APPELLATE DIVISION DOCKET NO. L P.W. L P.W.

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2 ML000946M S U P E R I O R C O U R T OF NEW J E R S E Y APPELLATE DIVISION DOCKET NO. L P.W. L P.W. MORRIS COUNTY FAIR HOUSING COUNCIL, et. al. r Plantffs v. BOONTON TOWNSHIP, et. al. Defendant RANDOLPH MOUNTAIN INDUSTRIAL COMPLEX, a New Jersey Corporaton Plantff v. CIVIL ACTION ON MOTION FOR LEAVE TO APPEAL FROM INTERLOCUTORY ORDER OF SUPERIOR COURT, LAW DIVISION MORRIS COUNTY/ MIDDLESEX COUNTY (MOUNT LAUREL II LITIGATION) SAT BELOW HONORABLE STEPHEN SKILLMAN THE BOARD OF ADJUSTMENT OF THE TOWNSHIP OF RANDOLPH, et. al. Defendants MOTION FOR LEAVE TO APPEAL, AND BRIEF FOR DEFENDANT TOWNSHIP OF RANDOLPH, RANDOLPH TOWNSHIP PLANNING BOARD, RANDOLPH TOWNSHIP MUNICIPAL UTILITIES AUTHORITY AND RANDOLPH TOWNSHIP BOARD OF ADJUSTMENT. EDWARD J. BUZAK, ESQ. Montvlle Offce Park 150 Rver Road, A-4 Montvlle, New Jersey ATTORNEY(S) FOR DEFENDANTS Townshp Of Randolph, Randolph Townshp Plannng Board and Randolph Townshp Muncpal Utltes Authorty KENNETH H. GINSBERG, ESQ. 210 West Blackwell Street PO Box 406 Dover, New Jersey ATTORNEY(S) FOR DEFENDANT Randolph Townshp Board of Adjustment On the Bref: EDWARD J. BUZAK, ESQ.

3 TABLE OP CONTENTS MOTION FOR LEAVE TO APPEAL! BRIEF IN SUPPORT OF MOTION : PROCEDURAL HISTORY STATEMENT OF FACTS LEGAL ARGUMENT: POINT I POINT II THE MOTION BY DEFENDANTS FOR LEAVE TO APPEAL SHOULD BE GRANTED IN THE INTEREST OF JUSTICE AS THE ORDER JOINING THE ADDITIONAL PARTIES IS BEYOND THE JURISDICTION GIVEN TO THE TRIAL COURT BY THE SUPREME COURT IN THE REMAND IN THE HILLS DEVELOPMENT CO. v. TOWNSHIP OF BERNARD (A ) N.J THE TRIAL COURT LACKED JURISDICTION TO JOIN ANY PARTIES AS THE SAME IS OUTSIDE THE SCOPE OF JURISDICTION CONFERRED ON THE TRIAL COURT BY THE SUPREME COURT IN THE HILLS CASE 10 POINT III REASONABLE CONDITIONS ENDORSED BY THE SUPREME COURT IN THE HILLS CASE DO NOT INCLUDE THE JOINDER OF ADDITIONAL PARTIES 15 POINT IV THE CONSTITUTIONAL OBLIGATION TO PROVIDE A REALISTIC OPPORTUNITY FOR THE CONSTRUCTION OF LOW AND MODERATE INCOME HOUSING RELATES TO THE EXERCISE OF THE POWER TO ZONE POSSESSED BY MUNICIPALITIES AND IS INAPPLICABLE TO THE EXERCISE OF OTHER POWERS BY A MUNICIPALITY, A PLANNING BOARD, A BOARD OF ADJUSTMENT, AND A MUNICIPAL UTILITIES AUTHORITY

4 POINT V TABLE OF CITATIONS: a. CASES CITED: TABLE OF CONTENTS Page EVEN ASSUMING ARGUENDO THAT THE COURT BELOW POSSESSED THE JURISDICTION TO CONSIDER THE JOINDER OF PARTIES, THE MOVANT FAILED TO FULFILL THE REQUIREMENTS OF R.4:28-1 AND THEREFORE THE GRANTING OF THE JOINDER MOTION MUST BE REVERSED 22 All People's Congress of Jersey v. Jersey Cty, 195 N.J. Super. 532 (Law Dv. 1984)... 19,20 Appeal of Pennsylvana Ralroad Co., 20 N.J. 398 (1956 ). 6 Cardnale Truckng Corp. v. Motor Ral Co. 56 N.J. Super. 150 (App. Dv. 1959) 6 Morrs Plans, et. al. v. Department of Publc Advocate, 169 N.J. Super. 403 (App. Dv ), certf. den. 81 N.J. 411 (1979) 1 Romano v. Maglo, 41 N.J. Super. 561 (App. Dv. 1956) 6 So. Burlngton County N.A.A.C.P. v. Mt. Laurel Townshp, 92 N.J. 158 (1983) 1,7,9,11, 12,13,14, 16,17,19 South Burlngton County N.A.A.C.P. v. Townshp of Mt. Laurel, 67 N.J. 151 (1975).. 15 The Hlls Development Co. v. Townshp of Bernards, (A ) N.J. (198 6) 2,3,4,6 b. STATUTES CITED: P.L Chapter 222 2,20,

5 TABLE OF CONTENTS Page c. COURT RULES:. : R.2:2-4 6 R. 2:12-1 2,8 o R. 4: ,24 d. OTHER SOURCES: N.J.A.C. 5:91-1 9! "The Impact of Mount Laurel II on Muncpal Utltes Authortes", 115 New Jersey Law Journal 317 (March 21, 1985) ll

6 MOTION FOR LEAVE TO APPEAL TO: Elzabeth M. McLaughln, Clerk : Superor Court of New Jersey Appellate Dvson Rchard J. Hughes Justce Complex j Trenton, New Jersey Sr/Madam: Honorable Stephen Skllman Mddlesex County Courthouse 10 New Brunswck, New Jersey All Counsel on Attached Lst PLEASE TAKE NOTICE that the undersgned Attorney for Defendants Appellants Townshp of Randolph, Randolph Townshp Plannng Board, Randolph Townshp Muncpal 20 Utltes Authorty and Randolph Townshp Board of Adjustment hereby moves before the Superor Court of New Jersey, Appellate Dvson, for Leave to Appeal from the nterlocutory order of the Honorable Stephen Skllman sgned and fled on May 29, 1986 n the cases of Morrs 30 County Far Housng Councl et. al., v. Boonton Townshp, et. a., Docket No. L P.W. and Randolph Mountan Industral Complex v. The Board of Adjustment of the Townshp of Randolph et. al. y Docket No. L P.W. In support of sad moton the undersgned wll 40 rely upon the attached Bref and Appendx. EDWARD J. PM3AK, ESQ. KENNETH H. GINSBERG, ESQ. Attorney for Defendants Attorney for Randolph Townshp Townshp of Randolph, Board of Adjustment Randolph Townshp Plannng ^/,, JJ, ^ * Board,ajd- Randolph Townshp By /^-r^^c^l $-/ ^^P^J^C^L^ ^ Muncpal Utltes Kenneth H. Gnsberg, ^ Authfcr-.y/- /'/">/"~^ fct 50 3y 3uzak,>Esq. Dated: June 5, 1986 \ I

7 SERVICE LIST Stephen M. Esdorfer, Esq.! Publc Advocate CN 860 ' Rchard J. Hughes Justce Complex Trenton, NJ j 10 Edward Bocher, Esq. \ Deputy Attorney General \ CN 112 I Hughes Justce Complex ;! Trenton, NJ Rchard T. Sweeney, Esq. Sears, Sweeney & Wennger, Esqs. 57 Old Bloomfeld Avenue 20 Mountan Lakes, NJ Stephan C. Hansbury, Esq. c/o Harper & Hansbury, Esqs. 736 Speedwell Avenue Box 198 Morrs Plans, NJ

8 BRIEF IN SUPPORT OF MOTION PROCEDURAL HISTORY On or about October 13, 1978, the Publc Advocate of the State of New Jersey on behalf of hmself and others fled an exclusonary zonng sut aganst Randolph Townshp and twenty-sx other muncpaltes n Morrs County. An unsuccessful appeal was taken by Randolph and several other Defendants n the case challengng the Publc Advocate's nvolvement n the lawsut. Morrs Plans, et. al. v. Department of Publc Advocate, 169 N.J. Super. 403 (App. Dv. 1979), certf. den. 81 N.J. 411 (1979). 20 Subsequently, the Supreme Court stayed any further proceedngs n ths case pendng ther decson n several Mt. Laurel cases then before the Court. After the Supreme Court rendered ts opnon n Mt. Laurel II, So. Burlngton County NAACP v. Mt. Laurel Townshp, 92 N.J (1983), the stay was lfted and the case was assgned to the Honorable Stephen Skllman, the "Mt. Laurel Judge" for the northern part of the State. Further dscovery took place and several settlements were tentatvely effected, subject to subsequent judcal revew and approval. 4Q On July 2, 1984, the tral n the matter commenced aganst the Townshp of Denvlle, the Townshp of Randolph and the Townshp of Parsppany Troy-Hlls on all ssues relatng to the calculaton of a far-share oblgaton. On or about July 20, 1984, the Townshp of 50-1-

9 Randolph entered nto a tentatve settlement of the entre ltgaton, whch settlement was never effectuated. I On July 2, 1985, Governor Thomas Kean sgned Ch. ' 222 P.L. 1985, the Far Housng Act ("Act") and on or about September 9, 1985, the Townshp of Randolph fled a Moton to transfer the cases sub judce to the Councl on Affordable Housng pursuant to Secton 16 of the Act. Oral j argument was advanced before the Honorable Stephen Skllman on September 23, 1985 and on October 28, 1985 the Judge entered an order denyng the transfer of these cases to the Councl. On or about November 8, 1985 the Defendant fled a moton for leave to appeal the sad nterlocutory order whch was certfed pursuant to R.2:12-1 to the Supreme Court by order dated November 13, Brefs were submtted and oral argument held by the Supreme Court on January 6 and January 7, On February 20, 1986, the Supreme Court ssued ts opnon n ths case and several other related cases under the name The Hlls Development Co. v. Townshp of Bernards, (A ) N.J. (1986) reversng the order of the Honorable Stephen Sklllman and transferrrng the cases to the Councl subject to such condtons as the tral court mght mpose n accordance wth the terms of the opnon to conserve "scarce resources". Supra at

10 On March 21, 1986 the Publc Advocate fled a! notce of moton to place condtons upon the transfer of ; the ltgaton whch ncluded a request to jon the! Randolph Townshp Plannng Board, Board of Adjustment, Muncpal Utltes Authorty and the Rockaway Valley 10 Regonal Sewerage Authorty ("RVRSA") as partes to the proceedng and to ssue "...such further nterlocutory j I j restrants... to preserve the abllty of Randolph! Townshp to meet ts consttutonal oblgatons to provde suffcent realstc housng opportuntes...." (Da- 20 6a). No bref or supportng affdavt was fled wth that moton. Judge Skllman bfurcated the moton and frst took brefs and heard oral argument on the ssue of jonng addtonal partes. At oral argument on May 14, 1986, the 30 Advocate dropped hs request to jon the RVRSA. On May 29, 1986 the Honorable Stephen Skllman entered an order to jon, among others, the Defendant Plannng Board, Board of Adjustment and Muncpal Utltes Authorty. (Da-la). 40 STATEMENT OF FACTS The essental facts n ths case are set forth n detal by the Supreme Court n The Hlls Development Co. v. Townsh.-? of Bernards (A ) N.J. (1986). The 50-3-

11 hstory of ths matter s long and tortured but for the purposes of ths moton the followng bref statement of facts s set forth. In The Hlls case, the Supreme Court whle upholdng the consttutonalty of the Act, transferred the nstant case, along wth all other cases then before t to the Councl on Affordable Housng. In transferrng these cases to the Councl the Supreme Court granted lmted jursdcton to the tral court to entertan applcatons to mpose condtons on the transfer to preserve scarce resources. Supra at 88. Pursuant to sad nvtaton, the 20 Publc Advocate on March 21, 1986 fled a moton to mpose condtons, wthout detalng the types of condtons requested, to jon to the acton the Plannng Board, Board of Adjustment, Townshp Muncpal Utltes Authorty and the RVRSA. (Da-5a, 6a). No supportng bref nor affdavt 30 were annexed and there was no ndcaton upon the flng of sad moton the precse nature of the condtons. On or about March 21, 1986 Plantff Randolph Mountan Industral Complex fled a moton for leave to fle an amended complant namng the Randolph Townshp 4^ Muncpal Utltes Authorty as an addtonal Defendant and condtonng the transfer of the matter upon a requrement that the sad Authorty reserve sewerage gallonage treatment capacty for the Mt. Laurel housng as proposed by sad Plantff. (Da-45a, 46a). A 50 certfcaton was annexed to the applcaton. -4- (Da-48a)

12 On or about Aprl 17, 1986, nearly one month j after the flng of the moton to mpose condtons, the ' Advocate, for the frst tme n wrtng, submtted a letter bref wth attachments n support of the jonder and detalng the restrants beng requested. (Da-8a). On or about Aprl 23, 1986 the undersgned fled a bref n! 10 opposton to Plantff's moton to jon sad addtonal partes. (Da-74a). On May 14, 1985 the Honorable Stephen j Skllman heard oral argument on the jonder motons and! ordered the jonder of the Plannng Board, Board of Adjustment and Muncpal Utltes Authorty, whch order 20 was formalzed on May 29, (Da-la). The Townshp of Randolph, and the newly joned Plannng Board, Board of Adjustment and Muncpal Utltes Authorty jontly move before ths Court for leave to appeal ths nterlocutory order jonng sad partes n 30 ths ltgaton

13 POINT I THE MOTION BY DEFENDANTS FOR LEAVE TO APPEAL SHOULD BE GRANTED IN THE INTEREST OF JUSTICE AS THE ORDER JOINING THE ADDITIONAL PARTIES IS BEYOND THE JURISDICTION GIVEN TO THE TRIAL COURT BY THE SUPREME COURT IN THE REMAND IN THE HILLS DEVELOPMENT CO. V. TOWNSHIP OF BERNARD (A ) N.J : : 10 In accordance wth R.2:2-4, the Appellate Dvson may grant leave to appeal n the nterest of justce from an nterlocutory order of any court. The grantng of leave to appeal s approprate f after a balancng of the nterests, justce suggests the need for revew n advance of the fnal judgment. Appeal of Pennsylvana Ralroad Co., 20 N.J. 398 (1956); Cardnale Truckng Corp. v. Motor Ral Co., 56 N.J. Super. 150 (App. Dv. 1959). Although the power to grant nterlocutory appeals s very sparngly exercsed by the Court, t wll be exercsed when some grave damage or njustce may be caused by the Court below. Romano v. Maglo, 41 N.J. Super. 561, (App.Dv. 1956). In Romano, supra., the Appellate Dvson stated the proposton as follows: "We wll not grant leave to appeal n order to correct mnor njustces, such as those commonly attendant on^ orders erroneously grantng or denyng nterrogatores or dscovery...however, we may grant leave to appeal where some grave damage or njustce may be caused by the order below, such as may occur when the tral court grants, contnues, modfes, refuses or dsolves an njuncton, apponts a recever or refuses an order to wnd up a pendng recevershp....we may also be nduced to grant leave where the appeal, f sustaned, wll termnate the ltgaton and thus very 50 j

14 substantally conserve the tme and expense of the I ltgants and the Courts, as n the case where the \ order attacked determnes that the Court or agency below has jursdcton of the subject matter or! person." (Emphass added). Id. The ssue n the nstant case s of the magntude suggested by the Appellate Dvson n Romano. ' If the appeal s 10 successful, the Court below wll not have the rght to mpose condtons on these addtonal Defendants and therefore the ssue goes to the heart of the jursdcton queston. Addtonally, ths acton nvolves threshold questons that have developed under The Hlls case, as well as under the v Act. The ssue n ths case nvolves the scope of jursdcton that was granted to the tral court by the Supreme Court and t. s approprate to have ths Court as quckly as possble examne and resolve ths jursdctonal queston. Pror to The Hlls case and the Act, the blueprnt for the handlng of exclusonary zonng cases was set forth n Mt. Laurel II, Supra. j The Supreme Court n that case dscouraged nterlocutory appeals ^d. 290, but nevertheless recognzed the need to consder nterlocutory appeals: "In the most unusual crcumstances stays may be granted ether by the tral or appellate courts and nterlocutory appeals taken (or attempted); furthermore, there may even be crcumstances n whch the tral court declnes to handle the ltgaton n one package. It may, for nstance, enter a fnal judgment (upon certfcaton pursuant to R.4:42-2) what would otherwse be an nterlocutory order nvaldatng the ordnance before t." Ij. at Q 4lj O -7-

15 Thus, even n Mt. Laurel II, the Supreme Court recognzed that although nterlocutory appeals would not be! favored, crcumstances mght dctate that leave be granted to j consder nterlocutory appeals of a magntude whch nvolve the! «very jursdcton of the Court. Ths concept was further confrmed n The Hlls case ; 10 where the Supreme Court, pursuant to R^_2:12-l drectly certfed the moton fled by Randolph Townshp for leave to appeal from \ the order denyng the transfer of ths matter to the Councl The Supreme Court went on to grant such leave and proceeded to hear the case on January 6 and 7, 1986, recognzng the mportance of determnng both the consttutonalty of the Act and the proprety of the lower court's denal of the transfer. The nstant moton seeks leave to appeal agan the jursdcton afforded to the tral court by the Supreme Court n The Hlls case to consder the mposton of condtons on the transfer. 30 It s respectfully mantaned that the tral court went beyond the sad jursdcton by orderng the jonder of addtonal partes to a case whch has been pendng for eght years and for whch no prevous applcaton to jon any addtonal partes had been made. It s certanly approprate for ths Court to determne whether the tral court has exceeded ts jursdcton pror to the tral court makng determnatons on condtons to be mposed upon newly joned partes. Moreover, the Supreme Court afforded the tral court not only a lmted scope of jursdcton but a lmted tme I ; 20 4(^ D -8-

16 perod wthn whch to exercse the same. Thus, the Supreme j Court has stated:! "Snce the Councl [on Affordable Housng] wll j not be able to exercse ts dscreton untl t has I done the varous thngs contemplated n the Act, for : whch a perod of seven months has been allowed, we beleve the Act farly mples that the juddcary! 10 has the power, upon transfer, to mpose those same condtons desgned to conserve scarce resources that the Councl mght have mposed were t fully n operaton." Supra at 87. j The Councl s now fully operatonal and has! promulgated procedural gudelnes as contaned n the Aprl 21, edton of the New Jersey Regster (N.J.A.C. 5:91-1 et. seq) and substantve gudelnes n the June 2, 1986 edton of the New Jersey Regster. If ths Court does not hear the appeal of the ssues rased heren at ths tme, the ssues mght never reach ths Court as the Councl wll soon be "fully operatonal". In concluson, therefore, t s respectfully requested 30 that ths Court grant leave to the Defendants heren to fle an appeal from the order grantng the jonder of these addtonal partes. The grantng of such a moton wll permt the Appellate Dvson to determne the scope of the Supreme Court's 40 grant of jursdcton to the tral court n The Hlls case and resolve the ssue once and for all as to whether the tral courts should contnue to be nvolved n these exclusonary zonng controverses beyond the explct grant of jursdcton order by the Supreme Court. The grantng of ths moton wll 50-9-

17 provde the Appellate Dvson wth a unque opportunty to afford the tral court gudance n assessng the varous motons whch have been made under the Supreme Court decson n The : Hlls case. Fnally, the denal of ths moton mght well I result n the Defendants beng dened any opportunty for revew of the tral court's jonder order snce by the tme the matter 10 s resolved at the tral court level, the Councl wll most ;! lkely be fully operatonal and the tral court would lose ts j jursdcton. Grantng the leave to appeal now would also avod a potental confrontaton between the Councl and the f judcary on the ablty to modfy orders whch had prevously been 20 granted by the tral courts. POINT II THE TRIAL COURT LACKED JURISDICTION TO JOIN ANY PARTIES AS THE SAME IS OUTSIDE THE SCOPE OF JURISDICTION CONFERRED ON THE TRIAL COURT BY THE 30 SUPREME COURT IN THE HILLS CASE. Typcally, there s lttle need to revew the scope of jursdcton of a tral court n a moton to jon partes. The Court, wthout doubt, has that jursdcton and all one needs to do s to comply wth the requrements set forth n the Rules. 40 In the nstant case, however, the lower Court does not have general jursdcton. Instead, the Supreme Court has removed jursdcton over ths matter by the lower Court except n a very narrow area. Thus, the Supreme Court n The Hlls case stated:

18 "We hold that the Act s consttutonal and order that all of the cases pendng before us be transferred to the Councl. Those transfers, however, shall be subject to such condtons as the tral courts may fnd necessary to preserve the muncpalty's ablty to satsfy ther Mt. Laurel oblgaton." (Slp op. at 30). In concludng, the Supreme Court stated: "All cases are hereby transferred to the Councl subject to such condtons as the tral courts may hereafter mpose all n accordance wth the terms of ths opnon." (Slp op. at 93). 10 In specfyng the lmted jursdcton retaned by the tral court, the Supreme Court stated: "As to any transferred matter, any party to the acton may apply to the tral court (whch shall retan jursdcton for ths lmted purpose) for the mposton of condtons on the transfer." (Slp op. at 88). 20 Thus, t s beyond cavl that the jursdcton afforded to the tral court was solely for the purpose of mposng condtons on the transfer. That jursdcton does not extend to the jonder of addtonal partes. What can be more ronc than the expanson of a judcal acton when the entre tenor of the Supreme Court's determnaton n The Hlls case s a reducton of the Court's jursdcton? It s clear throughout the Supreme Court's opnon and even n ther earler opnons on the ssues that the judcal nvolvement would shrnk n drect proporton to the expanson of the nvolvement of the Executve and Legslatve branches of government. The Supreme Court n The Hlls case found that the feld s now -11-

19 substantally occuped by the Legslatve and Executve branches and that t would, true to ts past exhortatons, remove from the feld of exclusonary zonng. tself Perhaps the best llustraton of the Supreme Court's j ntenton of removng the judcary from the feld s ts rulng wth respect to the ssue of res judcata and collateral 10 estoppel. The Court rased the ssue as to whether the Councl, on Affordable Housng would be bound by any orders entered n any of the judcal matters whch were beng transferred to the Councl on Affordable Housng n The Hlls case. The Supreme Court stated at 82: 20 "Where no fnal judgment has been entered, we beleve the Councl s not bound by any orders entered n the matter, all of them beng provsonal and subject to change, nor s t bound by any stpulatons, ncludng a muncpalty's stpulaton that ts zonng ordnances do not comply wth the Mt. Laurel oblgaton." (Slp op. at 82). The Supreme Court n The Hlls case went on to elaborate on the bass for such a concluson, statng: "The admnstratve remedes, and the admnstratve approach to that subject [Mt. Laurel oblgatons] may be sgnfcantly dfferent from the Court's. Far share rulngs by the Court, provsonal bulders' remedes, ste sutablty determnatons all of these may not be n accord wth the polces and 40 regulatons of the Councl. Smlarly, stpulatons n Mount Laurel matters were undoubtedly based on the assumpton that the ssues would be determned by the Court n accordance wth Mount Laurel II. They presumably represented the ltgant's belef that what was beng stpulated would be adjudcated n any event. It s not only, n a sense, unfar to the ltgant to be bound by these nterm adjudcatons and stpulatons, t would also be nconsstent wth the purposes of the Act, for these determnatons and 50 stpulatons may be nconsstent wth the j

20 comprehensve plan of development of the state and the method of effectuatng t." Thus, the ntent of the Supreme Court was to gve the muncpaltes the ablty for a fresh start n terms of complance wth the Mount Laurel oblgaton as that oblgaton 10 s quantfed by the Councl on Affordable Housng, not as based upon the Court's prevous actons. To now permt the addton of partes to the ltgaton wll not foster that result, but "20 nstead contnue to place the judcary nto the mdst of determnatons now to be made by an admnstratve body under rules, regulatons and gudelnes adopted by them. Indeed, the concerns that the Councl mght adopt regulatons whch dffered from those appled by the judcary have been realzed. The Councl has reduced by 100,000 unts the Mt. Laurel needs for the State and has promulgated a modfed formula for determnng a muncpalty's far share oblgaton. Randolph was requred under the Court's formula to provde for 872 unts whle under the Councl's formula t has been reduced almost 50% to 452. (Da-102a) Moreover, the lmted nvolvement of the judcary was necessary to add legtmacy to the Mount Laurel doctrne. The Supreme Court understood, n The Hlls case, the effect of a judcal promulgaton of zonng by statng, "We understand that

21 no one wants hs or her neghborhood determned by judges." Slp op. at 90. In removng tself from ths area, the Supreme Court understood the effcacy of the legslatve remedes: "The Far Housng Act has many thngs that the : judcal remedy dd not have:... t has the knd of legtmacy that may generate popular support, the legtmacy that comes from enactment by the people's elected representatves; t may result n voluntary complance, largely unacheved n a decade by the rule of law fashoned by the Courts... and t has all of the advantages of mplementaton by an admnstratve agency nstead of by the Courts, advantages that we recognzed n our Mount Laurel opnons." (Slp op. at 58-59). (Emphass added) For the tral court to order the addton of partes under the guse of the mposton of condtons s totally nconsstent and dametrcally opposed to the Supreme Court's lucd understandng and clear declaraton of the mportance of havng the consttutonal oblgaton mplemented through a body subject to the electorate, portrayng the knd of legtmacy that can only be manfested by actvty promulgated by the elected representatves of the people

22 In concluson, therefore, t s respectfully submtted that the tral court lacked the jursdcton to consder the! moton to jon addtonal partes. The jursdcton conferred upon the lower court by the Supreme Court was solely to consder the mposton of condtons to preserve a scarce resource., : 10 Jonder motons and any other motons whch would otherwse be permtted under the Rules are outsde of the scope of : jursdcton of ths Court. A far readng of The Hlls case must result n the concluson that the ntent of the Supreme Court was to have the judcary removed from Mount Laurel actons, except to the extent that a condton must be mposed to preserve a scarce resource. Therefore, ths Court must reverse the order of the tral court Defendants. jonng the addtonal POINT III REASONABLE CONDITIONS ENDORSED BY THE SUPREME COURT IN THE HILLS CASE DO NOT INCLUDE THE JOINDER OF ADDITIONAL PARTIES. 30 Vewng the ssue from another perspectve, the subject whch must be consdered s whether the condtons 40 referred to by the Supreme Court could reasonably nclude the jonder of addtonal partes. A crtcal examnaton of that porton of The Hlls case nvolvng the mposton of condtons must lead one to the concluson, however, that the term "condtons" cannot be so expanded

23 The subject of condtons s dealt wth n detal by j the Supreme Court at 86 through 89 of the Slp Opnon. The \ Court begns wth the statement: ; "We have concluded that the Councl has the power to ; : requre, as a condton of ts exercse of jursdcton on an applcaton for substantve! certfcaton, that the applyng muncpalty take approprate measures to preserve 'scarce resources', : 10 namely, those resources that wll probably be j essental to the satsfacton of ts Mount Laurel oblgaton." It s nterestng to note that the Supreme Court refers to the ablty of the Councl to mpose condtons on the 11...applyng muncpalty....", not on any poltcal 20 subdvson of the State or of the muncpalty, ncludng a Plannng Board, Board of Adjustment, or a Muncpal Authorty. Utltes In grantng the lower court the ablty to mpose condtons, the Supreme Court dd not confer upon t any more power to mpose those condtons than the Councl was granted. 30 As specfcally stated by the Supreme Court: "Snce the Councl wll not be able to exercse ts dscreton untl t has done the varous thngs contemplated n the Act, for whch a perod of seven months has been allowed, we beleve the Act farly mples that the judcary has the power, upon transfer, to mpose those same condtons desgned to conserve scarce resources that the Councl mght have 40 mposed were t fully n operaton." (Slp Op. at 87). (Emphass added). j Thus, to ascertan the scope of condtons whch can be mposed by the judcary, we must look to the scope of condtons whch can be mposed by the Councl. There can be no doubt that the Councl on Affordable Housng lacks the power to

24 brng addtonal partes before t n ts entertanment of an j applcaton for substantve certfcaton. The Act drects tself to the muncpalty whch possesses the ablty to exercse zonng power. Snce the Councl lacks the power to mpose condtons whch would add partes to the substantve 10 certfcaton process, the Court s smlarly constraned. Ths poston s further bolstered by the elaboraton j of the Supreme Court on the ssue of condtons. After deemng; t "unwse" to mpose "approprate condtons" n the cases before t, the Supreme Court detaled what t meant by an 2*o "approprate" condton: "'Approprate 1 refers not smply to the desrablty of preservng a partcular resource, but to the practcalty of dong so, the power to do so, the cost of dong so, and the ablty to enforce the condton." (Slp op. at 87-88). Thus, although the Court recognzed that the Councl 30 and thus the tral court n these lmted crcumstances could consder the mposton of condtons to preserve scarce resources, even f the need to preserve the same was manfested, a condton mght not be approprate. Accordngly, f the tral 40 court otherwse lacked the power to do so, t could not mpose a condton even though the need to preserve a scarce resource exsted. If t was mpractcal to do so or f the cost of dong so was so great or f the tral court lacked the ablty to enforce the condton, the condton would no longer be 50 approprate. It s mantaned that the concept that the Court had the power on an applcaton for the mposton of condtons -17-

25 to add partes to the ltgaton and then enjon the exercse of ther statutory powers s so far beyond that whch the Supreme I Court ntended. In summary, therefore, t s respectfully mantaned that "reasonable" condtons endorsed by the Supreme Court to preserve scarce resources does not nclude the addton of partes to ths ltgaton. It cannot be challenged that the j Councl lacks the ablty to brng before t other muncpal! bodes, agences or poltcal subdvsons of ths State n. ^Q I conjuncton wth an applcaton for substantve certfcaton 20 fled by a muncpalty. The Supreme Court has ndcated n The Hlls case that the lmted jursdcton conferred upon the tral court n the nstant case was to consder the same types of condtons whch the Councl could otherwse mpose were t fully operatonal. The Court, n ths case, possesses no 30 greater power than the Councl and therefore lacks the power to add partes to the ltgaton. For these reasons, the nterlocutory order entered by the Honorable Stephen jonng the addtonal Defendants must be reversed. Skllman POINT IV 40 THE CONSTITUTIONAL OBLIGATION TO PROVIDE A REALISTIC OPPORTUNITY FOR THE CONSTRUCTION OF LOW AND MODERATE INCOME HOUSING RELATES TO THE EXERCISE OF THE POWER TO ZONE POSSESSED BY MUNICIPALITIES AND IS INAPPLICABLE TO THE EXERCISE OF OTHER POWERS BY A MUNICIPALITY, A PLANNING BOARD, A BOARD OF ADJUSTMENT, AND A MUNICIPAL UTILITIES AUTHORITY. 50 In Mount Laurel I, South Burlngton County NAACP v. Townshp of Mount Laurel, 67 N.J. 151, 174 (1975) the Supreme -18-

26 Court of New Jersey declared that every developng muncpalty, must, by ts land use regulatons presumptvely make j realstcally possble an approprate varety and choce of housng. The underpnnng of the Court's opnon was the New Jersey Consttuton whch authorzed the Legslature to enact laws to permt a muncpalty to enact zonng ordnances. The Court found that the exercse of ths zonng power had to meet the requrement of substantve due process and that the use of the power must protect the general welfare whch the Court found to nclude adequate and suffcent housng. Nearly eght years "^ later, n Mount Laurel II, South Burlngton County NAACP v. Mount Laurel Townshp, 92 N.J. 158, (1983), the Supreme Court agan opned that every muncpalty's land use regulatons must provde a realstc opportunty for decent housng for ts resdent poor who occupy dlapdated housng and. Q n addton, those muncpaltes n a growth area must provde a realstc opportunty n ther zonng ordnances for ther far share of the regon's present and prospectve low and moderate ncome housng needs. The Mount Laurel cases are clearly land use cases nvolvng the muncpalty's exercse of ts consttutonal power to zone. It has been found that the Mount Laurel doctrne s napplcable to other areas n whch a muncpalty may exercse ts powers. For example, n All People's Congress of Jersey v. Jersey Cty, 195 N.J. Super. 532 (Law Dv. 1984), the -, ssue was rased as to whether the Mount Laurel II doctrne was 1Q 4Q -19-

27 applcable to a muncpalty's enactment of a rent-levelng ordnance. The Honorable Stephen Skllman declned to entertan the case on the bass that the same nvolved an attack upon a j! rent-levelng ordnance as dstngushed from a zonng ordnance. Judge Skllman further ndcated that f the.' 10 Complant were amended to nclude a challenge to the Jersey Cty zonng ordnance, a reconsderaton would have to take place. j Based upon such a determnaton, Judge Young opned: "Ths court determnes that the Mount Laurel II doctrne s not applcable to the rent control ordnance represented by ordnance MC-451. The Mount -- Laurel II doctrne s applcable to revew the 20 exercse of a muncpalty's consttutonal power to zone, more partcularly when the power s nvoked to create exclusonary zonng. Exclusonary zonng s the mschef whch both Mount Laurel I and Mount Laurel II were desgned to remedy. Indeed, an analyss of the Mount Laurel II opnon dscloses that ts letmotf s the scope of the exercse of the power to zone. The essence of the opnon s stated n the passage here quoted: 30 "'That s the consttutonal ratonale of the Mount Laurel doctrne. The doctrne s a corollary of the consttutonal oblgaton to zone only n furtherance of the general welfare. The doctrne provdes a method of satsfyng that oblgaton when the zonng n queston affects housng. [92 N.J. at 209]. IM 195 N.J. Super. 532, 540. The Mount Laurel oblgaton as set forth n the trlogy of Mount Laurel cases and furthermore as legtmatzed n the Far Housng Act, Ch. 222 P.L relates to a muncpalty's exercse of ts zonng power. There s absolutely no bass n law to support the proposton that a muncpal plannng board, a muncpal board of adjustment, or a j j

28 muncpal utltes authorty, possesses such an oblgaton. j That those enttes lack the power to zone s ncontrovertble.; And to even consder the expanson of the doctrne at the pont! n tme when the Legslature has enacted the Far Housng Act to legtmatze the oblgaton as t relates to muncpaltes, s both unwse and unwarranted.* Wthout belaborng the pont, t s clear that the Mount Laurel doctrne s napplcable to Plannng Boards and ] Boards of Adjustment to the extent that they exercse ther statutory powers, except as t relates to the powers whch were recently ncluded as part of the Far Housng Act. Muncpal 20 Utltes Authortes are lkewse not subject to the Mount Laurel Doctrne whch s bottomed n the exercse of a muncpalty's zonng power. The addton of these partes s smply wthout support and precedent and should be reversed A more complete analyss of the napplcablty of the Mount Laurel doctrne to muncpal utltes authortes s contaned n "The Impact of Mount Laurel II on Muncpal Utltes Authortes", 115 New Jersey Law Journal 317 (March 21, 1985). -21-

29 POINT V EVEN ASSUMING ARGUENDO THAT THE COURT BELOW j POSSESSED THE JURISDICTION TO CONSIDER THE : JOINDER OF PARTIES, THE MOVANT FAILED TO I! FULFILL THE REQUIREMENTS OF R.4:28-1 AND THEREFORE THE GRANTING OF THE JOINDER MOTION MUST BE REVERSED., 10 Although not stated anywhere n Plantff's movng I papers (Da-5a to 44a), t s assumed that the moton to jon partes was brought pursuant to R.4:28-1 nvolvng jonders of persons needed for just adjudcaton. The Rule provdes n pertnent part: "A person who s subject to servce of process shall be joned as a party to the acton f (1) n hs absence complete relef cannot be accorded among those already partes, or (2) he clams an nterest n the subject of the acton and s so stuated that the dsposton of the acton n hs absence may ether () as a practcal matter mpar or mpede hs ablty to protect that nterest or () leave any of the persons already party subject to a substantal rsk of ncurrng double, multple or other nconsstent oblgatons by reason of hs clamed nterest. If he has not been so joned, the Court shall order that he be made a party. If he should jon as a plantff but refuses to do so, he may be made a defendant." 3 It s respectfully suggested that the second category of jonder s napplcable to the nstant matter snce t would nvolve an applcaton by that thrd party to jon the acton. The only bass upon whch the moton could have been made was 4:28-l(a)(l) where a clam s beng made that complete relef cannot be accorded among those already partes wthout the addton of the partes requested to be joned. -22-

30 The problem that arses, however, s that the tral court wll grant no relef to the partes to ths acton. The j nstant matter has been transferred to the Councl by the Supreme Court n The Hlls case. The relef that wll be! accorded n ths case wll be through that admnstratve body, -^Q whch has already promulgated both procedural and substantve j rules, regulatons and gudelnes. Thus, t s respectfully j mantaned that Plantff faled to satsfy hs burden of proof! n regard to hs moton. Moreover, the relef that can be afforded to an 20 nterested party by the Councl s relef aganst the muncpalty and the exercse of ts zonng power. The Far Housng Act, Ch. 222 P.L makes that perfectly clear n Secton 2 wheren the Legslature recognzes that the Supreme Court through ts Mt. Laurel rulngs 3Q "...has determned that every muncpalty n a growth area has a consttutonal oblgaton to provde through ts land use regulatons a realstc opportunty for a far share of ts regon's present and prospectve needs for housng for low and moderate ncome famles." (Emphass added). Thus, the relef that can be afforded by the Councl 40 to an nterested party s wth respect to a muncpalty's exercse of ts land use regulatons not aganst a Plannng Board's exercse of ts statutory jursdcton nor that of a Board of Adjustment, nor that of a Muncpal Utltes Authorty. 50 In spte of all of the foregong, perhaps most llustratve of the absurd and bzarre nature of Plantff's -23-

31 moton and the lower court's concurrent n t s the fact that ; the ltgaton, pror to ts beng transferred to the Councl, had been pendng for almost eght years. Throughout that perod, never dd the Plantff move to add any partes to the j acton, let alone, the specfc partes now added. Ths s a case whch was tred for almost two weeks wthout any of the now I joned partes, tentatvely settled, and brought before the. Supreme Court on an appeal of a denal of a moton to transfer,! and transferred to the Councl. At no tme durng those 7 1/2 ' years dd Plantff move to jon these partes. Now, when the Court lacked jursdcton n the case, Plantff brought a moton to add partes, takng the poston that n the absence of these partes, complete relef cannot be accorded among those already partes. be rejected. Ths poston s smply wthout bass and must In summary, therefore, t s submtted that the lower court's grant of Plantff's moton to jon the Plannng Board, Board of Adjustment, Muncpal Utltes Authorty and Regonal Sewerage Authorty must be reversed because of Plantff's falure to fulfll the requrements of R.4:

32 CONCLUSION In lght of the foregong reasons, t s respectfully requested that ths Court grant the moton of Defendants for leave to appeal the nterlocutory order of the Honorable Stephen Skllman entered May 29, 1986 jonng the the Randolph Townshp Plannng Board, Randolph Townshp Board of Adjustment and ; furthermore to reverse sad order makng such jonder Respectfully submtted, EDWARD J. BUZAK, ESQ., 30 Attorney for Defendants, Townshp of Randolph Randolph Townshp^Flannng Board,y^n^ RanjcLolph Townshp Munc/pal Utut/ss Authorty Dated: June 6, G

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