January 1, 1900

by Kenneth E. Meiser

In matters handled by Hill Wallack, the Appellate Division rendered two important opinions this past summer arising out of the Toll Brothers v. West Windsor exclusionary zoning case. These opinions are of significance to all Mount Laurel cases pursued throughout the state. The rulings made in the cases are as follows.

The Marketability Issue

By way of background, Toll Brothers (Toll) had sought a builder's remedy from West Windsor and the trial court had granted the builder's remedy, finding the fair share plan of West Windsor to be "woefully defective". The Appellate Division affirmed this decision. It held that the marketability, and thus market demand, for particular housing types must be considered in determining whether a municipality has provided a realistic opportunity for the development of affordable housing. West Windsor had permitted only multi-family market-rate housing in its inclusionary developments, and the proofs at trial demonstrated that there was no market for the number of multi-family units the Township zoned for to satisfy its fair share obligation. The court found that the zoning governing the market units may not unreasonably exclude single family homes.

The Sewer Financing Holding

West Windsor's policies and ordinances regarding sewer financing and construction, which required Mount Laurel developers to "front-end" the cost of an oversized system, were also found to be an exclusionary feature impermissibly diminishing the realistic opportunity for low and moderate income housing.

The Assemblage Issue

Additionally, the court held that the Township could not rely on zoning which would result in development satisfying its fair share only if there was an assemblage of sites held in different ownership. Because of all these deficiencies, the Appellate Division affirmed that Toll was entitled to a builder's remedy.

Deletion of Mount Laurel Sites

West Windsor also sought to delete from its fair share plan two sites which had been zoned for Mount Laurel housing since 1985 as a part of the Township's original fair share plan. West Windsor stated that it wanted "to go in a different direction and reduce its reliance on inclusionary developments to satisfy its fair share". It first argued that the rezoning of a site for Mount Laurel housing was protected for only six years, and that the owner's right to build an inclusionary development expired along with the six year judgment of repose which protected the Township from future Mount Laurel litigation. The Appellate Division rejected this argument, ruling that, if the protection expired after six years, the municipality would have every incentive to delay approval of inclusionary developments or other unpopular affordable housing plans until after the six year period expired.

The court further held that a site which was a subject of a court order rezoning the property for Mount Laurel purposes could be deleted from the fair share plan only if there was a significant change in the facts or the law warranting revision of the decree. Modification could occur only if there had been a change which made compliance substantially more onerous, or the order proved to be unworkable because of unforeseen obstacles, or enforcement without modification would be harmful to the public interest.

The Six Factors to be Considered

The court listed six factors to consider: (1) the underlying goal of the consent order; (2) whether the order provided for continued supervision; (3) whether there had been compliance with other court orders; (4) whether the defendant seeking relief from the order had made a good faith effort to comply; (5) the length of time the order has been in effect; and (6) the continuing efficacy of the order. The burden rests with the municipality to prove to the court significant changes in facts or law under these criteria warranting revision of the order to delete a site. The mere fact that the site had not developed for over ten years by itself did not justify automatic removal of the site.

The Impact of the Ruling

There are numerous orders dating back to the 1980's pursuant to which sites were zoned for Mount Laurel housing. For many reasons these sites may not yet have been developed as intended. The West Windsor case makes clear that the municipality may not automatically disregard those sites, but instead must satisfy the standards described above. A hearing may be necessary, in which the burden will rest with the municipality to convince the court that it has sufficient grounds to remove the site.

In sum, the Appellate Division opinions in the West Windsor case provide some welcome news for those who seek to engage in development undertaken in accordance with the Mount Laurel doctrine, and interested builders are well-advised to familiarize themselves with the important rulings provided by the opinions.

Kenneth E. Meiser, a Land Use Division partner, serves on the New Jersey Builders Association's Legal Action Committee and is Chairman of the 450-member Land Use Section of the New Jersey State Bar Association. His practice is concentrated in the areas of land use applications and litigation.