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r AM000280B ALOIS, H/DEIS, ERNA HAUEIS, ) SUPERIOR COURT OF NEW JERSEY JOHN OCHS and PRISCILLA OCHS, Plantffs, LAW DIVISION SOMERSET COUNTY vs. THE BOROUGH OF FAR HILLS, THE PLANNING BOARD OF FAR HILLS, THE BOROUGH COUNCIL OF FAR HILLS, and THE MAYOR OF FAR HILLS, Defendants. DOCKET NO. L-73360-80 BRIEF AND APPENDIX IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. VOGEL AND CHAIT A Professonal Corporaton Attorneys for Plantffs Maple Avenue at Mller Road Morrstown, New Jersey 07960 (201-538-3800) On the Bref: Thomas F. Collns, Jr. Dated: May 14, 1982.

COUNTER-STATEMENT OF FACTS In June 1981, Defendant Councl of the Borough of Far Hlls adopted a new zonng ordnance whch dd not permt any new mult-famly, apartment, condomnum or townhouse uses. The Ordnance dd not provde for any least cost or low and moderate ncome housng, ether for the resdents of the Borough or the people n the regon. The Ordnance contnued the ten acre mnmum lot sze desgnaton whch had prevously appled to plantff's 19 acre tract located adacent to Rt. 202 and the Far Hlls Ralroad Staton. Wthn the 45 days permtted by Rule 4:69-6 for the brngng of actons n leu of prerogatve wrts, Plantffs Mr. and Mrs. John Ochs and Mr. and Mrs. Alos Haues, brought a complant aganst the Borough of Far Hlls, Plannng Board of Far Hlls, the Borough Councl and the Mayor of Far Hlls challengng the entre zonng ordnance of the Borough of Far Hlls on varous grounds. The Frst Count of the Complant challenged the entre ordnance on the grounds that Far Hlls had faled to comply wth the due process and equal protecton clauses of the New Jersey Consttuton as nterpreted n Oakwood at Madson v. Madson, 73 NJ 481 (1977), by falng to make any provson for the development of mult-famly, least cost or low and moderate ncome housng. Ths ground challenged the consttutonalty of the entre zonng ordnance of the Borough of Far Hlls, not merely wth respect to the Plantff's

( property. The Frst Count also challenged the consttutonalty of the 10 acre sngle famly resdental zonng dstrct of the Borough of Far Hlls. The Second Count of Plantff's Complant alleged that the Zonng Ordnance of the Borough of Far Hlls, by permttng only one sngle famly house on plantff's 19 acre tract, consttuted an unreasonable restrcton aganst the use and development of Plantff's property, thereby consttutng a : takng of Plantff's property wthout compensaton n volaton of the New Jersey Consttuton, Artcle I, Paragraph 20. The Thrd Count of the Complant challenged the entre Zonng Ordnance of the Borough of Far Hlls and the Master Plan of the Borough of Far Hlls on the ground that they faled^ to comply wth the requrements of the Muncpal Land Use Law, ' NJSA 40:55D-l. Ths count also challenged the entre Zonng Ordnance and Master Plan as beng volatve of the New Jersey Consttuton, by havng the mpermssble purpose or effect of excludng new mult-famly least cost housng from Far Hlls. The Fourth Count challenged the defnton of the phrase "sngle famly" contaned n the Far Hlls Zonng Ordnance as beng patently unconsttutonal and n volaton of the New Jersey Supreme Court's Decson n State v. Baker, 81 NJ 99 (1979). The defnton mpermssb1y dscrmhates aganst unmarred and unrelated ndvduals who functon as a sngle non-proft housekeepng unt. In Plantffs' prayer, for relef, plantffs requested,

among other thngs, a declaraton that the entre Zonng Ordnance of the Borough of Far Hlls was null and vod. Plantff also sought specfc relef wth respect to ther property n the form of a "bulder's remedy" as ustfed n Oakwood at Madson, supra. Plantffs are the owners of a 19 acre tract of land located at the corner of Route 202 and Sunnybranch Road drectly f adacent to the tran staton n the Borough of Far Hlls and, therefore, located drectly wthn the vllage center of the Borough of Far Hlls. Plantff's property s wthn approxm- ately 3 mles of Interstate Hghway 287 and approxmately 5 mles of Interstate Hghway 78. These two Interstate Hghways,- f n conuncton wth Route 202 and 206, provde easy access to t areas of sgnfcant employment concentratons such as Brdge- S water Townshp, Bedmnster Townshp, Somervlle, New Brunswck^ t Clnton Townshp, Pscataway Townshp and Morrstown, New Jersey. I The property s located drectly adacent to the ralroad, staton of Far Hlls whch provdes commutng servces to maor' employment centers. The Somerset County Plannng Board has adopted a Master ' Plan whch ncludes Plantff's property wthn the vllage neghborhood classfcaton callng for resdental densty far n excess of the 10 acre mnmum lot sze"appled"to! Plantff's property. The New Jersey Department of Communty ' I Affars has adopted a State Development Gude Plan whch, ncludes Plantff's property wthn "a growth area". Other :

C\ regonal plans also ndcate that Plantff's property should be permtted to develop wth denstes much hgher than the 10 acre mnmum lot sze mposed by the Borough of Far Hlls. (See Appendx 2, Plantffs 1 responses to nterrogatory #3 and #9). Pror to brngng ths law sut, plantffs amde a seres of requests tothe Plannng Board of Far Hlls for rezonng to permt use of ther property for townhouse development. (See the Affdavts of John Ochs, Alos Haues and Marca Braun); (See,also plantff's answer to Interrogatory No. 16). On or about December 5, 1977, plantffs made an oral request to the Plannng Board for a rezonng of ther property to permt townhouses, n accordance wth, a plan drawn by ther Professon al Planner Pat Roy. On or about December 19, 1977, John Ochs confrmed ther request n wrtng to Mr. Todd, Charman of the Far Hlls Plannng Board. (See Exhbt 1 attached to Affdavt of Alos Haues. On December 30, 1977, Mr. Todd, on behalf of the Plannng Board responded n wrtng to ther request for rezonng and nformed them that the Plannng Board dd not recommend rezonng of the property at that tme and that any change n zonng would be consdered after the, adopton of the Master Plan sometme n February of 1978. In 1978, nether the Master Plan nor the Zonng Ordnance of the! Borough of Far Hlls reflected any change n the zonng of Plantff's property and merely contnued the restrctve J I 10 acre mnmum lot sze requrements. (See Exhbt 2 attached : to the Affdavt of Alos Haues).! Even though the Plannng Board had refused to grant

o ther 1977 request for rezonng, the plantffs agan requested a rezonng n July 1981. On July 9, 1981, ther attorney, ' Marca Braun of the frm of Shanley & Fsher, wrote a wrtten request for recommendaton of rezonng of ther property. (See Affdavt of Marca Braun and Exhbt 1 attached thereto). In the summer of 1981, Mr. Herold, n a telephone conversaton wth Ms. Braun stated that:"we don't want townhouses n Far Hlls. Ths s not the knd of use we want n Far Hlls." He also told Ms. Braun that plantffs were wastng ther tme n requestng a rezonng. Other actons of the Borough of Far Hlls and the local Boards of Far Hlls ndcate that t would be futle for plantffs to make any addtonal efforts before the local agences. (See Affdavt of Alos Haues). For example, the Board of Adustment of Far Hlls recently dened a request for a use varance for townhouse use for a 32 acre tract across Route 202 from Plantff's property. After the use varance request was dened, the Borough Councl approved a budget whch ncluded funds for the planned purchase of the property for whch the developers had sought a use varance to permt townhouses. In an artcle n the Courer News enttled "Far Hlls ncreases budget to 5% to $460,000." the Mayor of Far Hlls, Mr. Henry Argento, admtted that the purchase of the land wth Green Acres Funds was ntended to keep the developer from buldng on t.

It s noteworthy that n ther answers to Plantff's Interrogatores No. 20, 21, 22 and 26, Defendants admt that they have not provded for any least cost or low and moderate ncome housng n the Borough Zonng Ordnance. Defendants take the poston that the Borough of Far Hlls s not requred^ to zone for any mult-famly or least cost housng. (See attached to Appendx and Bref, answers to plantff's nterrogatores No. 20, 21,22 and 26).

LEGAL ARGUMENT POINT I PLAINTIFFS 1 COMPLAINT SHOULD NOT BE DISMISSED ON THE ALLEGED GROUNDS OF FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES. _> A. Plantffs have a 1 ready exhausted. the.r admn-, stratve remedes and any further resort to admnstratve processes would.be futle and would not "further the. nterests of ustce" wthn the meanng of Rule' *t:b9~5. '. '. - ' ".... ". D e f e n d a n t s have reled on R.4:69-5 n support of ther Moton for Summary Judgment on the grounds that plantffs have faled to exhaust ther admnstratve remedes n flng an acton n leu of prerogatve wrts challengng the Zonng Ordnance of the Borough of Far Hlls. The case law nterpretng R»4:69-5 clearly ndcates that defendants relance upon ths provson s not warranted n ths case. Rule 4:69-5 s a subsecton of Rule 4:69 enttled "Actons n Leu of Prerogatve Wrts" and t states n full: Except where t s manfest that the nterest of ustce requres otherwse actons under R.4:69 shall not be mantanable as long as there s avalable a rght of revew before an admnstratve agency whch has not been exhausted. R.4:69-5. At the outset, t should be noted that Plantffs' Complant challenges the entre Zonng Ordnance of the Borough of Far Hlls and the entre R-10 Zonng Dstrct of the Borough on the grounds that the ordnance faled to comply wth the

consttutonal requrements set forth n Southern Burlngton Cty. N.A.A.C.P. v. Mt. Laurel Townshp, 67 NJ 151 (1976) and Oakwood at Madson, Inc. v. Madson Townshp, 72 NJ 481 (1977). The Complant also challenges'the R-10 Zonng Dstrct of the Borough's Zonng Ordnance as beng confscatory of Plantffs ; property. In addton, the Complant challenges the defnton of the term "sngle-famly" n thezonng Ordnance snce t dscrmnates aganst unrelated, unmarred ndvduals, contrary to State v. Baker, 81 NJ 99 (1979). As part of ther relef,! plantffs seek specfc relef n the form of a bulder's remedy,as outlned n Oakwood at Madson, drectng the '.' Borough of Far Hlls to take steps necessary to permt the constructon of least cost housng on the property n queston. See Oakwood at Madson, 72 NJ at 548-554'Specfc relef n the form of a bulder's remedy was also granted n the unreported case of The Allen Dean Corporaton, et al v. Townshp of I Bedmnster, et al,docket No. L-36896-70 and L-28061-71, decdec t by Judge Leahy n Somerset County on December 13,1979. It s the Plantffs' poston that R.4:69-5 does not requre plantffs to proceed before local boards for varance relef when plantffs are challengng the entre Zonng Ordnance of the Muncpalty n queston. Defendants have not cted any cases to support any such requrements and have not cted any cases nvolvng exclusonary zonng matters n whch plantffs were requred to proceed for varance relef ether! before a plannng board or a board of adustment pror to

', nsttutng ther Complant n leu of Prerogatve Wrts. Nonetheless, even f one apples R.4:69-5 to ths case, t s readly apparent that the case law nterpretng R.4:69-5 supports plantffs' poston that they have suffcently exhausted ther admnstratve remedes and that further I l resort to admnstratve ptocesses s not requred under the Rule. The case law nterpretng R.4:69-5 ndcates that t s not necessary for plantffs n ths case exhaust ther admnstratve remedes because (a) t s apparent that further resort to admnstratve processes would be frutless; (b) the! delay nherent n such processes would work a severe hardshp I on the plantffs; (c) the publc nterest would be well served by rapd adudcaton of ths case, leadng to the creaton of much needed housng; (d) ths matter prncpally nvolves only substantal and mertorous, legal and consttutonal questons approprate for udcal resoluton; (e) the exhauston of admnstratve remedes s not a ursdctonal requrement for adudcaton of ths acton and (f) the nterests of ustce clearly do not requre, n these crcumstances, that admnstratve remedes be exhausted. See Rules Governng the Courts of New Jersey, wth comments and annotatons by Sylva Pressler, page 837 (1982); See also Matawan Borough v. Monmouth County Tax Board, 51 NJ 291, 296-7 (1968); Patrolmen's Benev, Assoc. v. Montclar, 128 NJ Super 59 (1974); Supermarkets Ol v-. Zollnger, 126 NJ Super 505(1974

and Jantausch v. Verona, 24 NJ 326 (1957). The Affdavts of John Ochs, Alos Haues and Marca Braun, clearly ndcate that plantffs have made at least two attempts to request a rezonng of ther property to permt tovnhouses. The plantfffs requested rezonng n December of 1977 and the then Charman of the Plannng Board,Mr. Todd ndcated that no rezonng would be consdered untl the Master Plan and new Zonng Ordnance were consdered n February of 1978. At the tme of the consderaton of the Master Plan and Zonng Ordnance n 1978, no change was made wth respect to plantffs 1 property even though plantffs had requested a rezonng. Furthermore, n 1981, Ms. Braun, as attorney for John Ochs and Alos Haues, requested n wrtng a recommendaton of rezonng from the Plannng Board to permt use of the property for tovnhouses. Durng the summer of 1981, n a telephone conversaton wth Ms. Braun, the Charman of the Plannng Board,Mr.Rchard Herold ndcated that:"we don't want townhouses n Far Hlls. Ths s not the knd of use we want n Far Hlls!. 11 He also told Ms. Braun that plantffs were wastng ther tme n requestng rezonng. See the Affdavts cf Alos Haues and Marca Braun. These actons on the part of the Plannng Board and the Charman of the Plannng Board and other actons on the part of the Borough of Far Hlls n opposton to other townhouse developments ndcate tha\t t w.ou d be f rt 1 e for plantffs to attempt to proceed before any local admnstratve bodes. These bodes are obvosly predsposed and 10

f preudced aganst the development of any townhouses or multfamly least cost housng n the Borough of Far Hlls. In lght of the futlty of any further admnstratve processes and n lght of the substantal attempts made to ths date by the plantffs n seekng relef before local agences, the dsmssal of Plantffs' case on the grounds of alleged.falure -to exhaust admnstratve remedes s totally unwarranted. In Patrolmen's Benev. Assoc. v. Montclar, supra 128 NJ Super at 63, the Court stated that: The Rule requrng the pror exhauston of admnstraton remedes rests on the premse that such remedy s 'certanly avalable clearly effectve and completely adequate to rght the wrong complaned of 1 ". Patrolmen's Benev. Assoc. v. Montclar, supra 128 NJ Super at 63 quotng Baldwn Const.Co. v*. Essex Cty. v. Bd. of Taxaton, 24 NJ Super 252, 274 (Law Dv.1952) aff'd. 27 NJ Super 240 (App.Dv.1953). Sec also Brunett v. Borough of New Mlford, 68 NJ 576, at 589 (1975). In ths case, plantffs are challengng the entrety of the Zonng Ordnance of the Borough of Far Hlls, and t s clear that not only wll the local admnstratve agences be unable to prov-lde "clearly effectve and.:' completely adequate" relef, but n addton, they do not have the ursdcton or the authorty to rule on matters of nterpretaton or, constructon of New Jersey Statutes and the New Jersey Consttuton..It s apparent from New Jersey case law that _m a_tt_e_rs nvolvng challeng es to zonng ordnanaces and 11

challenges to the consttutonalty and statutory authorzaton of zonng ordnances are subect to ^_e novo revew by the Superor Court pursuant to R.4:69. The Superor Court s the body wth the sole ursdcton to revew such matters. It s also clear that contrary to the requrement stated n ; Patrolmen's Benevolent Assocaton, the'board of Adustment and the Plannng Board of Far Hlls wll be unable to provde the relef requested by plantffs relatng to ther request for an Order declarng that the Zonng Ordnance of the Borough of Far Hlls be declared null and vod for falng to comply wth the prncples establshed n Mt. Laurel and Oakwood at Madson. Furthermore, the local agences wll be unable to provde relef n the form of an order declarng nvald the.exclusonary 10 acre mnmum lot sze requrements of the entre zonng ordnance of the Borough of Far Hlls. These broad forms of relef requested by plantff are clearly set forth n the Plantffs' Complant and must be heard on a prerogatve wrt bass by the Superor Court f the plantffs are to receve adequate consderaton and relef for ther clams. It s qute apparent, : pursuant to Brunett v. Borough of New Mlford and Patrolmen's Benevolent Assocaton v. Montclar, that ths case nvolves matters of substantal and mertorous legal and consttutonal questons approprate for udcal resoluton. Moreover, n Supermarkets Ol v. Zollnger, 126 NJ Super 505(1974), the Appellate Dvson found that where an nterpretaton of a zonng ordnance s called for, the 12

ssue s a legal one and pecularly suted to the udcal functon, and resort need not be frst had to admnstratve remedes. Supermarkets Ol v. Zollnger at 507. See also Shack v. Trmbull, 48 NJ Super 45 (App.Dv.1957) aff f d. 28 NJ 40 (1958); Jantausch v. Verona, 41 NJ Super 89 (Law Dv.1956), aff'd. 24 NJ 326 (1957). Defendants cte Brunett v. Borough of New Mlford on page 3 of ther bref n support of ther argument that plantffs should be compelled to return to local agences for addtonal revew. Defendants attempt to contend that } I plantff has faled to demonstate that there are any colorable! consttutonal questons n ths law sut and that there are ; addtonal factual questons whch must be determned by admnstratve agences. Defendants relance upon Brunett and ther nterpretaton of Brunett are msguded n that plantffs have clearly establshed prma face case of exclusonary zonng by the Borough of Far Hlls. zonng n and of tself s patently exclusonary. Ten acre Furthermore, defendants, n ther answers to Plantffs 1 Frst Set of Interrogatores, have admtted that the Zonng Ordnance of the Borough of Far Hlls does not provde any least cost or low and moderate ncome housng and that the Borough does not consder tself subect to the requrements of Mt. Laurel and Oakwood at Madson. The questons of facts whch wll be rased n relatonshp to these legal ssues are not matters whch wll be subect to admnstratve prevew or fact fndng and are not 13

V-v matters wthn the expertse of any admnstratve agency of I the Borough of Far Hlls. Rather, they are clearly wthn the provnce of the Superor Court as outlned and establshed n the cases of Mt. Laurel and ts progeny, partcularly Oakwood at Madson and Allen Dean Corporaton v. the Townshp of Bedmnster. Apparently, defendants are contendng that plantffs should be compelled to return the Board of Adustment to seek a use varance to permt townhouses and that ths wll permt!! the muncpalty to "correct any error n zonng classfcaton". Ths poston s unwarranted, especally n vew of the decson of the Supreme Court n Oakwood at Madson. In Oakwood at Madson, the Supreme Court held that the Corporate Plantffs were enttled to specfc relef n the form of an Order drectng the ssuance of permts for the development on ther property of a housng proect whch would guarantee a percentage of housng unts affordable by low or moderate ncome famles. Smlarly, n Allen Dean, et al. v. The Townshp of Bedmnster, et al., Judge Leahy held that the plantff developers were enttled to specfc relef relatng to ther property. Apparently, no admnstratve proceedngs for use varances were requred n ether the Allen Dean or the Oakwood at Madson cases. There s also a sgnfcant legal queston as to whether or not the Board of Adustment of the Borough of Far Hlls has the authorty to grant a use varance for a^ 19 acre tract to permt the

constructon of townhouses. See Townshp of Dover v. Dover Townshp Board of Adustment, 158 NJ Super 401 (App.Dv.1978). In the Dover case the Court held that a Board of Adustment had acted outsde of ts statutory authorty n a manner that consttuted de_ facto rezonng, by grantng a varance for a large tract of property to permt the classfcatons of one zone to apply to property located n another zonng dstrct. J The Court ndcated that the sze of the tract and the geographc and functonal substantalty of the varance vs a vs the plan and scheme of the muncpal: : zonng ordnance would be taken nto account n determnng whether a use varance would be nvaldated as de_ facto rezonng. In vew ths legal prncple, t s questonable whether the Court{ should drect the matter back to the Board of Adustment for revew, especally n a stuaton whch mght result n a challenge of the acton of the Board of Adustment, f t were to grant a varance, by the Borough Councl as occurred n the Dover case. It s clear from the Oakwood at Madson and ts progeny that specfc relef s not a form of relef whch wll be dsregarded by the Courts of New Jersey. Indeed, the Oakwood case and many-authortes ndcate that there s strong support for the awardng of specfc relef n cases where plantffs have born the stress and expense of publc nterest ltgaton. See Oakwood at Madson v. Townshp of Madson, 72 NJ Supra at 550; Norman Wllams, Amercan Land and Plannng -Law,_y_oJLume_X» Se.cton_JL63.17; Mtelka and Mtelka "Exclusonary

Zonng: A Consderaton of Remedes", 7 Seton Hall L.Rev.1,26-,! 29 (1975); Rabnowtz Exlusonary Zonngr"A Wrong n Search of a Remedy", 6 Mch. J. L. Rev. 625, 668 ( 1973). Justce Pashman,concurrng and dssentng n Oakwood at Madson, ndcated the strong need for further affrmatve! relef n addton to the specfc relef provded n the t maorty's opnon. In outlnng the need for affrmatve ' ' [ relef Justce Pashman ndcated the many types of muncpal! tactcs amed at delayng and avodng the responsbltes relatng to housng needs. In llustratng the need for effectve udcal supervson, Justce Pashman stated: "For other examples of muncpal delay and subterfuge, see, Gautreaux v. Chcago Housng Authorty, 342 F.Supp. 827 (N.D. 111.1972), aff'd. 480 F.2d 210 (7 Cr.1973), cert.den.414 U.S. 1144, 94 S.Ct.895,896,39 L.Ed.2d 98(1974)(nacton by cty offcals amed at subvertng a court order for the constructon and placement of publc housng); Crow v. Brown, 475 F.2d 788(5 Cr.1972), aff'g 332 F.Supp. 382 (N.D.Ga.1971) (refusal by local offcals to grant developers buldng permts for apartments to be occupped by low ncome black tenants); Daley v. Cty of Lawton, 425 F.2d 1037 (10 Cr.1970), aff'g.296 F. Supp.266 (W.D.Okla.1969)(denal of buldng permts for constructon of low-ncome housng); Kennedy Park Homes Ass'n. v. Lackawanna, 318 F.Supp.669 (W.D.N.Y.1970), aff'd.436 F.2d 108 (2 Cr.1970), cert. den. 401 U.S.1010, 9 S.Ct.1256, 28 L.Ed.2d 546 (1971) (mposton of a moratorum on new subdvson); Casey v. Warwck Tp. Zonng Hearng Bd., supra, 328 A.2d 467-468 (amendng zonng ordnance durng ltgaton); G & D Holland Constr. Co. v. Cty of Marysvlle, 12 Cal.App.3d 989, 91 Cal.Rptr. 227(Ct.App. 1970)(rezonng to frustrate constructon of an apartment buldng for lower ncome famles) 16

Thus, n the absence of effectve udcal supervson, a recalctrant communty can employ a varety of technques to forestall efforts to elmnate exclusonary zonng practces. See one Court's expressed recognton of ths problem n Van Ness v* Borough of Deal, 139 N.J. Super.83, 101 (Ch. Dv.1975). See generally Babcock & Bosselman, supra, at 14-17. Usng these technques, a 'bad fath muncpalty can play games untl a developer gves up and goes elsewhere. 1 Mytelka & Mytelka, supra, 7 Seton Hall L.Rev. at 24. For ths reason, most commentators agree that sole relance upon the muncpalty to correct the exclusonary effect of. ts zonng scheme s nsuffent and that, n the words of one authorty,...f udcal revew of local zonng acton s to result n anythng more than a farce, the courts must be prepared to go beyond mere nvaldaton and grant defnte relef.[emphass suppled] Casey v. Warwck Tp.Zonng Hearng Bd., supra, 328 A.2d at 469, quotng Krasnoweck, supra note 7, 120 U.Pa. L. Rev.atlO82. In vew of the attempts by plantff to seek admnstratve relef and n vew of the serous consttutonal and statutory clams rased by the plantff, t would not be n the nterest of ustce to requre plantffs to return to! any local boards of the Borough of Far Hlls. Such a requrement'! would unduly delay the relef/ nafve long been seekng and would J not result n adequate and certan relef as requred by R.4:69- :t 5. Furthermore, the Board of Adustment does not have the ' authorty to grant the relef requested by plantffs relatng to

the nvaldaton of the entre zonng ordnance of the Borough : of xfar Hlls on the bass that t fals to comply wth the decsons of Mt. Laurel and Oakwood at Madson. Consttutonal: questons nvolvng the equal protecton and due process { causes of the New Jersey Consttuton clearly are not wthn I the ursdcton of local boards of adustment. B.Dsmssal of Plantffs 1 Complant challengng the consttutonalty and statutory authorty of Far.:HllS Zonng Ordnance for falure to exhaust admns- tratve remedes pursuant to Rule 4:69-5 would be contrary to R.4:69-6 and would preudce plantffs' rghts under R.4:69-6. t R.4:69-6(a) General Lmtaton. No acton n leu of prerogatve wrts shall be commenced later than forty-fve days, after the accrual of the rght to revew, hearng or relef clamed,except as provded by Paragraph (b) of ths Rule. Plantffs have brought ther complant wthn forty-fve days of the publcaton of the 1981 Zonng Ordnance of the Borough of Far Hlls whch mposed the 10 acre zonng restrcton and whch fals to provde for any least cost or low and moderate ncome housng. Plantffs have compled wth Rule 4:69-6 and the dsmssal of ther case at ths pont, would result n severe preudce to plantffs f they were unable to challenge the zonng ordnance of the Borough of Far Hlls after return to any admnstratve bodes. If one carefully consders the meanng of R.4:69-5 n conuncton wth R.4:69-6, t s readly apparent that 18

the nvaldaton of the entre zonng ordnance of the Borough of Far Hlls on the bass that t fals to comply wth the decsons of Mt. Laurel and Oakwood at Madson. Consttutonal questons nvolvng the equal protecton and due process clauses of the New Jersey Consttuton clearly are not wthn the ursdcton of local boards of adustment. B. Dsmssal of Plantffs' Complant challengng the consttutonalty and statutory authorty of Far Hlls' Zonng Ordnance for falure to exhuast admnstratve remedes pursuant to Rule 4:69-5 would be contrary to R.4:69-6 and would preudce plantffs' rghts under R.4:69-6. R.4:69-6(a) states n full: General lmtaton. No acton n leu of prerogatve wrts shall be commenced later than forty-fve days after the accrual of the rght to revew, hearng or relef clamed, except as provded by Paragraph (b) of ths Rule. Plantffs have brought ther complant wthn forty-fve days of the publcaton of the 1981 Zonng Ordnance of the Borough of Far Hlls whch mposed the 10 acre zonng restrcton and I whch fals to provde for any least cost or low and moderate ncome housng. Plantffs have compled wth Rule'4:69-6 and the dsmssal of ther case at ths pont would result n severe preudce to plantffs f they were unable to challenge the zonng ordnance of the Borough of Far Hlls after return to any admnstratve bodes. If one carefully consders the meanng of R.4:69-5 n conuncton wth R.4:69-6, t s readly apparent that matters 18

matters nvolvng challenges to muncpal zonng ordnances,, partcularly wth respect to ther consttutonalty and statutory authorty, are properly brought before the Superor Court upon forty-fve days from the tme of publcaton of the! ordnances, and that no admnstratve revew by local boards -! can be requred for such legal ssues. ; CONCLUSION It s respectfully requested that the Court deny Defendants 1 Moton for Summary Judgment on the grounds of alleged falure to exhaust admnstratve remedes. Plantffs' have suffcently exhausted ther admnstratve remedes and further resort to any local admnstratve agences would! be futle and are notrequred by R.4:69-5. ; Respectfully submtted,! VOGEL' AND CHAIT I A Professonal Corporaton ; Attorneys for Plantffs BY: THOMAS F. COLLINS, JR. DATED: May 14, 1982

VOGEL AND CHAIT A PROFESSIONAL CORPORATION o RECD AT CHAMBER MAY 18 198? Robert E. Gaynor HERBERT A. VOGEL ARNOLD H. CHAIT ENID A. SCOTT ARON M. SCHWARTZ THOMAS F. COLLINS, JR. May 17, 1982 MAPLE AVENUE AT MILLER ROAD MORRISTOWN. NEW JERSEY 07960 538-3800 AREA CODE 201 HAROLD GUREVITZ OF COUNSEL Somerset County Clerk 110 Admnstraton Buldng Somervlle, NJ 08876 Attenton: Judge Gaynor Re: Alos Haues, et als. v. The Borough of Far Hlls, et als. Docket No. L-73360-80 Dear Sr: On Frday, May 14, 1982, I was called to the Appellate Dvson on an emergent matter and I was unable to proofread the last two pages of my bref n the above matter. Upon readng t I notced a few errors and I would lke to have the enclosed two pages supplemented for the last two pages of the orgnal bref. I have also enclosed a copy of these two pages to be attached to the copy of the bref. By a copy of ths letter, I am forwardng these substtute pages to my adversares. Respectfully yours, VOGEL AND CHAIT A Pro&e-ssonal Corporaton TFC:dn Encls. cc: J. Albert Robert K. Mastro, Hornby, Esq. Esq. THOMAS F. COLLINS, JR