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.