Agenda - Planning Commission - 07/21/2016

Home

June 10, 2016 I Volume 10 I Issue 11 Zoning Bulletin that property with two buildings that would provide 419 apartments, fifteen percent of which would be designated as affordable housing. In furtherance of the proposed development, CDA appeared at three meet- ings of the municipal governing body (the "Committee") and requested that the Committee include CDA's proposed development in the Township's fair housing plan. The Committee did not place the pro- posal on the agenda for any of those meetings. Moreover, the Commit- tee did not meet with CDA to discuss the proposal, and the Committee refused to share any of its professionals' reports on the proposal. CDA eventually filed suit against the Township. CDA alleged that the Township had violated New Jersey's Mount Laurel doctrine. That doctrine requires that municipalities use their zoning powers in an af- firmative manner to provide a realistic opportunity for the production of housing affordable to low- and moderate -income households. CDA maintained that, here, the Township failed to provide its fair share of low- to moderate -income housing ("affordable housing"), and that its current zoning prohibited the construction of affordable housing. CDA asked the court for a "builder's remedy," allowing CDA to redevelop the property as it proposed. The judge first determined that the Township had, in fact, failed to comply with its fair share housing obligations under the Mount Laurel doctrine. Eventually, the judge granted CDA a builder's remedy for the construction of 360 apartments (as opposed to the 419 units CDA originally sought), conditioned on CDA obtaining all necessary permits form the state's Department of Environmental Protection. Eventually, the judge also granted CDA final site plan approval. The Township appealed. On appeal, the Township did not challenge the determination that it had failed to comply with its fair share obliga- tions under the Mount Laurel doctrine. Rather, the Township contended that the court erred in granting the builder's remedy to CDA because: (1) CDA failed to negotiate in good faith with the Township prior to filing the suit; (2) CDA was not a "catalyst for change" in moving the Township toward Mount Laurel compliance; and (3) the Township proved that CDA's property was not suitable for the proposed 419-unit development and, according to the Township, the court could not ap- prove the project with a reduced number of units. DECISION: Judgment of Superior Court affirmed. The Superior Court of New Jersey, Appellate Division, held that the superior court did not err in granting the builder's remedy to CDA. In so holding, the court addressed the Township's three agreements. First, the court acknowledged that "a builder in CDA's situation is required to engage in good faith negotiations before filing a Mount Laurel lawsuit." Here, the court found that even though the negotiation process was only six -to -eight weeks, that was sufficient where it "was 8 © 2016 Thomson Reuters