The Nuclear Option: Using Builder's Remedy to Unlock Zoning
In New Jersey, every municipality has a constitutional obligation to provide its "fair share" of affordable housing. When a town fails to meet this obligation, developers can sue for a "Builder's Remedy." If successful, the court can override local zoning to allow your project to proceed.
What is a Builder's Remedy?
It is a court-imposed zoning approval. It is granted to a plaintiff-developer who successfully proves that a municipality is practicing "exclusionary zoning" by not providing a realistic opportunity for affordable housing.
The "Remedy" is typically the right to build a high-density inclusionary development (usually 20% affordable, 80% market rate) at a density that makes the project economically feasible.
The Three-Prong Test
To win a Builder's Remedy, you must generally prove:
- The municipality has failed to meet its affordable housing obligation.
- Your proposed project includes a substantial amount of affordable housing (typically 20%).
- Your site is suitable for the proposed development (environmentally sound, access to infrastructure, etc.).
The 4th Round Context (2025)
With the start of the 4th Round of affordable housing obligations in July 2025, towns are under pressure to adopt new Housing Elements and Fair Share Plans. Towns that fail to adopt compliant plans by the deadlines are vulnerable to Builder's Remedy lawsuits.
Strategy: Smart developers are currently identifying sites in towns that are likely to have a deficit. By securing site control now, you position yourself to intervene if the town's plan is rejected or if they fail to file.
The Risks
This is not for the faint of heart.
- Cost: Litigation is expensive and can take years.
- Hostility: You will be public enemy #1 in the town. Don't expect any favors on other applications.
- Settlement: Most of these cases settle. The town agrees to rezone your site in exchange for you dropping the lawsuit and helping them meet their number.
Is Litigation Worth It?
Sometimes the only way to unlock value is to fight for it. I help developers assess the legal vulnerability of municipalities and the feasibility of a Builder's Remedy strategy.
About the Author
Ryan Goldfarb is a real estate development advisor. He helps clients navigate the complex intersection of affordable housing policy and land use litigation.