This Mount Laurel case requires the court to establish the priority of builder's remedies among several plaintiffs whose offer to build low and moderate housing exceeds the fair share number of the municipality.
Eleven complaints seeking a builder's remedy were filed within a time span of approximately six months and eight of them were filed in the first three months of the litigation. Each plaintiff proposes that 20% of the units constructed will be affordable by low and moderate income persons pursuant to the guidelines established by our Supreme Court. Southern Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp., 92 N.J. 158, 279 n. 37 (1983) (hereinafter Mount Laurel II) (all page citations shall refer to Mount Laurel II unless otherwise noted) A builder who demonstrates that the municipal land use ordinances fail to comply with Mount Laurel II and who proposes a substantial lower income component is entitled to a builder's remedy unless the municipality establishes that the development will generate substantial negative environmental or planning results. (at 279-280) Assuming that several builders meet this threshold test for entitlement to a remedy, that it is appropriate to award more than one builder's remedy and that the total lower income units to be built will exceed the fair share of the town, the issue becomes: In what order of priority should the remedies be awarded?
This issue exists in several cases now before the court. It has been extensively briefed here and in other cases. In most instances each brief has supported the approach most likely to spell relief for the plaintiff submitting it. Priority schemes have stressed the importance of the date of filing of the complaint, the order of suitability of the sites, the feasibility of the projects, prior efforts at a negotiated settlement, prior zoning of the parcels, municipal planning preferences, whether the plaintiff is a landowner or speculator, the division of the fair share proportionately and even the establishment of a
complex rating system not unlike a beauty contest or gymnastic event. The swing is from total objectivity despite arbitrariness to total subjectivity despite uncertainty.
A perfect solution to the problem is probably unachievable. Furthermore, the adoption of any system of priorities will have to yield to adjustment in those cases where special circumstances or equities exist. Any workable solution for the typical case must balance competing policy considerations found in Mount Laurel II in a manner which will normally create a just result.
The principal policy considerations are:
1. The need to encourage builders to bring Mount Laurel actions.
2. As a corollary to number one, the need to maintain a bright line test by which a builder can gauge with reasonable certainty, in advance of suit, the likelihood of being awarded the remedy.
3. In contrast, the necessity to be sensitive to the environmental and zoning impact on the municipality resulting from the award of multiple builder's remedies.
4. As a corollary to number three, the avoidance of excessive litigation against the municipality and the maintenance of the greatest possible degree of latitude for the municipality in devising its response to its Mount Laurel obligation.
5. The express intention of our Supreme Court to channel development, insofar as possible, to growth areas and to preserve other areas for limited growth.
6. The desire to promote voluntary compliance and early settlement.
7. The need to restrict the award of a builder's remedy to those cases in which it is likely to result in actual construction of lower income housing.
Each of these seven overriding policy objectives must be reviewed separately and balanced in combination to devise the priority plan.
1. Encouraging builders' suits.
Our Court has expressly recognized that builder's remedies must be made readily available so that the municipalities will achieve compliance. (at 279) A builder's remedy will be granted "as a matter of course," where the builder demonstrates noncompliance of the ordinance, proposes to construct a substantial amount of lower income units and the
construction can be implemented without substantial negative environmental or planning impact. (at 279-280, 330)
The Court's intent to utilize builder's remedies liberally is further evidenced by the fact that the Court placed the burden of proof as to negative environmental or planning impact on the municipality rather than requiring the builder to prove site suitability. (at 279-280) Additionally, merely because a municipality prefers some other location or because it can prove that a better site is available does not support the denial of a remedy. (at 280)
The builder's remedy is the economic inducement held out to developers so that they will enforce the Mount Laurel obligation of our municipalities. It was the Court's goal to maintain a significant level of Mount Laurel litigation. (at 279) This incentive has produced the desired result. The experience of this court demonstrates that the level of Mount Laurel litigation has increased dramatically since Mount Laurel II and every suit has been brought by a builder rather than a nonprofit or public agency.
2. The need to maintain a bright line test.
Mount Laurel II recognized that, in the absence of bright line standards, "(c)onfusion, expense, and delay have been the primary enemies of constitutional compliance in this area." (at 292) Thus, in an effort to strengthen the Mount Laurel doctrine and provide certainty in its implementation, the Court adopted several bright line tests. The State Development Guide Plan (hereinafter SDGP) replaced the developing standard. (at 225) The centralized management by three judges replaced the county based management of cases. (at 253) The precise fair share number requirement replaced the numberless approach. (at 222) The good or bad faith of a municipality in attempting to comply is no longer relevant. Instead, its efforts are to be measured against the standard of whether its ordinances in fact provide a realistic opportunity
for construction of its regional fair share obligation. (at 220-221)
The bright line standards adopted by the Court were a means of ensuring effective implementation of the constitutional obligation. But certainty is no less important in the context of builder's remedies. A builder is less likely to sue if he cannot gauge, with reasonable certainty, the chances of being awarded a remedy. If the builder does not sue there is no opportunity to apply the bright line standards developed by the Court for implementation purposes and the net result may be continued noncompliance.
3. Environmental and zoning concerns.
The award of a builder's remedy is not a license for unchecked growth. The goal is to devise a solution which maximizes the opportunity for lower income people and minimizes the impact on the municipality. Our Supreme Court has emphasized that once an ordinance is found to be noncompliant the municipality should continue to control its own planning destiny, subject only to the rights that flow from a builder's remedy. Even if a remedy is granted, the proposed project will be closely scrutinized. (at 280)
The award of a builder's remedy itself takes into account its environmental or zoning suitability. The court must deny a builder's remedy if the municipality "establishes that because of environmental or other substantial planning concerns, the plaintiff's proposed project is clearly contrary to sound land use planning". (at 279-280) However, even if a remedy is granted, the Court has provided authority to soften the impact of construction by phasing-in development over a period of years to avoid a radical transformation. (at 280, 331-332)
The authority to phase is only part of our Court's overall awareness of the need to monitor the growth which will result from Mount Laurel development. (at 219, see also 211, 220, 311-312) The Court has stressed its concern for the protection
of the environment. (at 211, 219-220, 331, n. 68) Therefore, any system of prioritization of ...