For months, Wyckoff officials have been warning residents about something called 'builder's remedy.' On Tuesday night, affordable housing planner Beth McManus put it in stark terms: it is perhaps the most powerful tool a developer can wield against a municipality — and the only reliable defense is compliance.[1]

Builder's remedy is a type of litigation available to developers when a municipality has not met its constitutional obligation to provide its fair share of affordable housing. If a town lacks a court-approved compliance plan — called a 'judgment of repose' — a developer can file a lawsuit and, if successful, receive court approval to build a project that far exceeds what local zoning would normally permit.

'Your zoning becomes essentially irrelevant on that property,' McManus told the committee. 'The court awards the project. Building heights go up. Buffer requirements come down. Impervious coverage increases. The control the municipality would typically have is massively reduced.'

The vulnerability is not limited to the specific site where a developer files. Once it becomes known in real estate circles that a town is non-compliant and vulnerable — particularly a desirable community like Wyckoff with a strong housing market — multiple developers can file simultaneously, creating what McManus described as 'a bit of a cascade.'

Wyckoff joined a coalition of roughly 30 municipalities in a lawsuit challenging the constitutionality of the March 15th deadline[2] and related provisions of the Fair Housing Act. The case went all the way to U.S. Supreme Court Justice Samuel Alito, who denied the request for an emergency stay. State court appeals are still pending, but no injunction has been granted.

'We are between a rock and a hard place,' Mayor Lane said. 'The courts have said the deadline stands. We are fulfilling our constitutional obligation while simultaneously fighting what we believe is unconstitutional overreach.'

The overlay zones being adopted do not rezone anything. They layer an additional permitted use — inclusionary housing — on top of existing commercial zoning. The Brick House can continue to operate. TD Bank is not required to sell. Nothing changes unless a property owner decides to sell and a developer chooses to pursue a housing project with the planning board's approval.

If Wyckoff adopts its ordinances and files with the court by March 15th, it will receive a compliance certification protecting the township from builder's remedy suits for the duration of the fourth round — covering the period from 2025 through 2035. The next round begins in 2035.