January 1, 1900

by Kenneth E. Meiser

One of the most bitter exclusionary zoning battles in New Jersey's history has been fought between West Windsor Township and Toll Brothers. The saga continues.

History Of The Dispute

In 1985,West Windsor zoned a 300+ acre tract as its largest inclusionary development. During the late 1980's, the prior owner of the parcel spent years in applications before the West Windsor Planning Board. Judge Serpentelli at one point was so outraged at Planning Board delay that he threatened to divest the Planning Board of jurisdiction to hear the case. Despite Judge Serpentelli's efforts, the developer went bankrupt and lost the property. Toll subsequently acquired the land and filed an exclusionary zoning suit against West Windsor to challenge the town's obstructionist policies. The trial court ruled in favor of Toll and granted it a builder's remedy, eliminating restrictive features of the zoning ordinance and restrictive sewer policies which impeded construction of Toll's inclusionary development. The trial court then spent 21 months fashioning a revised zoning ordinance and reviewing a schematic plan in an effort to eliminate Planning Board obstruction once Toll submitted its site plan. The Appellate Division affirmed the award of the builder's remedy, and the matter was argued before the New Jersey Supreme Court in November 2001.

Toll's Planning Board Application

Toll received an extraordinarily hostile reception from the Planning Board. The Planning Board granted what purported to be an approval, but based it on compliance with 172 conditions. The cumulative effects of the conditions of approval were such that they amounted to a denial of the application. Toll contested the Board's "approval" and Judge Feinberg issued a 169-page decision invalidating many of the conditions.

Some of the Planning Board conditions were unprecedented. For example, one condition provided that if Toll chose to sell any portion of the site prior to construction it must provide the Township with a right of first refusal. The Township wanted to acquire the property or a large part of it and prevent it from being developed. The court found this blatantly unlawful. Likewise, since the Planning Board recognized that many of its conditions were highly vulnerable to legal challenge, the Planning Board resolution provided that, if a court invalidated or modified even one condition,Toll must come back to the Board for the Board to decide whether the approval was still valid or whether the approval should be deemed null and void. The court similarly found this condition totally unlawful.

Judge Feinberg's opinion addressed other issues of substantial importance to Mount Laurel developers throughout the state. For example,West Windsor asserted that the Planning Board's decision was entitled to a presumption of validity which could be overturned only if Toll proved a clear abuse of discretion or that the Board was guilty of "unreasonableness beyond debate." The Planning Board insisted that the judicial review of its decision in a builder's remedy situation should be no different than if a court were reviewing a planning board decision on an application for a gas station or a strip mall. Judge Feinberg soundly rejected this argument. Just as a municipality cannot preclude an inclusionary development through restrictive provisions in a zoning ordinance, neither can a planning board impose cost-generating conditions which are not necessary for health or safety reasons. Judge Feinberg declared that the courts were obligated to carefully review such conditions to determine if they were necessary for the protection of health and safety and did not impose unnecessary cost generating restrictions.

The Planning Board sought to justify some of its conditions upon aesthetic grounds. For example, it demanded a complete redesign of Toll's detention basin even though the Board engineer found it satisfied all health and safety standards, the Board having asserted that the basin was not aesthetically pleasing. The court ruled that forcing a complete redesign of an admittedly safe basin for aesthetic reasons was simply contrary to Mount Laurel principles.

The RSIS Issue

The trial court also rejected efforts by West Windsor to use technical RSIS arguments as a means of forcing a complete circulation redesign. Based upon the court's recognition that the RSIS was not intended to be a new means of exclusionary zoning, the court found that West Windsor could not use RSIS as a justification for defeating a Mount Laurel project.

Appellate Division Affirms

On December 28, 2001, the Appellate Division affirmed Judge Feinberg's decision, which the appellate court labeled as "thorough and wellreasoned." Not surprisingly, West Windsor has asked the New Jersey Supreme Court to review this decision, as well as the grant of the builder's remedy. The Supreme Court has not yet determined whether it will hear the case. If the Supreme Court does review the case, there will be a definitive decision on the power of planning boards to restrict or defeat Mount Laurel developments through innumerable burdensome conditions. If the Supreme Court does not hear the case, Judge Feinberg's decision, as affirmed by the Appellate Division, will offer clear guidance to other courts on how to prevent planning boards from obstructing through application review what municipalities cannot obstruct through zoning restrictions- the ability of developers to provide affordable housing through inclusionary developments.

Kenneth E. Meiser, a Land Use Division partner, serves on the New Jersey Builders Association's Legal Action Committee and is a Member of the Board of Directors of the Land Use Section of the New Jersey State Bar Association. His practice is concentrated in the areas of land use applications and litigation.