Agenda - Planning Commission - 07/21/2016

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Zoning Bulletin June 10, 2016 1 Volume 10 I Issue 11 clear from its responses, or non -responses, to CDA's overtures that the Township had no interest in negotiating with CDA." The court found the record supported the finding that the Township was unwilling to negotiate for the siting of an affordable housing project on the CDA site based on its non -responses to CDA, as well as its history in dealing with two other builders who had also sought to develop affordable hous- ing projects, including one at the same site as CDA. Moreover, the court found that CDA's efforts to negotiate were "made in good faith and were sufficient," noting that CDA had not threatened the Township with litigation. Further, with regard to the Township's argument that the CDA had failed to exhaust administrative remedies by making a rezoning application prior to filing the suit, the court said there was "no such [administrative exhaustion] requirement in Mount Laurel litiga- tion" and that it was clear that an application for rezoning would have been "futile." Next the court rejected the Township's argument that the court erred in granting the builder's remedy to CDA because CDA was not a "catalyst for change" in moving the Township toward Mount Laurel compliance. The court said it could not agree with the Township's argument that in addition to winning the underlying exclusionary zon- ing lawsuit, a Mount Laurel plaintiff must also provide that it was a "catalyst" for change in order to qualify for a builder's remedy. Rather, the court said that a developer may be entitled to a builder's remedy in a Mount Laurel lawsuit (i.e., a lawsuit seeking to require that a municipality use its zoning power in an affirmative manner to provide a realistic opportunity for the production of housing affordable to low - and moderate -income households), even if the municipality has begun moving toward compliance before or during the developer's lawsuit, provided that the lawsuit demonstrates the municipality's current fail- ure to comply with its affordable housing obligations. Thus, here, even though the Township had filed a new fair share housing plan shortly af- ter the lawsuit was instituted, that plan was found to be deficient in important aspects. And, in any case, at the time CDA filed the suit, the Township was out of compliance with its affordable housing obligations. Finally, the court found no merit in the Township's challenge to the terms of the builder's remedy that the trial court awarded. The award granting less units than the CDA had requested was not, found the court, and indication that the site was unsuitable for the developer's residential project or environmentally inappropriate. Rather, the judge's recommendation for fewer units was based on the planning considerations related to setbacks, height, and parking. See also: Southern Burlington County N.A.A. C.P. v. Mount Laurel Tp., 92 N.J. 158, 456 A.2d 390 (1983). © 2016 Thomson Reuters