HOLLYVIEW DEVELOPMENT CORPORATION I v. TOWNSHIP OF UPPER DEERFIELD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4449-13T2

HOLLYVIEW DEVELOPMENT

CORPORATION I,

Plaintiff-Appellant,

v.

TOWNSHIP OF UPPER DEERFIELD,

a Municipal Corporation of

the State of New Jersey,

located in Cumberland County,

the TOWNSHIP COMMITTEE of the

Township of Upper Deerfield,

the PLANNING BOARD of the

Township of Upper Deerfield,

Defendants-Respondents.

__________________________________

December 14, 2016

 

Argued October 21, 2015 Decided

Before Judges Ostrer, Haas and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-1586-98.

Mark A. Vittese argued the cause for appellant (Gravino and Vittese, attorneys; Mr. Vittese, on the briefs).

Rocco J. Tedesco argued the cause for respondents (Tedesco, Gruccio & Reuss, attorneys; Mr. Tedesco, on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.

Plaintiff Hollyview Development Corporation I (Hollyview) began this affordable housing litigation in 1998. For extended periods thereafter, the lawsuit lay dormant. On April 23, 2014, on cross-motions for summary judgment, the Chancery Division dismissed Hollyview's complaint. The court found that defendants Upper Deerfield Township (Township), its township committee, and its planning board (Board) complied with its Mount Laurel1obligations. The court granted defendants a ten-year period of repose from the date of its order.

In its appeal, plaintiff contends the court was obliged to determine defendants' compliance with its Mount Laurel obligation as of the date plaintiff filed its complaint. Based on that premise, plaintiff argues that the court erred in various ways in finding that defendants were in compliance. Having considered the parties' respective arguments in light of the record and applicable principles of law, we conclude the court correctly decided to assess defendants' compliance as of the date of its decision. However, we do not agree that defendants have demonstrated compliance as of then. We therefore affirm in part, and reverse in part, and remand for further proceedings.

I.

Hollyview owns slightly over fifty acres of farmland on State Route 77 in the center of the Township. The property is located in a low-density residential zone, but it is close to higher density residential zones and across the highway from three public schools. Two-thirds of the Township's land is dedicated to agriculture, with the greatest concentration of agricultural lands to the north, east, and west of the property. To the south, non-agricultural development is clustered along Route 77, which bisects the Township, leading to the City of Bridgeton.

Hollyview received land use approvals in 1995, which were extended in April 1998 through April 1999, to construct sixty-six twin units on its property.2 The Board's 1995 resolution required Hollyview to submit an acceptable plan to address its responsibility to provide low and moderate income housing under the Township's existing ordinance. Recognizing that a considerable number of low and moderate income housing units were available within the immediate area, the Board determined that "the developer's 'fair share' contribution may be met by providing rehabilitated or new units in other areas of the Township, rather than within the . . . development." Hollyview was also required to post a traffic mitigation fee of almost $97,000.

In early November 1998, Hollyview proposed to pay a development fee in satisfaction of its affordable housing obligation. Later that month, represented by new counsel, Hollyview wrote to the Board seeking modification of its approvals. Hollyview asserted that, without density bonuses to increase the number of market rate units, it would be financially difficult to proceed with the project and satisfy the ten percent set-aside. Hollyview did not specify what densities it would need, nor did it describe in any detail the financially viable development it envisioned.

The following month, Hollyview filed its complaint.3 In its February 1999 amended complaint, Hollyview sought a declaration that the Township was in violation of its Mount Laurel obligations. Hollyview sought a builder's remedy, but it withdrew its request as premature during the April 2014 summary judgment oral argument.4

The course of Hollyview's lawsuit was anything but typical. Plaintiff initially filed a motion for summary judgment in March 2000, but the trial court never decided it, nor does the record reflect that Hollyview actively sought a decision.5 In 2002, Hollyview's case was consolidated with another affordable housing complaint, filed by Sunset Lake 100 LLC (Sunset).6 The court appointed a special master, Phillip B. Caton, in March 2002. He prepared a report to the court in July 2003. He made no finding as to the Township's compliance with its housing element or Mount Laurelobligations. Later that year, the court approved settlement of Sunset's lawsuit after a fairness hearing, but retained jurisdiction over implementation.7 Hollyview maintains the court thereafter inadvertently dismissed its action in 2003, although the record does not include the order.

Instead, intermittent case management conferences and other court events roughly one or two a year were scheduled through 2006. The record includes no transcripts of these proceedings or orders arising from them, other than a scarce resource order that the court entered in 2005, at Sunset's behest. This order restrained use of water that would have deprived Sunset of the ability to meet its project's needs. See N.J.A.C. 5:95-10.1; see also N.J.A.C. 5:96-12.1. After a phone conference with the court in January 2008, Hollyview's case lay completely dormant until May 2012, when Hollyview filed a motion to "reinstate" the matter and restore the scarce resource order.

On June 15, 2012, the court entered an order, without opposition, vacating dismissal of Hollyview's complaint, but declining to reinstate the scarce resource order. In March 2013, the court entered a case management order that dismissed, without prejudice, any motions pending before 2003, for lack of prosecution.8 After another conference in July 2013, the court ordered that the case itself would be dismissed for lack of prosecution, unless the parties reconstructed the file in the matter and plaintiff filed a summary judgment motion returnable on October 31, 2013.

Thereafter, Hollyview filed its motion, seeking a declaration that the Township was non-compliant under Mount Laurel. Defendants cross-moved for a declaration that it complied and for a judgment of repose. See N.J.A.C. 5:93-1.3.

Hollyview relied on the state of affairs that existed when it filed its lawsuit in 1998 and the years immediately following. Hollyview contended the Council on Affordable Housing (COAH) had assigned the Township a first round affordable housing obligation of 159 units, of which ninety-five were to be new construction, and a second round obligation of 288 units, of which 242 were to be new construction. The Township's April 2000 Housing Element Update also calculated its unmet need at 288. However, in 2008, COAH revised the Township's obligation for the 1987 to 1999 period, reducing it to 242. SeeN.J.A.C.5:97, Appendix C, adopted in 40 N.J.R.2690(a) (June 2, 2008). We approved COAH's round two revised calculations. In re Adoption of N.J.A.C. 5:96 and 5:97, 416 N.J. Super. 462, 498-99 (App. Div. 2010), aff'd as modified, 215 N.J.578 (2013) (In re N.J.A.C. 5:96 and 5:97 I).9

Hollyview contends the Township zoning ordinance failed to provide a realistic opportunity for development of low and moderate income housing. A focus of Hollyview's argument pertains to the rehabilitation of 326 low and moderate income rental housing units at Countryside Village, a collection of fifty-seven one-story buildings originally constructed by Seabrook Associates to house its workers. The rehabilitation was completed between 1987 and 1990 at a cost of over $16,000 per unit. In its April 2000 Housing Element Update, the Township claimed credit for the 326 units. Hollyview disputed the Township's characterization of the project as a "gut rehabilitation," and contended the rehabilitation did not meet the Township's Mount Laurel obligation.

However, by 2005, the Township promoted the idea of replacing the housing, which the Township considered "run down," with newly constructed affordable units. The Township joined with a developer in applying for funds from the New Jersey Housing and Mortgage Finance Agency. The Township also granted necessary variances and land use approvals. As a result of that effort, all the units were demolished and replaced with newly constructed housing between 2005 and 2007. Although the new development reduced the total units to 285, the total number of bedrooms remained the same. The units were income restricted for thirty years.

In the years preceding the collapse of the housing market in 2008, the Township approved several other developments that included affordable housing set-asides. However, for various reasons including economic conditions and availability of water and sewer capacity these did not proceed. In particular, Sunset Lake had not proceeded with its development by 2011. That year, it secured Board approval to convert the project to a non-age restricted development, provided that twenty percent of the proposed 339 units were affordable.10

A significant share of the Township's historic housing stock is modestly priced. An area known as Seabrook Village11consists of 160 small single-family houses constructed as rental units for workers in the 1940s and 1950s. Between 2000 and 2013, eighty-five of these houses were sold, two-thirds selling for less than $100,000, and over half selling for less than $80,000. Many of the houses are rented to tenants by investor-owners.

Hollyview also focuses on the Township's zoning ordinance. In 1988, the Township adopted a zoning ordinance, consistent with its housing element at the time, which imposed a mandatory affordable housing set-aside of ten percent on every new residential development of twenty or more units. The ordinance adopted density limits of four units per acre for townhouses and six units per acre for apartments (down from six and eight, respectively, from the levels proposed in the housing element). Two-bedroom units were to comprise at least thirty-five percent of low and moderate housing units and three-bedroom units, at least fifteen percent. The ordinance did not authorize density bonuses. Regarding affordability, the ordinance provided that, to the greatest extent possible, the average price of the units sold should be affordable to households with an annual income equal to 57.5 percent of the regional median and 30 percent for rental housing. Since 2005, the ordinance also imposed development fees of one percent for non-affordable residential developments, and two percent for non-residential development. The fee income would be used to provide affordable housing.

Although special master Caton did not take a position in his July 2003 report as to whether the Township complied with its Mount Laurel obligations, he expressed "concern[]that the limited amount of suitably zoned land with access to public water and sewer and the relatively low (10 percent) affordable housing setaside and densities will make it difficult to address the Township's affordable housing obligation." Caton also stated that Hollyview's property was suitable for affordable housing.

According to the Township's 2010 Master Plan Re-examination Report, the Township was assigned a cumulative affordable housing obligation of 352 units pursuant to COAH's proposed third round rules, which were later disapproved by the Court. See In re N.J.A.C. 5:96 and 5:97 I, supra, 215 N.J. at 586. The Township has neither been the subject of a judgment of repose from COAH, nor has it received substantive certification from the agency.

In support of its 2013 summary judgment motion, Hollyview submitted the certification of the former executive director of COAH, Shirley Bishop, whom it retained as an expert. Bishop concluded that as of the date the litigation was filed, December 28, 1998, the Township was not Mount Laurel compliant. She asserted the Township should not receive "gut rehabilitation credit" toward its 288-unit second-round obligation for the rehabilitation of the later-demolished Countryside Village apartments. She also asserted that, as of the 2000 census, the Township had not reported adding any affordable units to its housing stock.

After oral argument on April 4, 2014, the trial court denied Hollyview's motion for summary judgment and granted defendants' cross-motion for summary judgment dismissal. The judge rejected the argument that it should decide the case based on the Township's activities as of 1998. In view of the Township's subsequent activities and the reconstruction of Countryside Village, the court concluded that "the plaintiff has not demonstrated non-compliance with the Mt. Laurel obligation, despite that the ordinance itself may be deficient." The court did not amplify its reasoning.

II.

We review a grant of summary judgment de novo, applying the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J.320, 330 (2010). We "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.520, 540 (1995). We must decide whether the trial court has correctly determined that the movant is entitled to judgment as a matter of law, owing no deference to the trial court's legal conclusions. N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 507 (App. Div.), certif. denied, 222 N.J.17 (2015).12

A.

We begin by considering Hollyview's argument that we should assess whether the Township complied with its Mount Laurel obligations as of the date Hollyview filed its complaint in 1998. Hollyview contends we should ignore the construction of 285 new affordable housing units between 2005 and 2007. Instead, Hollyview asks us to focus on the nature of the rehabilitation of units in 1987 to 1990, notwithstanding the fact that the units were later demolished.

Hollyview relies on the trial court's decision in Toll Brothers, Inc. v. Township of West Windsor, 303 N.J. Super. 518, 531 (Law Div. 1996), aff'd, 334 N.J. Super. 109 (App. Div. 2000), aff'd, 173 N.J. 502 (2002). The trial court analyzed the municipality's Mount Laurel compliance at two different points in time

In determining whether zoning ordinances and housing plans create a realistic opportunity to satisfy defendant's fair share housing obligation, the court must assess the extent to which the municipality has created realistic housing opportunities at two different points in time. For the purpose of determining whether Toll is entitled to a site-specific builder's remedy, defendant's conduct must be assessed at the point before it began amending its ordinances in response to this litigation. For the purpose of determining whether other relief should be granted, defendant's conduct must be assessed at the close of trial, and in light of any builder's remedy awarded by the Court.

[Id. at 531-32.13]

We have also held that a developer seeking a builder's remedy must prove, among other things, that the "land-use regulations in place at the time [the] plaintiff first brought its Mount Laurel action . . . failed to provide the requisite realistic opportunity for satisfaction of the Township's fair share." Mount Olive Complex v. Twp. of Mount Olive, 340 N.J. Super. 511, 526 (App. Div. 2001), remanded on other grounds, 174 N.J. 359 (2002).

However, the builder must also prove that the municipality has remained out of compliance. In Cranford Development Associates v. Township of Cranford, 445 N.J. Super.220, 230 (App. Div.), certif. denied, ___ N.J.___ (2016), we affirmed the award of builder's remedy where the plaintiff "proved . . . at the time [it] filed its lawsuit, the Township was out of compliance with its Mount Laurel obligations." We did so because the plaintiff also proved that the Township was currently out of compliance. Ibid. "[A] developer may be entitled to a builder's remedy, even if a municipality has begun moving toward compliance before or during the developer's lawsuit, provided the lawsuit demonstrates the municipality's current failureto comply with its affordable housing obligations." Id.at 231 (emphasis added).14

Toll Bros., Mount Olive Complex, and Cranford Development are distinguishable from the present matter. In none of those cases did the court hold that it would ignore the actual post-complaint construction of affordable housing. The "time of filing" rule adopted in the three cases assured that a builder-plaintiff did not chase a moving target. See Van Dalen v. Wash. Twp., 205 N.J. Super. 308, 334 n.11 (Law Div. 1984) (stating that a "time-of-filing" rule would satisfy the goal of making "'builder's remedies . . . more readily available to achieve compliance with Mount Laurel'") (quoting S. Burlington Cty. NAACP v. Twp. of Mount Laurel, 92 N.J. 158, 279 (1983) (Mount Laurel II). Although a plaintiff need not prove it was a "catalyst" for change in order to qualify for a builder's remedy, Cranford Development Associates, supra, 445 N.J. Super. at 231, the "time of filing" rule rewards a builder-plaintiff whose lawsuit provokes positive changes in the ordinance. Furthermore, a "time-of-filing" rule rewards consumers of affordable housing by assuring its actual construction, whereas post-complaint amendment of ordinances may create only the "realistic opportunity" or possibility for housing construction.

In this case, Hollyview does not claim credit for prompting any major changes in the Township's ordinance. Apparently, the ordinance has remained essentially unchanged, except for imposing a development fee in 2005. Furthermore, the actual construction of 285 new units responded to demand for affordable housing, without the grant of a builder's remedy to Hollyview.

There is a more significant distinction between this case and Toll Bros. and Mount Olive Complex: Hollyview's extensive delays in prosecuting its lawsuit, capped by a four-year period, 2008 to 2012, of complete inaction. We note the time from filing to trial in Toll Bros. was less than eighteen months. See Toll Bros., supra, 303 N.J. Super. at 529-30. In this case, the time from filing to summary judgment exceeded fifteen years, made all the more impressive by the dearth of activity during that time.

Principles of laches estop Hollyview from seeking a remedy based on the state of affairs that existed when it filed its complaint. Laches involves the "'inexcusable delay in asserting a right . . . .'" Urban League of Greater New Brunswick v. Mayor and Council of Carteret, 115 N.J. 536, 554 (1989) (quoting Lavin v. Hackensack Bd. of Educ., 90 N.J. 145, 151 (1982)).

Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has . . . put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material.

[Lavin, supra, 90 N.J. at 152 (citation omitted).]

More than delay, such as demonstrated prejudice to the other party, is usually required to invoke the doctrine. "It is because the central issue is whether it is inequitable to permit the claim to be enforced, that generally the change in conditions or relations of the parties coupled with the passage of time becomes the primary determinant." Id. at 152-53. However, "in extreme circumstances . . . 'the length of the delay alone . . . may result in laches.'" Urban League, supra, 115 N.J. at 554 (quoting Lavin, supra, 90 N.J. at 152). In Urban League, the Court found delay alone sufficient to invoke the doctrine against affordable housing advocates who sought attorney's fees twelve years after filing suit, ten years after prevailing in the trial court, and three years after prevailing in the Supreme Court. See id. at 555-56. "Whether laches should be applied depends upon the facts of the particular case" and the court's sound discretion. Mancini v. Twp. of Teaneck, 179 N.J. 425, 436 (2004) (internal quotation marks and citation omitted).

Applying these standards, we are satisfied that principles of laches should bar Hollyview from seeking the equitable relief of a builder's remedy based on facts as they existed when it filed its complaint in 1998. Although the availability of a builder's remedy does not depend on the intensity of the litigation, Mount Laurel II, supra, 92 N.J.at 280, the remedy is nonetheless a reward for the plaintiff who has "endured intensive litigation and succeeded in vindicating the Mount Laurelright in the interest of the public." Id.at 327. Hollyview's desultory pursuit of a remedy makes it less than an ideal champion of the public interest.15

Hollyview blames its inaction on the court, which did not decide its 2000 motion for summary judgment. Hollyview argues, "Without a decision by the court, the Plaintiff could not do anything." We reject the idea that a litigant would remain silent, during twelve years of inaction, if it were genuinely interested in a decision on a pending motion. Cf. R. 4:46-2(c) (stating that a summary judgment order "shall be rendered forthwith" if the party is entitled to it). In our experience, New Jersey litigants are not so timid. Rather, we draw the inescapable conclusion that Hollyview was content with the litigation's course, including the completely inactive period between 2008 and 2012. Hollyview also does not appeal from the trial court's order dismissing the initial summary judgment motion for lack of prosecution.

Whether or not the suit was dismissed in error in 2003, the court took no substantive action in Hollyview's case in the years thereafter. Although Hollyview cites to various isolated court events between 2004 and 2008, it provides no evidence that anything substantive transpired. In the meantime, the owners of Countryside Village, in concert with the Township, developed 285 newly constructed low and moderate income housing units.

Viewing Hollyview's complaint through a 1998 lens would ignore the Township's significant contribution to affordable housing achieved between 2005 and 2007. It would also present the risk of a duplication of effort. In sum, it would be unreasonable to measure the Township's compliance according to the state of affairs that existed over fifteen years before the summary judgment decision.

Under the circumstances of this case, we shall consider only whether the Township complied with its Mount Laurel obligations as of the time of our decision.16 Cf.Kruvant v. Mayor & Council of Cedar Grove, 82 N.J.435, 440 (1980) (noting that under the well-established principle that an appellate court applies the law in effect at the time of its decision). The "time of decision rule" "effectuate[s] the current policy declared by the legislative body -- a policy which presumably is in the public interest." Ibid. Applying the law as it exists at the time of decision also avoids addressing what has become a moot issue, here being the Township's compliance with its Mount Laurelobligations before 2005. Seeid.("[W]hen a facial attack on a statute is involved, or an injunction is sought against future violations of a statute, the time of decision rule is necessary to avoid rendering an advisory opinion on a moot question.").

B.

Viewing the case in light of current circumstances, we are nonetheless constrained to reverse the court's unexplained determination that the Township is currently in compliance with its Mount Laurel obligations, and is entitled to a ten-year judgment of repose. Based on the construction of 285 income-restricted units at Countryside Village, we are persuaded that the Township satisfied the second-round obligation of 242 units. That is so, even without awarding any bonuses or credits. See, e.g., N.J.A.C. 5:93-5.15 (allowing two credits for rental units available to the general public, up to the municipality's rental obligation). However, the second round obligation was designed to address the need for affordable housing through 1999. The trial court found, without explanation, that the Township was in compliance with its Mount Laurel obligations fifteen years later. The court did so, notwithstanding problematic provisions of the Township's ordinance, the failure to quantify present and future needs, and the absence of evidence, particularly contemporary expert evidence, that the Township has met or will meet those needs.

In support of its claim that the Township's ordinance fails to provide a realistic opportunity for development of its fair share of affordable housing, Hollyview cites several aspects of the ordinance, including: (1) density bonuses are not offered; (2) the affordable housing set-aside is only ten percent; (3) the set-aside applies only to developments of twenty units or more; (3) three-bedroom units must comprise only fifteen percent of an affordable housing development's units; and (4) developers, like Hollyview, must pay a traffic mitigation fee.

Municipalities are required to take "affirmative measures" to meet their fair share obligation. Mount Laurel II, supra, 92 N.J. at 260-61. Inclusionary zoning techniques include density bonuses and set-asides. See id. at 265-66. "Without such benefits, developers have no economic incentive to build such housing, and thus no 'realistic opportunity' is offered by the ordinance to satisfy the municipalities' Mt. Laurel obligation." Holmdel Builders Ass'n v. Twp. of Holmdel, 232 N.J. Super. 182, 197 (App. Div. 1989), aff'd in part, rev'd in part, 121 N.J. 550 (1990). The Fair Housing Act (FHA) states, "Whenever affordable housing units are proposed to be provided through an inclusionary development, a municipality shall provide, through its zoning powers, incentives to the developer, which shall include increased densities and reduced costs . . . ." N.J.S.A. 52:27D-311(h).

We are unpersuaded that the Township's set-aside, absence of density bonuses, and density provisions violate its Mount Laurel obligations on their face. For example, "neither Mt. Laurel II nor the FHA explicitly requires that a density bonus accompany a mandatory set-aside." Holmdel Builders Ass'n v. Twp. of Holmdel, 121 N.J. 550, 575 (1990). Nonetheless, the Township's provisions may be problematic in enabling the Township to satisfy its obligations.

Municipalities are required to consider "[r]ezoning for densities necessary to assure the economic viability of any inclusionary developments, either through mandatory set-asides or density bonuses, as may be necessary to meet all or part of the municipality's fair share . . . ." N.J.S.A. 52:27D-311(a)(1). We are obliged to "conform wherever possible to the decisions, criteria and guidelines" set forth by COAH. Hills Dev. Co. v. Twp. of Bernards, 103 N.J. 1, 63 (1986). COAH established presumptive densities and set-asides not present in the Township's ordinance

In reviewing municipal fair share plans, COAH would examine 'the need for a density bonus in order to produce low and moderate income housing.' N.J.A.C. 5:93-5.6(b). For single-family developments with an inclusionary component, COAH established a presumptive density of four units per acre and a fifteen percent set-aside. N.J.A.C. 5:93-5.6(b)(2). Municipalities could also zone for six units per acre at twenty percent set-aside, ibid., and COAH could require higher densities when it determined that they were necessary 'to provide an opportunity for inclusionary development in a specific municipality, based on the particular circumstances of that municipality.' N.J.A.C. 5:93-5.6(c)(2). For rental housing COAH established a presumptive set-aside of fifteen percent and a presumptive density of ten units per acre. N.J.A.C. 5:93-5.15(c)(5).

[In re Adoption of N.J.A.C. 5:94 and 5:95, 390 N.J. Super. 1, 72-73 (App. Div.), certif. denied, 192 N.J. 71 (2007).]

See also N.J.A.C. 5:93-5.6(b)(2) (stating, with respect to inclusionary single family detached housing development, "the Council shall generally favor a gross density of four units per acre with a 15 percent set-aside," although municipalities could seek higher densities with higher set-asides).

With respect to the Township's traffic mitigation fee, the FHA encourages the elimination of municipal land use provisions that impose unnecessary costs on the development of affordable housing. N.J.S.A. 52:27D-314(b); see also Mount Laurel II, supra, 92 N.J. at 258-59 ("[M]unicipalities, at the very least, must remove all municipally created barriers to the construction of their fair share of lower income housing."). COAH commands, "In order to receive and retain substantive certification, municipalities shall eliminate development standards that are not essential to protect the public welfare . . . ." N.J.A.C. 5:93-10.1(a). Except as provided by N.J.A.C. 5:93-8.10, which does not authorize traffic mitigation fees, "[i]nclusionary developments shall be exempt from development fees." N.J.A.C. 5:93-8.12(a).

With respect to inclusionary developments, the Township ordinance provides: "At least 35% of all low- and moderate-income housing units must be two-bedroom units. At least 15% must be three-bedroom units." Thus, as many as half the units may be one-bedroom. While these limits complied with COAH's expired first round rules, under N.J.A.C. 5:92-14.1 (expired), they fall short of the second round bedroom distribution rule, which provides

(a) Inclusionary developments that are not age restricted shall be structured in conjunction with realistic market demands so that

1. The combination of efficiency and one bedroom units is at least ten percent and no greater than 20 percent of the total low and moderate income units;

2. At least 30 percent of all low and moderate income units are two bedroom units; and

3. At least 20 percent of all low and moderate income units are three bedroom units.

[N.J.A.C. 5:93-7.3.]

Furthermore, restrictions on the bedroom mix of the market rate units within an inclusionary development are not permitted. N.J.A.C. 5:93-10.2(c).

We are not prepared to conclude on this record that these flaws in the Township's ordinance rise to the level of "facial invalidity," which would shift the burden to the municipality to demonstrate "its fair share and its satisfaction of that share, or any justification of its failure." See Mount Laurel II, supra, 92 N.J. at 222-23. Despite the flaws, we do not determine on this record that the provisions "are woefully inadequate or are simply a smoke screen" to hide its exclusionary purpose. Id. at 305. Rather, it is for the trial court, in the first instance, to review the current ordinance in detail, presumably with the assistance of expert opinion.

The trial court also determined the Township complied with its Mount Laurel obligations without a quantification of the Township's fair share of the present and prospective need for low and moderate income housing. However, a "'numberless' resolution" is insufficient. Mount Laurel II, supra, 92 N.J. at 216. "Mount Laurel litigation will ordinarily include proof of the municipality's fair share of low and moderate income housing in terms of the number of units needed immediately, as well as the number needed for a reasonable period of time in the future." Id. at 215-16.

With the Court's rejection of COAH's third round rules, it rests with the trial courts to ascertain a municipality's present and prospective need. In re Adoption of N.J.A.C. 5:96 & 5:97, 221 N.J. 1, 19-20 (2015) (In re 5:96 & 5:97 II). We have rejected the notion that a municipality must satisfy a separately stated need for the "gap period" between the expiration of the second round in and the establishment of present need. In re Declaratory Judgment Actions Filed by Various Municipalities, 446 N.J. Super. 259, 267 (App. Div.), certif. granted, ___ N.J. ___ (2016). Instead, a municipality's fair share obligation consists, as a starting point, of its unmet prior round obligations. In re 5:96 & 5:97 II, supra, 221 N.J. at 30. In addition, a municipality is obliged to meet its present and prospective need. In re Declaratory Judgment Actions, supra, 446 N.J. Super. at 267.

Although we have found no unmet prior round need in the Township's case, it is incumbent upon the trial court to determine the Township's present and prospective need, in ascertaining whether it has complied with its obligations and is entitled to a judgment of repose. The court will surely need the current input of an expert.

We appreciate the trial court's effort to resolve this long-pending litigation. Following years of inactivity, the court granted Hollyview's motion to revive the dormant litigation, dismissed the stale motions for lack of prosecution, and soon thereafter pressed the parties to file dispositive motions anew. Yet, little was done to update the evidential record. Hollyview sought judgment based on the facts when it filed its complaint in 1998, which we have addressed at length. However, the Township also sought a declaration of compliance and a judgment of repose based on the out-of-date record. The evidence before the court did not support that relief.

Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.

1 S. Burlington Cty. NAACP v. Twp. of Mount Laurel, 67 N.J. 151 (Mount Laurel I), appeal dismissed and cert. denied, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975); and S. Burlington Cty. NAACP v. Twp. of Mount Laurel, 92 N.J. 158 (1983) (Mount Laurel II).

2 The current status of its approvals is unclear.

3 The original complaint is not included in the record.

4 We note that Hollyview never formally sought approval of a development that incorporated a substantial contribution of low and moderate income housing.

5 The record on appeal does not include the papers filed in connection with this motion.

6 A second complaint by Sunset was consolidated with the other two actions in March 2003.

7 At the time, Sunset proposed a 339-unit age-restricted development on a 121-acre site.

8 Hollyview does not appeal from the dismissal of its initial summary judgment motion.

9 The second round obligation is cumulative, incorporating any unmet first round obligation. See In re Six Month Extension of N.J.A.C. 5:91-1, 372 N.J. Super. 61 (App. Div. 2004), certif. denied, 182 N.J. 630 (2005); see also N.J.A.C. 5:93, App. A.

10 The record does not reflect the current status of that proposed project.

11 The area includes First, Second, Third and Fourth Avenue in the Township. Caton described the same area as the "Gunnison neighborhood," which is adjacent to Hollyview's property.

12 In this case, the trial court failed to provide a sufficient statement of the reasons for its decision. See Curtis v. Finneran, 83 N.J. 563, 569-70 (1980); see also R. 1:7-4(a) (requiring a court in non-jury trial to "find the facts and state its conclusions of law thereon").

13 The Toll Bros. court cited Van Dalen v. Washington Township, 205 N.J. Super. 308, 334 n.11 (Law Div. 1984), which identified the argument that a plaintiff is entitled to a builder's remedy "if the zoning in effect at the time of the filing of its complaint failed to satisfy its Mount Laurel obligation," even if it came into compliance while the lawsuit was pending. See Toll Bros., supra, 303 N.J. Super. at 531. However, the Van Dalen court declined to decide the issue, as it found the post-complaint ordinance also violated Mount Laurel obligations. See Van Dalen, supra, 205 N.J. Super. at 334 n.11.

14 We recognize that Hollyview withdrew as premature its request for a builder's remedy at oral argument on the cross-motions for summary judgment. Even if Hollyview established that the Township was out of compliance as of 1998, Hollyview's entitlement to a builder's remedy would depend on consideration of other factors. The court would have to consider whether Hollyview "has acted in good faith, [and] attempted to obtain relief without litigation," Mount Laurel II, supra, 92 N.J. at 218; whether it has "propose[d] a project providing a substantial amount of lower income housing," id. at 279; and whether its project would pose substantial planning or environmental concerns. Id. at 279-80. Given the posture of this case, we need not apply these factors to Hollyview's claim.

15 Hollyview contends that adopting the time-of-filing rule would guard against delay tactics by defendant-municipalities. However, adopting such a uniform rule is not essential to achieve the goals of promoting affordable housing. Applying a fact-sensitive approach, a court can recognize when the municipality has contrived to impede adjudication of a builder's claim. That is not this case here.

16 Neither party has brought to our attention any changes in the ordinance or the facts since the trial court's decision.