The issue before the Court is whether the location of the developer's property in an area designated as "limited growth" by the State Development Guide Plan (SDGP) precludes builder's relief as a matter of law. The question reaches the Court as a result of defendant's summary judgment motion to bar plaintiff from obtaining any builder's remedy even if plaintiff should succeed in proving that defendant's zoning ordinance violates the principles enunciated by our Supreme Court in Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel, 92 N.J. 158 (1983) (Mount Laurel II).
To place the issue in proper perspective, it is necessary to provide some historical background. In Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel, 67 N.J. 151 (1975) (Mount Laurel I), our Supreme Court held that a developing municipality violated the Constitution by excluding housing for lower income people and that it could satisfy that obligation by providing a realistic opportunity for the construction of its fair share of the present and prospective regional need for such housing. (at 174) This rule is now simply referred to as the Mount Laurel doctrine. Eight years later, in Mount Laurel II, the Supreme Court determined that unless a strong judicial hand was applied, Mount Laurel would not result in the housing which had been expected. Thus, the Court sought to strengthen, clarify and facilitate the application of the principles involved in the Mount Laurel doctrine. (at 199)
Two of the many significant changes made by the Court in Mount Laurel I are at the heart of the issue involved in this case. First, the Court held that the existence of the municipal obligation to provide a realistic opportunity for a fair share of the region's present and prospective low and moderate income housing need, was no longer to be determined by whether or not a municipality was "developing". Instead, the obligation would extend to every municipality, any portion of which is designated by the State, through the SDGP, as a "growth area". (at 226-27) That duty has become known as the municipality's "fair share" obligation. Any municipality designated entirely as a limited growth area must provide only a realistic opportunity for affordable housing for its indigenous poor. The obligation to the indigenous poor in municipalities with designations other than growth or limited growth, is not relevant here. (at 243-46) The classifications of growth and limited growth emanate from the SDGP which divides the State into six basic areas: growth, limited growth, agriculture, conservation, pinelands and coastal zones. The SDGP includes concept maps which apply the designations to each county. In accordance with the concept maps, development is targeted for areas characterized as "growth".
Second, as another means of making the Mount Laurel doctrine work, the Court directed that a builder's remedy would ordinarily be afforded to a developer who institutes Mount Laurel litigation if three elements, which I shall discuss shortly, are established. The precise nature of the remedy is to be determined on a case by case basis. However, its general purpose is to assure a builder who shouldered the burden of Mount Laurel litigation that the end result of a successful litigation would be some specific relief in terms of a right to proceed with construction of a specific project. Given this background, I turn to the facts in the case before me.
Both parties stipulate that the SDGP designates the entire Township of Colts Neck as "limited growth" with the exception of a small area in the southwest corner designated as "growth". As noted, the presence of a growth area thereby creates a fair
share obligation for the Township. Plaintiff's proposed development falls squarely within the limited growth area, well removed from the portion designated for growth. Neither party contends, at this juncture, that there is a basis to challenge the reasonableness of the delineation of the growth and limited growth area as shown on the concept map. Finally, pursuant to Mount Laurel II requirements, plaintiff agrees that it will provide a "substantial" number of lower income housing units in order to obtain its builder's remedy. (92 N.J. at 279, fn. 37)
Our Supreme Court in Mount Laurel II discussed the guidelines by which the trial court can determine if a builder's remedy is appropriate. (at 279-80) I find that they can be categorized into three elements and I shall hereafter refer to them as the first, second and third element of the builder's remedy.
1. The developer must succeed in the litigation, that is, demonstrate that the zoning ordinance fails to comply with Mount Laurel II.
2. The developer must propose a substantial amount of lower income housing as defined in the opinion.
3. The impact of the proposal on the environment or other substantial planning concerns must not be clearly contrary to sound land use planning.
Both parties concede that Mount Laurel II does not speak directly to the issue before the Court. Each would have this Court draw various inferences from what is said in the decision concerning builder's remedies, the SDGP and the six cases before the Supreme Court. The Township essentially contends that the Supreme Court intended to use the SDGP as a blueprint for development of our State, to encourage future growth in the areas so designated and to preserve other less developed areas by discouraging expansion into those sections designated for limited growth. Thus, defendant argues that the granting of a builder's remedy in a limited growth area would violate the pattern of orderly development envisioned by our high Court. Plaintiff counters by contending that the SDGP should not receive such literal application and that nowhere in the opinion did the Court directly relate the SDGP to a right to a builder's
remedy. Out of this clash about the significance of the SDGP designation, the issue emerges -- whether a proposed development in a limited growth area will automatically deny the builder the benefits of a builder's remedy.
I find nothing in either the SDGP or the Mount Laurel II analysis of that Plan that warrants adopting defendant's position. The concept maps of the SDGP, by admission of their authors, "consist of broad, generalized areas without site specific detail or precise boundaries. . . ." (SDGP at ii-iii) The Court noted in Mount Laurel II with respect to the Plan: "(w)hile it does not purport to draw its lines so finely as to delineate actual municipal boundaries or specific parcels of land, the concept map, through the county maps, makes it quite clear how every municipality in the State should be classified. . . ." (at 226)
Furthermore, just as the Supreme Court has allowed for flexible application of the SDGP to determine whether a municipality has a Mount Laurel obligation, I can find no cogent argument which would compel this Court to deprive itself of a similar flexibility in dealing with a builder's remedy. I note that in ascertaining whether a municipality has a fair share obligation, the Court has allowed for possible situations in which the SDGP will not be "the absolute determinant of the locus" of the fair share responsibility. (at 239) Thus, if a party can show that the concept map creates an arbitrary or capricious result or that the municipality has undergone a significant transformation that causes the characterization to become inappropriate, the fair share obligation can be created, eliminated or modified notwithstanding the concept map provision. (at 240)
Not only do I find nothing in the opinion to deny the trial court some freedom in dealing with the builder's remedy, but quite to the contrary, a careful reading of Mount Laurel II provides clear ...