If the Court believed the Township was not acting in good faith to ensure its obligation was met, it could have let the Intervenors make their own plan, called a Builder’s Remedy Lawsuit. In South Brunswick, that is exactly what happened and the Court determined that their obligation was more than 2,900 units of affordable housing (plus thousands of market rate units). The judge also determined that this plan could be implemented by the builders themselves versus by the Town’s Planning Board in a public setting, working in conjunction with court-appointed professional planners and cutting the Township entirely out of the process, from determining where the units would be built to what they look like, who would live there and how the rentals would be managed.
In a Builders Remedy Lawsuit, any property owner can propose their site for development, including lands that are not currently in sewer service areas. In the 1990’s, in a prior COAH round, Hopewell Township was subject to a Builders Remedy lawsuit because it failed to make sufficient progress towards meetings its affordable housing obligations. This resulted in Brandon Farms, a new development with over 1200 homes and a ratio of 8-9 market rate units for each affordable unit.