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Howell Properties2/13/2002
(holding that a developer that pays money into a municipality's affordable housing fund in lieu of constructing affordable units on the site does not have a right to connect into the sewer system of an adjoining municipality). The developer, Bi-County, was granted approval as part of a settlement of a Mount Laurel case against Clinton Township to construct 105 single-family units and a 10,000 square foot commercial building on a 46.2 acre tract. In turn, Bi-County agreed to pay into Clinton Township's affordable housing fund $2,000 per unit. Id. at 231-32. Bi-County argued that the adjoining municipality, the Borough of High Bridge, had an obligation to permit it to connect into High Bridge's sewer system in order to eliminate "undue cost generating practices" that may prevent construction of its "inclusionary" Mount Laurel development. Id. at 236. The court rejected the argument, concluding that Bi-County was not entitled to relief "because it does not plan to construct lower income housing." Id. at 237. Defendants argue that the Bi-County decision compels a reversal of the summary judgment order in plaintiff's favor. We do not agree.
Bi-County is clearly distinguishable. First, denial of Bi- County's right to connect into High Bridge's sewer system did not prevent Bi-County from developing its tract. The developer had alternative means of acquiring sewer service by connecting to the Chester Township Municipal Sewerage Authority system. That plan, however, required Bi-County to extend a sewer line along Route 31. The developer opted to avoid this cost by connecting to High Bridge's system. Id. at 232-33. In this case, plaintiff has no alternative means of access other than through defendants' streets. Consequently, without the access, it cannot build its development.
Second, in Bi-County, High Bridge was a passive actor in the sense that it had taken no affirmative action to prevent Bi- County's development; it simply wanted to reserve the use of its system for its own residents. Id. at 231. The issue was whether High Bridge had a duty to provide Bi-County with sewer service, the result of which would permit the developer to reduce off-site improvement costs and thus allow it to turn a greater profit. Id. at 237. Here, unlike High Bridge, defendants acted affirmatively by vacating the streets, thereby rendering plaintiff's property landlocked. The question in our case, not implicated in Bi-County, is whether such action served "the public interest." N.J.S.A. 40:67-19.
Defendants' vacation ordinances essentially trump Wall Township's reasonable efforts to satisfy its Mount Laurel obligation by precluding development on a site deemed suitable for plaintiff's proposal, and which will serve a regional and statewide interest by generating funds for the construction of low-cost housing. "As compared with relatively random and rigid set-aside zoning, development fees provide a more flexible and comprehensive approach that will encourage the appropriate use and development of land within a municipality to satisfy the municipality's fair-share housing obligation." Holmdel Builders Ass'n v. Tp. of Holmdel, 121 N.J. 550, 569-70 (1990) (citing Mount Laurel II, supra, 92 N.J. at 214-15). Defendants' actions clearly frustrate that regional and statewide interest. The effect of the vacations is that defendants hold plaintiff and Wall Township captive. They seek to dictate Wall's legislative zoning choices by stating that they will reopen their streets if Wall and plaintiff agree to reduce the density of plaintiff's proposal to the two-acre lot zoning previously permitted, or to some other density defendants consider acceptable. We do not regard such action as a valid exercise of power under the vacat
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