Agenda - Planning Commission - 02/02/2017

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December 25, 2016 I Volume 10 I Issue 24 Zoning Bulletin such as: the municipality's population density data; the municipality's percentage of total undeveloped land; and the municipality's percent- age of its land available for the class of housing alleged to be unconsti- tutionally constrained. Third, if it is determined that the community is situated in the path of population expansion and is not already highly developed, then the courts, in the final stage of the analysis, ask whether the municipality has provided for its "fair share" of land for the class of housing under consideration. The Developers had produced evidence demonstrating that the land zoned for development of apartments within the Township was inade- quate to support the Township's "fair share" of apartments given the Ordinance's restrictions that made apartment construction "economi- cally infeasible" —such as minimum acreage requirements, and com- mon open space requirements. The court said that "[w]here a de facto challenge is brought against an ordinance based upon economic infeasibility rather than a township's failure to account for its fair share of housing, the evidence must account for basic legal principles govern- ing exclusionary challenges." The court explained: First, an ordinance may regulate the type and configuration of a use once it has provided for that use; limitations on the level of density permitted for the use, standing alone, do not establish that the ordinance land has been saturated by other uses. Second, where an ordinance has zoned suf- ficient land for a use but that land has been saturated by other uses, the inability to develop land does not amount to an unconstitutional prohibi- tion of the use. Third, an ordinance will not be found unconstitutional merely because it deprives the owner of the most lucrative and profitable uses; as long as the property in question may be reasonably used for the purposes permitted under the ordinance, the owner may not legally complain. Finally, the fact that an ordinance applies a significant amount of restrictions to development of a particular use, standing alone, is insuf- ficient to show that the ordinance is arbitrary, unreasonable and lacking a substantial relationship to the public health, safety and welfare; instead, evidence must be produced to demonstrate that the restrictions lack a le- gitimate purpose. Applying that analysis here, the court found that the evidence pre- sented by the Developers "failed to distinguish between the provision of a use and the provision for a host of variations on the configuration of that use, failed to show that any lack of development of the apart- ment use within the Township was due to the Ordinance rather than the development of other uses where apartments were permitted, and failed to demonstrate that the Ordinance rendered development of apartments within the Township infeasible rather than simply prevented develop- ment of apartments in a manner that would provide [the Developers] with the most profitable use of land." Most importantly, found the court, the Developers failed to demonstrate that the restrictions placed on the development of apartments within the Township's MDR and Multi- 10 © 2016 Thomson Reuters