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"On the Front Lines of New Jersey’s Mount Laurel Doctrine,"

by Kevin D. Walsh March/April 2011 issue of Poverty & Race

The Mount Laurel doctrine requires all 566 New Jersey municipalities to provide their fair share of the regional need for affordable housing. The doctrine, which is based in the New Jersey state constitution, was recognized in New Jersey Supreme Court decisions in 1975 and 1983 in response to litigation against a growing municipality of the same name. What began as a lawsuit brought by a group of individuals and civil rights organizations, including local NAACP Branches, led to the development of substantial statewide policy. Over the past three decades, following the creation of the Council on Affordable Housing (COAH), an executive branch agency, the doctrine has successfully generated almost 60,000 homes affordable to very-low, low- and moderate-income people in municipalities with excellent schools, lots of jobs and safe streets.

Unfortunately, after decades of progress on housing, a concerted campaign to undermine the doctrine is underway. Wealthy municipalities that oppose efforts to check their home rule powers have banded together to oppose statutory reforms to the legislation that created COAH, and instead are trying to get the Legislature to essentially pass legislation nullifying Mount Laurel and invite a court challenge. They simultaneously have petitioned the New Jersey Supreme Court to overturn the Mount Laurel cases, claiming that municipalities are no longer motivated to practice exclusionary zoning and, if just trusted to act in non-exclusionary fashion, will use their powers for the good of all. Their efforts have the support of the state’s current governor, Chris Christie, who a year ago unsuccessfully sought to shutter COAH through an executive order and is now simply blocking the decision-making board of the agency from meeting.

In its two Mount Laurel decisions, the Supreme Court recognized that racial and economic segregation were not accidental, but rather were caused substantially by exclusionary zoning. The Court feared that that without the doctrine, “poor people” would be “forever zoned out of substantial areas of the state, not because housing could not be built for them but because they are not wanted.” The Court expected that requiring all municipalities to provide opportunities for affordable housing would promote racial integration and would “relieve cities of what has become an overwhelming fiscal and social burden.” It viewed “the decline of our cities and the increasing economic segregation of our population” as “a disease threatening us all.”

Legislative and Executive Action

In the decades since the second Mount Laurel decision, the mandates of the doctrine have prompted New Jersey’s legislative and executive branches into action. In 1985, at the urging of the Supreme Court, COAH was created by the Legislature’s passage of the Fair Housing Act of 1985. COAH allocated obligations to municipalities in 1986 and 1993, thereby requiring municipalities to provide opportunities for over 80,000 affordable homes. This had a substantial impact on New Jersey’s overall housing market; a 2009 study by Stuart Meck and associates found that, unlike other states with significant growth controls, New Jersey successfully stemmed the growth in lower-income and middle-class housing costs in the 1990s as a result of the additional homes—both affordable and market-rate—developed pursuant to Mount Laurel.

COAH was required to allocate fair share obligations again in 1999, but, under Gov. James McGreevey, who had previously led a large suburban municipality, the state instead waited for several years until being pressured by the courts. In regulations finally adopted in 2005, and amended in 2008, COAH allocated obligations, but undermined them by allowing municipalities to avoid their obligations by discouraging growth. COAH rejected the constitutionally-required “fair share” scheme in favor of a “growth share” scheme. Under growth share, municipalities that curbed growth by adopting large lot zoning or by discouraging redevelopment would reduce or eliminate their affordable housing obligations. Under this system, municipalities that already had great incentives to keep out families with children in order to avoid paying for schools suddenly had another reason for adopting exclusionary policies.

The New Jersey appellate court twice rejected COAH’s regulations, in 2007 and 2010. The court ruled in effect that the Mount Laurel doctrine is needed because the fox is constitutionally barred from guarding the henhouse. Linking housing obligations exclusively to often-arbitrary local land use decisions would undermine the check on municipal discretion that is at the heart of the doctrine and thus allow municipalities to adopt exclusionary zoning.

Governor Christie’s Opposition

The most recent rejection of COAH’s regulations was greeted with muted enthusiasm by Gov. Christie, who did not support regulations adopted under his predecessor and welcomed the chance to leave his mark on New Jersey’s affordable housing policy by simply stalling. Despite, or perhaps because of, the judiciary’s declaration that growth share is a constitutional non-starter, Christie is standing firmly behind the right of municipalities to establish their own affordable housing obligations. He has done so despite the fact that his Department of Transportation recently released a study showing that, in one of the state’s main growth areas along the Route 1 Corridor from Trenton to New Brunswick, there is zoning for 13 times as many jobs as homes. These data support a 2006 study by Rolf Pendall and associates for the Brookings Institution showing New Jersey as still having among the most exclusionary underlying zoning policies in the country—a problem mitigated only by active enforcement of Mount Laurel.

While COAH and now Gov. Christie have disregarded the constitutional obligation, the Legislature remained faithful to it. In 2008, the Legislature adopted sweeping legislation that abolished regional contribution agreements, a practice that allowed wealthy municipalities to make a cash payment to other distressed communities in the state. Through such agreements, wealthier municipalities relieved themselves of providing 10,000 units of affordable housing for at minimum 30 years by paying those distressed municipalities to provide those units within their borders. The practice generated approximately $300 million in housing funding and reduced obligations in communities that already had too few affordable units. The Legislature also required municipalities to ensure that at least 13% of the housing it is required to provide is affordable to households earning as low as 30% of median income. This requirement sets New Jersey apart and significantly increases the opportunities for racial integration through enforcement of the Mount Laurel doctrine.

Earlier this year, after a year of debate, the Legislature acted again by adopting a simple scheme for allocating fair share obligations. The bill would have eliminated COAH and replaced it with a system that required municipalities to ensure that up to 10% of their housing stock is affordable. Municipalities with between 20-50% of their schoolchildren receiving free or reduced price lunch would have to provide just 8% of their housing stock as affordable housing. Municipalities with more than 50% of their children receiving free or reduced price lunches would be exempt from additional obligations. The legislation was broadly supported as a workable policy that remained largely faithful to the Mount Laurel doctrine, though it also substantially reduced the obligations of municipalities.

The legislation was strongly supported by the business community, which sees both uncertainty in land use and a housing market that workers cannot afford as bad for our economy. Despite a direct appeal from business, Gov. Christie sided with wealthy municipalities and conditionally vetoed the legislation, suggesting that the Legislature instead adopt an earlier version of the legislation that placed no check on municipal discretion but would have required that 10% of future housing growth be affordable without providing any incentives to developers in the form, for instance, of increased density, and allowing a payment-in-lieu of building homes of just $10,000 per unit, thus making it unlikely that any homes would really be built. The pro-business Christie, a conservative darling who appears regularly on Fox News to tout his economic policies, thus rejected economic growth for New Jersey so as to appeal to his base’s demands that they be allowed to maintain unilateral control over land use decisions.

Eyes Again on the Courts

With no regulations in place to meet current affordable housing needs and a year-long legislative effort being dismissed through the governor’s conditional veto, all eyes are now on the courts. In October 2010, COAH was ordered to adopt new regulations by early-March 2011, but has already acknowledged it has no intention of meeting that deadline. The appellate court that ordered the adoption of new regulations has stayed its hand pending a signal from the state Supreme Court, which is considering whether to put the issue of growth share on its docket. We have urged the Court to reject the municipal requests, contending that the lower court’s decision is supported by existing case law; that the incentive to adopt exclusionary zoning has, if anything, increased; and that the Court’s review will unnecessarily delay the adoption of regulations.

As the next phase of the Mount Laurel doctrine is debated, there is good reason to be hopeful. In the 1970s, when the original Mount Laurel case worked its way to the Supreme Court, the judiciary was alone in mandating that all municipalities provide opportunities for their fair share of affordable housing. The Court is no longer alone. With a Legislature that recognized the importance of an equitable affordable housing policy in 2008 and again in 2010, the Supreme Court now has the support of a co-equal branch. We are hopeful that the judiciary’s commitment to our state constitution, especially when bolstered by the will of the people as expressed through their elected representatives, will be sufficient to reject the exclusionary goals of Governor Christie and many of New Jersey’s wealthy suburban municipalities.

Further Readings

Stuart Meck, Gregory K. Ingram, et al., “Smart Growth Policies: An Evaluation of Programs and Outcomes. Cambridge, MA: Lincoln Institute of Land Policy, 2009 (Chapter 6, Affordable Housing, with Tim MacKinnon, and Chapter 12, New Jersey State Profile).

Rolf Pendall, Robert Puentes & Jonathan Martin. 2006. “From Traditional to Reformed: A Review of the Land Use Regulations in the Nation’s 50 Largest Metropolitan Areas.” Washington, DC: Brookings Institution Metropolitan Policy Program.

David Kinsey, “Smart Growth, Housing Needs, and the Future of the Mount Laurel Doctrine,” which starts on page 51 of http://wws.princeton.edu/research/prior-publications/conference-books/mt-laurel-complete-final.pdf

Kevin D. Walsh is the Associate Director of Fair Share Housing Center in Cherry Hill, NJ. FSHC is devoted to defending the housing rights of New Jersey's poor through enforcement of the Mount Laurel doctrine, the landmark decision that prohibits exclusionary zoning and requires all New Jersey municipalities to provide their "fair share" of their region's need for affordable housing. Readers can sign up for their periodic email updates at www.fairshare housing.org kevinwalsh@fairsharehousing.org
 
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