NOT FOR PUBLICATION WITHOUT THE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

December 7, 2015

Before Judges Alvarez, Ostrer and Haas.

On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L3288-14.
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

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

developers

offering

of

subsidies

eligible

in

affordable

the
and

form

of

loans

mixed-income

to

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.,

"contract
Township's

residential
purchaser"
Highway

housing
of

developer.

approximately

Business

(HB)

Zone.

Plaintiff
13.05
From

acres

is

the

in

the

February

2014

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

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

[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

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.
eight

affordable,

The project would consist of eighty-

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

Application."

an

"Initial

Application"

and

"Supplemental

On September 10, 2014, HMFA approved plaintiff's

A-3042-14T4

Initial Application and placed plaintiff in the "pipeline" for

consideration
credits.

of

Before

its

Supplemental

submitting

Application

its

for

Supplemental

the

tax

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
submitted

Slachetka,

the

certification

Township's

concerning

the

affordable housing units in the Township.

consulting
need

for

planner,
additional

Slachetka certified

that, as calculated by the Council on Affordable Housing (COAH),

the

Township's

However,

maximum

Slachetka

fair

stated

share

that

obligation

the

Township

was
was

736

units.

"currently

entitled to 1383 affordable housing credits for new affordable

units, which is more than double" the Township's fair share

A-3042-14T4

obligation.4
rule

Slachetka also certified that, in an April 2014

proposal,

"COAH

assigned

the

Township

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)
within

The Council does hereby adopt the

[r]esolution
and
makes
the

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, agerestricted 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

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

Planning Board.

for

site

plan

approval

to

the

Township

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

(b)

Plaintiff
approval
Board.

for

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].
filed
its

an

proposed

application
project

to

for

preliminary

the

Township

site

Planning

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

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

still needed to obtain a resolution of need for the project from

the Township Council.
On

December

8,

Resolution #14-457-R.

2014,

the

Township

Council

approved

This resolution was entitled, "Requesting

the Ocean County Natural Lands Trust to Participate in the Open

Space

Acquisition

Township."

of

Certain

Properties

Located

in

Berkeley

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."
did

not

consider

or

take

any

action

The Township Council

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

January

5,

2015,

plaintiff

filed

motion

on

short

notice

seeking to compel the Township to adopt the resolution of need.

On

February

5,

2015,

the

Township

filed

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

to

"[t]he

Township's

failure

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

submission
[p]roject

[r]esolution
of

pursuant

of

complete
to

the

[n]eed

to

Supplemental
FRM

ensure

[p]laintiff's

Application

program[.]"6

for

Following

the
oral

argument, the trial judge issued a comprehensive sixteen-page

written opinion denying plaintiff's motion for mandamus.

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).

10

A-3042-14T4

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

observed

will

meet

that

an

existing

"N.J.S.A.

housing

55:14K-6(c)

need[.]"
provides

He

also

that

the

municipality has discretion to decide whether 'there is a need

for

such

"[t]he

housing

[use

of

project

the]

term

in
.

the

municipality[,]'"

and

'such'

that

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

11

A-3042-14T4

specific
project
meets
housing
need
under
circumstances.

the
the

Township's
particular

The judge found that plaintiff's alternate argument, that

the

Township

should

be

equitably

estopped

resolution of need, also lacked merit.

from

denying

the

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

application

need

through

was

required

HMFA.

as

However,

prerequisite

plaintiff

to

an

decided

to

"proceed[] with this project at its own peril[,]" knowing that

the

Township

plaintiff
Township

might

did
never

not

not

approve

dispute

promised

the

Amato's

plaintiff

resolution.
certification
that

it

would

Moreover,
that
adopt

the
a

resolution of need.

12

A-3042-14T4

Finally,

the

judge

municipality

must

whenever

project

the

housing units.

rejected

automatically
involved

plaintiff's

issue

the

claim

resolution

construction

of

that
of

need

affordable

The judge reiterated that the Township could not

be required to exercise its discretion in a specific manner and,

therefore,

the

mandatory.7

issuance

of

resolution

of

need

was

not

Therefore, on March 9, 2015, the judge held that

plaintiff's complaint, which sought to require the Township to

adopt

the

dismissed.

resolution

of

need

by

specific

date,

should

be

judge

erred

in

This appeal followed.

II.

On

appeal,

plaintiff

dismissing its complaint.

argues

that

the

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

resolution

determining there was a need for plaintiff's project in the HB

Zone.

We disagree.

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.

13

A-3042-14T4

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.
353, 365 (2006).

NCP Litig. Trust v. KPMG LLP, 187 N.J.

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

14

A-3042-14T4

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)).
must

be

granted

'if

interrogatories[,]

the

and

pleadings,

admissions

on

"Summary judgment

depositions,
file,

answers

together

with

to
the

affidavits, if any, show that there is no genuine issue as to

any

material

fact

challenged

and

that

the

moving

party

entitled to a judgment or order as a matter of law.'"

is

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,

15

when

viewed

in

the

A-3042-14T4

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
discern

no

this

basis

well-established
to

set

aside

the

standard
trial

of

review,

judge's

we

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 selfimposed deadline.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)
16

A-3042-14T4

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

absolutely

or

duty

certain

is

"ministerial"

and

imperative,

in

nature

involving

if

it

"'is

merely

the

execution of a set task, and when the law which imposes it

prescribes

and

performance

defines

with

such

judgment or discretion.'"

the

time,

certainty

mode

and

occasion

that

nothing

of

its

remains

for

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.

17

A-3042-14T4

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.
established

standards

governing

writs

of

Applying the wellmandamus

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. 55:14K6(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).
Adoption

of

2003

Low

Income

Hous.

Tax

Credit

In re

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.
(b))]."

Ibid.

(N.J.S.A. 55:14K-2[(a) and

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

18

A-3042-14T4

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

Ibid. (quoting

of the

purposes of

N.J.S.A. 55:14K-5(dd)).

the act

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)).]

19

A-3042-14T4

To assist it in determining which developers of proposed low

income housing projects should receive the tax credits, HMFA
requires

each

applicant

N.J.S.A. 55:14K-6(c).
municipality"

and

to

submit

resolution

of

need.

The resolution must be "adopted by the

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

"ministerial
mandamus.

housing
act"

that

project
can

cannot

be

be

compelled

characterized
through

as

writ

a
of

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

reasoned

determination

whether

there

is

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

resolution

of

need

is

not

"absolutely

certain

and

imperative," and nothing in N.J.S.A. 55:14K-6(c) "prescribes and

20

A-3042-14T4

defines

the

decision.

time,

mode

and

occasion"

of

the

municipality's

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

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.
The

This argument lacks merit.

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.

21

A-3042-14T4

an authorization
board.

therefor

by

the

planning

[(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
location

that
in

any

the

particular

district.

project

is

Therefore,

"needed"

the

at

adoption

every

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

22

A-3042-14T4

require

the

request.

municipality

to

take

specific

action

on

its

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

plaintiff's
affordable

Board,

application
multi-family

the

for

affordable

use

housing

permitted single family homes.

Div. 2009).

Planning

Board

variance

units

in

considered
to

build

zone

the

eight

that

only

409 N.J. Super. 330, 334 (App.

The Board found that the plaintiff's "proposed

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

Barnegat,

389

proposed affordable housing project.

Menk

Corporation

v.

Township

Committee

of

N.J. Super. 263 (Law Div. 2006), and Howell Properties, Inc. v.
Township of Brick, 347 N.J. Super. 573 (App. Div.), certif.

23

A-3042-14T4

denied, 174 N.J. 192 (2002), are also distinguishable from the
case

at

hand.

In

Menk,

plaintiff's

application

development

that

units."

will

the

to

Planning

build

provide

"a

Board

347-unit

thirty-five

389 N.J. Super. at 265.

approved

the

inclusionary

affordable

housing

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

provided reasons for its decision.

it

would

Ibid.

not

do

so

and

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

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.

24

347 N.J.

A-3042-14T4

Super. at 575, 577.

As a result, plaintiff's property, which

was located in an adjoining town, was landlocked.

78.

Id. at 575-

The trial court reviewed the municipalities' actions, found

that they "denied plaintiff 'reasonable access . . . to public

streets[,]" and granted summary judgment to the plaintiff.
at 578.

We affirmed.

Id. at 590.

Id.

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

proposed

project

adopting

when

resolution

plaintiff

asked

of

for

need

it.

for

the

Plaintiff

contends the Township's adoption of the Ordinance lulled it into

believing
issued.

that

resolution

of

need

would

automatically

be

Again, we disagree.

Our Supreme Court has explained the doctrine of equitable

estoppel as follows: "'The essential principle of the policy of
estoppel

precluded

.
from

is

that

taking

one

may,

course

by

of

voluntary

action

that

conduct,
would

be

work

injustice and wrong to one who with good reason and in good
faith

has

Policeman's

relied

upon

Benevolent

such

conduct.'"

Ass'n

Local

No.

Middletown
124

v.

Twp.

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

25

A-3042-14T4

(1955)).

While equitable estoppel may be invoked against

municipality "where the interests of justice, morality[,] and

common fairness clearly dictate the course[,]" Gruber v. Mayor
of

Raritan,

'rarely
Twp.,

39

invoked

supra,

N.J.

1,

against

162

13
a

N.J.

at

(1962),

"[e]quitable

governmental
367

estoppel

entity.'"

(quoting

Wood

v.

is

Middletown
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."
(1993)

(plaintiff's

preliminary
estoppel

Palatine I v. Planning Bd., 133 N.J. 546, 559

site-plan
when

its

supposed

reliance

approval
preliminary

did

not

on

validity
warrant

site-plan

of

equitable

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

26

A-3042-14T4

"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.

burden

estoppel

rests

on

Constr.

Corp.

v.

of

proving

plaintiff."

Id.

claim

at

562

of

equitable

(citing

Virginia

"The

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

automatically
plaintiff's
Board.

plaintiff
issued

receipt

that

upon
of

the

site

resolution
adoption

plan

of

of

approval

need

the
from

would

be

Ordinance

or

the

Planning

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,
protects

plaintiff

developers

argues

receiving

that

N.J.S.A.

preliminary

subsequent adverse zoning actions.

site

40:55D-10.5

approval

from

Therefore, it contends that,

once it obtained site plan approval, the Township was required

27

A-3042-14T4

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).
we

affirm

the

trial

judge's

decision

dismissing

Therefore,
plaintiff's

complaint.
Affirmed.

28

A-3042-14T4