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Toll Bros., Inc. v. Township of West Windsor

October 16, 1996

TOLL BROTHERS, INC., A DELAWARE CORPORATION, PLAINTIFF,
v.
TOWNSHIP OF WEST WINDSOR, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY LOCATED IN MERCER COUNTY, NEW JERSEY, THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF WEST WINDSOR, AND THE PLANNING BOARD OF THE TOWNSHIP OF WEST WINDSOR, DEFENDANTS.



Carchman, A.j.s.c.

The opinion of the court was delivered by: Carchman

Civil Action

CARCHMAN, A.J.S.C.

In 1973, the Supreme Court of New Jersey recognized the constitutional principle that requires municipalities to open its doors to families of all income levels, thereby barring the use of exclusionary zoning. To implement this mandate, first the courts and then the Legislature established a procedure to identify for each municipality, that number of housing units which represent its "fair share" of low and moderate housing. The test for compliance was stated simply -- provide developers with a realistic opportunity to construct housing for low and moderate income families. In 1985, West Windsor Township's fair share of low and moderate income housing was determined to be 592 dwelling units. In 1994, that number was increased to 929 units.

From 1982 to 1992, the number of houses in West Windsor Township more than doubled, increasing from 2,907 units to 6,115 units. As West Windsor Township experienced and enjoyed this enormous growth, new residents moving into West Windsor Township generally purchased high-priced, large-lot, single-family houses.

West Windsor's housing boom was not shared by all. Of 3,208 new homes built in West Windsor, the total number of constitutionally mandated affordable units constructed was 139.

I.

This is an exclusionary zoning case brought pursuant to Southern Burlington Cty. NAACP v. Mount Laurel Tp., 67 N.J. 151, 336 A.2d 713 (1975) (Mount Laurel I) and Southern Burlington Cty. NAACP v. Mount Laurel Tp., 92 N.J. 158, 456 A.2d 390 (1983) (Mount Laurel II). Plaintiff Toll Brothers (hereinafter "Toll" or "plaintiff"), is a large housing developer and owner of a 293-acre tract of land in West Windsor Township. Defendants are the Township of West Windsor, the Township Committee of the Township of West Windsor and the West Windsor Planning Board (hereinafter referred to collectively as West Windsor, the Township, or defendant). Plaintiff alleges that defendant has been engaged in a pattern of exclusionary zoning in violation of the New Jersey Constitution as interpreted in the Mount Laurel cases, and the Fair Housing Act of New Jersey, N.J.S.A. 52:27D-301 through -329 (hereinafter "the Act"). Plaintiff makes this assertion, notwithstanding the fact that plaintiff's own property is currently zoned for townhouses, garden apartments, patio homes, two-family rentals, maisonettes and zero lot-line single-family units, and that defendant continues to implement a plan approved by this court in 1985. Plaintiff seeks a site-specific builder's remedy -- the rezoning of its property to permit the construction of 625 to 650 conventional single-family detached houses on relatively small lots in addition to 110 to 115 low and moderate income housing units.

This case represents a fully litigated "second-round" exclusionary zoning case. This court is called upon to address for the first time the continuing constitutionality of an inclusionary housing plan approved by a court under the standards established in Mount Laurel II, but which has produced little affordable housing during the past ten years. Because this is the first time a court must rule upon the validity of a municipality's compliance plan in a "second round" ten years after compliance was previously achieved, many issues are raised, some of which are novel.

Among the significant issues raised, this court must consider the exclusionary effect of municipal policies concerning the construction of sewer systems. Plaintiff alleges that certain of defendant's policies concerning sewers preclude development in many of defendant's inclusionary zones. Specifically, plaintiff attacks municipal policies requiring that all sewers be constructed as gravity flow systems (rather than systems using pumps), as well as municipal policies that require the first developer to "front" the entire cost of constructing a collector system that will serve not only this development, but all future development in that area of the municipality, and bear the risk of never recovering those costs from other future developers.

Plaintiff also raises an issue as to the role of assemblage in a court's consideration of an inclusionary site and how a need to assemble various owners' parcels impacts on the municipality's success in fulfilling its obligation to provide a realistic opportunity for inclusionary development.

This court is also called upon to consider the impact of environmental constraints, open space requirements and other zoning and planning considerations on the standard of "realistic opportunity" for development.

Historically, multi-family housing stock represents the product of choice for both developers and the courts to implement the Mount Laurel requirements. This case presents the issue of whether the use of multi-family housing as the model for meeting housing demand may be modified by the utilization of marketable single-family dwellings as an alternative for satisfying the Mount Laurel requirement. This court must assess what type of zoning complies with the municipality's fair share housing obligation, based upon expert testimony as to the types of housing that the market is realistically likely to absorb coupled with an assessment of the "mix" permitted by defendant's ordinances.

Finally, this court must consider the fact that in the ten years between the initial fair share determination and the present time very little moderate and low income housing has been built. The court is called upon for the first time to determine which party has the burden of persuasion as to why the sites that are incorporated in both the "first" and "second" round and for which a municipality has previously received fair share credit have not been developed.

This court conducted an extended bench trial and considered the testimony and exhibits presented. For the reasons set forth below, this court concludes that defendant's zoning ordinances do not meet the constitutional requirements established in the Mount Laurel cases. To summarize this court's findings:

1) The marketability, and thus market demand for particular housing types, are factors that must be considered in determining whether a municipality has provided a realistic opportunity for the development of affordable housing. Appropriately sized and priced conventional single-family dwellings may provide an alternative to multi-family housing for the purpose of meeting housing demand to satisfy a municipality's fair share requirement;

2) Defendant's ordinances and policies regarding sewer financing and construction, which require inclusionary developers to "front-end" the costs of an oversized gravity-fed system, are factors that discourage inclusionary developers and diminish a realistic opportunity to develop inclusionary sites;

3) Inclusionary sites that require assemblage in order to comply with zoning ordinances and other municipal regulations should not be considered as sites providing a realistic opportunity for development of inclusionary housing;

4) Many of the sites zoned for inclusionary housing are so environmentally constrained or subject to open space or other requirements as to minimize their consideration as sites providing a realistic opportunity for development of inclusionary housing;

5) Where defendant received prior credit for inclusionary sites, and where so little inclusionary development has taken place over an extended period of time -- here, ten years -- despite significant development of the single-family housing market, the burden of persuasion shifts to defendant to establish why previously approved sites have not been developed; and

6) As a result of market demand factors, site factors and the terms of defendant's ordinances and regulations, West Windsor's inclusionary housing plan does not create a realistic opportunity for the development of its fair share of affordable housing, and West Windsor is thus not in compliance with the Mount Laurel mandate.

What follows are the court's findings of fact and Conclusions of law.

II.

This is the second Mount Laurel suit initiated against defendant. On March 14, 1984, Affordable Living Corporation instituted exclusionary zoning litigation against defendant that resulted in a court order, entered on July 24, 1984, establishing defendant's fair share at 1,619 low and moderate income units. In October 1985, a judgment of compliance and repose resulting from a settlement was entered. Affordable Living Corp. v. West Windsor Tp., No. L-17812-84 (Law Div. October 1, 1985). On October 14, 1986, the judgment of compliance was modified to conform West Windsor's fair share housing obligation to that established by the Council on Affordable Housing (hereinafter COAH) -- 592 units.

The judgment of compliance and the six-year period of special res judicata protection provided for in Mount Laurel II expired on July 21, 1991. Defendant elected not to apply for "interim certification" under COAH regulations, N.J.A.C. 5:92-1.6(d), 5:91-14, prior to the filing of this litigation. *fn1 Toll filed the complaint in the present action on May 12, 1993. At the time this litigation was commenced, defendant was not protected by either a judgment of compliance or substantive certification granted by COAH. The matter proceeded to trial on September 28, 1994, and concluded March 29, 1995. *fn2

Defendant's present fair share housing obligation was established by COAH in regulations that were first proposed on March 15, 1993, 25 N.J.R. 118 (March 15, 1993), and finally adopted on June 6, 1994, 26 N.J.R. 2300 (June 6, 1994). This court is bound by that COAH finding and determination. Hills Dev. Co. v. Bernards Tp., 103 N.J. 1, 63, 510 A.2d 621 (1986). Under these regulations, defendant's obligation is 929 units of affordable housing.

Defendant's obligation consists of two components. Thirty units comprise the housing needed to meet the needs of defendant's indigenous poor. Defendant, as any municipality, can satisfy this portion of its obligation either through rehabilitation of existing physically substandard housing that is occupied by low and moderate income households or by creating realistic opportunities for the construction of new housing reserved for low and moderate income families.

The remaining 899 units comprise the municipality's fair share of the unmet regional need for safe, decent housing affordable to low and moderate income households (variously referred to as the municipality's "present reallocated and prospective need" or the "new construction component" of its housing obligation).

In determining whether zoning ordinances and housing plans create a realistic opportunity to satisfy defendant's fair share housing obligation, the court must assess the extent to which the municipality has created realistic housing opportunities at two different points in time. For the purpose of determining whether Toll is entitled to a site-specific builder's remedy, defendant's conduct must be assessed at the point before it began amending its ordinances in response to this litigation. For the purpose of determining whether other relief should be granted, defendant's conduct must be assessed at the close of trial, and in light of any builder's remedy awarded by the Court. Van Dalen v. Washington Tp., 205 N.J. Super. 308, 334 n. 11, 500 A.2d 776 (Law Div. 1984). *fn3

In settlement of the prior Affordable Living Corporation suit in 1985, defendant formulated a plan to create affordable housing by zoning eleven sites for inclusionary development and by rehabilitating existing physically substandard housing. This plan remained in effect, essentially unchanged, until late summer 1994. Since 1985, only 139 low and moderate income units have been constructed on these various inclusionary sites. *fn4 These units are located in two developments:

1) Windsor Haven (for-sale condos): 37 units

2) Steward's Watch (rental apartments): 102 units.

Under COAH regulations municipalities are obligated to meet twenty-five percent of their fair share housing obligation through rental housing and are entitled to certain bonus credits for rental units actually constructed or for which there is a firm commitment to develop--one additional credit for each unit of rental family housing and one-third of a credit for each unit of rental senior citizen housing. N.J.A.C. 5:93-5.14. Defendant earned 102 rental bonus credits for the Steward's Watch development. With the addition of these bonus credits, defendant has met 241 units of its 929-unit fair share housing obligation. As of September 1994, defendant's sole means of meeting the balance of its obligation was the inclusionary zoning of nine remaining sites.

After applying credits for the constructed units and rental bonus, defendant's remaining unmet fair share and obligation in this second-clcye compliance program is 688 low and moderate income units. To be adJudged in compliance with Mount Laurel II, defendant must show that its inclusionary zoning provides a realistic opportunity for the construction of 688 additional affordable units.

Defendant's response to its constitutional obligations has been less than startling. While two additional inclusionary sites have been created during the course of this litigation, defendant's actions, or rather lack thereof, raise significant questions as to its commitment to fulfill its mandated responsibility.

For example, although defendant in 1985, requested and received three years to implement a housing rehabilitation plan and represented to the first Mount Laurel trial court that it would either float a township bond for $550,000, seek a grant from a county-wide bond issue, apply for grants, or use some combination of all of these vehicles, to rehabilitate units, no rehabilitation initiative was pursued until the prior judgment of repose lapsed and this litigation began.

During trial, defendant presented evidence that it had recently taken steps to apply for funds from the state or county to establish a rehabilitation program, but had not yet been granted any such funds and had not itself appropriated funds to establish such a program.

According to defendant's proposed Mount Laurel II compliance program, filed with the court prior to entry of the 1985 Judgment of Repose, defendant proposed to rehabilitate a total of thirty-seven dwelling units designated as deficient in the 1980 census, and rezone a total of eleven sites that were said to provide a realistic opportunity for the production of 1,306 low and moderate income units. This inclusionary zoning plan, adopted in 1984, remained unchanged until after the commencement of the present litigation.

Under the initial compliance plan, plaintiff's property, Site 6, which is still undeveloped, was proposed as a realistically possible site for construction of a total of 2,480 family units plus 175 elderly housing units -- it was designed to yield a total of 496 low and moderate income units. This site was by far the largest compliance site under single ownership in the original compliance plan.

A proposed amendment to the original compliance plan was reviewed by the Honorable Eugene Serpentelli, A.J.S.C., after settlement agreements were negotiated with respect to both Site 6 (plaintiff's site) and Site B (the Copperfield site), reducing the number of units to be built on those sites from 2,655 units to 1,500 in the case of Site 6, and from 1,032 units to 695 in the case of Sites B and 4, but the parties never received court approval for the proposed modifications.

By letter to Judge Serpentelli dated May 22, 1992, defendant took the position that the Countryside settlement, which allowed 1,500 multi-family units on Site 6, was "no longer viable given the market developments of the past few years and will likely be reconfigured " (emphasis added). In this litigation, defendant took a contrary position and argued that 1,500 high-density multi-family units with a twenty percent affordable housing setaside constituted realistic inclusionary zoning.

Another example is relevant. On June 21, 1989, a development known as Maycho was granted preliminary approval by the defendant Planning Board for a total of twenty-eight condominium units. The zoning (R-3A) requires a twenty percent setaside. This development, which would yield six affordable units, was never built and has apparently been abandoned.

A strong and notable factor in this case is defendant's housing market as it has developed since the prior litigation. Over the past ten years, defendant has experienced enormous growth and a very strong housing market: from 1982 to 1992, defendant's housing stock more than doubled, increasing from 2,907 to 6,115 units. Despite the prior court order and defendant's attempts at inclusionary zoning, affordable units comprised only four percent of the units constructed during that period. The failure of affordable housing development over the past decade is inconsistent with defendant's booming housing market during that period.

Defendant's performance has also been poor as compared with all other suburban Mercer County municipalities and suburban municipalities in the Route 1 Corridor between Trenton and New Brunswick; as was developed at trial, defendant has the lowest rate of fair share development in both groups.

Plaintiff asserts that defendant's poor rate of Mount Laurel fulfillment was the result of a number of factors, including: 1) environmental constraints on the inclusionary sites; 2) public sewer policies; 3) public resistance and processing delays in the approval of inclusionary sites; and 4) unnecessary cost-generating requirements and restrictive zoning requirements imposing restraints on the market units within the inclusionary sites.

Summarizing plaintiff's position, this court notes the following:

1) Environmental Constraints. Plaintiff's argument is premised on the fact that lands zoned for affordable housing inclusionary development in defendant's first compliance plan were severely impacted by freshwater wetlands, freshwater wetlands buffers and floodplain areas. Using the New Jersey Department of Environmental Protection wetlands mapping and Federal Environmental Management Agency 100-year floodplain mapping, Philip Caton, plaintiff's planning expert, confirmed the wetland buffer lines shown by defendant's expert, John Madden, in his analysis of sites zoned for affordable housing in West Windsor as of April 1994. Caton pointed out that these findings not only decrease the quantity of buildable acreage, but also impact on the feasibility of accessing this acreage with road and utility infrastructure. He claimed convincingly that the size and configuration of buildable acreage, coupled with the cost of extending infrastructure to it, diminished the likelihood of development of many sites. He further claimed, also convincingly, that a number of the inclusionary sites were so environmentally constrained and so limited in development capacity as to preclude any economically feasible recapture of infrastructure and development costs.

2) Public Sewer Policy. Plaintiff's expert Caton testified at length with respect to defendant's relevant sewer planning documents and sewer policies as they affected the development of all unsewered inclusionary sites along the Duck Pond Run Interceptor, one of the available intercepter lines serving West Windsor Township. He pointed out that defendant required that these sites be sewered by gravity flow systems through the extension of the Duck Pond Run Interceptor. These systems would need to be deep to permit gravity to work, and oversized to accommodate future development. Plaintiff argues convincingly that defendant's requirement that developers "front" the costs of such an expensive system without certainty of reimbursement discourages development of inclusionary sites.

3) Public Resistance. Caton opined that public resistance and processing delays contributed significantly to defendant's poor performance in developing low and moderate income housing since the last judgment. Caton testified that he had been the planner for CAP Associates, Toll's predecessor in title, and he described the history of prior applications to develop Site 6. An application began in May of 1981 when the Planning Board began holding hearings on the application of another predecessor in title, Maneely. The matter was only concluded on December 11, 1989, after a judicial finding of purposeful and inexcusable delay in the application process by West Windsor. Caton indicated that the CAP application on this property, which followed Maneely's, began in 1986 and continued for three-and-one-half years and more than fifty public hearings. On October 15, 1987, Judge Serpentelli ordered the West Windsor Planning Board to hold two full meetings per month on the CAP application after finding that the Board's delays in processing that application were "unjustified," "purposeful or unexcusable."

Such delays, over a protracted period of time, appear to have contributed to the failure of some inclusionary sites to develop during the first cycle. While public resistance and the pressure it brings to bear on public officials may provide some explanation for delay, such factors do not provide an excuse for a municipality's non-compliance with the constitutional mandate articulated in the Mount Laurel cases.

4) Zoning. Lastly, plaintiff asserts that defendant's zoning ordinances contain a number of restrictive zoning standards that impact on the development of the inclusionary sites and have affected the township's ability to produce low and moderate income units during the first cycle. Among the restrictive ordinance provisions affecting inclusionary development still in place at the commencement of these proceedings, plaintiff cites the following:

a) The requirement in a number of defendant's inclusionary zones that a mix of high density units, such as townhouses, condominiums and zero lot-line singles or patio homes, be developed as the sole type of permitted market unit, while precluding the development of conventional single-family units on small lots that are in particular market demand;

b) The PRN-1 ordinance which required, until it was amended during trial, that 175 senior citizen low and moderate income units be built on Site 6 without regard to the number of market units built;

c) Ordinances requiring an unreasonable amount of common open and recreational space. Caton testified that in the PRN-1 zone, for instance, the ordinance required that as a minimum, the lesser of twenty-five percent of the development area or twenty percent of the gross development area must be devoted to common area open space and that wetlands were precluded from inclusion in that open space calculation. Defendant failed to recognize in that requirement that detached single-family units provide their own open space, thereby reducing the need for open space in certain development scenarios. Meanwhile, the added cost of the open space requirements may limit development of the site;

d) Ordinance placing a maximum net density limit on particular dwelling types but containing definitions excluding certain areas from net density calculations. The ordinance is asserted to arbitrarily cap densities at the inclusionary site;

e) Ordinance 22-8.15, purporting to reduce gross densities permitted by as much as eighty-five percent in all districts based on the percent of sites ruled as environmentally constrained. Until amended during trial, this ordinance affected all but three of defendant's inclusionary sites. Based on estimates that approximately fifty percent of the inclusionary sites are environmentally constrained due to wetlands and floodplains alone, the ordinance purported to reduce the densities on all such sites by between forty percent and sixty percent. No attempt to comply with this ordinance was made by defendant's planning expert Madden in preparing his illustrative site yield plans, nor did those plans reflect the recreational space requirements of defendant's ordinance.

In sum, plaintiff asks this court to look beyond the face of defendant's assertedly inclusionary zoning. It asks for consideration of numerous factors -- environment, infrastructure, market demand, municipal policy and other zoning-related factors -- for a finding that defendant is deficient in its affirmative duty under the Mount Laurel cases. It asks for a builder's remedy to permit development of its property in a more cost-effective, market-responsive manner than defendant's current zoning allows.

III.

A.

In Mount Laurel I, the Court found that a zoning ordinance that contravened the general welfare was unconstitutional and that such a violation of the constitution occurred when a developing municipality excluded lower income families by excluding housing for lower income households through its zoning power. The doctrine was reaffirmed in Mount Laurel II.

Municipal land use regulations must affirmatively afford a realistic opportunity for the construction of the municipality's fair share of the region's present and prospective need for low and moderate income housing. Mount Laurel I, supra, 67 N.J. at 174; Mount Laurel II, supra, 92 N.J. at 205. A "realistic" opportunity means that "there is in fact a likelihood -- to the extent economic conditions allow -- that the lower income housing will actually be constructed." Mt. Laurel II, supra, 92 N.J. at 221-22.

The Supreme Court had already noted as early as in Oakwood at Madison, Inc. v. Madison Tp., 72 N.J. 481, 541-42, 371 A.2d 1192 (1977), and quoted again in Mount Laurel II, supra, 92 N.J. at 303; "that the number and variety of considerations which have been deemed relevant in the formulation of fair share plans is such as to underscore our earlier observation that the entire problem involved is essentially and functionally a legislative and administrative, not a judicial one."

This court, in addressing the issues presented in the matter now at bar, must harmonize its finding of fact and law with COAH's regulations at N.J.A.C. 5:93-1.1 et seq. As the Supreme Court noted, "we do not believe the Legislature wanted lower income housing to develop in two different directions at the same time, contrary to sound comprehensive planning." Hills Dev. Co. v. Bernards Tp., supra, 103 N.J. at 63.

In COAH, the Legislature has created a review process as an alternative to litigation of exclusionary zoning disputes. See N.J.S.A. 52:27D-303. A municipality may avail itself of this alternative by its voluntarily submission to COAH's jurisdiction: it must submit a resolution of participation, a housing element, and a proposed fair share housing ordinance implementing the housing element. N.J.S.A. 57:27D-309. The municipality may then pursue substantive certification by COAH. N.J.S.A. 52:27D-313-314. If certification is granted, the municipality's affordable housing plan and implementing ordinances enjoy a presumption of validity that may only be overcome in subsequent litigation by clear and convincing evidence. N.J.S.A. 52:27D-317a.

Defendant in this case has not submitted its housing plan to COAH for certification. Defendant, having chosen not to act, not only loses the protection of any prior approval of its plan, but also loses any special presumption of validity.

For purposes of review, certification, and assessing fair share, COAH has specified six-year periods or "cycles." N.J.A.C. 5:93-2.1 through 2.20. The present cycle addresses housing needs and municipal obligations for the period 1993 to 1999. The prior cycle ran from 1987 to 1993.

Another means of meeting the fair share obligation is inclusionary zoning. An inclusionary zoning site is "a residential housing development in which a substantial percentage of the housing units are provided for a reasonable income range of low and moderate income households." N.J.S.A. 52:27D-304. The housing may encompass new construction, rehabilitated housing, or conversion of nonresidential structures. N.J.A.C. 5:93-1.3. The "substantial percentage" of affordable homes has been termed the "setaside." N.J.A.C. 5:93-1.3. The remainder of units in an inclusionary site, units not restricted to low or moderate income households, has been termed "market" units. Ibid.

COAH provides a "reduction" of the municipal housing obligation for any "realistic opportunity" created through the municipality's zoning powers for the prior cycle. N.J.A.C. 5:93-3.1(b). However, those inclusionary sites must be reviewed by COAH to affirm their continued viability as inclusionary sites. N.J.A.C. 5:93-3.5.

In the present action, COAH has ascertained that defendant's fair share of regional low and moderate housing need is 929 units for the present cycle, 1993-1999 (of those, thirty units represent the need of the indigenous poor living in West Windsor). Plaintiff in this case asserts that defendant's zoning does not provide a realistic opportunity for the construction of low and moderate income housing, thus violating the Mount Laurel constitutional mandate. To determine whether defendant was in compliance with Mount Laurel at the time this law suit was filed in 1993, this court must look at a variety of factors.

Case law provides that municipal compliance with this fair share housing obligation is to be measured by the actual success of a municipality in providing affordable housing opportunities. Mere good intentions or the adoption of plans that fail in fact to create a realistic likelihood of production of affordable housing do not satisfy a municipality's constitutional obligation:

Therefore, proof of a municipality's bona fide attempt to provide a realistic opportunity to construct its fair share of lower income housing shall no longer suffice. Satisfaction of the Mount Laurel obligation shall be determined solely on an objective basis: if the municipality has in fact provided a realistic opportunity for the construction of its fair share of low and moderate income housing, it has met the Mount Laurel obligation to satisfy the constitutional requirement; if it has not, then it has failed to satisfy it.

[ Mount Laurel II, supra, 92 N.J. at 220-21 (footnote omitted, emphasis in original).]

Some of the considerations inherent in such a determination are reflected in Mount Laurel II's Discussion of Mount Laurel Township's asserted effort at inclusionary zoning:

Mount Laurel's notion of providing a realistic opportunity to build lower income housing has led to the rezoning of less than one-fourth of one percent of its land (about 20 out of 14,700 acres). The municipality must satisfy its entire housing obligation; satisfaction of only some portion of that obligation does not suffice: "The municipal obligation to provide a realistic opportunity for low and moderate income housing is not satisfied by a good faith attempt. The housing opportunity provided must, in fact, be the substantial equivalent of the fair share."

[ Id. at 216.]

The question of what constitutes a "realistic" opportunity has been explained in some detail. Whether the opportunity provided by a municipality is "realistic" is measured by whether the municipality has made it likely that the low and moderate income housing will actually be built, economic conditions allowing. Id. at 222. The affirmative duty was explained by Chief Justice Wilentz:

"Affirmative," in the Mount Laurel rule, suggests that the municipality is going to do something, and "realistic opportunity" suggests that what it is going to do will make it realistically possible for lower income housing to be built. Satisfaction of the Mount Laurel doctrine cannot depend on the inclination of developers to help the poor. It has to depend on affirmative inducements to make the opportunity real.

[Id. at 260-61.]

This Discussion reflects a host of considerations that would affect a builder's motivation to build low and moderate income housing. It reflects a need to consider the nature of the parcel, as well as details of the zoning that have an impact on the cost of development and the profitable marketing of units constructed. Factors include environmental concerns, drainage, accessibility of sewer and water, surrounding uses, the status of proposed or approved development projects that might affect the likelihood of development, and any other factor that would affect the cost of bringing the affordable housing into being.

Above all, a developer's ability profitably to market a development will be crucial. As the New Jersey Supreme Court recognized, a builder is interested in "the benefits available to him when he builds . . . ." Id. at 299.

Case law has developed reflecting the Supreme Court's concerns and the relevant factors to be considered in assessing whether a realistic affordable housing opportunity has been created. At the very least, municipalities must remove all municipally created barriers to affordable development, such as zoning and subdivision restrictions and exactions. Id. at 258-60. Thus, the terms of all ordinances that affect a site must be considered to determine their impact on the likelihood of development. Unnecessary costs should be avoided not only so affordable units can be built, but so that market units within a development ...


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