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Tomu Development Company, Inc. v. Borough of Carlstadt

A-5512-05T1, A-5621-05T1, and A-5741-05T1 (N.J. Super. App. Div. 2008) (Unpublished)

MOUNT LAUREL — Where municipalities are not in compliance with affordable housing requirements, a court may appoint an implementation monitor and that implementation monitor may be the same person as the court had engaged as a special master in the same matter.

A developer purchased property that spanned two municipalities. It sought to develop the property for both commercial and residential uses. After its construction approvals lapsed, the developer sued the two municipalities and a regional commission that oversaw development in those and neighboring municipalities, seeking a builder’s remedy for permission to build the residential housing. Its proposed residential housing was to include a number of affordable rental units as mandated by the Mount Laurel decision. Following the initiation of the developer’s suit, the regional commission amended its zoning plan to exclude residential housing in the area. The developer obtained a lower court order ruling that the municipalities’ zoning laws were in violation of the Mount Laurel decision mandating affordable housing. The lower court also appointed a special master to oversee compliance with the affordable housing mandate. Following a trial, the lower court found that the municipalities had failed to meet their obligations to provide affordable housing and invalidated the land use regulations which were preventing the developer from constructing residential housing.

Subsequently, the lower court received post-trial documents filed by the municipalities. Those documents set forth their respective compliance plans. It also received a report from the special master disputing the municipalities’ submissions. The lower court then concluded that the municipalities were still not in compliance with affordable housing requirements. The special master was then designated as an implementation monitor.

On appeal, the Appellate Division rejected testimony by a planner for the municipalities who had argued that there was no realistic potential for residential development in the two municipalities. It found that there was ample evidence on the record to support the appointment of the special master as an implementation monitor to ensure the implementation of the constitutionally-based requirement for affordable housing in every municipality. Based on its findings and conclusions, which were reached in light of the Mount Laurel decision mandating affordable housing, the lower court’s decisions in favor of a builder’s remedy for the developer and for the appointment of an implementation monitor were affirmed.

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