, starting September 10, 1984.The court reserved judgment at the conclusion ofthe trial and appointed a Master to report on fairshare issues to the court. On December 21, 1984,the Master rendered his report finding a fair shareobligation between 2,625 and 2,679 units. On Sep-tember 13, 1985, Franklin filed a motion for trans-fer to the Council pursuant to the Act. On October7, 1985, the court in a partial judgment held thatFranklin's prospective fair share obligation was2,087 low and moderate income housing units, anddirected the Master to prepare a report on the pre-sent need. On October 22, 1985, the Master sub-mitted his report. On November 8, 1985, the mo-tion to transfer was denied. On December 2, 1985,in a letter opinion, the trial court, after taking creditunits into account, readjusted Franklin's fair shareas a total of 1,715 units, not including present need.

The claims of "manifest injustice" include thedelay in the implementation of the Mount Laurelconstitutional mandate resulting in less [***96]affordable housing for lower income persons, in-creased financing costs to the builders in the future,continuing costs incurred by the builders to carrythe land and insurance through the Council's proc-ess, duplication of litigation costs, and a lesseningin the likely production of lower income housing.

[*70] Remaining in this case is a determina-tion of the present fair share need, drafting a newordinance, holding a compliance hearing, redraftingthe ordinance if necessary, rehearing on complianceif necessary, and adoption of the ordinance.

BOROUGH OF BERNARDSVILLE

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This action challenging Bernardsville's zoningordinance results from a complaint filed on June 20,1983, by a Borough landowner who was refusedrezoning to allow building a senior citizen housingproject at a density of twelve units per acre on herland. The complaint sought a builder's remedy oftwenty units per acre.

On August 3 and December 20, 1983, casemanagement conferences were held, a Master wasappointed, and after negotiations a partial settle-ment was executed in February 1984. The settle-ment awarded plaintiffs a builder's remedy fixing adensity of nine units per acre for a total of seventy-six [***97] units and granted an immunity order,which has been continued to date. On January 14,1985, the Borough presented its compliance plan.On February 7, 1985, a second report from the Spe-cial Master was submitted to assist the court in for-mulating the Borough's compliance package. On aMarch 18, 1985 public hearing, a new ordinancewas adopted, and on April 30, 1985, a Master's re-port was submitted that supported the proposedcompliance package. This new compliance pack-age [**658] called for the Borough itself actuallyto build 178 lower income units.

To build the units, the Borough sought plain-tiff's land. On August 21, 1985, plaintiff sought adeclaratory judgment that under the circumstancesBernardsville did not have authority to condemn theland, and the Borough cross-moved to vacate plain-tiff's builder's remedy. The trial court denied plain-tiff's motion. The cross-motion was heard in con-junction with defendant's motion to transfer to theCouncil and is still undecided.

[*71] Remaining in this matter is the completeresolution of the cross-motions made in August, acompliance hearing, and if modified, readoption ofthe compliance package. The claim of "manifest[***98] injustice" resulting from a transfer to theCouncil includes the delay in providing lower in-come housing, the loss by plaintiff of a vested rightin the builder's remedy, an inherent unfairness inthe retroactive application of the Act, and the needfor plaintiff to relitigate a remedy already consentedto by the defendant with the attendant delay andexpense.

MONROE TOWNSHIP

This action challenging Monroe Township'szoning ordinance is part of the oldest pendingMount Laurel action, Urban League of GreaterNew Brunswick, et al v. Carteret , commenced onJuly 23, 1974. In Mount Laurel II, this Court af-firmed the trial court's holding that Monroe's zoningordinance was unconstitutional, and remanded forthe determination of region, fair share, allocation,and compliance. On remand, plaintiff Monroe De-velopment Associates filed a complaint in lieu ofprerogative writ on December 2, 1983, which wasconsolidated with the original action. Also consoli-dated were two other actions filed on April 16 andMay 4, 1984, on behalf of the other five plaintiffs-developers.

After extensive discovery and pretrial proceed-ings, an 18 day trial was held in April and May of1984. The [***99] trial court issued a letter opin-ion on July 27, 1984, and entered judgment on Au-gust 13, 1984. The judgment declared Monroe'sordinance unconstitutional, directed rezoning to becompleted within ninety days, and appointed a Mas-ter to assist in preparing the new ordinance. TheTownship's fair share was calculated at 774 units.

A compliance plan was not submitted to thecourt until March 29, 1985. The Township's Mayorrefused to sign the proposed compliance plan,which was ultimately accepted by the court. [*72]On May 13, 1985, the court entered an order direct-ing Monroe to pay the court appointed Master andconsultants. Monroe has refused to comply withthe order, and appeals are pending on that orderbefore the Appellate Division.

While Monroe's compliance plan was beingconsidered by the Master, the Township PlanningBoard and Council voted to approve a new residen-tial project without a Mount Laurel set-aside. OnJuly 25, 1985, the court provided Monroe with twocompliance options: either to rescind the new de-velopment's approval, or include 100 fair shareunits in the development. These options were re-jected by the Township on August 2, 1985. Thetrial court [***100] then held Monroe's complianceplan void, and directed the Master to draft a plan byOctober 7, 1985.

In the interim, on August 5, 1985, Monroeadopted a new zoning ordinance permitting residen-tial development without a set-aside. On November

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18, 1985, the Monroe Planning Board granted ap-proval for a residential housing project of approxi-mately 700 units without a Mount Laurel set-aside.

As of December 4, 1985, the Master had notfiled a report. Remaining in this matter is the re-ceipt of the Master's report, a compliance hearing,any necessary court-ordered revisions, and adoptionby the Township of the compliance plan. Thiscould take from three to four months; however,given Monroe's actions to date, an appeal would belikely.

The claimed "manifest injustice" from a transferto the Council in this case includes [**659] thedelay in affording realistic housing opportunities tolow and moderate income persons; the duplicationand increase in litigation costs to the plaintiffs ifforced to present their case anew before the Coun-cil; the time and money already expended by thedevelopers in seeking a judgment; the loss to lowerincome persons of the plaintiff-developers [***101]as advocates of low and moderate income housing;the loss of municipal resources such as water andsewerage capacity that might be used up in the in-terim delay; the increased [*73] infrastructurecosts for developers, and the loss of suitable build-ing sites.

PISCATAWAY TOWNSHIP

This action also arises from the July 23, 1974,complaint by the Urban League. The pre-1983 pro-cedural history is documented in the Mount LaurelII opinion where Piscataway's zoning ordinancewas declared unconstitutional and the case re-manded for trial on fair share issues. A nineteen-day trial was held in May 1984 to determine the fairshare obligation of Piscataway and other defendantmunicipalities.

Piscataway's fair share was computed by acourt-appointed Master at 3,744 units; since only1,100 acres suitable for development remain in theTownship, however, the court with the parties'agreement did not set that fair share obligation.Instead, the court ordered site specific hearings todetermine the suitability of vacant land, and di-rected the Master to conduct a suitability analysis.The Master issued two reports indicating that ap-proximately 40 sites were suitable for the construc-tion [***102] of low and moderate income hous-ing.

In February 1985, the court conducted a hearingon the Master's findings and the court's own on-siteinspections. On July 23, 1985, the court determinedthat Piscataway's fair share was 2,215 units. Judg-ment was entered on September 17, 1985, a Masterwas directed to assist the Township in complyingwith its fair share obligation, and the Township wasdirected to revise its zoning ordinance within 90days. In addition, the court continued a restrainingorder imposed on December 11, 1984, that prohibitsthe Township from issuing development applica-tions on any of the forty sites deemed suitable forlow and moderate income housing. Remaining inthis case is the preparation of a compliance ordi-nance, the holding of a compliance hearing, neces-sary redrafting of the ordinance, and adoption of thenew ordinance. The trial court estimates that it[*74] would take approximately five months tocomplete these procedures.

Plaintiffs' claims of "manifest injustice" result-ing from a transfer are the same as those describedunder Monroe.

BOROUGH OF SOUTH PLAINFIELD

This matter also originates with the complaintfiled by the Urban League of [***103] GreaterNew Brunswick on July 23, 1973. The Borough'szoning ordinance was held invalid in Mount LaurelII, and the case remanded for trial on fair share is-sues.

On May 10, 1984, at a joint trial following ex-tensive discovery, South Plainfield and the UrbanLeague stipulated the facts necessary for the courtto determine fair share, ordinance validity, and theappropriate remedy. The stipulation stated that dueto the lack of suitable land, the fair share obligationshould be reduced to 900 units, consisting of 280for present need and 620 for prospective need.

On May 22, 1984, a judgment was enteredgranting plaintiffs' motion for summary judgmentand setting October 4, 1984, as the deadline for theBorough to adopt the necessary ordinance. The Oc-tober 4, 1984, deadline was not met. On December13, 1984, the court ordered the consolidation of thismatter with an action challenging the BoroughBoard of Adjustment's denial of a senior citizens'project in the Elderlodge site. In that action aftersuit was instituted, the Board had granted a variancepermitting the building of the senior citizen project

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that did not include any Mount Laurel set-asides. Inthe December [***104] 13, 1984, order, the courtprevented [**660] the vesting of any rights of theElderlodge plaintiff and directed the Borough toadopt a complaint ordinance by January 31, 1985.On July 3, 1985, responding to the Borough's saleof municipally owned parcels that were part of theoriginal judgment, the trial court entered an orderrestraining the Borough of South Plainfield fromapproving any site plans or subdivision applicationsor variances, and from conducting any new munici-pal land sales, or consummating [*75] any pendingland sales, at least until South Plainfield's adoptionof the required ordinance.

On July 22, 1985, the Borough filed a motion totransfer the case to the Council. This motion was

denied, and on August 7, 1985, South Plainfieldadopted, under protest, a revised ordinance. A com-pliance hearing was scheduled for November 12,1985, but subsequently adjourned until December 4,1985, to permit the owner of the largest site affectedto intervene. Remaining in this matter is a hearingon the adopted ordinance, any necessary redraftingand rehearing, and the adoption of the redrafted or-dinance. Since the ordinance was adopted underprotest, an appeal [***105] is likely.

The claims of "manifest injustice" attending atransfer of this case to the Council include thosedescribed in the discussion of the Monroe Town-ship case.

the hills development company, plaintiff-respondent, … · monroe de-velopment associates,...

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