WOODCLIFF LAKE INVESTORS I, LLC v. PLANNING BOARD OF THE BOROUGH OF WOODCLIFF LAKE

NOT FOR PUBLICATION WITHOUT THE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-3692-16T3

WOODCLIFF LAKE INVESTORS I, LLC,

        Plaintiff-Appellant,

v.

PLANNING BOARD OF THE BOROUGH
OF WOODCLIFF LAKE, BOROUGH OF
WOODCLIFF LAKE, and BOROUGH OF
WOODCLIFF LAKE MAYOR AND COUNCIL,
a Municipal Corporation of the
State of New Jersey,

     Defendants-Respondents.
________________________________________

              Argued May 1, 2018 – Decided June 11, 2018

              Before Judges Carroll and DeAlmeida.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No.
              L-9515-15.

              Louis L. D'Arminio argued the cause for
              appellant (Price, Meese, Shulman & D'Arminio,
              PC, attorneys; Louis L. D'Arminio, of counsel
              and on the brief; Brian J. Yarzab, on the
              brief).

              Justin D. Santagata argued the cause for
              respondents (Kaufman, Semeraro & Leibman LLP,
              attorneys; Justin D. Santagata, on the brief).
PER CURIAM

     Plaintiff Woodcliff Lake Investors I, LLC (WLI) appeals from

a Law Division judgment upholding a municipal planning board's

imposition of a residential development fee on the multi-family

townhouse development of WLI's property.            We affirm.

                                        I.

     WLI was the contract purchaser of land in Woodcliff Lake

Borough on which were seven single-family homes (the property).

The property is in the R-30 Zone, a one-family residential zone.

After   several   years   of    negotiations      between   WLI    and   borough

officials,   on   July    14,   2014,    the    governing   body   adopted      an

ordinance creating a Townhome Overlay District (THO) in the R-30

Zone, allowing for the development of multi-family townhomes not

otherwise permitted in the zone.             WLI's property is in the THO.

     A provision of the borough's zoning ordinance allows for the

collection of a residential development fee of 1% of the equalized

assessed value of any new one-family dwelling constructed in

specified zones in the borough, minus the equalized assessed value

of any dwelling being replaced.          The fee is intended to assist in

the construction of affordable housing.             The ordinance lists the

R-30 Zone, but not the THO, in the provision authorizing the

collection of the residential development fee.



                                        2                                A-3692-16T3
      On August 18, 2015, the Woodcliff Lake Borough planning board

approved WLI's application to demolish the seven existing single-

family dwellings on the property and construct forty residential

townhome   units   with   related   improvements.   Over    plaintiff's

objection, the approving resolution, adopted on September 28,

2015, included a provision assessing the residential development

fee based on the planning board's finding that the property is

within the R-30 Zone.

      WLI thereafter filed a complaint in lieu of prerogative writ

challenging the imposition of the fee.       WLI argued that because

the ordinance did not expressly list the THO among the zones in

which imposition of the fee is authorized, assessment of the fee

on the development of WLI's property was unlawful.         In addition,

WLI argued the municipality was not authorized to collect the fee

because it lacks a housing element fair share and compliance plan

approved by the Council on Affordable Housing (COAH). See N.J.A.C.

5:94-6.3 (expired) ("no municipality, except . . . municipalities

seeking to achieve . . . a judgment of compliance, shall impose

or collect development fees . . . .").1

      After a trial on stipulated facts, Judge William C. Meehan

issued a written opinion rejecting WLI's arguments.        Judge Meehan



1
    Plaintiff does not pursue this argument on appeal.

                                    3                           A-3692-16T3
found that the THO does not supersede the R-30 Zone, but is an

overlay of the zone.          Thus, properties in the THO are also in the

R-30 Zone.      In addition, the judge held that exempting development

in the overlay zone from the fee otherwise applicable in the R-30

Zone   would     contravene     the    intention   of   the   drafters        of   the

ordinance.       The court also rejected WLI's argument that a 2015

amendment       to   the    ordinance    evinced   an    intention       to     limit

application of the fee in overlay zones, except for one overlay

zone    concerning         senior   housing   expressly       included     in      the

ordinance.       Finally, Judge Meehan noted that in In re N.J.A.C.

5:96 & 5:97, 
221 N.J. 1, 8 (2015), the Court transferred COAH's

responsibilities to the Superior Court.             He held that it was not

the Court's intent to prevent municipalities from collecting the

fee while the courts implemented COAH's mandates.                   On March 20,

2017, the trial court entered a judgment dismissing plaintiff's

complaint with prejudice.

       This appeal followed.

       Having    considered     plaintiff's    arguments      in   light      of   the

record and applicable legal standards, we affirm substantially for

the reasons expressed in the cogent and well-reasoned written

opinion of Judge Meehan.            R. 2:11-3(e)(1)(E).

       Affirmed.



                                         4                                    A-3692-16T3