BERKELEY FAMILY APARTMENTS, LLC v. THE TOWNSHIP OF BERKELEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BERKELEY FAMILY APARTMENTS, LLC,

Plaintiff-Appellant,

v.

THE TOWNSHIP OF BERKELEY and

THE PLANNING BOARD OF THE

TOWNSHIP OF BERKELEY,

Defendants-Respondents.

__________________________________

December 7, 2015

Before Judges Alvarez, Ostrer and Haas.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3288-14.

Richard J. Hoff, Jr., argued the cause for appellant (Bisgaier Hoff, LLC, attorneys; Mr. Hoff, on the briefs).

Gregory P. McGuckin argued the cause for respondents (Dasti, Murphy, McGuckin, Ulaky, Koutsouris & Connors, attorneys; Mr. McGuckin, of counsel; Christopher J. Dasti, on the brief).

Adam M. Gordon argued the cause for amici curiae Fair Share Housing Center, New Jersey State Conference of the National Association for the Advancement of Colored People and Latino Action Network (Fair Share Housing Center, attorneys; Mr. Gordon, on the brief).

PER CURIAM

Plaintiff Berkeley Family Apartments, LLC appeals from a March 9, 2015 order denying its motion to compel defendant Township of Berkeley (the Township) to adopt a resolution of need in connection with plaintiff's proposed affordable housing project, and granting the Township's motion to dismiss plaintiff's complaint that sought to require the Township to approve the resolution. We affirm.

I.

After the devastation caused by Hurricane Sandy on October 29, 2012, the New Jersey Housing and Mortgage Finance Agency (HMFA) began offering subsidies in the form of loans to developers of eligible affordable and mixed-income rental housing through the Fund for Restoration of Multi-Family Housing (FRM) program.1 The FRM program allows developers to apply directly to HMFA for Federal Low Income Housing Tax Credits.2

Plaintiff is a wholly owned subsidiary of Walters Homes, Inc., a residential housing developer. Plaintiff is the "contract purchaser" of approximately 13.05 acres in the Township's Highway Business (HB) Zone. From February 2014 through September 2014, the Township's Mayor, Carmen Amato,3 met several times with one of plaintiff's owner, Joseph Del Duca, to discuss plaintiff's plans to build an affordable housing project in the HB Zone. In a certification submitted in support of the Township's motion to dismiss plaintiff's complaint, Amato stated that the Township "was considering Master Plan and Zoning amendments in [the Township's] entire HB Zoning District in the hopes that some additional federal funding might make its way to" the Township. However, Amato stated that he told Del Duca that he could make no commitments to any project proposed by plaintiff because "the final determination on this or any similar project" could only be made by the Township Council.

Del Duca identified two parcels of land in the HB Zone which plaintiff did not own, but represented it might be able to acquire, as possible sites for plaintiff's project. When plaintiff was unable to acquire either of the sites, Del Duca suggested that plaintiff could acquire the 13.05 acre property for the project. Amato advised Del Duca that "this property was much more problematic in that there were more residential homes in the general vicinity, and the traffic along State Highway Route 9 at that location was already unbearable." However, Amato told Del Duca "that if he wished to obtain site control [of that property], that was his prerogative, and the Township, as with any other developer, would give him the opportunity to present his case to the public and various public officials that this project was a benefit to [the] Township."

In his certification, Amato stated, "at no time did I, or anyone on behalf of [the] Township enter into an agreement, contract or promise that the Township would do whatever Walters Homes or [plaintiff] needed or required in order to complete its project." Amato also certified that he "specifically advised . . . Del Duca that if there was a large ground swell of opposition from the public, the Township Council would in all likelihood not support [plaintiff's] project."

After weighing its options, plaintiff proposed building an affordable housing project on the property it had contracted to purchase in the HB Zone. The project would consist of eighty-eight affordable, residential, multi-family units in eleven buildings; a clubhouse; and a garage for maintenance equipment. Plaintiff planned to use federal tax credits obtained through the FRM program to fund the project.

In order to qualify for the tax credits offered through the FRM program, plaintiff had to submit and receive approval from HMFA for both an "Initial Application" and a "Supplemental Application." On September 10, 2014, HMFA approved plaintiff's Initial Application and placed plaintiff in the "pipeline" for consideration of its Supplemental Application for the tax credits. Before submitting its Supplemental Application, plaintiff had to obtain a resolution from the Township granting preliminary and/or final site plan approval for the project and a resolution of need for the project from the Township.

With regard to the required resolution of need, N.J.S.A. 55:14K-6(c) states

No application for a loan for the construction, improvement or rehabilitation of a housing project containing rental units to be rented at below market rates to be located in any municipality shall be processed unless there is already filed with the secretary of [HMFA] a certified copy of a resolution adopted by the municipality reciting that there is a need for such housing project in the municipality.

Stanley Slachetka, the Township's consulting planner, submitted a certification concerning the need for additional affordable housing units in the Township. Slachetka certified that, as calculated by the Council on Affordable Housing (COAH), the Township's maximum fair share obligation was 736 units. However, Slachetka stated that the Township was "currently entitled to 1383 affordable housing credits for new affordable units, which is more than double" the Township's fair share obligation.4 Slachetka also certified that, in an April 2014 rule proposal, "COAH assigned the Township a zero-unit obligation for the period between 1999 and 2014, and a 30-unit obligation for the period between 2014 and 2024."5 Plaintiff did not submit a certification disputing Slachetka's calculations.

Nevertheless, plaintiff drafted a resolution of need. In pertinent part, the resolution of need stated

WHEREAS, pursuant to the HMFA Requirements, the governing body of the [m]unicipality hereby determines that there is a need for this housing project in the [m]unicipality.

NOW, THEREFORE, BE IT RESOLVED by the Council of the Township of Berkeley (the "Council") that

1) The Coun[ci]l finds and determines that the eighty-eight (88) unit family apartment project previously defined as the Project proposed by [plaintiff] meets or will meet an existing housing need;

2) The Council does hereby adopt the within [r]esolution and makes the determination and findings herein contained by virtue of, pursuant to, and in conformity with the provisions of the HMFA Law to enable the [HMFA] to process [plaintiff's] application for [HMFA] funding to finance the [p]roject.

According to Amato, plaintiff wanted the Township Council to adopt the resolution of need prior to plaintiff's submission of its application for site plan approval to the Township Planning Board. Amato stated that "[t]he Township Council would not agree to do so, since the public would not yet have had an opportunity to weigh in on [plaintiff's] proposal. Amato certified that

Del Duca made the conscious decision that he would proceed with his Planning Board application without a "[r]esolution of [n]eed" . . . because he believed there would be little or no public opposition, and that he could convince the public that this was a worthy project for the citizens of [the] Township.

On September 22, 2014, the Township adopted Ordinance No. 2014-25-OA (the Ordinance), which added two new conditional uses to the HB Zone. In pertinent part, the Ordinance provided

Multi-family residential housing developments shall be a conditional use in the HB District under either of the following two development scenarios and subject to the respective conditions for each scenario as follows

(a) Multi-family residential housing-mixed use subject to the . . . conditions [set forth in the Ordinance].

(b) Multi-family residential housing financed by means of the Federal Tax Credit Program authorized by 26 U.S.C. 142 et seq., subject to the . . . conditions [set forth in the Ordinance].

Plaintiff filed an application for preliminary site approval for its proposed project to the Township Planning Board. At a public meeting on October 2, 2014, the Planning Board considered and denied the application, which was strongly opposed by members of the public who appeared at the meeting.

On October 31, 2014, plaintiff filed a complaint in lieu of prerogative writs against the Township and its Planning Board in which it sought an order vacating the Planning Board's denial of its application, and "[d]irecting the Township, on or before December 31, 2014[,] to adopt all necessary resolutions and/or ordinances in order to ensure [p]laintiff's submission of a complete Supplemental Application for the Project pursuant to the FRM program[.]"

On November 21, 2014, the trial judge remanded plaintiff's application for preliminary site approval to the Planning Board for reconsideration at its next meeting on December 4, 2014. At that meeting, the Planning Board approved plaintiff's site plan application. Having obtained site plan approval, plaintiff still needed to obtain a resolution of need for the project from the Township Council.

On December 8, 2014, the Township Council approved Resolution #14-457-R. This resolution was entitled, "Requesting the Ocean County Natural Lands Trust to Participate in the Open Space Acquisition of Certain Properties Located in Berkeley Township." Del Duca certified that he was fearful that this resolution applied to plaintiff's property and that the Township Council would not provide plaintiff with a resolution of need concerning the project.

On December 15, 2014, plaintiff's attorney sent a letter to the Township's attorney "request[ing] that the [Township] Council approve the [r]esolution [of need] at its December 22, 2014 meeting." The letter also warned that "[i]f the [Township] Council fail[ed] or refuse[ed] to adopt the [r]esolution at its December 22, 2014 meeting, [plaintiff] will construe such failure or refusal as an effective denial of the [r]esolution and [plaintiff] will proceed accordingly." The Township Council did not consider or take any action concerning plaintiff's request for a resolution of need for the project at its December 22, 2014 public meeting.

On December 23, 2014, plaintiff filed an amended complaint in lieu of prerogative writs against the Township and, on January 5, 2015, plaintiff filed a motion on short notice seeking to compel the Township to adopt the resolution of need. On February 5, 2015, the Township filed a cross-motion to dismiss the complaint for failure to state a claim.

On February 6, 2015, plaintiff filed an amended four-count complaint against the Township. In count one, plaintiff alleged that "[t]he Township's failure to adopt the [r]esolution of [n]eed for the [p]roject [was] contrary to the Township's own zoning regulations, New Jersey law, New Jersey public policy[,] and is otherwise arbitrary, capricious and/or unreasonable." Plaintiff sought an order "[d]irecting the Township . . . to adopt the [r]esolution of [n]eed to ensure [p]laintiff's submission of a complete Supplemental Application for the [p]roject pursuant to the FRM program[.]"6 Following oral argument, the trial judge issued a comprehensivesixteen-page written opinion denying plaintiff's motion for mandamus.

The judge rejected plaintiff's contention that the approval of the resolution of need was a "ministerial act" that could be compelled through a writ of mandamus. The judge found that the resolution plaintiff sought required the Council to specifically find that plaintiff's proposed project was "needed" because it "meets or will meet an existing housing need[.]" He also observed that "N.J.S.A. 55:14K-6(c) provides that the municipality has discretion to decide whether 'there is a need for such housing project in the municipality[,]'" and that "[t]he [use of the] term . . . 'such' indicates that the decision [on a] [r]esolution of [n]eed is project[-]specific." Thus, the judge concluded "that the adoption of a [r]esolution of [n]eed is not a ministerial act, but an administrative act that involves the Township's exercise of discretion."

In so ruling, the judge rejected plaintiff's claim that the Township's decision to revise its zoning Ordinance for the HB Zone to permit plaintiff to pursue its application was tantamount to a determination by the Township that there was a need for the project in the zone. The judge stated

[T]he Ordinance is a zoning ordinance regulating zoning matters rather than a decision on housing need itself. An approval under a zoning ordinance does not mandate an approval of [a r]esolution of [n]eed. The Township retains the discretion to grant or deny a [r]esolution of [n]eed based on its decision as to whether a specific project meets the Township's housing need under the particular circumstances.

The judge found that plaintiff's alternate argument, that the Township should be equitably estopped from denying the resolution of need, also lacked merit. Plaintiff asserted that the Township's adoption of the Ordinance "invite[d] plaintiff to rely on the Ordinance to proceed with its affordable housing project application . . . ." Noting that the equitable estoppel doctrine is applied only in limited circumstances against public entities, the judge found no basis for invoking it against the Township under the circumstances of this case. The judge explained that it was simply "not reasonable for plaintiff to rely on the adoption of the Ordinance in order to mandate that the Township adopt a [r]esolution of [n]eed." The judge found that plaintiff was "a seasoned developer" that understood that a resolution of need was required as a prerequisite to an application through HMFA. However, plaintiff decided to "proceed[] with this project at its own peril[,]" knowing that the Township might not approve the resolution. Moreover, plaintiff did not dispute Amato's certification that the Township never promised plaintiff that it would adopt a resolution of need.

Finally, the judge rejected plaintiff's claim that a municipality must automatically issue a resolution of need whenever the project involved the construction of affordable housing units. The judge reiterated that the Township could not be required to exercise its discretion in a specific manner and, therefore, the issuance of a resolution of need was not mandatory.7 Therefore, on March 9, 2015, the judge held that plaintiff's complaint, which sought to require the Township to adopt the resolution of need by a specific date, should be dismissed. This appeal followed.

II.

On appeal, plaintiff argues that the judge erred in dismissing its complaint. It asserts that, because the Township adopted the Ordinance, which permitted multi-family residential housing financed by means of federal tax credits, the judge should have directed the Township to adopt a resolution determining there was a need for plaintiff's project in the HB Zone. We disagree.

We note at the outset that the Township filed a motion to dismiss plaintiff's complaint, rather than a motion for summary judgment. The primary distinction between a motion to dismiss for failure to state a claim pursuant to Rule4:6-2(e) and a motion for summary judgment pursuant to Rule4:46-2 "is that the former is based on the pleadings themselves." Pressler & Verniero, Current N.J. Court Rules, comment 4.1.2 on R. 4:6-2 (2016).

In assessing a Rule4:6-2(e) motion, courts should view the complaint indulgently, assume the truthfulness of the allegations in the complaint, and afford the complainant every reasonable inference. NCP Litig. Trust v. KPMG LLP, 187 N.J.353, 365 (2006). A court's inquiry at such an early stage in the proceedings is limited to the adequacy of the pleadings, not the complaining party's ability to prove its allegations. See Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989).

If, however, a moving party relies on material outside the pleadings, our rules provide that such motion should be "treated as one for summary judgment and disposed of as provided by [Rule] 4:46, and [that] all parties . . . be given reasonable opportunity to present all material pertinent to such a motion." R.4:6-2. Thereafter, a motion for summary judgment will be granted only if the pretrial record "show[s] that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c).

Here, plaintiff and the Township each relied upon materials outside the pleadings. Thus, the trial judge properly treated the Township's motion as a motion for summary judgment. Cnty. of Warren v. State, 409 N.J. Super. 495, 504 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010), cert. denied, Shope v. New Jersey, 561 U.S. 1026, 130 S. Ct. 3508, 177 L. Ed. 2d 1092 (2010).

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Townsend v. Pierre, 221 N.J.36, 59 (2015) (citing Davis v. Brickman Landscaping, Ltd., 219 N.J.395, 405 (2014)). "Summary judgment must be granted 'if the pleadings, depositions, answers to interrogatories[,] and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Town of Kearny v. Brandt, 214 N.J.76, 91 (2013) (quoting R.4:46-2(c)).

Thus, we consider, as the trial judge did, 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.'" Ibid. (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007) (citing Prudential Prop. & Cas. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)), certif. denied, 195 N.J. 419 (2008). We accord no deference to the trial judge's conclusions on issues of law and review issues of law de novo. Nicholas v. Mynster, 213 N.J.463, 478 (2013).

Applying this well-established standard of review, we discern no basis to set aside the trial judge's decision dismissing plaintiff's complaint.

Plaintiff's complaint sought a writ of mandamus directing the Township to adopt a resolution of need by plaintiff's self-imposed deadline.8

A writ of mandamus is an order given by a court to a government official "that commands the performance of a specific ministerial act or duty, or compels the exercise of a discretionary function, but does not seek to interfere with or control the mode and manner of its exercise or to influence or direct a particular result."

[In re Resolution of the State Comm'n of Investigation, 108 N.J. 35, 45 n.7 (1987) (quoting Switz v. Twp. of Middletown, 23 N.J. 580, 598 (1957)).]

An act or duty is "ministerial" in nature if it "'is absolutely certain and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode and occasion of its performance with such certainty that nothing remains for judgment or discretion.'" Vas v. Roberts, 418 N.J. Super. 509, 522 (App. Div. 2011) (quoting Ivy Hill Park Apartments v. N.J. Prop. Liab. Ins. Guar. Ass'n, 221 N.J. Super. 131, 140 (App. Div. 1987), certif. denied, 110 N.J. 188 (1988)). "Thus, mandamus is an appropriate remedy '(1) to compel specific action when the duty is ministerial and wholly free from doubt, and (2) to compel the exercise of discretion, but not in a specific manner.'" Ibid. (quoting Loigman v. Twp. Comm. of Middletown, 297 N.J. Super. 287, 299 (App. Div. 1997)).

Here, plaintiff asked the trial judge to issue an order "[d]irecting the Township . . . to adopt the [r]esolution of [n]eed" in the precise form it demanded. Applying the well-established standards governing writs of mandamus set forth above, we are satisfied that the trial judge properly concluded that the adoption of a resolution of need under N.J.S.A. 55:14K-6(c) is clearly not a ministerial act that can be compelled through such a writ.

The resolution of need requirement set forth in N.J.S.A. 55:14K-6(c) was part of the New Jersey Housing and Mortgage Finance Agency Law of 1983, L. 1983, c. 530, 4 (1984). In re Adoption of 2003 Low Income Hous. Tax Credit Qualified Allocation Plan, 369 N.J. Super. 2, 24 (App. Div.), certif. denied, 182 N.J. 141 (2004). "In enacting the law, the Legislature found that changing market conditions had reduced the availability of financing and construction of private-sector housing in the State, resulting in an adverse effect on the availability of affordable housing. (N.J.S.A. 55:14K-2[(a) and (b))]." Ibid. Thus, the Legislature determined

that it was in the best interest of the State for, among other steps, HMFA to: (1) assure the availability of financing for the rental, construction and rehabilitation of new and existing residential structures; (2) "[s]timulate the construction, rehabilitation and improvement of adequate and affordable housing . . . so as to increase the number of opportunities for adequate and affordable housing . . . , particularly New Jersey residents of low and moderate income"; and (3) "[a]ssist in the revitalization of the State's urban areas . . . ."

[Ibid. (quoting N.J.S.A. 55:14K-2(e)).]

To meet these statutory goals, the Legislature granted HMFA the authority to provide loans and other financial assistance for housing projects. Ibid. (citing N.J.S.A. 55:14K-5(y)). "The agency may also 'administer and . . . enter into agreements to administer programs of the federal government or any other entity which are in furtherance of the purposes of the act . . . .'" Ibid. (quoting N.J.S.A. 55:14K-5(dd)). Thus, HMFA is authorized to award low-income housing tax credits under the FRM program to qualified developers.

However,

HMFA's power to allocate low-income housing tax credits is circumscribed by 26 U.S.C.A. 42(m)(1)(B) and (C). Under that statute, the agency is required to adopt a [Qualified Allocation Plan] [(]QAP[)] that establishes specific selection criteria and preference standards that will guide it in the allocation of tax credits to competing housing sponsors, local agencies and private developers. The agency must consider such selection criteria as project location, housing needs, project and sponsor characteristics, tenant populations and public housing waiting lists.

[Id. at 25 (internal citations omitted) (citing 26 U.S.C.A. 42(m)(1)(B) and (C)).]

To assist it in determining which developers of proposed low income housing projects should receive the tax credits, HMFA requires each applicant to submit a resolution of need. N.J.S.A. 55:14K-6(c). The resolution must be "adopted by the municipality" and must set forth the municipality's determination "that there is a need for such housing project in the municipality." Ibid.

In view of these statutory requirements, it is clear that a municipality's decision whether to adopt a resolution of need concerning a housing project cannot be characterized as a "ministerial act" that can be compelled through a writ of mandamus. Rather, to enable HMFA to equitably allocate the limited financial assistance available to developers under the FRM program, N.J.S.A. 55:14K-6(c) requires the municipality to make an independent determination of the need, if any, for the project. Among other things, the municipality must examine the facts and circumstances underlying the applicant's proposal and make a reasoned determination whether there is a need for additional affordable housing at that specific location in the zoning district.

Thus, the outcome of the municipality's review of a request for a resolution of need is not "absolutely certain and imperative," and nothing in N.J.S.A. 55:14K-6(c) "prescribes and defines the time, mode and occasion" of the municipality's decision. Vas, supra, 418 N.J. Super. at 522 (quoting Ivy Hill Park Apartments, supra, 221 N.J. Super. at 140). Therefore, the trial judge properly dismissed plaintiff's complaint seeking a writ of mandamus to require the Township to grant it a resolution of need.9

Plaintiff argues that the Township's decision to amend its zoning ordinance to permit multi-family residential housing projects financed through the use of federal tax credits was tantamount to a declaration that the project was "needed" in the HB Zone. Therefore, plaintiff asserts that the Township had no choice but to immediately adopt a resolution of need for its project. This argument lacks merit.

The Ordinance added multi-family residential housing projects that would be financed through the use of federal tax credits as "a conditional use" in the HB Zone. N.J.S.A. 40:55D-3 defines a conditional use as

a use permitted in a particular zoning district only upon a showing that such use in a specified location will comply with the conditions and standards for the location or operation of such use as contained in the zoning ordinance, and upon the issuance of an authorization therefor by the planning board.

[(emphasis added).]

"Generally, a conditional use is 'suitable to a zoning district but not to every location within that district.'" Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 294 (1994) (quoting Cardinal Props. v. Westwood, 227 N.J. Super. 284, 287 (App. Div.), certif. denied, 111 N.J. 631 (1988)).

Thus, contrary to plaintiff's contention, the conditional use for multi-family residential projects is merely "permitted" in the HB zone. Nothing in the Ordinance (1) requires that such projects be constructed, (2) evidences a determination by the Township that these projects are "needed" in the HB Zone, or (3) specifies that any particular project is "needed" at every location in the district. Therefore, the adoption of the Ordinance was not the equivalent of a resolution of need and the judge properly denied plaintiff's demand for a writ of mandamus.

Citing several judicial decisions that are readily distinguishable from the case at hand, plaintiff argues that when the project involves the construction of affordable housing, a municipality lacks the discretion to do anything but issue all permits and resolutions needed to bring the project to fruition. However, none of these cases involved a situation where, as here, the applicant was seeking a writ of mandamus to require the municipality to take a specific action on its request. Rather, in each case, the applicant was challenging a decision actually made by the municipality after it had the opportunity to fully consider the applicant's request.

For example, in Homes of Hope, Inc. v. Easthampton Township Land Use Planning Board, the Planning Board considered the plaintiff's application for a use variance to build eight affordable multi-family housing units in a zone that only permitted single family homes. 409 N.J. Super. 330, 334 (App. Div. 2009). The Board found that the plaintiff's "proposed affordable housing was not inherently beneficial, and thus evaluated its use variance application in light of both the positive and negative criteria, denying the application." Ibid. We held that "[a]ffordable housing is an inherently beneficial use," and remanded the matter to the Board for reconsideration of plaintiff's application for a use variance. Id. at 336, 340. Thus, this decision does not stand for the proposition that a writ of mandamus may be issued to compel a municipality to take any action demanded by an applicant in connection with its proposed affordable housing project.

Menk Corporation v. Township Committee of Barnegat, 389 N.J. Super. 263 (Law Div. 2006), and Howell Properties, Inc. v. Township of Brick, 347 N.J. Super. 573 (App. Div.), certif. denied, 174 N.J. 192 (2002), are also distinguishable from the case at hand. In Menk, the Planning Board approved the plaintiff's application to build "a 347-unit inclusionary development that will provide thirty-five affordable housing units." 389 N.J. Super. at 265. This approval was "subject to the condition that the [municipality] would vacate three paper streets located within [the] plaintiff's property." Id. at 266. When the plaintiff asked the municipality to vacate the paper streets, it advised plaintiff that it would not do so and provided reasons for its decision. Ibid. The Law Division reviewed the municipality's decision, found no legal basis for it, and ordered the municipality to vacate the paper streets. Id. at 271.

Contrary to plaintiff's contention in the present case, the Law Division's order did not constitute a writ of mandamus because the court did not direct the municipality to issue a specific determination prior to the municipality reviewing and making a decision on the applicant's request to vacate the paper streets. Instead, the court reviewed the municipality's decision, found it deficient, and ordered an appropriate remedy.

Similarly, in Howell Properties, supra, two municipalities vacated streets that extended to the plaintiff's proposed major subdivision which included affordable housing units. 347 N.J. Super. at 575, 577. As a result, plaintiff's property, which was located in an adjoining town, was landlocked. Id. at 575-78. The trial court reviewed the municipalities' actions, found that they "denied plaintiff 'reasonable access . . . to public streets[,]" and granted summary judgment to the plaintiff. Id. at 578. We affirmed. Id. at 590. Thus, since this was not an action seeking a writ of mandamus and plaintiff's reliance upon this decision is also misplaced.

Plaintiff argues that the Township was estopped from doing anything other than adopting a resolution of need for the proposed project when plaintiff asked for it. Plaintiff contends the Township's adoption of the Ordinance lulled it into believing that a resolution of need would automatically be issued. Again, we disagree.

Our Supreme Court has explained the doctrine of equitable estoppel as follows: "'The essential principle of the policy of estoppel . . . is that one may, by voluntary conduct, be precluded from taking a course of action that would work injustice and wrong to one who with good reason and in good faith has relied upon such conduct.'" Middletown Twp. Policeman's Benevolent Ass'n Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 367 (2000) (quoting Summer Cottagers' Ass'n of Cape May v. City of Cape May, 19 N.J. 493, 503-04 (1955)). While equitable estoppel may be invoked against a municipality "where the interests of justice, morality[,] and common fairness clearly dictate the course[,]" Gruber v. Mayor of Raritan, 39 N.J. 1, 13 (1962), "[e]quitable estoppel is 'rarely invoked against a governmental entity.'" Middletown Twp., supra, 162 N.J. at 367 (quoting Wood v. Borough of Wildwood Crest, 319 N.J. Super. 650, 656 (App. Div. 1999)). "However, equitable estoppel will be applied in the appropriate circumstances unless the application would 'prejudice essential governmental functions.'" Middletown Twp., supra, 161 N.J. 367 (quoting Wood, supra, 319 N.J. Super. at 656).

In determining whether the doctrine of equitable estoppel applies within the zoning context, the Court has "held that when a permit is issued validly or in good faith and the builder has justifiably and in good faith relied on it to his substantial detriment, the municipality is estopped from revoking the permit absent fraud." Palatine I v. Planning Bd., 133 N.J. 546, 559 (1993) (plaintiff's supposed reliance on validity of a preliminary site-plan approval did not warrant equitable estoppel when its preliminary site-plan approval and construction permit had expired), overruled in part by D.L. Real Estate Holdings, LLC v. Point Pleasant Beach Planning Bd., 176 N.J. 126 (2003). The purpose of the equitable estoppel doctrine "is to balance fairly the developer's interest in a stable and predictable regulatory climate with the municipality's interest in promoting sound planning and growth." Id. at 560. "The burden of proving a claim of equitable estoppel rests on plaintiff." Id. at 562 (citing Virginia Constr. Corp. v. Fairman, 39 N.J. 61, 70 (1962)).

Here, plaintiff failed to meet its burden of proof on its equitable estoppel claim. Amato certified, without contradiction, that neither he nor any other Township official ever promised plaintiff that a resolution of need would be automatically issued upon the adoption of the Ordinance or plaintiff's receipt of site plan approval from the Planning Board. Indeed, the record clearly demonstrates that plaintiff was aware throughout the application process that the Township would not consider plaintiff's request for a resolution of need until after the public had the opportunity to comment. Under these circumstances, the doctrine of equitable estoppel did not require the Township to approve the resolution of need.

Finally, plaintiff argues that N.J.S.A. 40:55D-10.5 protects developers receiving preliminary site approval from subsequent adverse zoning actions. Therefore, it contends that, once it obtained site plan approval, the Township was required to automatically adopt a resolution of need for the project. This argument lacks merit.

N.J.S.A. 40:55D-10.5 provides

Notwithstanding any provision of law to the contrary, those development regulations which are in effect on the date of submission of an application for development shall govern the review of that application for development and any decision made with regard to that application for development. Any provisions of an ordinance, except those relating to health and public safety, that are adopted subsequent to the date of submission of an application for development, shall not be applicable to that application for development.

Because the Township did not amend the Ordinance for the HB Zone after plaintiff obtained site plan approval, this statute is not applicable to the facts of this case.

In sum, plaintiff was not entitled to a writ of mandamus requiring the Township to immediately adopt a resolution of need for plaintiff's project under N.J.S.A. 55:14K-6(c). Therefore, we affirm the trial judge's decision dismissing plaintiff's complaint.

Affirmed.

1 This program was made possible by federal funds received by New Jersey under the Disaster Relief Appropriations Act of 2013, Pub. L. No. 113-2, 127 Stat. 4.

2 HMFA awards these credits in cycles, which the agency refers to as "tranches."

3 The mayor is not a member of the Township Council.

4 Slachetka stated that "[t]he affordable units in [the Township] are comprised of various housing types, including single-family residential units, 100[%] affordable housing projects, age-restricted and 'family' rental units, housing for its special needs population, multi-family rental housing, and housing for older families and seniors."

5 Slachetka certified that "[i]n response to [that] rule proposal, [the] Fair Share Housing Center[,] [which participated as amicus curiae in this appeal] submitted an expert report [that also] calculat[ed] the Township's Round 3 (1999-2024) obligation to be zero units."

6 In count two, plaintiff asserted that the Township should also be required to enter into a Payment in Lieu of Taxes (PILOT) arrangement with it "so as to assist with the construction of the [p]roject." However, it voluntarily withdrew this contention at oral argument. In counts three and four, plaintiff alleged that the Township's actions violated the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, and the Law Against Discrimination, N.J.S.A. 10:5-1 to -49. The judge dismissed these counts of the complaint and plaintiff has not contested that ruling on appeal. Therefore, we do not address these issues in this opinion. See Grubb v. Borough of Hightstown, 353 N.J. Super. 333, 342 n.1 (App. Div. 2002).

7 The judge also found that the Township "is entitled to [over 1380] affordable housing credits, which is nearly double the highest obligation of the Township's fair share[,]" and, therefore, plaintiff did not establish that its project was "needed" for the Township to meet its fair share obligation for such units.

8 It is unclear why plaintiff, in its December 15, 2014 letter, demanded that the Township issue a resolution of need no later than its December 22, 2014 public meeting. As noted above, HMFA approves tax credits in tranches. At oral argument, plaintiff represented that tax credits are still available through the FRM program and that the deadline for the submission of applications for the third tranche does not expire until February 2016.

9 We again note that plaintiff's complaint specifically, and solely, sought an order directing the Township to issue it a favorable resolution of need by the date of its artificial deadline.