NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3042-14T4

BERKELEY FAMILY APARTMENTS, LLC,

Plaintiff-Appellant,

v.

THE TOWNSHIP OF BERKELEY and

THE PLANNING BOARD OF THE

TOWNSHIP OF BERKELEY,

Defendants-Respondents.

__________________________________

Argued November 12, 2015 – Decided

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

December 7, 2015

A-3042-14T4 2

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

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."

A-3042-14T4 3

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

3

The mayor is not a member of the Township Council.

A-3042-14T4 4

[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

A-3042-14T4 5

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

A-3042-14T4 6

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

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."

A-3042-14T4 7

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].

A-3042-14T4 8

(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

A-3042-14T4 9

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

A-3042-14T4 10

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 comprehensive sixteen-page

written opinion denying plaintiff's motion for mandamus.

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).

A-3042-14T4 11

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

A-3042-14T4 12

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.

A-3042-14T4 13

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.

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.

A-3042-14T4 14

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 Rule 4:6-2(e) and a

motion for summary judgment pursuant to Rule 4:46-2 "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 Rule 4:6-2(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

A-3042-14T4 15

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

A-3042-14T4 16

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

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

(continued)

A-3042-14T4 17

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)).

(continued)

program and that the deadline for the submission of applications

for the third tranche does not expire until February 2016.

A-3042-14T4 18

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

A-3042-14T4 19

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)).]

A-3042-14T4 20

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

A-3042-14T4 21

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

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.

A-3042-14T4 22

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

A-3042-14T4 23

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.

A-3042-14T4 24

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.

A-3042-14T4 25

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

A-3042-14T4 26

(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

A-3042-14T4 27

"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

A-3042-14T4 28

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.