HENRY J. BONNABEL v. TOWNSHIP OF RIVER VALE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3643-10T4

HENRY J. BONNABEL,

Plaintiff-Appellant,

v.

TOWNSHIP OF RIVER VALE, a

Municipal Corporation of the

State of New Jersey, County

of Bergen; THE MAYOR AND

COUNCIL OF THE TOWNSHIP OF

RIVER VALE; and THE PLANNING BOARD

OF THE TOWNSHIP OF RIVER VALE,

Defendants-Respondents.

__________________________________

December 21, 2011

Argued December 5, 2011 - Decided

Before Judges Sabatino and Ashrafi.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4531-10.

Antimo A. Del Vecchio argued the cause for appellant (Beattie Padovano, LLC, attorneys; Mr. Del Vecchio, of counsel; Daniel L. Steinhagen, on the brief).

Silvana D. Raso argued the cause for respondents Township of River Vale and Mayor and Council of River Vale (Schepisi & McLaughlin, P.A., attorneys; Ms. Raso, on the brief).

Dennis S. Deutsch argued the cause for respondent Planning Board of the Township of River Vale (Kaufman, Semeraro, Bern, Deutsch & Leibman, LLC, attorneys; Mr. Deutsch, on the brief).

PER CURIAM

Plaintiff Henry J. Bonnabel, a developer and the owner of property in River Vale, appeals the trial court's orders dismissing, without prejudice, his "builder's remedy"1 lawsuit against defendants, the Township of River Vale, its Mayor, and its Council (collectively "the Township defendants") and the Planning Board of River Vale ("the Planning Board"). The trial court dismissed this lawsuit at the behest of the Township defendants because there is other litigation pending that will affect the legal standards applicable to plaintiff's demand for a builder's remedy. For the reasons stated in this opinion, the dismissal order is vacated and the matter is remanded to the Law Division for further proceedings consistent with this opinion.

I.

Although we need not say much about the substance of the parties' various disputes, the matter arises out of the Township's obligation and efforts to provide affordable housing. Plaintiff seeks to build affordable housing units on his parcels and to have them rezoned by the Township for that purpose. The Township, meanwhile, has attempted to satisfy its affordable housing obligation through a housing plan it submitted to the Council on Affordable Housing ("COAH").2 Plaintiff's property is not included in the Township's plan.

On March 10, 2010, COAH issued a resolution, granting the Township so-called "third round" substantive certification pursuant to N.J.A.C. 5:96-6.2(a). The resolution required the Township, within forty-five days, (1) to execute a developer's agreement for municipally sponsored projects at two particular sites (the "Kirk" and "Mesker" sites, which are not owned by plaintiff), and (2) to adopt a Fair Share Ordinance ("FSO").3

In addition to the present builder's remedy case, plaintiff is pursuing related litigation involving the Township in two other proceedings. First, plaintiff is appealing COAH's administrative agency decision to grant the Township a time waiver with respect to its plan. See In re Decision of COAH on Waiver from Requirement of N.J.A.C. 5:97-6.7(D)(5), No. A-5604-09 ("the COAH waiver appeal").4 Plaintiff also filed a separate complaint in the Law Division ("the FSO case"), an action in lieu of prerogative writs against the Township in which he alleges certain defects in the Township's adoption of the FSO.5

On April 22, 2010, pursuant to N.J.A.C. 5:96-15.2(a),6 Michael D. Kauker, a professional planner for River Vale, wrote a letter to COAH's Acting Executive Director, requesting additional time to finalize the developer's agreements for the Kirk and Mesker sites. Specifically, Kauker requested a forty-five-day extension on the Kirk property's developer's agreement and a sixty-day extension on the Mesker property's.

On April 26, 2010, more than forty-five days after COAH had granted it third-round substantive certification, the Township adopted the first two sections of the FSO as Ordinance 231-2010.7 On May 10, 2010, the Township adopted the remaining sections of the FSO as Ordinance 235-2010. Later that month, the Township executed a corresponding developer's agreement for each site.

On June 8, 2010, the Township defendants moved to dismiss plaintiff's builder's remedy action. The motion was held and the case was temporarily placed on the inactive list because the parties were exploring a potential global settlement to resolve all three of plaintiff's pending matters. However, no such global settlement came to fruition.

Meanwhile, on June 9, 2010, COAH issued an oral decision retroactively granting the Township a time extension with respect to its FSO and developer's agreements until June 4, 2010. On September 8, 2010, COAH issued a written opinion memorializing the June 9 oral decision. As we have noted, that COAH decision is the subject of the pending appeal in A-5604-09.

In November 2010, plaintiff filed a motion to amend his complaint in this case, so as to reflect the current state of the law in the aftermath of In re Adoption of N.J.A.C. 5:96 and 5:97, supra, 416 N.J. Super. at 511-12. Meanwhile, the Township defendants filed another motion to dismiss the present action. The Planning Board likewise filed a motion to dismiss, apparently on the same basis.

At the January 2011 motion argument, the Township defendants argued that the Law Division did not have jurisdiction over the builder s remedy suit because COAH had already granted River Vale substantive certification. Plaintiff, conversely, argued that the Law Division has jurisdiction. He claimed a right to seek a builder s remedy from the court, albeit under a more rigorous legal standard, even in the face of COAH's grant of substantive certification.

In particular, plaintiff acknowledged that he would need to overcome a presumption of validity and prove his claims by "clear and convincing evidence" in his builder's remedy suit if COAH's approval of the Township's plan were affirmed on appeal and his separate lawsuit contesting the FSO's adoption were likewise unsuccessful. See N.J.S.A. 52:27D-317(a); In re Adoption of N.J.A.C. 5:96 and 5:97, supra, 416 N.J. Super. at 472 n.2 (noting that substantive certification does not wholly insulate the municipality from such attack, but only creates a "'presumption of validity'" as to the municipality's plan (quoting N.J.S.A. 52:27D-317(a)); see also Sartoga v. Borough of W. Paterson, 346 N.J. Super. 569, 577-78 (App. Div.), certif. denied, 172 N.J. 357 (2002). Nonetheless, plaintiff represented that he was prepared to mount such a challenge if necessary.

The motion judge agreed with plaintiff that a builder s remedy lawsuit could be maintained in the Law Division even after COAH had granted substantive certification. However, the judge noted that it would be unclear, until the COAH waiver appeal was decided, what legal standard would govern the builder s remedy case and, in particular, whether the presumption of validity would apply. Because of that uncertainty, the judge dismissed plaintiff s builder's remedy action without prejudice. The judge specified that plaintiff could re-file his builder's remedy complaint once the COAH waiver appeal was decided, and thus, the governing legal standard was clarified.

The dismissal was initially memorialized in an order dated January 21, 2011. Among other things, the order noted that "[a]ll time periods are tolled [and] causes of actions and defenses are preserved[.]" That same day, a separate order was entered, denying plaintiff s motion to amend his complaint and his motion to consolidate his builder s remedy case with the FSO case.

Plaintiff moved for reconsideration of the dismissal order. The court denied that request on February 18, 2011. In his bench ruling that day, the motion judge amplified his reasons for ordering dismissal. The judge observed that the builder's remedy action was not justiciable, given the uncertainty of the applicable legal standards. The judge recognized that, as an alternative, the builder's remedy case could have been stayed. Nonetheless, the judge chose to dismiss the case without prejudice for reasons of "judicial economy and judicial administration."

On March 23, 2011, an amended order dismissing the complaint was entered. The amended order provided greater specificity as to certain tolling issues, which are not contested before us. This appeal ensued.

II.

The sole issue before us is very narrow: whether the trial court should have kept this case on its docket during the pendency of the COAH waiver appeal rather than dismissing the action without prejudice. We agree with plaintiff that the case should not have been dismissed.

Although we appreciate that there is uncertainty regarding the applicable legal standard because the COAH appeal has not yet been decided, the preferable course of action is to remand this matter and reinstate plaintiff's builder's remedy complaint. On remand, the trial court, in its sound discretion, may (1) stay the case in full until the COAH waiver appeal and the separate FSO case are decided, (2) stay a trial but allow discovery to proceed, or (3) let the case proceed to trial without a stay. Our reasons for ordering such a remand, with the trial court retaining these various options, are as follows.

In general, a complaint may be dismissed for (a) lack of subject matter jurisdiction, (b) lack of personal jurisdiction, (c) insufficient process, (d) insufficient service of process, (e) failure to state a claim, or (f) failure to join a necessary party. R. 4:6-2. Here, there is no allegation by defendants that the trial court lacked personal jurisdiction over the parties, that there was insufficient process or service of process, or that plaintiff failed to join a necessary party. In addition, plaintiff builder's remedy complaint does not fail to state a viable claim because of the present uncertainty of the governing legal standard. We also find inapplicable the doctrine of non-justiciability, which commonly applies to cases that raise purely political questions that cannot be resolved by the application of legal standards. See De Vesa v. Dorsey 134 N.J. 420, 429-37 (1993); Gilbert v. Gladden, 87 N.J. 275, 281 (1981).

As we have noted, plaintiff is willing to proceed with his builder's remedy action despite the Township's receipt of substantive certification from COAH. That substantive certification is presently valid, even though it is being challenged in another appeal before this court. If, hypothetically, the appeal results in an affirmance of COAH's decision, and plaintiff also loses his separate lawsuit contesting the adoption of the FSO, then he will continue to have the burden of overcoming the presumption of validity. On the other hand, if the other panel of this court reverses COAH's approval of the Township's plan, or the Township's ordinances are nullified in the FSO case, then plaintiff's burden in the builder's remedy action will be lightened. Plaintiff has not failed to state a claim for relief; what is presently uncertain is just how compelling his proofs must be to prevail and obtain a builder's remedy.

We understand the trial court's reluctance to try this case without first obtaining a resolution of the applicable legal standard.8 We also recognize that defendants, as public officials and public entities, prefer not to consume taxpayer resources in defending the builder's remedy action while also devoting resources to the other related litigation. We further appreciate that in developing their trial strategy and in considering any settlement possibilities, defendants would prefer to know conclusively how steep a burden plaintiff will have to overcome at trial.

These concerns may be adequately accommodated, however, by other measures short of a dismissal of plaintiff's lawsuit. In particular, the trial court, as it recognized in its bench ruling, has the discretion to stay this matter, in full or in part, while the COAH waiver appeal and the FSO case proceed to resolution.9 Defendants, if they choose, may file a motion for a stay when this matter is remanded, and nothing in this opinion would foreclose the trial court from granting such a stay. We leave the disposition of such a stay motion to the sound discretion of the trial court on remand.

Although we have considered the other points raised by the parties, including the unpublished opinion cited pursuant to Rule 1:36-3 by defendants, those points lack sufficient merit or analytic relevance to warrant discussion. R. 2:11-3(e)(1)(E).

The orders dismissing this action without prejudice and denying reconsideration are vacated, and the case is remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 See S. Burlington Cnty. NAACP v. Mt. Laurel, 92 N.J. 158, 218, 330 (1983) (delineating the grounds for issuing a builder's remedy in affordable housing litigation).

2 On June 29, 2011, Governor Christie issued "A Plan for the Abolition of the Council on Affordable Housing and Providing for the Transfer of the Functions, Powers, and Duties of the Council on Affordable Housing to the Department of Community Affairs." The Governor's plan, which went into effect on August 29, 2011, dissolved COAH and transferred its rights and responsibilities to the Department of Community Affairs. A pending appeal (A-6301-10) regarding the legal consequences of the abolition of COAH is calendared before another panel of this court on February 15, 2012.

3 The FSO refers collectively to the ordinances that implement River Vale's Housing Element (i.e., the housing plan) and Fair Share Plan. See N.J.S.A. 52:27D-314.

4 A telephonic oral argument was held in A-5604-09 before another panel of this court on September 26, 2011. The panel has not yet issued an opinion in that appeal.

5 That pending lawsuit is entitled Bonnabel v. Twp. of River Vale, No. BER-L-010406-10 and is assigned to a different trial judge than the judge who issued the orders dismissing the builder's remedy action. We were advised at oral argument that a motion to consolidate the two Law Division cases was denied, in light of the court's dismissal of the present case. We were further advised that the parties are preparing for trial in the FSO case, which is set to begin in 2012.

6 N.J.A.C. 5:96-15.2(a) permits COAH to "grant waivers from specific provisions of its rules if the person demonstrates that the strict application of the rule would create an unnecessary . . . hardship[.]" Although many COAH rules were invalidated by this court in In re Adoption of N.J.A.C. 5:96 and 5:97, 416 N.J. Super. 462 (App. Div. 2010), certif. granted, 205 N.J. 317 (2011), this particular regulation remains in force.

7 In its brief, the Township asserts that the other sections of the FSO were omitted due to a "clerical mistake." Plaintiff does not dispute that the omission was the result of a clerical error, but instead argues that the omission constituted a breach of applicable statutes and regulations and that it nullifies COAH's grant of substantive certification.

8 Conceivably, this concern might be abated by the trial court framing its ultimate decision under the two alternative potential standards of proof. In particular, the trial judge might address in his merits ruling not only whether plaintiff's trial proofs overcome the presumption of validity but, if they fail to do so, whether they at least satisfy the lesser proof standard. Cf. 539 Absecon Boulevard, L.L.C. v. Shan Enterprise LP, 406 N.J. Super. 242, 269 (App. Div.), certif. denied, 199 N.J. 541 (2009) (involving, by analogy, a case where the trial judge decided both whether plaintiffs' trial proofs met the "clear and convincing" test for common-law fraud, as well as the less-stringent "preponderance of the evidence" test for statutory consumer fraud); see also N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 120-21 (2011) (authorizing the trial court in a Title 9 abuse-and-neglect case, on notice to the parties, to optionally decide not only whether the proofs satisfied the preponderance evidential standard under Title 9 but also whether, as to certain factors, those proofs satisfied the more stringent clear and convincing evidential standard applicable under a Title 30 termination of parental rights case). Although we do not decide here whether such a post-trial ruling would be either appropriate or feasible, it is a possibility that the trial judge and counsel can mutually explore in a case management conference after the remand.

9 At oral argument before us, counsel for both the Township defendants and the Planning Board represented that they would not oppose such a stay, provided that it encompassed a stay of discovery.