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The Wallington Group, LLC v. Borough of Wallington

BER-L-373-06 (N.J. Super. Law Div. 2009) (Unpublished)

AFFORDABLE HOUSING — Even though a court may require full compliance with its fair housing order that a municipality prepare comprehensive compliance plans by a certain date, if the municipality shows substantial compliance with the order, but does not complete its obligations by the given date, the court, using its discretion, may grant a delay of a final judgment to permit the compliance process to remain open until a later date.

A lower court ordered a municipality to prepare comprehensive compliance plans together with finalized zoning and planning legislation to comply with the municipality’s fair share low-income housing obligations. Full compliance was required within ninety days of the date of the order. The municipality satisfied the court’s mandate two months after the deadline. Because the municipality failed to comply with the order within the time specified in the order, the court ordered a compliance hearing. An appointed special master testified that he was generally satisfied with the municipality’s response to the court’s compliance order. However, the master identified a glaring error; the municipality failed to ensure a reasonable opportunity for rental units among the affordable housing developments that would be fostered by its compliance plans. The municipality admitted that it had no capacity to require a developer to devote its housing stock to a particular type of ownership. It could, however, provide zoning incentives to developers to encourage rental housing and enter into agreements with developers to ensure the construction of rental housing units as part of an inclusionary development.

The municipality requested the court grant it more time to modify its compliance plan to implement a new rental housing approach. It indicated that it was exploring the adoption of an accessory apartment plan that could satisfy its rental obligation. The Court held that a party who asserts substantial compliance with the requirements of a statute or court order must show: (i) a lack of prejudice to the defending party; (ii) the steps it has taken to comply with the statute or order; and (iii) that it has generally complied with the purpose of the statute or order. The Court found that the municipality did everything required by the court order except for providing two units of rental housing. It also found that the municipality was working to ensure that this requirement would be completed. Under those circumstances, the Court, using its discretion, held that the municipality was entitled to a delay of the final judgment and permitted the compliance process to remain open until a later date.

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