Cameron MacLeod's captioned article concisely summarizes the continuing relevancy of the Mount Laurel Builder's Remedy as adapted to Mount Laurel IV municipal Declaratory Judgment actions.

From the perspective of counsel for an Intervener in the South Brunswick case described in the article, the following comment is respectfully offered:

As the article notes, rather than risk having a higher total affordable unit obligation adjudicated, or risk being found "willfully non-compliant," and thereby losing all planning and regulatory authority, most municipalities sensibly settle their actions. Mount Laurel IV, 221 N.J. at 20. 

There Are No Shades of "Good Faith" as to Fundamental Intention to Comply or Resist

Instead of settling, the South Brunswick case discussed in the article is now in the Builders Remedy phase. "Good faith" as used in Mount Laurel IV and in other judicial opinions, is an indivisible concept that does not reduce itself to ambiguous "edges," blending settling and litigating.

Good faith, as titled in the article, is a holistic principle, embodying genuine commitment to a course of action, without reservation of a contrary agenda. (See for examples, "good faith," as discussed in New Jersey opinions such as Rova Farms Resort v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 497 (1974); Mount Laurel II, 92 N.J. at 218, and Sons of Thunder v. Borden, 148 N.J. 396, 416 (1997)).

The municipality was earlier found willfully non-compliant as the article notes. However, the Township is nonetheless again seeking immunity from Builder's Remedies, as plaintiff- proponent of yet another compliance plan, before the Mount Laurel Judge currently assigned to its case. The Township has filed its latest plan "under protest," with express intention to appeal any order approving its own plan and to continue litigating for an order vacating its compliance obligation.

Putting aside general rules of jurisprudence which prohibit this kind of expedient self-contradiction by a litigant-petitioner, the Township's "protest" plan constitutes an obvious distortion of the opportunity to come into voluntary compliance as a Declaratory Judgment action plaintiff seeking affirmative relief, that was extended to municipalities by the Supreme Court in Mount Laurel IV.

Good Faith Compliance Planning Precludes 'Protest' Litigation

The Township in question is, in effect, acting as a false advocate for its "protest" compliance plan before the Trial Court, in effort to obtain approval of the plan and immunity from Builder's Remedies, while at the same time assuming the posture of opposing litigant and objector, with an intent of applying before appellate courts for orders staying and vacating the implementation of the Township's own under protest "compliance" plan.

The article reminds of the, still-needed, "strong judicial hand" of a Mount Laurel Trial Judge. (92 N.J. at 199). Rather than conducting a search for some vague "edge of good faith," imputing an undeserved intention to comply to willfully non-compliant municipalities, Mount Laurel Courts instead need to make enforcement mechanisms available in meaningful fashion. (See Cranford Dev. Assoc. v. Twp. of Cranford, 445 N.J. Super. 220 (App Div.), certif. denied 227 N.J. 237, 266 (2016), (replacing a non-compliant municipality's planning board with a judicially assigned hearing officer).

Enforcement Protecting Settlements Requires Accessible Remedies

The Builder's Remedy adapted to Mount Laurel IV ought to be firmly applied, without being deflected by contradictory publications of "protest" compliance plans, which are completely at odds with good faith.

Similarly, in instances of willful non-compliance (221 N.J. at 20), late pledges to adopt inclusionary housing zoning ordinances ought not be accepted as a basis for providing immunity, when a municipality's substantive conduct objectively shows that it has no intention of making inclusionary zoning actually available for realistic development of inclusionary housing.

It is respectfully submitted, that no less than full judicial resolve is owed to the municipalities that have reasonably settled their obligations, and that are now implementing their Court approved compliance plans in good faith, to say nothing of what is owed to New Jersey residents waiting for affordable family housing units, which Mount Laurel IV directed be built with "reasonable speed" (221 N.J. at 33).

Kenneth D. McPherson Jr. is a member of Waters, McPherson, McNeill in Secaucus. His practice has concentrated in the presentation and litigation of regulatory and property law issues supporting the firm's real estate development and administrative law services.