How can builder’s remedy lawsuits be avoided or defended?

A municipality can be protected from builder's remedy lawsuits by receiving a Judgment of Compliance and Repose, which generally provides a ten-year period during which the Township would be protected from any future builder's remedy lawsuits so long as Millburn complies with the court approved HEFSP and/or settlement agreement. Southern Burlington County NAACP v. Mt. Laurel Twp., 92 N.J. 158, 291-92 (1983). Because housing obligations have been developed for a discrete period (most recently, 1999-2015), the courts are taking the view that there is a uniform ten-year period during which Judgments of Compliance and Repose are effective until July 1, 2025 irrespective of when the Judgement  is obtained.

Once a court determines that a municipality has not satisfied its constitutional obligations concerning the development of affordable housing, it is nearly impossible to "win" a subsequent builder's remedy lawsuit. The municipality loses the presumption of validity of its zoning ordinances and the case proceeds with the underlying premise that the municipality is improperly preventing the development of affordable housing.

As a result, when a builder’s remedy is granted, courts grant the developer the right to construct multi-family housing on its proposed site and relax the municipality’s density, height, bulk and setback standards as necessary to facilitate that development. In addition, that development will contain an affordable housing set-aside, typically between 15% and 20%. These decisions will be made by a judge upon the recommendation of a court-appointed master-not by Township officials.

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1. Where can I learn more about Millburn’s current Affordable Housing situation?
2. What are the ways the Township can obtain compliance and repose from the courts for affordable housing?
3. What is the status of the 75 units of 100% affordable housing at the 11 Main Street development (a portion of the DPW facility)?
4. Does Millburn have an Affordable Housing Plan?
5. Is the Township required to provide an opportunity for Affordable Housing units?
6. How many units of affordable housing is the township obligated to provide and by when?
7. What is Affordable Housing?
8. What is the Fair Share Housing Center?
9. What is an overlay zone?
10. Why are the courts in control of determining Millburn’s affordable housing obligation?
11. Will a court consider the economic impact to the community, including schools?
12. What is a builder's remedy lawsuit?
13. How can builder’s remedy lawsuits be avoided or defended?
14. Are the developers obligated to keep the ‘affordable units’ permanent?