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Mount Laurel doctrine

The Mount Laurel doctrine is a significant judicial doctrine 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

Initial development

Ethel Lawrence, a sixth-generation resident of Mt. Laurel Township, was the lead plaintiff in the original Mt. Laurel case after officials in Mt. Laurel Township declared their intention of condemning and tearing down the low-income housing in her community. With no realistic alternative other than moving to the slums of Camden or Philadelphia, many residents grew increasingly concerned about the rising pressure to leave.[1] Lawrence was connected through a local minister to Carl S. Bisgaier, director of Camden Regional Legal Services who had been looking for a plaintiff for the Mt. Laurel case. Together with attorneys Kenneth E. Meiser, Thomas J. Oravetz and Peter J. O'Connor, Bisgaier filed the lawsuit commonly known as Mt. Laurel I.[1] 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

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

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.[2] Some have accused the decision for being an example of judicial activism.[3]

1980s judicial response to the Fair Housing Act

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.

Council on Affordable Housing (COAH)

In 1985, the New Jersey legislature passed the Fair Housing Act, which codified the affordable housing obligations of municipalities and created a state agency called the Council on Affordable Housing (COAH).[4]

With 11 members appointed by the Governor on the advice and consent of the Senate, COAH was empowered to: (1) define housing regions, (2) estimate low and moderate income housing needs, (3) set criteria and guidelines for municipalities to determine and address their own fair share numbers and then (4) review and approve Housing Elements and Fair Share Plans and Regional Contribution Agreements (RCAs) for municipalities. As a quasi-judicial organization, COAH could also impose resource restraints and consider motions regarding housing plans.[5]

In New Jersey, the amount of affordable housing units each municipality should provide is determined in rounds. This allows each municipality to adjust for an ever-changing demand for affordable housing. These calculations have been based on different methodologies throughout the years. During the first two rounds of affordable housing obligations, calculations were based on the “fair share” method.[6]

During the third round of affordable housing obligations, COAH introduced calculations based on the “growth share” method. During these three rounds, a total of 1,469 deed-restricted affordable units per year were created. COAH faced significant pushback with this methodology as housing advocates claimed the affordable housing produced was insufficient to address the need.[7] This criticism, coupled with political pressure and allegations of inaction from COAH, ultimately led to the New Jersey Supreme Court decision, Mount Laurel IV, that COAH had failed.[8] COAH was effectively stripped of its power and jurisdiction over affordable housing production was given back to the courts. The Court also appointed Fair Share Housing Center to represent the interests of the public.[9]

Fair Share Housing Center

Fair Share Housing Center, or FSHC, is a Cherry Hill-based nonprofit organization that litigates against towns in enforcement of fair housing development and is one of the most prominent affordable housing advocates in New Jersey.[10]

FSHC was founded in 1975 after the landmark Mount Laurel I ruling that declared that all municipalities in New Jersey must provide their fair share of affordable housing.[11] The organization was founded by the plaintiffs, including both the community leaders and their attorneys, of Mount Laurel I.[12] In 2015, when New Jersey’s Supreme Court eliminated COAH and replaced it with a new system in which lower courts had dedicated Mount Laurel judges who oversaw the municipal housing plans, FSHC was also granted an official role monitoring compliance with affordable housing laws throughout the state.[13]

Builder's Remedy

A builder's remedy is a legal mechanism that can be used to expedite the construction of low or middle income housing when a municipality fails to comply with their Mount Laurel obligations.[14]

In 1983, the New Jersey Supreme Court reaffirmed the basic premise of Mount Laurel I in Southern Burlington County NAACP v. Township of Mount Laurel (also referred to as Mount Laurel II), 92 N.J. 158 (1983), and made the doctrine enforceable by giving developers an incentive to initiate exclusionary zoning suits. This incentive came to be known as the “builder’s remedy.”[15]

When a builder proposes a development that includes affordable housing and a municipality denies the proposal for violating local zoning codes, the developer may challenge the denial on the grounds that the municipality has not complied with the Mount Laurel doctrine.[16] If a court determines that the municipality had not complied with the Mount Laurel doctrine, the court may permit the developer to construct the project despite violations to the local zoning code and invalidate the offending zoning provision for excluding affordable housing.[17]

Regional Contribution Agreements (RCAs)

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.[18]

In 2008, at the behest of the Fair Share Housing Center's Peter O' Connor and over the objections of some suburban Democrats, Governor Jon 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.[19][20] Some have demanded that RCAs be returned to cut down on sprawl.[21][22]

Environmental concerns

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."[23]

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.[24]

Sierra Club

The New Jersey chapter of the Sierra Club applauded Governor Chris 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.[25]

Present-day demands for legislative reform

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

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.[26][27][28][29][30]

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.[31][32]

Legislator criticism

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.[33][34]

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.[35]

"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.[35] [36]

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."[37]

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."[38]

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."[39]

Public criticism

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.[40]

See also

  • 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

  1. ^ a b Massey, Douglas, S. (2013). Climbing Mount Laurel: The Struggle for Affordable Housing and Social Mobility In an American Suburb. Princeton University Press. pp. 33–36. ISBN 9780691157290.{{cite book}}: CS1 maint: multiple names: authors list (link)
  2. ^ "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.
  3. ^ "Opinion | Judicial Duty in New Jersey". The New York Times. February 24, 1986. Retrieved December 30, 2021.
  4. ^ "About the COAH Decisions". Rutgers Law School. Rutgers, the State University of New Jersey. Retrieved May 9, 2025.
  5. ^ "About the COAH Decisions". Rutgers Law School. Rutgers, the State University of New Jersey. Retrieved May 9, 2025.
  6. ^ Baldwin, Zoe; Pereira, Sophia; Kata, Christina. "The State of Affordable Housing in New Jersey". RPA. Regional Plan Association. Retrieved May 9, 2025.
  7. ^ O'Dea, Colleen (May 1, 2014). "COAH Votes to Propose New Rules Virtually Sight Unseen". NJ Spotlight News. Retrieved May 9, 2025.
  8. ^ Rizzo, Salvador (March 7, 2014). "NJ court orders affordable housing agency to get back to work". The Star-Ledger. Retrieved May 9, 2025.
  9. ^ Baldwin, Zoe; Pereira, Sophia; Kata, Christina. "The State of Affordable Housing in New Jersey". RPA. Regional Plan Association. Retrieved May 9, 2025.
  10. ^ Marek, Kiersten (October 7, 2014). "Behind the Fund for New Jersey's Support of a Housing Rights Group". Inside Philanthropy. Archived from the original on October 4, 2015. Retrieved December 30, 2021.
  11. ^ "About Us". Fair Share Housing Center. Fair Share Housing Center. Retrieved May 9, 2025.
  12. ^ "About Us". Fair Share Housing Center. Fair Share Housing Center. Retrieved May 9, 2025.
  13. ^ Abraham, Roshan (July 13, 2024). "Four Decades to Build 70,000 Affordable Homes? Count That as a Success". The New York Times. Retrieved May 9, 2025.
  14. ^ Klein, Corey (2012). "Re-Examining the Mount Laurel Doctrine After the Demise of the Council on Affordable Housing: A Critique of the Builder's Remedy and Voluntary Municipal Compliance". Student Works: 123. Retrieved May 9, 2025.
  15. ^ Klein, Corey (2012). "Re-Examining the Mount Laurel Doctrine After the Demise of the Council on Affordable Housing: A Critique of the Builder's Remedy and Voluntary Municipal Compliance". Student Works: 123. Retrieved May 9, 2025.
  16. ^ S. Burlington County NAACP v. Twp. of Mount Laurel (Mount Laurel II), 92 N.J. 158, 214, 279-81 (1983).
  17. ^ S. Burlington County NAACP v. Twp. of Mount Laurel (Mount Laurel II), 92 N.J. 158, 214, 279-81 (1983).
  18. ^ "RCA's: More Harm Than Good? | New Jersey Future". January 31, 2007.
  19. ^ Atlas, John D. (July 16, 2008). "New Jersey Regional Coalition wins historic housing victory". NJ Voices. Retrieved December 30, 2021.
  20. ^ "Promises, promises: GOP gubernatorial candidates' stances". Asbury Park Press. May 26, 2017. Retrieved December 30, 2021.
  21. ^ Ghassali, Mike (May 23, 2017). "Letter: Bring back RCAs for affordable housing". North Jersey Media Group. Retrieved December 30, 2021.
  22. ^ "Adapting to Fiscal Change" (PDF). newjerseyconferenceofmayors.com. Retrieved September 19, 2023.
  23. ^ Southern Burlington County, et al. v. Township of Mount Laurel, et al., 92 N.J. 158, 238 (1983) (Mt Laurel II).
  24. ^ Westhoven, William (July 6, 2017). "Controversial Whole Foods project breaks ground in Parsippany". Daily Record. Retrieved December 30, 2021.
  25. ^ Environment Essential in Affordable Housing Review.http://www.sierraclub.org/sites/www.sierraclub.org/files/sce/new-jersey-chapter/njs_sierran/Sierran_10B.pdf
  26. ^ "Affordable Housing in New Jersey". www.lawgapc.com.
  27. ^ NJ.com, MaryAnn Spoto | NJ Advance Media for (January 18, 2017). "N.J. on the hook for thousands more affordable housing units, Supreme Court says". nj.{{cite web}}: CS1 maint: multiple names: authors list (link) CS1 maint: numeric names: authors list (link)
  28. ^ Cook, Jay (July 6, 2017). "Holmdel Talks Affordable Housing with Residents | Two River Times". Two River Times. Retrieved December 30, 2021.
  29. ^ Katzban, Nicholas (June 25, 2017). "Archive: Confusion over COAH spreads". North Jersey Media Group. Retrieved December 30, 2021.
  30. ^ Symons, Michael (January 18, 2017). "NJ Supreme Court says towns must catch up on affordable housing". New Jersey 101.5. Retrieved December 30, 2021.
  31. ^ 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).
  32. ^ Rizzo, Salvador (January 18, 2017). "N.J. Supreme Court: Towns must have affordable housing". North Jersey Media Group. Retrieved December 30, 2021.
  33. ^ Westhoven, William (May 30, 2017). "Freeholder candidate rallying mayors to housing issue". Morristown Daily Record. Retrieved December 30, 2021.
  34. ^ "Freeholder candidate rallying mayors to housing issue".
  35. ^ a b Janoski, Steve (June 15, 2017). "Assemblywoman hears mayors concerns on court-mandated affordable housing". North Jersey Media Group. Retrieved December 30, 2021.
  36. ^ Janoski, Steve (June 17, 2017). "Affordable housing advocates takes aim at assemblywoman over forum". North Jersey Media Group. Retrieved December 30, 2021.
  37. ^ Hutchinson, Dave (June 20, 2017). "Housing mandate threatens quality of life, mayor says". NJ.com. Retrieved December 30, 2021.
  38. ^ Parascandola-Clee, Elizabeth (June 28, 2017). "Clark's Mayor Bonaccorso to State Legislators: 'Lead or Get Out of the Way'". TAPinto. Retrieved December 30, 2021.
  39. ^ Rybolt, Barbara (June 15, 2017). "Affordable Housing: The Who, What, When and Why Explained". TAPinto. Retrieved December 30, 2021.
  40. ^ Spadea, Bill (June 13, 2018). "Affordable housing mandates are raising YOUR taxes". New Jersey 101.5. Retrieved December 30, 2021.
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