On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket Number L-3301-95 and on remand from the Supreme Court.
Before Judges Havey, Cuff and Lisa.
The opinion of the court was delivered by: Havey, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Remanded by the Supreme Court September 5, 2002.
Resubmitted December 2, 2002
In this Mount Laurel *fn1 litigation, the Supreme Court granted certification of the judgment entered by us, see Mount Olive Complex v. Township of Mount Olive, 340 N.J. Super. 511 (App. Div. 2001), and remanded for reconsideration in light of Toll Bros., Inc. v. Township of West Windsor, 173 N.J. 502 (2002); Bi-County Dev. of Clinton, Inc. v. Borough of High Bridge, 174 N.J. 301 (2002); and Fair Share Hous. Ctr., Inc. v. Township of Cherry Hill, 173 N.J. 393 (2002). The parties have submitted supplemental briefs.
We first address the Supreme Court's holding in Toll Bros., Inc. In that case, West Windsor had been the subject of a 1984 Mount Laurel action resulting in a judgment fixing its fair share at 1,619 affordable housing units. Toll Bros., Inc., supra, 173 N.J. at 514-15. To meet this obligation, West Windsor adopted a compliance plan that included eleven sites for inclusionary zoning. Id. at 515. Toll Brothers' 293-acre tract (Site 6) was part of the plan, which called for the construction of 527 affordable units on the site. The compliance plan was memorialized in a Judgment of Compliance and Repose entered in October 1985. Id. at 516.
In May 1993, Toll Brothers instituted exclusionary zoning litigation against West Windsor demanding a builder's remedy. Id. at 517. West Windsor's period of repose under the 1985 judgment had expired, and the Township had not applied for interim certification. Ibid. From 1985 to the date Toll Brothers instituted its action, only two of the sites identified by the judgment had been developed, yielding thirty-seven "for-sale" condominium units and 102 rental units. During the same time, a "'massive amount'" of "'high- priced'" single-family, detached homes were built in non- inclusionary zones within the Township. Ibid. (quoting Tolls Bros., Inc. v. Township of West Windsor, 303 N.J. Super. 518, 526, 553 (Law Div. 1996), aff'd o.b., 334 N.J. Super. 109 (App. Div. 2000), aff'd, 173 N.J. 52 (2002). Housing in this category increased from 2,907 to 6,115 units.
During the trial that concluded on March 29, 1995, Judge Carchman, then a trial judge, concluded that, based on the Council on Affordable Housing's (COAH) methodology, West Windsor's "present" fair-share housing obligation was affordable housing units. Toll Bros., Inc., supra, 173 N.J. at 519. Because defendant had met 241 units of its 929-unit obligation, the Township's fair share was reduced to 688 units. Id. at 520. The sole means of meeting this balance "'was the inclusionary zoning of nine remaining sites.'" Id. at 520 (quoting Toll Bros., Inc., supra, 303 N.J. Super. at 532).
In determining that Toll Brothers was entitled to a builder's remedy, Judge Carchman undertook a fact-specific analysis of each of the inclusionary zoning sites in deciding whether West Windsor had provided a realistic opportunity for development of its present 688-unit affordable housing obligation. Toll Bros., Inc.. supra, 173 N.J. at 521-29. He determined that the maximum potential affordable house yield was 505 units, 183 short of West Windsor's obligation. Id. at 529.
The judge determined that West Windsor's sewer construction and financing policies were an impediment to the construction of affordable units. Id. at 533-34. In addition, the judge held that market demand was a relevant factor in determining whether West Windsor's zoning provided a realistic opportunity for the construction of affordable housing units. Id. at 531. Nearly all of the inclusionary zoning permitted by West Windsor required the construction of multi-family units and "unconventional zero lot-line single family detached housing." Id. at 530. Judge Carchman concluded that, based on the evidence, since there was ...