Ordinance No. 36-07
Introduced: December 6, 2007
Public Hearing: January 17, 2008
Status: Adopted
An ordinance amending under protest the Land Development Ordinance of the Township of Randolph, Morris County, New Jersey, Article III, Zoning, Section 15-12.1, Zone Map, and Section 15-17.1 Permitted Uses to change Lot 9, Block 199, on the official tax map of the Township of Randolph from R-1 to R-2 zoning
WHEREAS, in litigation captioned Baker Residential Limited Partnership, et al. v. Township of Randolph, et al., Superior Court of New Jersey, Law Division, Morris County (“Superior Court”), Docket No. MRS-L-2848-94 (the “Litigation”), by way of an Order filed on December 15, 2003 (“Order No. 1”), that was made effective by way of a second Order filed on May 26, 2004 (“Order No. 2”), which was clarified and amplified on remand by way of a third Order filed on June 12, 2006 (“Order No. 3”), (collectively “Superior Court Orders”) on file in the office of the Township Clerk, ordered the Township of Randolph (Township or Randolph) and Township of Randolph Planning Board (Planning Board) to permit Randolph Mountain Partnership (Randolph Mountain) to construct a development project that shall include a 20% set-aside not exceeding 48 units for low and moderate income housing under the affordability standards of the New Jersey Council on Affordable Housing (COAH) on acreage located on a portion of Lot 6 and on Lot 9 in Block 199 on the Tax Map of the Township of Randolph (Property), using Randolph’s Land Use Ordinances in existence in 1989; and
WHEREAS, the Superior Court Orders also directed the Township and Planning Board to rezone the Property to permit Randolph Mountain to proceed before the Planning Board for site plan approval; and
WHEREAS, the Superior Court Orders also ordered that Randolph Mountain be permitted to develop the Property above the 600 foot contour line, if necessary; and
WHEREAS, the Township filed an appeal of Order No. 1 and Order No. 2 on June 23, 2004, Docket Number A-005810-03 T1; and
WHEREAS, the Township by motion applied for a stay of the Superior Court Orders which was denied in a hearing (“Stay Hearing”) on July 9, 2004; and
WHEREAS, the Superior Court clarified Order No. 1 and Order No. 2 during the Stay Hearing; and
WHEREAS, the Superior Court made clear in the Stay Hearing that almost all of Block 199, Lot 6 could not be developed due to environmental constraints. [See Transcript of Motion, Baker Residential Limited Partnership v. Township of Randolph, Docket. No. MRS-L-2848-94, pg. 11, ln. 14-25; pg. 12, ln. 1-3 (July 9, 2004) (Transcript), on file in the office of the Township Clerk]; and
WHEREAS, the Superior Court made clear in the Stay Hearing that the portion of Block 199, Lot 9 not zoned R-5 by the Township of Randolph Ordinance 14-88 is to be zoned for development as it was in 1989, namely zoned as R-2, 25,000 square foot minimum lot size. (See Transcript, pg. 21, ln. 3-25; pg. 22, ln. 1-3; pg. 48, ln. 10-13); and
WHEREAS, the Superior Court made clear in the Stay Hearing that it deleted the proposed language 232 units to include from its December 15, 2003 Order because it realized that such intense development could not be accomplished on the Property. (See Transcript, pg. 40, ln. 5-7, 17-20; pg. 48, ln. 13-15); and
WHEREAS, the Superior Court made clear in the Stay Hearing that the (workable number of 48 low/moderate income units might not be able to actually be built on the Property. (See Transcript, pg. 46, ln. 3-10; pg. 47, ln. 3-9); and
WHEREAS, the Superior Court made clear in the Stay Hearing that it deleted the proposed language (without requirement of any variances or waivers regarding Planning Board action on Randolph Mountain’s site plan application from its December 15, 2003 Order because it expected the Planning Board to render a reasonable decision on said site plan application. (See Transcript, pg. 40, ln. 8-15); and
WHEREAS, by virtue of a motion to clarify and amplify the trial court opinion, the Appellate Division remanded the Township appeal of Order No. 1 and Order No. 2 to the trial court for clarification and amplification; and
WHEREAS, as a result of said remand, the Superior Court entered its Supplemental Order of Clarification/Amplification on Remand, dated June 12, 2006 (“Order No. 3”); and
WHEREAS, the Superior Court in its June 12, 2006 Order directed that the final number of units to be constructed on the Property shall be determined by the Planning Board, and that the Superior Court Orders do not intend in any way to establish the aggregate number of units to be built on the Property; and
WHEREAS, the Superior Court made clear in its June 12, 2006 Order that not less than 20% of the ultimate number of units developed on the Property, as determined by the Planning Board, shall be units affordable to low and moderate income families; and
WHEREAS, the Superior Court made clear in its June 12, 2006 Order that such 20% set-aside shall not exceed 48 units; and
WHEREAS, the Superior Court, in its June 12, 2006 Order, ordered that the Planning Board shall not apply the 1994 steep slope ordinance to the Project; and
WHEREAS, the Township filed a supplemental appeal with the Appellate Division on certain portions of Order No. 3; and
WHEREAS, the Appellate Division of the Superior Court, in a written opinion issued August 7, 2007, sustained the portions of the Superior Court Orders from which the appeal and supplemental appeal were taken as set forth above (“Appellate Division Decision”) and
WHEREAS, the current R-5 zoning for Lot 6, Block 199, on the Official Tax Map of the Township of Randolph is the same as the zoning in effect in 1989; and
WHEREAS, the current R-1 zoning for Lot 9, Block 199 on the Official Tax Map of the Township of Randolph, is different from the R-2 zoning that was in effect in 1989; and
WHEREAS, the Governing Body of the Township of Randolph, by virtue of the aforesaid Superior Court Orders and the Appellate Division Decision, is obligated to amend the Land Development Ordinance of the Township of Randolph, County of Morris, State of New Jersey, Article III, Zoning, Section 15-12.1, Zone Map to conform with said Superior Court Orders, and for the purposes, and only the purposes, as enunciated in said Superior Court Orders to the extent sustained by the Appellate Division Decision as outlined above; and
WHEREAS, in order to preserve its right to appeal of those portions of the Superior Court Orders for which an appeal has not been taken, the Township is taking this action to introduce and adopt the within ordinance UNDER PROTEST without waiving its right of appeal as abovementioned, as permitted by the New Jersey Supreme Court in Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel, 92 N.J. 158, 285 (1983); and
WHEREAS, the purposes of the Superior Court Orders as set forth therein, and as clarified at the Stay Hearing, are to permit Randolph Mountain to develop, as approved by action of the Planning Board on a proper site plan application submitted by Randolph Mountain, a project that shall include a 20% set-aside not exceeding 48 units for low and moderate income housing that shall meet the criteria for affordability as established by the New Jersey Council on Affordable Housing (COAH), under the Township of Randolph’s 1989 Land Development Ordinances.
NOW, THEREFORE, BE IT ORDAINED by the Governing Body of the Township of Randolph, County of Morris, State of New Jersey, under protest, as follows:
SECTION 1. Article III, ZONING, Section 15-12.1, Zone map of the Land Development Ordinance of the Township of Randolph, Morris County, New Jersey shall be revised to add a new subsection C. to read as follows:
C. The Zoning Map dated April 1, 2000, as amended and revised, filed in the Office of the Township Clerk, is hereby further revised by changing the zone designation of the property described below as follows:
A certain property generally located on the south side of Mount Pleasant Turnpike and south of Appio Drive and specifically designated on the current Official Tax Map of the Township of Randolph as Lot 9, Block 199, and described in Schedule B, “Legal Description of Remainder of Tax Map Block 199 Lot 9 Township of Randolph Morris County, New Jersey”, in a Deed dated March 21, 1989 FROM Emanual P. Goldblatt, Armando Farina, Alfred J. Luciano, Joseph Caputo and Aldo Caputo, A Partnership, TO Emanual P. Goldblatt, Armando Farina, Alfred J. Luciano, Joseph Caputo and Aldo Caputo, A Partnership, and recorded in the Office of the Morris County Clerk in Book 3108 of Deeds, Page 0303, on March 27, 1989, is hereby re-zoned from the R-1 zone to the R-2 zone with the specific requirement and condition that any development on the property rezoned herein be developed using the 1989 Land Development Ordinance of the Township of Randolph as an affordable housing project with a maximum 48 affordable housing units utilizing a minimum 20% set-aside whereby at least 20% of the units in the housing project shall be affordable to low and moderate income families in accordance with the criteria for affordability as established by New Jersey Council on Affordable Housing. The rezoning set forth herein is intended to comply with various Orders entered by the Superior Court of New Jersey in litigation entitled Baker Residential Limited Partnership, et al. v. Township of Randolph, et al., Law Division, Morris County, Docket No. MRS-L-2848-94.
SECTION 2. A copy of the Zoning Map as amended and revised, as set forth in Section 1 above is attached hereto as Exhibit A.
SECTION 3. Article III, ZONING, Section 15-17.1, Permitted uses shall be amended to add a new subsection A.3 to read as follows:
“3. Any development on Block 199, Lot 9 as designated on the Official Tax Map of the Township of Randolph, zoned R-2 shall be developed using the 1989 Land Development Ordinance of the Township of Randolph as an affordable housing project with a maximum of 48 affordable housing units, utilizing a minimum 20% set-aside whereby at least 20% of the units in the housing project shall be affordable to low and moderate income families in accordance with the criteria for affordability as established by the New Jersey Council on Affordable Housing. The above limitations and criteria are intended to comply with various Orders entered by the Superior Court of New Jersey in litigation entitled Baker Residential Limited Partnership, et al. v. Township of Randolph, et al., Law Division, Morris County, Docket No. MRS-L-2848-94.”
SECTION 4. This ordinance is adopted UNDER PROTEST to allow the Township to conclude the COAH administrative process and obtain second or third round substantive certification and to comply with the outstanding Superior Court Orders without abandoning its right to challenge, or appeal from, orders of COAH or the Superior Court directing the same.
SECTION 5. The appropriate officers, employees, and professionals of the Township of Randolph are hereby authorized and directed to modify the Zoning Map as set forth in this ordinance.
SECTION 6. All other Ordinances of the Township of Randolph which are inconsistent with the provisions of this Ordinance are hereby repealed as to the extent of such inconsistency.
SECTION 7. If any subsection, clause or phrase of this Ordinance is for any reason held to be unconstitutional or invalid in any Court of competent jurisdiction, such ruling shall not affect the remaining portion of this Ordinance.
SECTION 8. This Ordinance shall, UNDER PROTEST, take effect as provided by law.
ATTEST
_____________________________
Donna Marie Luciani, Township Clerk
TOWNSHIP OF RANDOLPH
_____________________________
Allen M. Napoliello, Mayor
LEGAL NOTICE
TOWNSHIP OF RANDOLPH, COUNTY OF MORRIS
ORDINANCE NO. 36-07
Notice is hereby given that an Ordinance entitled “An Ordinance Amending Under Protest The Land Development Ordinance Of The Township Of Randolph, Morris County, New Jersey, Article III, Zoning, Section 15-12.1, Zone Map, and Section 15-17.1 Permitted Uses To Change Lot 9, Block 199, On The Official Tax Map Of The Township Of Randolph From R-1 To R-2 Zoning” was submitted in writing at a regular meeting of the Mayor and Council of the Township of Randolph, County of Morris, State of New Jersey, held on December 6, 2007 and was introduced, read by title and, under protest, passed on the first reading. A Statement of Purpose of the Ordinance is contained below. The Governing Body of the Township of Randolph will further consider the Ordinance for a second reading and final passage thereof under protest at their regular meeting to be held on January 17, 2008 at 8:00 p.m. prevailing time, at the Municipal Building, 502 Millbrook Avenue, Randolph, New Jersey 07869, at which time and place a public hearing will be held thereon by the Governing Body and all parties in interest and citizens shall have the opportunity to be heard concerning said Ordinance.
Statement of Purpose of Ordinance
The purpose of this Ordinance is, under protest, to amend the zoning of Lot 9, Block 199, on the Official Tax Map of the Township of Randolph from R-1 to R-2 zoning, and to reflect said change on the Zoning Map of the Township of Randolph, in order to conform with Orders of the Superior Court of New Jersey, Law Division, Morris County. This action is being taken to implement various Court Orders and an Appellate Division Decision in litigation captioned “Baker Residential Limited Partnership et al. v. Township of Randolph, et al.,” Superior Court of New Jersey, Law Division, Morris County, Docket No. MRS-L-2848-94. The zoning will require the set-aside of at least 20% of the units developed on that Property to become affordable to low and moderate income families as defined in the applicable rules and regulations of the New Jersey Council on Affordable Housing.
A copy of this Ordinance is available to any member of the general public, without cost, at the Township of Randolph, Municipal Building, Millbrook Avenue, Randolph, New Jersey, at the Office of the Township Clerk, between the hours of 8:30 a.m. and 4:30 p.m.
_____________________________
Donna Marie Luciani, Township Clerk
Township of Randolph
County of Morris, State of New Jersey