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Mount Olive Complex v. Township of Mount Olive

356 N.J. Super. 500, 813 A.2d 581 (App. Div. 2003)

MOUNT LAUREL—A municipality’s fair share allocation is subject to change, and a developer can not first claim the right to a “builder’s remedy” after a municipality eventually complies with its obligation on its own.

In the early 1970s, a developer built a substantial number of mixed residential units in the first section of a planned unit development that had been approved by the municipality. Later, parties other than this developer instituted an exclusionary zoning action against the municipality. That case was settled and the settlement was incorporated into a Judgment of Compliance and Repose in 1985. The judgment set a figure for “the total low and moderate income fair share housing obligations” for the municipality. Without any obligation to do so, the municipality agreed to provide forty moderate-income units as part of a 400 unit apartment complex to be constructed by this developer in the second section of its planned unit development. For that reason, a 1985 lower court decision denied a builder’s remedy to this developer because it was not “a major player.” Over the years, the municipality’s fair share was revised downward by the Council on Affordable Housing. Then the developer asked the municipality to consider changing the zoning for certain property owned by it to allow it to construct 411 homes. The parties previously had agreed that the land would be used for drainage purposes. That never happened, and eventually the municipality declared that the planned unit development had expired pursuant to the terms of the original approval. Eight years later, the developer filed suit to validate its rights under the very first planned unit development approval and to invalidate the zoning of its property “as contrary to sound zoning principles.” At that time, it did not ask for a builder’s remedy. Two years later, twenty-six years after it received its initial approvals, the developer filed a Mount Laurel action demanding a builder’s remedy. However, “nine months prior to this filing, the Township’s Planning Board, ..., amended its Master Plan by adopting a housing element and fair-share plan.” That plan satisfied the municipality’s obligation to provide the required amount of inclusionary housing and, in fact, the municipality’s “quota” had been exceeded by projects then under construction. As a result, the developer could not demonstrate that the municipality’s land-use regulations in place at the time of its Mount Laurel litigation, “failed to provide the requisite realistic opportunity for satisfaction of the [municipality’s] fair-share obligation.” The Appellate Division held that the developer did not “succeed” at trial in its attempt to show that the municipality was in violation of its fair-share affordable housing obligation. Essentially, although the municipality may not have instituted appropriate provisions to meet its fair-share allocation under the 1985 Judgment of Compliance, the municipality was in compliance by the time this developer filed suit. Consequently, there was no evidence of “non-compliance,” “success,” or “change” in the municipality’s actions as a result of the developer’s law suit. Further, the Court “reiterated [its] previous rejection of [the developer’s] argument that [the municipality] was bound in perpetuity by the fair-share allocation under the 1985 Judgment of Compliance.” Specifically, it pointed out that “[a] fair-share determination is subject to change… .”

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