The Mount Laurel Doctrine and the Uncertainties of Social Policy in a Time of Retrenchment
Alan Mallach
08 August 2011
The New Jersey Supreme Court‘s Mount Laurel decisions (1975 and 1983) ruled that local zoning had to take into account regional housing needs, obligating the state‘s 566 localities to provide their ―fair share of affordable housing. Although these two decisions havelong been seen across the nation as seminal ones with respect to land use and affordable housing opportunity, their role in New Jersey land use regulation and practice remains hotly contested many decades later. The cumbersome procedures and micro-management of local planning that have ensued have failed to satisfy either local governments or housing advocates, while the Council on Affordable Housing, created to implement the court‘s mandate, has never found political legitimacy. As the political climate has shifted in recent years, with Governor Christie seemingly committed to abolishing the Council on Affordable Housing and housing advocates fighting a rearguard action, the Mount Laurel principles and the entire concept of fair share housing are at risk.
The 1975 Mount Laurel I decision arose from a case brought by the Southern Burlington County NAACP on behalf of low-income African-American residents in a section of Mount Laurel Township, a growing suburb of Philadelphia, who were denied the opportunity to build decent housing to replace the dilapidated homes in which many of them lived.2 The court used the case to establish a clear doctrine that every ―developing municipality‖ had an obligation under the New Jersey Constitution to provide for its ―fair share of the regional need for low and moderate income housing. The decision, although far-reaching in scope, was weak on specifics; it was widely ignored by local governments, while the lower court decisions that followed were inconsistent, even contradictory, in their holdings.
As a result, in 1983, in Mount Laurel II, the court put teeth in the doctrine, establishing clear ground rules, a procedure for expedited hearing of cases by three specially selected judges, and above all, a ―builder‘s remedy, under which developers who successfully sued municipalities that rejected developments that included a reasonable share of affordable housing could receive approval directly from the court.6 The decision spawned well over a hundred developer lawsuits, prompting the New Jersey legislature to enact the New Jersey Fair Housing Act in 1985.
The New Jersey Fair Housing Act (NJFHA) created a state agency, the Council on Affordable Housing (COAH), to establish six- year (later amended to ten-year) fair share obligation goals for local governments, and empowered COAH to certify plans adopted by municipalities to meet their fair share goals, thus immunizing those municipalities from the builder‘s remedy for the duration. A controversial provision of the act was the Regional Contribution Agreement (RCA), which allowed one municipality to pay another to accept up to fifty percent of its fair share obligation, a measure designed to funnel suburban dollars into urban housing programs. Much to the dismay of many housing advocates, who considered the NJFHA a severe dilution of the Mount Laurel doctrine for many reasons, of which the introduction of RCAs was but one, the Supreme Court quickly upheld its validity. A subsequent decision also upheld the authority of municipalities to impose development fees on developers not building affordable housing, in order to pay for the development of such housing elsewhere in the community.
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The Mount Laurel Doctrine and the Uncertainties of Social Policy in a Time of Retrenchment