TOLL BROTHERS, INC. v. TOWNSHIP OF WEST WINDSOR

SUPREME COURT OF NEW JERSEY

2002 N.J. LEXIS 1095

August 1, 2002, Decided

PRIOR HISTORY:

[*1] On certification to the Superior Court, Appellate Division, whose opinion is reported at 334 N.J. Super. 109 (2000).

DISPOSITION:

Affirmed.

JUDGES:

The opinion [*11] of the Court was delivered by PORITZ, C.J. JUSTICES COLEMAN, LONG, VERNIERO, and LaVECCHIA join in CHIEF JUSTICE PORITZ's opinion. JUSTICE STEIN filed a separate opinion concurring in part and dissenting in part, in which JUSTICE ZAZZALI joins.

OPINIONBY:

PORITZ

OPINION:

The opinion of the Court was delivered by

PORITZ, C.J.

This is a second round Mount Laurel exclusionary zoning case brought by Toll Brothers, Inc. (Toll Brothers) against the Township of West Windsor, the Township Committee of the Township of West Windsor, and the Planning Board of the Township of West Windsor (collectively "West Windsor" or the "Township"). Toll Brothers, the owner of a 293 acre tract of land located in West Windsor, alleged below that the Township had engaged in exclusionary zoning in violation of the New Jersey Constitution and the Fair Housing Act of New Jersey (FHA), N.J.S.A. 52:27D-301 to -329, and sought a builder's remedy from the trial court. Toll Bros., Inc. v. Township of West Windsor, 303 N.J. Super. 518, 526-27, 697 A.2d 201 (Law Div. 1996) (West Windsor). Following a bench trial, the court concluded that West Windsor was "not in compliance [*12] with the Mount Laurel mandate, and thus ... [had] violated ... the New Jersey Constitution and the New Jersey Fair Housing Act." Id. at 574. Based on that finding, the trial court held that Toll Brothers was entitled to a builder's remedy, the specifics of which were to be addressed at a later date. Id. at 575-76.

The Appellate Division affirmed, Toll Bros., Inc. v. Township of West Windsor, 334 N.J. Super. 109, 756 A.2d 1074 (App. Div. 2000), and we granted certification limited to the issues of whether West Windsor's ordinances, regulations, and site factors prevented a realistic opportunity for development of affordable housing; whether market demand for particular housing types should have been considered in making that determination; and, whether Toll Brothers was entitled to a builder's remedy. Toll Bros., Inc. v. Township of West Windsor, 167 N.J. 599, 772 A.2d 914 (2001) (granting certification in part on limited issues); Toll Bros., Inc. v. Township of West Windsor, 167 N.J. 600, 772 A.2d 914 (2001) (same).

TABLE OF CONTENTS

I. Mount Laurel and Affordable [*13] Housing Litigation. ...

II. The Fair Housing Act and the Council on

Affordable Housing ....

III. The Prior and Present Litigation. ...

A. The Prior Litigation. ...

B. The Present Litigation. ...

1. Site-by-Site Evaluation.....

2. Market Demand ....

3. Sewer Policies. ...

4. Assemblage. ....

5. Environmental Constraints ....

C. The Appellate Division Decision ....

IV. The Mount Laurel Doctrine ....

V. The Certified Questions ....

A. Whether the Trial Court Erred in Concluding that the Township Failed to Provide a Realistic Opportunity for the Development of Affordable Housing and in Considering Market Demand for Particular Housing Types in Making That Determination ....

1. Market Demand ....

2. Housing Yield ....

3. Sewer Policies. ....

4. Summary ....

B. Whether the Trial Court Erred in Holding that Toll Brothers is Entitled to a Builder's Remedy. ...

VI. Conclusion. ...

I

Mount Laurel and Affordable Housing Litigation

In 1975, this Court decided Southern Burlington County NAACP v. Mount Laurel Township, 67 N.J. 151, 336 A.2d 713, [*14] cert. denied, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975) (Mount Laurel I). In that opinion, we held that developing municipalities are obligated under our State Constitution to provide a realistic opportunity for the development of low and moderate income housing. n1 Id. at 174, 187.

n1 Throughout this opinion, "low and moderate income housing" will be used interchangeably with "affordable housing." The FHA defines low income housing as housing affordable according to federal Department of Housing and Urban Development or other recognized standards for home ownership and rental costs and occupied or reserved for occupancy by households with a gross household income equal to 50% or less of the median gross household income for households of the same size within the housing region in which the housing is located.

[ N.J.S.A. 52:27D-304c.]

The FHA identifies moderate income housing as housing affordable according to federal Department of Housing and Urban Development or other recognized standards for home ownership and rental costs and occupied or reserved for occupancy by household with a gross household income equal to more than 50% but less than 80% of the median gross household income for households of the same size within the housing region in which the housing is located.

[Id. at -304d.]

Sites zoned to permit affordable housing may be referred to as "inclusionary developments" or "inclusionary sites." Under the FHA, inclusionary development refers to "a residential housing development in which a substantial percentage of the housing units are provided for a reasonable income range of low and moderate income households." Id. at -304f.

[*15]

Two years later, the Court created the "builder's remedy" as an "incentive for the institution of socially beneficial but costly litigation such as ... Mount Laurel." Oakwood at Madison v. Township of Madison, Inc., 72 N.J. 481, 550-51, 371 A.2d 1192 (1977). The builder's remedy permitted builders to seek court approval for construction of the housing project they proposed to the township prior to or during the pendency of the action, pursuant to plans which, as they originally represented, will guarantee the allocation of at least 20% of the units to low or moderate income families.

[ Id. at 551 (footnote omitted).]

Despite Mount Laurel I and the subsequent creation of the builder's remedy, the years that followed saw "many municipalities failing to comply with the clear mandate of Mt. Laurel I." Holmdel Builders Ass'n v. Township of Holmdel, 121 N.J. 550, 555, 583 A.2d 277 (1990). Thus, in Southern Burlington County NAACP v. Mount Laurel Township, 92 N.J. 158, 456 A.2d 390 (1983) (Mount Laurel II), "we clarified and reaffirmed the constitutional mandate set forth in Mt. Laurel I, imposing [*16] an affirmative obligation on every municipality to provide its fair share of affordable housing." Holmdel, supra, 121 N.J. at 555 (citing Mount Laurel II, 92 N.J. 158).

Most relevant to the instant matter, the Court also clarified the conditions under which a builder's remedy may be granted. We began by acknowledging that "builder's remedies have been one of many controversial aspects of the Mount Laurel doctrine." Mount Laurel II, supra, 92 N.J. at 279. Notwithstanding that controversy, however, we found that "experience ... has demonstrated to us that builder's remedies must be made more readily available to achieve compliance with Mount Laurel." Ibid. Yet, because of concerns about land use planning, we urged the trial courts when formulating a builder's remedy to "make as much use as ... [possible] of the [municipal] planning board's expertise and experience so that the proposed project is suitable for the municipality." 92 N.J. at 279-80. We also cautioned that "trial courts should guard the public interest carefully to be sure that plaintiff-developers do not abuse the Mount Laurel doctrine." 92 N.J. at 281.

II [*17]

The Fair Housing Act and the Council on Affordable Housing

On July 2, 1985, "the Legislature codified the Mt. Laurel doctrine, including its available compliance measures," by enacting the FHA. Holmdel, supra, 121 N.J. at 556.

The FHA creates a new administrative agency, the Council on Affordable Housing (COAH), N.J.S.A. 52:27D-307, to oversee the development of low and moderate income housing throughout the state through a system of voluntary participation by municipalities in the COAH process. To carry out its function, the agency is authorized to adopt necessary rules and regulations. Id. at -307.5.

Under the FHA, COAH serves as an alternative forum for the resolution of Mount Laurel disputes. Municipalities facing Mount Laurel challenges may use the COAH mediation and review process, id. at -316b, or independently may seek COAH review of their zoning and affordable housing regulations, id. at -314, in order to receive a measure of protection from future challenges. See id. at -317a. On a grant of substantive certification from COAH, id. at -314, a municipality's housing plan [*18] enjoys a ten-year n2 presumption of validity that may be overcome in subsequent litigation only by clear and convincing evidence. n3 See id. at -317a; id. at -313.

n2 The FHA was recently revised to require computation of municipal present and prospective regional fair share for a ten-year period. N.J.S.A. 52:27D-307c(1). Previously, "for purposes of review, certification, and assessing fair share, COAH had specified six-year periods or 'cycles.'" West Windsor, supra, 303 N.J. Super. at 539 (citing N.J.A.C.5:93-2.1 through - 2.20). The first cycle "addressed housing needs and municipal obligations" from 1987 to 1993 (Round I); the subsequent cycle covered 1993 to 1999 (Round II). Ibid.

n3 This protection is rooted in Mount Laurel II, in which we held that "compliance judgments ... shall have res judicata effect, despite changed circumstances, for a period of six years, the period to begin with the entry of the judgment

...." Mount Laurel II, supra, 92 N.J. at 291-92 (footnote omitted). However, we also noted that "[a] substantial transformation of the municipality ... may trigger a valid Mount Laurel claim before the six years have expired." 92 N.J. at 292 n.44. The COAH grant of substantive certification, then, is the equivalent of a trial court judgment of compliance and repose, each providing the municipality with a period of protection from Mount Laurel challenges. See N.J.S.A. 52:27D- 313; see also N.J.S.A. 52:27D-307c(1).

[*19]

In Hills Development Co. v. Bernards Township, 103 N.J. 1, 25, 510 A.2d 621 (1986), this Court upheld the constitutionality of the FHA.

III

The Prior and Present Litigation

A. The Prior Litigation

This action represents "the second Mount Laurel suit initiated against defendant." West Windsor, supra, 303 N.J. Super. at 529. Previously, "on March 14, 1984, Affordable Living Corporation had instituted exclusionary zoning litigation against [West Windsor] that resulted in a [1984 judgment] establishing defendant's fair share at 1,619 low and moderate income units." Ibid. In 1985, that number was reduced to 1,453 units, and later, on October 14, 1986, the 1985 judgment was "modified to conform West Windsor's fair share housing obligation to that established by [COAH] -- 592 units." n4 West Windsor, supra, 303 N.J. Super. at 529.

n4 Because COAH's methodology for calculating a municipality's fair share differed from that of the trial court, the number of affordable housing units required under COAH was significantly lower than the number required by the court. See Jeffrey R. Surenian, Mount Laurel II and the Fair Housing Act 489-91 (1987) (stating that "almost every change to the methodology implemented by [COAH] ... had the effect of reducing the obligation of municipalities to provide lower income housing"). We understand that COAH now is considering other proposals for calculating fair share allocations during the third round of municipal planning, e.g., a growth share approach. COAH, Growth Share As An Adjustment, at http://www.state.nj.us/dca/coah/polissue.htm (reporting discussions about growth share approach and stating intent to "develop a third round methodology that assigns affordable housing numbers and then offers growth share as an implementation adjustment for new third round obligation numbers only"). As that issue has not been raised by the parties below, we express no opinion on COAH's allocation methodology.

[*20]

To meet its original obligation, West Windsor adopted a housing plan and various conforming zoning amendments. The amendments addressed issues such as common open space, density and residential-type distribution, affordable unit distribution and locational criteria, and expedited review of low and moderate income developments. New zones "EH" (Elderly Housing), and "R3A," "R4A," and "R4B" (Residence Districts) were added, and eleven sites were zoned for inclusionary development as follows: Sites 1 and 5A (120 affordable units), Sites 2 and 8 (312 affordable units), Site 3 (twenty affordable units), Site 4 (thirty-four affordable units), Site 5 (100 affordable units), Site 6 (the Toll Brothers property -- 527 affordable units), n5 Site 7 (forty affordable units), Site A (102 affordable units), and Site B (206 affordable units).

n5 The trial court described the Toll Brothers site as "by far the largest compliance site under single ownership" included in the plan. 303 N.J. Super. at 533. The site was "proposed [to] ... realistically ... [provide] for construction of a total of 2,480 family units," of which 496 would be low and moderate income units. Ibid. (Although the number of units reported by the trial court differs from the number listed in the original compliance plan, the difference is not significant to the opinion.) Subsequent to the 1985 judgment, West Windsor and the then-owner of the site negotiated a revision to the number of units that this site could potentially produce.

[*21]

Those eleven sites were to provide a realistic opportunity for the development of 1,461 affordable housing units. Also, under the compliance plan West Windsor agreed to rehabilitate thirty-seven existing dwellings that, in the main, consisted of multi-family units. 303 N.J. Super. at 532-33. In all, the plan provided for the potential development of 1,498 affordable units generally consisting of multi-family housing. n6 As described by the trial court in the opinion below, the plan

relied almost exclusively on multi-family housing as the vehicle for development of inclusionary projects. Conventional single-family detached housing [was] generally not permitted in the inclusionary zones. The single-family detached housing that [was] permitted either must be located in a specialty zone, or it must be a novel product, e.g., zero lot-line homes[,] ... where one side of the house is windowless and lies directly on a side lot-line.

[ 303 N.J. Super. at 554.]

n6 Again, the trial court reports a different sum for the eleven sites than that contained in the original compliance plan: "According to defendant's proposed Mount Laurel II compliance program, filed with the court prior to entry of the 1985 Judgment of Repose, defendant proposed to ... rezone a total of eleven sites that were said to provide a realistic opportunity for the production of 1,306 low and moderate income units." 303 N.J. Super. at 532-33. It appears that that number did not include senior citizen units. Moreover, although the plan was 121 units short of West Windsor's 1,619-unit obligation, the Special Master recommended that "no modification in the compliance ordinance be imposed on the township ...."

[*22]

In October 1985, the compliance plan was memorialized in a Judgment of Compliance and Repose, 303 N.J. Super. at 529, which was to remain effective for six years.

B. The Present Litigation

On May 12, 1993, Toll Brothers filed this lawsuit alleging that West Windsor had engaged in a pattern of exclusionary zoning in violation of the New Jersey Constitution as interpreted in the Mount Laurel cases and the FHA. Ibid. West Windsor's period of repose under the 1985 judgment had expired on July 21, 1991, and West Windsor had not applied to COAH for interim certification. 303 N.J. Super. at 529-30. If granted interim certification, West Windsor would have been required to continue implementing the terms of the 1985 judgment and would have continued to enjoy the same measure of protection from litigation that was provided by that judgment. 303 N.J. Super. at 529 n.1 (citing N.J.A.C. 5:92-1.6(d) and 5:91-14).

West Windsor nonetheless continued to implement the 1985 court-approved plan, 303 N.J. Super. at 526, which "remained in effect essentially unchanged, until late summer 1994." 303 N.J. Super. at 531. Of the eleven sites included in the 1985 judgment, however, only two [*23] actually had been developed by the time Toll Brothers instituted its Mount Laurel challenge -- the Windsor Haven property (Site 3 from the 1985 judgment), which produced thirty-seven "for-sale" condominium units, and Steward's Watch (Site A from the 1985 judgment), which yielded 102 rental units. Ibid. During roughly the same period (1982-1994), however, "a massive amount of development of conventional single-family detached homes had occurred in non-inclusionary zones." 303 N.J. Super. at 553. Specifically, "the number of houses in West Windsor Township more than doubled, increasing from 2,907 units to 6,115 units," with the purchasers generally moving into "high- priced, large-lot, single-family houses." 303 N.J. Super. at 526.

Toll Brothers argued that West Windsor's "poor" development rate for the construction of affordable housing was due to a variety of factors, including: (1) the severe impact of environmental constraints (e.g., freshwater wetlands, freshwater wetlands buffers, and floodplain areas) on the developability of the sites zoned for affordable housing; (2) West Windsor's unduly cost-generative public sewer policies that required developers of inclusionary sites to provide [*24] and "front" the high costs of oversized and expensive gravity flow sewer systems; (3) public resistance to, and application processing delays regarding, development of sites zoned for affordable housing (highlighted by the testimony of plaintiff's expert, who also had been the planner for the former owner, that when attempting to obtain development approval from the West Windsor Planning Board the developer was subjected to over fifty public hearings in three- and-one-half years, a delay that the trial court, in October 1987, found to be "?unjustified,' 'purposeful or unexcusable'"), 303 N.J. Super. at 535-36; (4) West Windsor's failure, in its zoning of affordable housing sites, to include conventional single-family houses on small lots despite the demonstrated strong market demand for such units; and (5) West Windsor's other restrictive zoning standards and cost-generative ordinances, such as the requirement that 175 senior citizen affordable units be built on the Toll Brothers site "without regard to the number of market units built," 303 N.J. Super. at 536, as well as ordinances establishing the set-aside of an "unreasonable amount of common open and recreational space." Ibid. As the trial [*25] court summarized, plaintiff asks this court to look beyond the face of defendant's assertedly inclusionary zoning. It asks for consideration of numerous factors -- environment, infrastructure, market demand, municipal policy and other zoning-related factors -- for a finding that defendant is deficient in its affirmative duty under the Mount Laurel cases. It asks for a builder's remedy to permit development of its property in a more cost-effective, market-responsive manner than defendant's current zoning allows.

[ 303 N.J. Super. at 537.]

The builder's remedy sought by Toll Brothers would necessitate the rezoning of the Toll Brothers site. At the time, the site was zoned PRN-1, which requires a mix of three housing types with no one housing type accounting for more than eighty percent of the total units. The permitted types were townhouses, garden apartments, patio homes, two-family rentals, maisonettes and zero lot-line single-family units. 303 N.J. Super. at 526. The rezoning sought by Toll Brothers would allow it to construct 735 to 765 units, of which 625 to 650 would be conventional, market-rate, single-family detached houses on small lots and 110 to 115 units would be affordable rental [*26] housing. n7 303 N.J. Super. at 526-27. Eighty percent of the affordable rental units would be single-family detached zero lot-line housing, with the balance a mix of conventional single-family detached houses on small lots, as well as a second unidentified housing type.

n7 The builder's remedy that eventually was granted approved Toll Brothers' revised plan for construction of 1,165 units, fifteen percent to be set aside as family-affordable rental units. The 1,165 units were to include 400 single-family detached units, 635 multi-family units, and 130 townhouses.

The trial court conducted a bench trial that began on September 28, 1994, and ended on March 29, 1995. 303 N.J. Super. at 528, 530. The court relied primarily on the reports, exhibits, and testimony provided by Toll Brothers' experts, West Windsor's experts, and a court-appointed Special Master. For purposes of deciding whether Toll Brothers was entitled to a builder's remedy, the court held that West Windsor's "conduct," i.e., its housing plan, zoning ordinances, [*27] regulations, and sewer policies, would be evaluated as of the date that Toll Brothers initiated its challenge. 303 N.J. Super. at 531 (citing Van Dalen v. Washington Township, 205 N.J. Super. 308, 334 n.11, 500 A.2d 776 (Law Div. 1984)).

As a threshold matter, it was necessary for the trial court to determine West Windsor's present affordable housing obligation. For that purpose, the court turned to the numbers promulgated "by COAH in regulations that were first proposed on March 15, 1993, 25 N.J.R. 118 (March 15, 1993), and finally adopted on June 6, 1994, 26 N.J.R. 2300 (June 6, 1994)." West Windsor, supra, 303 N.J. Super. at 530. Those regulations established West Windsor's present obligation at 929 units of affordable housing. Ibid. Of that number, thirty units represented West Windsor's "indigenous need," which COAH defines as "deficient housing units occupied by low and moderate income households within a municipality ...." N.J.A.C. 5:93- 1.3. The remaining 899 units represented West Windsor's new regional obligation. West Windsor, 303 N.J. Super. at 530.

Under COAH's regulations, the 929-unit obligation was [*28] cumulative, i.e., it covered both Round I and Round II, or the period from 1987 to 1999. Thus, West Windsor was credited with the 139 units that had been constructed on two sites during that period -- thirty-seven units for the Windsor Haven parcel (Site 3 under the original compliance plan), and 102 units for the Steward's Watch property (Site A under the original compliance plan). 303 N.J. Super. at 531-32. The trial court also credited West Windsor with 102 rental bonus credits for the development of Steward's Watch. n8 West Windsor, 303 N.J. Super. at 532. In sum, the trial court concluded that "defendant had met 241 units of its 929-unit fair share housing obligation." Ibid. West Windsor's remaining obligation was 688 units. Because West Windsor's original compliance plan "remained in effect, essentially unchanged, until late summer 1994," 303 N.J. Super. at 531, the "sole means of meeting ... [that 688 unit] obligation was the inclusionary zoning of nine remaining sites" contained in the original compliance plan and 1985 judgment. 303 N.J. Super. at 532.

n8 Under N.J.A.C. 5:93-5.15(d)1 to -5.15(d)2, COAH outlines its bonus credit system for rental units. For every one rental unit made available to the general public, COAH grants the municipality two units of credit, id. at -5.15(d)1; age-restricted rental units produce 1.33 units of credit. Id. at -5.15(d)2.

[*29]

Before evaluating the viability of those sites, the trial court considered which party should bear the burden of persuasion in respect of the realistic development potential of those nine undeveloped sites. West Windsor argued that the burden of persuasion must rest with Toll Brothers, in keeping with the general presumption of validity afforded municipal ordinances. 303 N.J. Super. at 548 (citing Zilinsky v. Zoning Bd. of Adjust., 105 N.J. 363, 368, 521 A.2d 841 (1987)). Toll Brothers, on the other hand, contended that "in a 'second round' case, a substantial burden rests with defendant, who must explain the prior cycle sites' failure to develop." Ibid. As the trial court observed, West Windsor "received prior credit for [those] ... sites, and ... [yet,] so little inclusionary development has taken place over an extended period of time -- here, ten years -- despite significant development of the single-family housing market." 303 N.J. Super. at 528.

To resolve that issue, the trial court followed the mandate of Mount Laurel II, a case that involved a second round of litigation between the same parties, and ruled that

"plaintiff may continue to prove ... that [*30] the land use regulations fail to provide a realistic opportunity for low and moderate income housing or that they contain 'expressly prescribed requirements or restrictions which preclude or substantially hinder it.' Mount Laurel I, 67 N.J. at 180-81. As before, such a showing shall create a prima facie case of a failure to satisfy the Mount Laurel obligation. The municipality shall then have the heavy burden of demonstrating, by a preponderance of the evidence, its fair share and its satisfaction of that share or any justification of its failure."

[ 303 N.J. Super. at 549 (quoting Mount Laurel II, supra, 92 N.J. at 222-23) (emphasis added by trial court).]

The court then concluded:

Although the affordable housing plan and inclusionary sites at issue here have not previously failed any test of compliance in court, they have now failed the test of time. Since the prior judgment of compliance was entered approximately one decade ago, most of defendant's inclusionary sites have failed to develop despite a housing boom. Defendant's affordable housing plan enjoyed a presumption of validity through the first cycle; defendant must now, in [*31] this second cycle, explain why the sites have failed to produce housing. Although plaintiff bears the burden of coming forward and presenting a prima facie case as to sites not previously credited, defendant bears the burden of explaining the failure to develop sites for which it received credit ten years ago.

[ 303 N.J. Super. at 550 (footnote omitted).]

Despite that conclusion, the trial court found that Toll Brothers had "developed sufficient facts" so that "even if the burden did not shift, plaintiff had successfully met the burden in its case." 303 N.J. Super. at 550 n.5.

Having disposed of those preliminary matters, the court considered whether West Windsor had provided a realistic opportunity for development of its present 688-unit affordable housing obligation. The court conducted a site-by-site analysis of the parcels zoned for affordable housing by evaluating (1) unnecessary cost-generating site development standards unrelated to health or safety, (2) restrictions on the type or mix of housing permitted, 330 N.J. Super. at 542, (3) infrastructure requirements relating to "public water, sanitary sewers, or roads, which may unnecessarily increase costs of development," 303 N.J. Super. at 542-43, (4) [*32] environmental constraints, 303 N.J. Super. at 543, and (5) access to water and sewer services at a reasonable cost. Ibid. The court also indicated that it would hear testimony from site owners that express a willingness "to develop inclusionary housing, or to sell the property to a developer who will do so." Ibid. (citing Mount Laurel II, 92 N.J. at 297-99). That approach, as the court pointed out, is consistent with COAH's definition of "realistic opportunity." 303 N.J. Super. at 544 ("When reviewing assertedly inclusionary zoning, COAH 'shall include but not be limited to a consideration of environmental factors, the location of existing infrastructure and the likelihood of the current zoning to result in the creation of low and moderate income housing during the period of substantive certification.'") (quoting N.J.A.C. 5:93-3.5).

The court also observed that "except as to the new NJIT and PRRC zones, defendant's zoning plan does not have conventional single-family detached housing as permitted uses within inclusionary developments." 303 N.J. Super. at 556-57. Because West Windsor's housing plan relied heavily on zoning for multi-family units and on [*33] unconventional zero lot-line single-family detached housing, 303 N.J. Super. at 536, for which Toll Brothers contended there was little market demand, and because the housing type allegedly in greatest demand -- conventional single-family units on small lots -- was generally precluded under West Windsor's inclusionary zoning plan, 303 N.J. Super. at 536, 571, the court carefully examined that issue. Finally, the court declined generally to include in its evaluation those sites that required assemblage in order to satisfy West Windsor's zoning requirements and other regulations. 303 N.J. Super. at 528.

In conducting its site-by-site analysis, the trial court considered the projected affordable housing yields submitted by the parties' experts and the Special Master, ultimately choosing to follow closely the low yield calculation of 501 affordable units submitted by the Special Master. Although the low yield approach assumed construction of the "novel" and "unconventional" single-family housing permitted under West Windsor's existing zoning ordinances, i.e., zero lot-line units, that housing more closely resembled the housing type for which there existed the greatest market demand -- conventional single-family [*34] detached units. See 303 N.J. Super. at 554. By comparison, the high yield approach assumed development of primarily multi-family housing that the court determined "controlled only a minute fraction of the market." 303 N.J. Super. at 545, 571-72. The court's analysis and conclusions appeared in the unreported portion of its opinion, n9 and are summarized below.

n9 Both the trial court and the Appellate Division opinions contained published and unpublished portions. Citations to the unpublished opinions are not provided.

1. Site-by-Site Evaluation

Site 1

Site 1 is an undeveloped site in West Windsor's original compliance plan and 1985 judgment. Under that plan, it was anticipated that Site 1, together with Site 5A, would yield 120 affordable units. n10 The trial court noted that no credible evidence was put forward that any development proposal for the two sites had been presented to West Windsor in the nine years since the adoption of the compliance plan. Further, the Special Master advised that defendant [*35] had not submitted a certification affirming the site's continued viability as inclusionary.

Although Site 1 consists of 40.2 acres, located in an R-5 zone, the court found that only 24.5 acres were developable due to environmental constraints, open recreation space requirements, and storm water detention needs. The court held that 14.4 units could be built on each acre, yielding a total of 353 units, of which seventy-one would be "affordable" assuming a twenty percent set-aside.

n10 All references to the number of affordable units each site was to yield under the original compliance plan are generated from information submitted by both parties' experts.

Site 2

Site 2, also an undeveloped site included in the original compliance plan, was expected to yield 312 affordable units when coupled with Site 8. West Windsor did not offer any explanation for why this site had not yet been developed. The trial court found that the number of affordable units that could be developed on the site was affected [*36] substantially by market demand because the potential yield would vary depending on the type of unit a developer chose to build.

The need for assemblage, as well as storm water and open space requirements, also affected the number of units that realistically could be developed on this site. Site 2 was described as an unassembled multiple lot parcel located in an R-4B zone that allows for single- family, zero lot-line, detached dwellings; two family and semi-detached dwellings; townhouses; and garden apartments. The site consists of 199.3 acres, of which only 53.3 acres are located in an environmentally unconstrained area. The court found that, without assemblage, realistic development was possible only on three lots -- 48, 11.02, and 15.

The Special Master reported on the minimum and maximum number of affordable units that each lot could yield, depending on the type of units built and the percentage of units set aside for affordable housing. His report indicated that Lot 48, the largest of the three lots, could yield somewhere between thirty-four and 108 affordable units; that Lot 11.02 could yield between six and thirty-one units; and that Lot 15, absent assemblage, could not yield [*37] any affordable units because it was a "severely constrained parcel" with road access difficulties and an "obvious problem of a lack of economy of scale." The court held that Site 2 as a whole could provide a total of forty-five affordable units (thirty-four for Lot 48 and eleven for Lot 11.01).

Site 5 (Exxon)

Site 5 is another undeveloped parcel in the original compliance plan, where it is designated as appropriate for the development of 100 senior affordable units. The site was eliminated because "all parties and experts agreed that no credit [was] appropriate for Site 5," and because "there [were] too many preconditions [to] be met before this site [could] be completed."

Site 5A (La Placa)

Site 5A also is an undeveloped site included in the original compliance plan, under which that site and Site 1 were expected to yield a total of 120 affordable units. In the plan, Site 5A contained 10.32 acres and was zoned to allow only multi-family housing. The site subsequently was rezoned R-5B, which also permits "only multifamily development" restricted to "garden apartments, townhouses or maisonettes." The rezoning "[increased the site's] allowable [*38] density to fifteen units per acre conditioned upon a forty percent affordable housing setaside." An adjacent, partially developed property also was added, increasing the size of the parcel to twenty-two acres.

The trial court, in rejecting defendant's claim that ninety-six affordable units could be built on Site 5A, pointed out that defendant's estimate "assumed construction under the Low Income Tax Credit Program," which all parties agreed is "extremely competitive and requires that all municipal approvals be in place." The court observed that the developer's attorney had testified at trial that neither the municipal approvals nor the tax credits had been secured, and that the developer was "reluctant to build a 'conventional' multifamily inclusionary development." After consideration of those factors, the court held that the Special Master's twenty-nine unit yield estimate was realistic for this site, "assuming there is market demand," and credited West Windsor accordingly.

Site 6 (Toll Brothers)

Site 6 was assigned 527 affordable units in the original compliance plan. Subsequent to the 1985 judgment, West Windsor and the previous owner negotiated a revision to [*39] the number of units that the site potentially could produce. Specifically, those parties agreed that Site 6 would yield 315 affordable units. In 1988, they again agreed to a reduction in the number of affordable units for this site, this time from 315 to 225 units, but because they did not seek the necessary court approval the trial court determined that that agreement was no longer in effect.

Site 6, zoned PRN-1, consists of 222.1 undeveloped acres. The PRN-1 zone requires a "mix of three housing types with no single housing type accounting for more than eighty percent of the total units." The Township estimated that this site could produce 1,500 units, of which 300 would be set aside for affordable housing. Those numbers were based on a proposal put together by the site's prior developer, "Countryside." The Special Master, however, rejected that estimate, noting that Countryside's proposal had called for only 225 affordable units, and that in any event new wetlands regulations had been adopted subsequently that "made additional constraints and [yield] reductions likely." In his view, the site's low to moderate yield range was 169 to 225 affordable units. After considering market [*40] demand and rejecting the notion that the site would develop at maximum density, the court found that the low yield estimate of 169 affordable housing units was the most realistic.

Site 7

Site 7 is an undeveloped property in the original plan that was estimated to yield forty affordable units. That number was reduced later to twenty-four units. The site consists of multiple lots, is twenty-nine acres in size, and is located in an R-4B zone. The trial court found that due to various constraints and development limitations, the only viable lot was Lot 31, which contained only 2.8 acres of developable area. Even though the court questioned whether Site 7 would yield any inclusionary development whatsoever, it accepted three affordable units for the purpose of its analysis.

Site 8

Site 8 also is an undeveloped site that was part of the original compliance plan and, together with Site 2, was to provide 312 affordable units. The site consists of nine lots totaling 64.32 acres, with a developable area of 38.12 acres. West Windsor's expert projected that as a whole this site would yield 504 garden apartment units, of which 101 would be affordable. The court's [*41] Special Master observed that the expert's estimate assumed both full assemblage and "that the market could sustain garden apartments." He reported that the site consists of two "zones," with separate zoning designations, and that there were assemblage issues in connection with lots in the second zone.

More specifically, the first zone contains four lots -- 1, 2, 8, and 166 -- that the Special Master found might reasonably be expected to develop together. The second zone contains five lots -- 13, 14, 15, 16, and 34. Lots 13, 15, and 34 are under common ownership, Lot 16 is owned by West Windsor, and a private entity (different from the owner of Lots 13, 15, and 34) owns Lot 14. The "estimated site area" for the five lots is twenty-three acres, as to which the Special Master noted that "only about 10.5 acres are [located] in upland." The Special Master also stated that it was crucial that all five lots be assembled for there to be a realistic chance that affordable housing would be constructed because separate developments would present considerable road access problems.

Taking into account the assemblage issues, and cognizant of the concern expressed by plaintiff's expert about [*42] "'the availability of sanitary sewer services to this site,'" the court concluded that "the potential affordable housing yield for this site ranges from twenty-nine units to seventy-eight units, depending on the type of housing and assuming market demand." Twenty-nine units were credited.

Site B (Copperfield)

Site B is an undeveloped property that had been included in the original compliance plan for the development of 206 affordable units. That estimate was later reduced to 100 units in 1990. The site consists of 165 acres that are zoned for a mix of housing types.

Three issues affect the development of affordable housing on this site. First, the Department of Environmental Protection had not clarified the boundaries of the relevant wetlands area; second, the cul-de-sac design does not comply with state or local standards; and third, the extensive reliance on multi-family units is problematic. The trial court expressed its concern that the low demand for multi-family units coupled with the early development of such units on other sites could reduce the prospects for this site and elsewhere. Regardless, the court assumed that the planned multi-family and unconventional [*43] units would be marketable, and concluded that the site realistically could yield sixty-four affordable units.

Site R-3A

Site R-3A was not included in the original plan but nevertheless was considered by the Special Master and the trial court. The site consists of 109.90 acres, covering multiple lots with a net developable area of seventy acres. One lot, known as the Maycho parcel, had received preliminary approval in 1989, but the approval never was made final. Nonetheless, the Special Master recommended, and the trial court agreed, that this lot could generate three or four units. The court also found that Lot 14 could yield four affordable units, and determined that Lots 15, 27, 55, and 56 were not suitable for development. In sum, the court concluded that Site R-3A could yield up to seven or eight affordable units. West Windsor was granted an eight unit credit for this site.

Site PRRC

The PRRC site, located in a new zoning district created during the course of the trial, was not part of the original compliance plan. Nevertheless, the trial court included this site in its analysis.

The site contains approximately 400 acres, 150 of which defendant [*44] claimed were developable. According to defendant's expert, this site could yield 580 single-family, detached units, of which eighty-seven would be affordable units (assuming a fifteen percent set-aside). The Special Master, however, reported that five open space and recreational area ordinances limited development to 111 of the site's acres. He added that the 111 acres theoretically could accommodate 580 single-family units at full build-out, but that the resulting density would make the construction of townhouses or apartments more appropriate (and likely). Nonetheless, the Special Master assumed, and the trial court agreed, that "the yields can be achieved with single-family dwellings and that 87 low/mod units will be provided in this zone."

Site NJIT

Site NJIT was not part of the original plan. The site was one of only two sites for which West Windsor's new zoning ordinances "provided inclusionary developers with the option of constructing conventional, single-family detached units." West Windsor, 303 N.J. Super. at 554. Because "the NJIT zone was designed for a specific government-sponsored project," ibid., the trial court concluded that the site [*45] would yield no affordable housing units.

Summary

Based on its extensive and careful evaluation of those sites, the trial court found that the maximum potential affordable housing yield was 505 units, 183 units short of defendant's obligation of 688 units. n11 Having determined that West Windsor was not in compliance with its present affordable housing obligation, the trial court awarded Toll Brothers a builder's remedy for its site, the specifics of which were to be subsequently determined. 303 N.J. Super. at 576. The court also retained jurisdiction "over remediation of defendant's housing plan as a whole, including the appointment of a special master." Ibid. West Windsor's failure to meet its present obligation was attributed to a lack of market demand for the housing types permitted under the existing zoning (particularly multi-family and zero lot-line single-family housing), 303 N.J. Super. at 573; West Windsor's requirement that developers of sites zoned for affordable housing "front" the costs of a gravity-fed sewage system (instead of permitting the use of a less-expensive pumped system), 303 N.J. Super. at 528; the reality that unlikely-to-occur multiple lot assemblage was necessary [*46] for certain sites to comply with West Windsor's zoning ordinances and other regulations, ibid.; and, the impact of environmental constraints, ibid., as well as certain of West Windsor's other development requirements such as open space "set-asides." Ibid.

n11 The number of units credited for each site was as follows: Site 1 (seventy-one units), Site 2 (forty-five units), Site 5 (zero units), Site 5A (twenty-nine units), Site 6 (169 units), Site 7 (three units), Site 8 (twenty-nine units), Site B (sixty- four units), Site R-3A (eight units), Site PRRC (eighty-seven units), and Site NJIT (zero units). Although the trial court initially indicated that it would consider the nine undeveloped sites from the original compliance plan, 303 N.J. Super. at 531, only eight sites were discussed separately. West Windsor's expert listed Sites 4 and 6 as one parcel (Site 6 is the Toll Brothers site). Apparently, the court's analysis of Site 6 also incorporated Site 4.

2. Market Demand

The West Windsor sites [*47] examined by the trial court were zoned almost exclusively for the construction of multi-family units and unconventional zero lot-line single-family detached housing. 303 N.J. Super. at 554. In fact, none of the nine undeveloped sites that was included in the original compliance plan permitted the construction of conventional single-family detached housing. 303 N.J. Super. at 556-57. Recognizing that West Windsor's zoning for multi- family housing was, at least superficially, in accord with the method historically used by "both developers and the courts to implement the Mount Laurel requirements," 303 N.J. Super. at 527, the court framed the issue before it as whether that "model" may be modified based on evidence of a lack of market demand for multi- family housing and a strong demand for conventional single-family dwellings. 303 N.J. Super. at 527-28.

Initially, the court decided that it was proper to consider housing-type market demand as a factor in determining whether West Windsor had provided a realistic opportunity for the development of affordable housing. 303 N.J. Super. at 545. Nonetheless, sites zoned to permit a housing type for which there is little market demand would not be excluded automatically as incapable [*48] of producing affordable units. Ibid. Instead, the court would examine West Windsor's "inclusionary zoning scheme as a whole to determine whether anticipated inclusionary development is grounded in reality, or whether it is indeed a 'phantom.'" Ibid.

In undertaking that examination, the court observed that whether a site zoned for affordable housing actually provides a realistic opportunity for such housing to be built necessarily involves an inquiry into whether the site, as presently zoned, generates a favorable cost/benefit calculation. 303 N.J. Super. at 546. The court explained further that the question of marketability after costs [of building], and thus market demand, has always been a [proper] consideration [for the realistic development opportunity inquiry], implicitly if not explicitly. If this were not the case, municipalities could engage in exclusionary zoning by simply zoning extensively for "inclusionary" development of a housing type for which there is little or no demand. Neither the Supreme Court nor COAH contemplated or would tolerate such a result.

[Ibid.]

In support of its consideration of market demand, the court cited the FHA and various COAH [*49] regulations. For example, N.J.S.A. 52:27D-311a directs municipalities, when developing housing elements, to consider "'rezoning for densities necessary to assure the economic viability of any inclusionary developments.'" West Windsor, 303 N.J. Super. at 546 (quoting N.J.S.A. 52:27D-311a). Further, COAH's regulations incorporate similar considerations. In particular, N.J.A.C. 5:93-5.6 provides that COAH's review of municipal inclusionary zoning shall include an inquiry into "'the present ability of a developer to construct low and moderate income housing at a specific density.'" West Windsor, 303 N.J. Super. at 546-47 (quoting N.J.A.C. 5:93-5.6). COAH explains that N.J.A.C. 5:93-5.6 "'recognizes that housing markets change and by permitting some zoning at higher densities land will be available to accommodate changes in housing demand.'" West Windsor, 303 N.J. Super. at 547 (quoting 25 N.J.R. 5787 (Dec. 20, 1993)) (emphasis added by trial court). Moreover, COAH has stated that

" N.J.A.C. 5:93-5.6(b) [*50] does not establish an inflexible standard that requires all sites to be zoned for a single-family inclusionary product. The rule establishes criteria that should be considered by the municipality and will be considered by [COAH] in determining the appropriate zoning for a specific site. The factors to be considered include land use planning considerations and a consideration of the current market. After consideration of these factors, [COAH] may require that a substantial percentage of inclusionary sites be zoned to allow market units within an inclusionary development to be constructed as single-family detached units."

[ West Windsor, 303 N.J. Super. at 546-47 (quoting 26 N.J.R. 2304 (June 6, 1994)) (emphasis added by the trial court).]

The trial court concluded that "COAH has definitively indicated that market demand is an appropriate factor to consider when addressing Mount Laurel compliance issues." 303 N.J. Super. at 548.

Extensive information was submitted by both the parties and their experts on the question of market demand for various housing types, particularly multi-family housing in West Windsor and the surrounding area. The trial court [*51] reviewed data relating to building permits issued, the inventory of approved but unconstructed units, the zoning of vacant unapproved land, the vacancy rates of constructed units, the absorption rates of units coming onto the market, and demographic data. 303 N.J. Super. at 566. After considering the information presented, and the parties' arguments, the court concluded that multi-family housing is "a product-type for which there is little actual or projected demand" in West Windsor. 303 N.J. Super. at 557. According to the court,

the testimony presented by both parties leads to the conclusion that the present cycle period of the market calls for greater use of single-family dwellings as part of the product available for inclusionary sites. An analysis of the competing experts' data and opinions supports the view that the over- reliance on multi-family housing as the method of producing inclusionary housing has had only limited success in the past and has questionable viability in the future. Clearly, the housing demographics for West Windsor have changed during the past cycles and changes will continue into the future. A municipality must respond to these changes if it is to fulfill its affirmative [*52] obligation to provide a realistic opportunity for inclusionary development.

[ 303 N.J. Super. at 571-72.]

Specifically, the court found significant that even though market demand might exist to support the construction of multi- family housing on an individual site, it would be "wholly unrealistic" to assume that "a majority of numerous sites" zoned for multi-family housing also would be developed. 303 N.J. Super. at 545-46. Simply put, West Windsor's almost exclusive reliance on multi- family housing, despite the slight demand for such housing, provided little or no incentive for the owners of inclusionary sites to commence development. See 303 N.J. Super. at 546. The court cautioned, however, that the endorsement and recognition of affordable, small-lot, single-family detached housing unconstrained by artificial restrictions, e.g., the zero lot-line requirement, should not be interpreted as condoning a return to the large-lot, single- family dwellings that have historically been condemned as an exclusionary device. The product that must be permitted by defendant is an affordable product (in the common sense of the word) that will stimulate the construction of additional affordable housing consistent [*53] with the Mount Laurel doctrine. Municipalities and developers must not construe this result as a license to regress and abandon the basic constitutional underpinnings of Mount Laurel. The use of appropriate market products -- here single-family dwellings -- must be viewed not as a return to the past, but an impetus for growth in the future.

[ 303 N.J. Super. at 573 (emphasis added by the trial court).]

3. Sewer Policies

In reaching its conclusion that West Windsor's sewer construction and financing requirements were unduly cost- generative, and thus a disincentive to development, the trial court discussed the difficulties facing the developers of Sites 1, 2, 5A, 6, 7, and 8, the six inclusionary sites "dependent on the extension of [the] Duck Pond Run [Interceptor]." Developers of those sites were required to provide a gravity fed system that would be "deeper and more expensive than a pumped system." Further, the developers had to oversize the system to accommodate possible future development, and at least initially were required to absorb all of the costs associated with the system.

Plaintiff's and defendant's experts differed on the actual dollar amounts [*54] required to serve those sites, especially in respect of "soft costs," such as acquisition, engineering, and legal fees. Toll Brothers' engineer testified that the cost of running the sewer line to each of the inclusionary sites in the Township's plan ranged from $ 553,587 to $ 3,880,141. By way of example, Toll Brothers estimated that the PRRC site "would involve front end costs of well over $ 3,000 per inclusionary unit and $ 15,000 per market rate unit." Plaintiff's expert offered testimony, which the court accepted as accurate, that a "front- ended" cost of more than $ 1,500 per unit "is excessive and constitutes a serious impediment to development of Mount Laurel housing."

West Windsor did not agree that its policies were unduly cost-generative and a disincentive to development, arguing that the inclusionary sites did indeed "have access to water and sewer infrastructure" by means of West Windsor's construction program for two interceptors -- the Delaware and Raritan Canal Interceptor and the North Branch of the Duck Pond Run Interceptor. Under that program, extensions to the line were to be constructed by developers, "with a cost-sharing arrangement among them." West Windsor [*55] contended that its "system works well and ... that it is reasonable to expect that the line will continue to be built." It informed the court that, as of the time the original compliance plan was developed, "the line's terminus was west of Route 1, approximately 13,800 feet, or almost three miles, from the closest Mount Laurel site -- the La Placa site" (Site 5A), whereas "the line is now on the east side of Route 1 and 900 feet from the La Placa site" because of development in the interim and the consequent construction of the line. Based on that history, the Township anticipated that the line would continue to be "extended during this fair share period on the basis of prospective development activity along the unbuilt portion of the line." For that to happen, however, the six inclusionary sites would have to develop sequentially, with the site closest to the existing line (Site 5A) developing first. If that occurred, construction costs would be minimized because each property would be responsible only for extending the line from an adjacent property. The trial court rejected that scenario as "conjecture" that "cannot be a basis for affirmatively providing a realistic opportunity [*56] for the development of affordable housing."

West Windsor's Township Engineer testified that even though West Windsor's "reimbursement plan required significant 'front' money ... [that] added to the costs of development[,] ... waivers [could be] granted ... [if] 'there [is] no feasible alternative.'" Toll Brothers' expert however, "pointed out that while defendant had granted a number of waivers ... to developers elsewhere in the Township, such waivers had not been granted to inclusionary developers along Duck Pond Run." The court concluded that it did not find the testimony offered by the Township Engineer to be credible, but "more to the point, inclusionary developers should not be dependent on municipal waivers or variances."

In sum, the court found the cost estimates of the Toll Brothers' engineer to be "reasonable and conservative," and agreed with the Special Master's assessment that West Windsor's sewer financing plan "'appears to discourage housing production and is cost-generative.'" The court added that "the impact of defendant's sewer program in the context of this case is that it serves as a significant impediment to providing a 'realistic opportunity' [*57] for inclusionary housing construction."

4. Assemblage

The court found that land assemblage affected the development potential of Sites 2, R-3A, 7, and 8. The housing projections and yields calculated by West Windsor's expert "assumed development of these zones as if they were in single ownership." Notably, that the parcels in Sites 2, R-3A, 7, and 8 were in different ownership was "disclosed only as a result of plaintiff's expert report and cross-examination." The court concluded that what is required by the "Mount Laurel mandate, the Fair Housing Act and COAH rules ... is a site specific evaluation," citing for support "COAH's rule that sites [and not merely "zones"] be developable, suitable, approvable and available ...." Because under West Windsor's expert's projections the sites could not be approved unless they were assembled, the court held that "the sites where assemblage is a significant issue are ... not 'approvable.'"

5. Environmental Constraints

The Special Master recognized that environmental constraints must be considered "in order to properly assess site yields and potential unit counts in [West Windsor's] inclusionary [*58] zones." Thus, he required that West Windsor furnish "environmental documentation and site yield plans for each site." West Windsor objected to that requirement, describing it as "excessive" and in conflict with COAH's regulations, under which, it argued, site yield calculations would have been based simply on the "gross density of the total tract." The trial court determined that some environmental constraints existed on most of the sites. In light of that fact, the court concluded that "a site yield based on allowable gross density alone would not reflect the reality of the sites."

C. The Appellate Division Decision

The Appellate Division affirmed the trial court's decision substantially for the reasons expressed by Judge Carchman in his comprehensive reported opinion and in the unreported portion of the opinion dated October 16, 1996. The judge's findings of fact are supported by substantial credible evidence in the record[,] ... and his conclusions, based on those findings, are legally sound.

[ West Windsor, 334 N.J. Super. at 111-12 (internal citation omitted).]

In an unpublished portion of its opinion the appellate court also addressed [*59] "issues not raised below and those which arose after Judge Carchman delivered his reported opinion." n12 334 N.J. Super. at 112. Most relevant to the instant matter, West Windsor argued before the appellate tribunal that "Toll Brothers was not entitled to a builder's remedy because it failed to act in good faith." The Township claimed that under Mount Laurel II, "good faith" is a prerequisite for the granting of a builder's remedy. More specifically, West Windsor relied on the following language from Mount Laurel II, 92 N.J. at 218, quoted and emphasized by the Appellate Division in its unpublished opinion:

Builder's remedies will be afforded to plaintiffs in Mount Laurel litigation where appropriate, on a case-by-case basis. Where the plaintiff has acted in good faith, attempted to obtain relief without litigation, and thereafter vindicates the constitutional obligation in Mount Laurel-type litigation, ordinarily a builder's remedy will be granted ....

n12 The court evaluated and rejected the Township's allegations of trial court error due to: (1) not allowing West Windsor to present evidence and conduct cross-examination on the issue whether certain of its ordinances were unduly cost- generative; (2) applying "legally erroneous standards" when making the determination that certain ordinances were unduly cost-generating; (3) arbitrarily authorizing a fifteen percent affordable unit set-aside instead of a twenty-percent set-aside; (4) failing to find that Toll Brothers could have utilized a pump station for a portion of the site; (5) failing to require Toll Brothers to provide more recreational space; (6) unduly "intruding upon the municipal planning and zoning prerogatives of the Planning Board and governing body by ordering them to adopt the builder's remedy ordinance"; and (7) "failing to make specific factual findings on Toll Brothers' plan to build a substantial number of multi-family [units] on the site when it had previously asserted that only single-family dwellings are marketable."

[*60]

The Appellate Division rejected West Windsor's argument, noting that Toll Brothers had met the three requirements for a builder's remedy -- "(1) it succeeded in Mount Laurel litigation, (2) it proposed a project with a substantial amount of affordable housing, and (3) [its] site is suitable, i.e., the municipality failed to meet its burden of proving that the site is environmentally constrained or construction of the project would represent bad planning." The court further observed that it was "unaware of any case where a builder has met the three- prong [builder's remedy] test and failed to act in good faith," and acknowledged the difficulty, in any event, of "'proving that a suit has been brought unnecessarily or as a leverage mechanism.'"

Nonetheless, the court conducted a review of the record and failed to find evidence that Toll Brothers had acted in bad faith. Most significant, it recounted that beginning in September 1992, Toll Brothers corresponded with the Planning Board concerning a plan for developing site 6 with 670 single-family dwellings, which would generate 100 affordable units. In December 1992, it presented the Board with a conceptual plan for 671 single-family [*61] dwellings, fifty affordable rental units and satisfaction of the additional fifty units through a Regional Contribution Agreement. Thereafter, Toll Brothers withdrew its request to rezone the property because the Township's interest and cooperation began to diminish in December 1992, and the Township Planner's report of March 17, 1993, was highly critical and completely unsupportive of the rezoning proposal. Throughout the summer and fall months of 1993, Toll Brothers continued communications with the Planning Board, cautioning that amended zoning ordinances would be necessary to implement the project. During case management