Developer brought fair housing suit seeking to require township to approve construction of residential development.
The Superior Court granted builder’s remedy but denied counsel fees. Parties appealed.
The Superior Court, Appellate Division, held that:
- Developer engaged in good-faith negotiation before filing suit;
- Developer was entitled to builder’s remedy;
- Trial court acted within its discretion in appointing special hearing examiner;
- Builder’s remedy awarding 360 units rather than 419 units was not an indication that site was unsuitable for project; and
- Developer was not entitled to attorney fees.
Developer engaged in good-faith negotiations with township, as required before developer could obtain builder’s remedy in suit to require township to use its zoning powers in affirmative manner to provide realistic opportunity for production of housing affordable to low- and moderate-income households. Developer appeared at three meetings of municipal governing body and had requested inclusion of proposed development in township’s fair housing plan, and developer’s predecessor in title had conducted fruitless negotiations with township for more-modest affordable housing development in same location.
Developer was entitled to builder’s remedy in suit to require township to use its zoning powers in affirmative manner to provide realistic opportunity for production of housing affordable to low- and moderate-income households, even if township would have filed new fair share housing plan without lawsuit. Township was out of compliance at time developer filed suit, and special master opined that, even if implemented, township’s plan would not have satisfied its fair share requirements.
Trial court acted within its discretion in appointing special hearing examiner to oversee final site plan approval in lawsuit to require township to use its zoning powers in affirmative manner to provide realistic opportunity for production of housing affordable to low- and moderate-income households. Transcript of oral argument did not contain a word of objection to the appointment, and court’s decision was justified by township’s record of obstructing affordable housing projects and planning board’s past hostility to much more limited affordable housing plan.
Builder’s remedy awarding 360 units to developer rather than the 419 requested by developer was not an indication that site was unsuitable for developer’s residential project, in lawsuit to require township to use its zoning powers in affirmative manner to provide realistic opportunity for production of housing affordable to low- and moderate-income households. Neither special master nor trial court found that site was unsuitable for project, and none of special master’s proposed changes were based on finding that site was environmentally inappropriate for proposed multi-unit development.
A developer that prevails in a lawsuit seeking to require that a municipality use its zoning powers in an affirmative manner to provide a realistic opportunity for the production of housing affordable to low- and moderate-income households is not entitled to attorney fees under the Civil Rights Act (CRA).