Before Judges Havey, A.A. Rodr¡guez and Collester.
The opinion of the court was delivered by: Per Curiam
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Mercer County, whose opinion is reported at 303 N.J. Super. 518 (Law Div. 1996).
In this exclusionary zoning litigation, defendants Township of West Windsor, the Township's Mayor and Council, and its Planning Board, appeal from a judgment declaring the Township's zoning ordinance in violation of Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel, 92 N.J. 158 (1983) (Mount Laurel II). The judgment awards plaintiff Toll Brothers, Inc., a builder's remedy to construct a development of single-family and multi-family dwellings, including 175 affordable rental units which, if built, will satisfy approximately one third of the Township's fair share.
Plaintiff's 293-acre site is the largest of several nearly contiguous properties included in a 1985 Consent Judgment of compliance and repose entered by Judge Serpentelli. See Affordable Living Corp. v. West Windsor Township, No. L-17812-84 (Law Div. October 1, 1985). That consent order was modified on October 16, 1986, to conform West Windsor's fair-share housing obligation to that entered by the Council of Affordable Housing-- 592 units.
When West Windsor elected not to apply for interim certification, see N.J.A.C. 5:92-1.6(d) and N.J.A.C. 5:91-14, Toll Brothers filed the present action in May 1993. As of 1994, West Windsor's fair-share housing obligation was fixed at 929 units of affordable housing.
After a lengthy trial, Judge Carchman rendered a written opinion, reported in part at 303 N.J. Super. 518 (Law Div. 1996), in which he summarized his findings as follows:
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 ...