Once a court determines that a municipality has not satisfied its constitutional obligations concerning the development of affordable housing, it is nearly impossible to “win” a subsequent builder’s remedy lawsuit.  At that point in time, the municipality is really looking only at damage control.  The municipality loses the presumption of validity of its zoning ordinances, and as a practical matter, the case proceeds with the underlying premise that the municipality is improperly trying to prevent the development of affordable housing.  As a result, courts are almost always willing to grant the developer the right to construct multi-family housing that will almost certainly be worse for the municipality in terms of density, height, bulk standards, setbacks, etc.  In addition, that development will almost certainly include an inclusionary set-aside of between 15% and 20%.  Furthermore, these decisions will be made by a judge and a court-appointed master, who has no vested interest in Montvale or its residents’ local concerns.  In addition, the town will likely have to pay for the special master, as well as the developer’s attorney’s fees.  The Borough wants to be in control of the community’s destiny, so negotiation with builders or developers that we can work with to create reasonable housing developments is often a better alternative than having a court-appointed master tell us what we have to do, where it will be built and how many units a property will be developed with.