Mount Laurel doctrine

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The Mount Laurel doctrine is a controversial judicial interpretation of the New Jersey State Constitution. The doctrine requires that municipalities use their zoning powers in an affirmative manner to provide a realistic opportunity for the production of housing affordable to low and moderate income households.

The doctrine takes its name from the lead case in which it was first pronounced by the New Jersey Supreme Court in 1975: Southern Burlington County N.A.A.C.P. v. Mount Laurel Township (commonly called Mount Laurel I), in which the plaintiffs challenged the zoning ordinance of Mount Laurel Township, New Jersey, on the grounds that it operated to exclude low and moderate income persons from obtaining housing in the municipality.

History[edit]

Initial development[edit]

After the decision in Mount Laurel I, suits were filed against numerous municipalities. The plaintiffs in such suits fell into three classes: lower income persons who actually sought housing and advocacy organizations on their behalf; the New Jersey Public Advocate; and builders who sought to construct developments containing affordable housing.

These early exclusionary zoning suits were beset by numerous difficulties and little, if any, affordable housing resulted. In 1983 appeals in several of these cases (of which Southern Burlington County N.A.A.C.P. v. Mount Laurel Township was again the lead case), gave the New Jersey Supreme Court the opportunity to reaffirm and tweak the Mount Laurel Doctrine and provide several mechanisms and remedies to make the doctrine more effective.

1980s legislative reaction[edit]

The New Jersey Supreme Court was aware that the Mount Laurel II decision would be controversial and would engender debate about the proper role of the courts. The opinion invited legislative action to implement what the court defined as the constitutional obligation.

In 1985 the New Jersey Legislature responded by passing the Fair Housing Act. Accepting the premise that there was some constitutional obligation for municipalities to foster some degree of affordable housing, this legislation created an administrative agency, the Council on Affordable Housing (COAH), to establish regulations whereby the obligation of each municipality in terms of the number of units and how the obligation could be satisfied.

A municipality which elected to participate in COAH's administrative process prior to being sued was provided with protection from litigation and especially the builder's remedy. As a transitional provision, the act provided that municipalities involved in litigation when the act was passed were to be able to transfer the litigation to COAH unless manifest injustice would result.

COAH developed regulations under which the specific number of affordable units that each municipality would be required to provide (its "pre-credited need") could be determined. Participating municipalities developed compliance plans to address this need by such means as the application of credits (e.g. filtering, spontaneous rehabilitation, extra credit for rental units), the use of regional contribution agreements (transferring part of the obligation to a willing municipality, usually an urban center, in the same region along with payment in an amount agreed by the municipalities) and zoning for affordable housing (usually involving increased density and mandatory set-asides). When COAH approved a municipality's compliance plan it would grant "substantive certification" which was designed to provide the municipality with protection from exclusionary zoning litigation.

From the municipal point of view, the advantages of COAH's administrative process included the use of a formula to calculate fair share that might produce a lower obligation than the court would impose, the availability of the regional contribution agreement to reduce the number of units and the ability to determine where in the municipality that affordable housing ought to be developed rather than being forced to permit a development as a reward to a successful builder-plaintiff. Those municipalities that chose not to participate in COAH's administrative process remained vulnerable to exclusionary zoning lawsuits and the prospect of the builder's remedy. The disadvantage would be that a participating municipality might be required to zone some land in a manner that extra housing would be produced. Some municipalities, believing that the likelihood of facing an actual exclusionary zoning lawsuit was low enough, took their chances in not participating.

Criticism of the decision[edit]

While the Mount Laurel decision mandates a state constitutional obligation for every municipality in a "growth area" to provide a fair share of its region's present and prospective housing needs for low and moderate income families, there is no funding source specified for low or very-low income families, in a state that already has some of the nation's highest property taxes.[1] Some have accused the decision for being an example of judicial activism.[2]

1980s judicial response to the Fair Housing Act[edit]

The New Jersey Supreme Court welcomed the Legislature's adoption of the Fair Housing Act. A number of trial court decisions had denied transfer of pending cases to COAH under the manifest injustice standard, but the Supreme Court read that term very narrowly and ordered the cases transferred. The trial courts were directed to conform their rulings with regard to calculation of each municipality's obligation and how to meet it to COAH's regulations and the statute was found facially constitutional and interpreted to grant COAH ample authority, such as restraining the use of scarce resources (sewer capacity, potable water, land) for other than providing affordable housing, to assure that affordable housing might actually be built.

The Council on Affordable Housing (COAH)[edit]

COAH is a currently defunct government agency created in the 1980s to administer Mt. Laurel requirements. Some have argued it needs reinvigoration.[3]

The Fair Share Housing Center[edit]

The Fair Share Housing Center, or FSHC, is a Cherry Hill-based nonprofit organization founded in 1975 that litigates against towns in enforcement of fair housing development.[4] Some have alleged that the FSHC has "ties to developers."[5]

Builder's remedy lawsuits[edit]

A "builder's remedy lawsuit" is a New Jersey lawsuit filed by a real estate developer in an attempt to force a New Jersey town to allow the construction of a large, multi-family housing complex that includes some affordable housing alongside ordinary apartments.

Usually, the developer's court papers will make specific mention of the Mt. Laurel doctrine, which holds municipalities responsible for providing affordable housing to low and moderate income households. Some have argued that developers exploit the Mount Laurel doctrine with the builder's remedy and prevent town efforts to combat overdevelopment and sprawl.[6] Some recent "builder's remedy" lawsuits or related concerns include:

  • Annandale.[7]
  • Bridgewater.[8]
  • Cranford. The developers Samuel and Peter Hekemian sued the Township of Cranford to allow a mass-density development.[9][10][11] One Cranford local opined that the builder's remedy "takes the power from our township engineers, public safety officials, board of education members and budget offices and gives it to the S. Hekemian Group, a Paramus-based builder of apartment complexes. And there is nothing anyone can do about it. It is a court order based on what they refer to as builder remedy litigation. Apparently, progress is only found in concrete."[12]
  • Emerson. Local officials expressed concerns over impact of Mount Laurel on development of a 19-acre patch of woods that town officials have been trying to turn into a park.[13]
  • Livingston. Despite the efforts of the Livingston-Short Hills Coalition, affiliates of the Kushner Companies filed an affordable housing suit to build developments in the town.[14][15]
  • Millburn. Residents of Millburn, New Jersey objected to a proposed land development by Canoe Brook, which would create a 250-room hotel, 200 residential units and a multi-deck parking structure adjacent to the Mall at Short Hills.;[16][17]
  • Montvale. The S. Hekemian Group filed to intervene in Montvale's affordable-housing litigation to build 1,000 units, arguing the borough "is in violation of its constitutional duty to create sufficient realistic opportunities" for affordable housing. In June 2017, Mayor Mike Ghassali stated, "Now we are on a path to spend untold amounts of time, money and borough resources to defend our town from a monstrous development that would change our community forever" regarding the lawsuit.[18][19]
  • New Milford. Despite objections from a community group, "Stop Overdevelopment New Milford,",[20] the developer S.Hekemian Group (SHG), led by Robert S. Hekemian and Peter Hekemian, brought a Mount Laurel builder's remedy suit against New Milford, New Jersey.[21] "I certainly do feel I have a gun to my head" said New Milford's mayor, Ann Subrizi at the close of 2016. The township ultimately settled, causing development of one of the last undeveloped tracts of land in the area.[22]
  • West Orange. The Fair Share Housing Center,and Garden Homes, an affiliate of the Wilf family, owners of the Minnesota Vikings,[23][better source needed] have brought legal action to create more affordable housing units in West Orange, New Jersey.

Regional Contribution Agreements (RCAs)[edit]

In 1985, the Fair Housing Act created the now-repealed Regional Contribution Agreement system. The RCAs meant that towns could pay to get out of up to half of their affordable housing obligation by funding affordable housing elsewhere as required by the New Jersey Supreme Court's Mt. Laurel decision.[24]

In 2008, at the behest of the Fair Share Housing Center's Peter O' Connor and over the objections of some suburban Democrats, Governor Corzine signed a law barring RCAs. A500. He signed A-500 into law during a ceremony at Fair Share Housing Development's Ethel R. Lawrence Homes.[25][26] Some have demanded that RCAs be returned to cut down on sprawl.[27][28]

Environmental concerns[edit]

In 1983, the NJ Supreme Court cautioned that, in requiring affordable housing, our State Constitution "does not require bad planning. It does not require suburban spread. It does not require rural municipalities to encourage large scale housing developments. It does not require wasteful extension of roads and needless construction of sewer and water facilities for the out-migration of people from the cities and the suburbs. There is nothing in our Constitution that says that we cannot satisfy our constitutional obligation to provide lower income housing and, at the same time, plan the future of the state intelligently."[29]

Some commentators have denounced the environmental impact of the current regime. As the result of one successful builder's remedy lawsuit brought by S. Hekemian Group, developers may construct a 360-unit, high density housing development in Cranford, New Jersey next to a flood plain. Some assert such developments could worsen flooding in an already flood-prone area that was ravaged by Hurricane Irene in 2011.[30]

Other New Jersey residents assert they fear sprawl, the destruction of historic New Jersey small town architecture, and crowding:

As an environmental scientist, I am concerned with the question of how many residents can be sustained before we reach an environmental tipping point. When do our water systems fail to provide the supply needed (remember the Bergen County dire drought warning last October?); when does the volume of traffic finally overwhelm our existing roadways and extend commuting times to impossible limits (remember the last time you sat in local traffic?); when does the air quality become too unhealthy to breath (remember the ozone and poor air-quality alerts just last month?); how many people can actually be sustained with a reasonable quality of life within our municipalities, counties and state?[31]

One Parsippany resident stated, "I'm very frustrated that this significant tract of undeveloped land is being razed for development when so much property in Parsippany lies vacant," said Dave Kaplan, of the Stop the Overdevelopment at Waterview opposition group.[32]

The New Jersey chapter of the Sierra Club applauded Christie's efforts to reform affordable housing law in 2010:

The current COAH law has had a bigger impact on land use and development than any other law in New Jersey's history. The Sierra Club strongly supports a requirement for affordable housing. As towns grow, they must provide a fair share of it. But the need for affordable housing should not undermine the environmental protections given to wetlands, flood plains, steep slopes, stream buffers that protect water supplies, ocean-fronts, and endangered species habitat. And no homes should be built where water supply is at critically low levels. Furthermore, new housing should be located where jobs are, to reduce the carbon footprints and pollution associated with automobile commuting.[33]

Present-day demands for legislative reform[edit]

Some believe the NJ Supreme Court seeks legislative action to implement the Mount Laurel doctrine based on recent rulings, as of mid-2017:

January 2017 NJ Supreme Court decision[edit]

In January 2017, the NJ Supreme Court issued a ruling stating that towns had to consider any historic failure to provide affordable housing. As one commentator put it,

This case resolved affordable housing regulation debates that have been ongoing since 1999. However, the Court provided no guidance on the method of implementation of affordable housing accommodations that it now requires of municipalities. This decision leaves numerous unanswered questions and it will depend heavily on the Legislature to issue reform of affordable housing requirements. This decision requires implementation of affordable housing accommodations into township plans that have not otherwise considered them since 1999. It is likely that the open spaces in towns will now be filled with affordable housing units, which will bring an influx of population to municipalities. ...We will need to watch the Legislature to see how and if it will alter the current affordable housing regulations to comply with the Court's recent ruling.[34][35][36][37][38]

In its January 2017 opinion, the NJ Supreme Court welcomed the Legislature to re-approach the affordable housing issue: "We recognize, as we have before, that the Legislature is not foreclosed from considering alternative methods for calculating and assigning a municipal fair share of affordable housing, and to that end, we welcome legislative attention to this important social and economic constitutional matter," Justice LaVecchia wrote.[39][40]

Legislator outcry[edit]

A Morris County Freeholder candidate, Harding Committeeman Nicolas Platt, proposed in May 2017 that all mayors state-wide conduct a sit-in in Trenton and refuse to leave the statehouse until legislators acted to reduce the overdevelopment impact of the builder's remedy issue.[41]

Bergen and Passaic County Assemblywoman Holly Schepisi argued in a July 2017 opinion piece that reform was urgently needed: "If built, the number of new homes alone would far exceed all the homes in the entire borough of Manhattan," she stated, calling the issue one of overdevelopment "madness."

In the summer of 2017, Schepisi held the first of several planned public hearing in Paramus with various civic leaders on mandated affordable housing with local mayors and other state assembly members.[42]

"It is long past time for the Legislature to act, and block [the nonprofit group Fair Share Housing Center] from their objective of destroying our suburban communities," said one mayor at the hearing according to the press. "We really need action. Nobody has done what they need to do."

Schepisi stated she invited the Fair Share Housing Center to attend but received a letter declining an appearance.[43]

In Somerset County, Montgomery Township Mayor Ed Trzaska said the influx of apartment complex development would ruin the rural character of the area, "overwhelm the township's infrastructure, greatly increase property taxes and burden the school system and negatively impact the quality of life in the township." .[44]

In Union County, in the summer of 2017, the Clark town council issued a unanimous resolution demanding for the state legislature to take action to reform the affordable housing issue; the mayor stated that otherwise, "Union County will look like Queens in 25 years."[45]

In Berkeley Heights in Union County in June 2017, Council President Marc Faecher said he considered the Legislature's failure to act on overdevelopment to be an "abject failure by our state government."[46]

Public outcry[edit]

In June 2018, NJ 101.5 radio host Bill Spadea advocated for a constitutional amendment to revoke the doctrine, arguing the imposition of unnecessary development increased tax burdens unfairly.[47]

Regional town partnership approaches[edit]

In the summer of 2017, the mayors of five Bergen County towns announced they were "teaming up to take a regional perspective on affordable housing, in an effort to find reasonable solutions that will protect the integrity of their communities."[48]

Vacant and abandoned properties[edit]

"Owing to its ongoing high rate of residential foreclosures, New Jersey has become known the Land of the Zombie Houses."[49] Some have argued that the deluge of abandoned and vacant properties in New Jersey should be taken into account before forced building occurs in less crowded areas. They have also suggested that the state step up funding for code enforcement to reduce burdens of urban blight on attractive home development, including enforcement on absentee landlords. The City of Newark is "working with the Urban League to identify vacant or abandoned properties that can be sold to small developers to then sell at cost to residents. About 16 percent of Newark's housing is vacant and the city has a high eviction and foreclosure rate according to a Rutgers report. [50][51][52] [53][54][55][56][57][58]

See also[edit]

  • Abbott district, a similarly controversial legal doctrine resulting from a series of New Jersey Supreme Court cases holding that the education of children in poor communities was unconstitutionally inadequate.
  • Frederick Wilson Hall, who wrote the initial decision
  • Latino Action Network v. New Jersey, a lawsuit filed in 2018 to desegregate the public schools.

References[edit]

  1. ^ "McHose Says 'Fair Housing' Bill Misses the Mark; Doesn't Address Why Housing is Unaffordable in New Jersey" Archived 2007-10-27 at the Wayback Machine., Alison Littell McHose press release dated June 11, 2007 on PoliticsNJ.com. Accessed June 22, 2007.
  2. ^ Editorial. "Judicial Duty in New Jersey", The New York Times, February 24, 1986. Accessed June 22, 2007. "For 11 years, New Jersey's Supreme Court has struggled with the constitutional issues implicit in the desire of Mount Laurel, a Burlington County township, to zone out low-income housing. For its labor the court earned its share of criticism for judicial activism. Last week, it yielded supervision of housing to a new state agency, the Council on Affordable Housing. That was no defeat for judicial activism but a handsome vindication of it."
  3. ^ http://www.njspotlight.com/stories/15/07/21/explainer-coming-to-terms-with-the-intricacies-of-fair-housing-after-coah/
  4. ^ Behind the Fund for New Jersey's Support of a Housing Rights Group https://www.insidephilanthropy.com/housing/2014/10/7/behind-the-fund-for-new-jerseys-support-of-a-housing-rights.html
  5. ^ We must stop the affordable housing crisis https://njersy.co/2qut45a via @northjersey
  6. ^ New Jersey's Housing Law Works Too Well, Some Say https://nyti.ms/2uKoAZx
  7. ^ http://www.nj.com/hunterdon/index.ssf/2015/11/beaver_brook_development_likely_topic_in_clinton_t.html
  8. ^ https://www.tapinto.net/articles/k-hovnanian-proposes-townhome-development-off-ro
  9. ^ http://www.nj.com/cranford/index.ssf/2008/10/hekemian_proposes_419_units_me.html
  10. ^ https://scholar.google.com/scholar_case case=4188147394512128653&hl=en&as_sdt=6,33
  11. ^ http://cranfordtaxpayers.blogspot.com/
  12. ^ http://blog.nj.com/njv_brian_campbell/2013/03/cranford_-_a_town_is_citified.html
  13. ^ https://www.nytimes.com/2001/03/03/nyregion/new-jersey-s-housing-law-works-too-well-some-say.html
  14. ^ https://patch.com/new-jersey/livingston/millburn-responds-to-public-on-affordable-housing-case
  15. ^ http://www.nj.com/news/local/index.ssf/2010/08/livingston_makes_deal_to_allow.html
  16. ^ http://www.njbiz.com/article/20151110/NJBIZ01/151119977/carl-goldberg-at-the-intersection-of-development-and-politics
  17. ^ https://www.tapinto.net/towns/millburn-slash-short-hills/articles/millburn-residents-say-no-to-new-housing-developm
  18. ^ http://www.northjersey.com/story/news/bergen/montvale/2017/06/30/developer-seeks-build-1-000-housing-units-montvale-property/442753001/
  19. ^ http://www.northjersey.com/story/news/bergen/montvale/2017/04/20/montvale-seeks-best-outcome-affordable-housing-plan/100616524/
  20. ^ https://www.facebook.com/SODofNewMilford/
  21. ^ http://www.nj.com/bergen/index.ssf/2016/12/development_of_14-acre_site_splits_north_jersey_to.html
  22. ^ http://www.freitnj.com/about-freit; http://www.northjersey.com/story/news/bergen/montvale/2017/04/20/montvale-seeks-best-outcome-affordable-housing-plan/100616524/
  23. ^ Mark Wilf
  24. ^ http://www.njfuture.org/2007/01/31/rcas-regional-contribution-agreements/
  25. ^ http://blog.nj.com/njv_john_atlas/2008/07/new_jersey_regional_coalition.html< ftp://www.njleg.state.nj.us/20082009/A0500/500_U1.HTM
  26. ^ http://www.app.com/story/opinion/columnists/2017/05/26/nj-gubernatorial-primary-guadagno-ciattarelli/102188626/
  27. ^ http://www.northjersey.com/story/opinion/readers/2017/05/23/letter-bring-back-rcas-affordable-housing/337819001/
  28. ^ http://www.newjerseyconferenceofmayors.com/magazine/winter_2010.pdf
  29. ^ Southern Burlington County, et al. v. Township of Mount Laurel, et al., 92 N.J. 158, 238 (1983) (Mt Laurel II).
  30. ^ Paul Mulshine, State Wants to Flood Cranford with High-Density Housing, THE STAR-LEDGER, September 7, 2011, http://blog.nj.com/njv_paul_mulshine/2011/09/state_wants_to_flood_cranford.html
  31. ^ http://www.northjersey.com/story/opinion/readers/2017/06/22/letter-schepisi-leads-important-discussion-housing/417571001/
  32. ^ http://www.dailyrecord.com/story/news/2017/07/06/controversial-whole-foods-project-breaks-ground-parsippany/455311001/
  33. ^ Environment Essential in Affordable Housing Review.http://www.sierraclub.org/sites/www.sierraclub.org/files/sce/new-jersey-chapter/njs_sierran/Sierran_10B.pdf
  34. ^ http://www.lawgapc.com/blog/affordable-housing-in-new-jersey/
  35. ^ MaryAnn Spoto, N.J. on the hook for thousands more affordable housing units, Supreme Court says http://s.nj.com/SHt7UaT
  36. ^ Jay Cook, Two River Times, http://tworivertimes.com/holmdel-talks-affordable-housing-with-residents/
  37. ^ Nicholas Katzban, Archive: Confusion over COAH spreads https://njersy.co/2t98Tyn via @northjersey
  38. ^ Michael Symons, NJ Supreme Court says towns must catch up on affordable housing http://nj1015.com/nj-supreme-court-says-towns-must-catch-up-on-affordable-housing/?trackback=twitter_top @nj1015
  39. ^ In re Declaratory Judgment Actions Filed by Various Muns., 446 N.J.Super. 259, 281 (App. Div. 2016), aff'd as modified on other grounds, 227 N.J. 508 (2017).
  40. ^ Salvador Rizzo, N.J. Supreme Court: Towns must have affordable housing http://northjersy.news/2k05wks via @northjersey
  41. ^ http://www.dailyrecord.com/story/news/2017/05/30/freeholder-candidate-rallying-mayors-housing-issue/355671001/
  42. ^ Assemblywoman hears mayors concerns on court-mandated affordable housing https://njersy.co/2syG9yI
  43. ^ http://www.northjersey.com/story/news/bergen/2017/06/16/assemblywoman-hears-mayors-concerns-court-mandated-affordable-housing/401538001/; http://www.northjersey.com/story/news/bergen/2017/06/17/affordable-housing-advocates-takes-aim-assemblywoman-over-forum/404679001/
  44. ^ Affordable housing mandate threatens quality of life, mayor says http://s.nj.com/UYpPrLP
  45. ^ State Legislators: 'Lead or Get Out of the Way' https://www.tapinto.net/towns/clark/articles/clarks-mayor-bonaccorso-to-state-legislators-l
  46. ^ https://www.tapinto.net/towns/berkeley-heights/articles/affordable-housing-the-who-what-when-and-why-e
  47. ^ Affordable housing law making NJ un-affordable (Opinion) http://nj1015.com/affordable-house-making-nj-un-affordable-opinion @nj1015
  48. ^ https://www.usnews.com/news/best-states/new-jersey/articles/2017-07-08/5-towns-team-up-to-make-progress-on-affordable-housing
  49. ^ https://articles.nj.com/opinion/index.ssf/2017/07/dont_give_nj_zombie_homes_the_upper_hand_editorial.amp
  50. ^ https://www.nj.com/essex/index.ssf/2016/02/a_year_later_newark_sweetheart_land_deals_harbor_m.html
  51. ^ https://urbanomnibus.net/2016/02/why-hasnt-anyone-built-on-newarks-1000-love-lots/
  52. ^ https://www.tapinto.net/towns/newark/articles/new-quality-of-life-initiative-will-ramp-up-code
  53. ^ https://www.nj.com/essex/index.ssf/2018/04/can_newark_be_a_model_city_to_curb_against_gentrif.html
  54. ^ New Brunswick Picks Committee, Law Firm to Move on Abandoned Houses https://www.tapinto.net/towns/paterson/articles/new-brunswick-picks-committee-law-firm-to-move-o-4
  55. ^ Mayoral Musings: Vacant and Abandoned http://www.snjtoday.com/story/38565358/mayoral-musings-vacant-and-abandoned#.W0d-k2SYxc8.twitter
  56. ^ Ever Since The Great Recession, Zombie Houses Have Haunted New Jersey https://n.pr/1UQY1tn
  57. ^ Ever Since The Great Recession, Zombie Houses Have Haunted New Jersey https://n.pr/1UQY1tn
  58. ^ Vacant and afraid: Getting a grip on abandoned homes | Opinion http://s.nj.com/gCDW8TI

External links[edit]