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.

Terminology

Many terms have a specialized meaning in the discussion of this topic, as follows:

affordable housing: habitable shelter that can be rented (or purchased with mortgage financing) at a periodic cost that does not exceed a specified percentage of the household income. The periodic cost may include not only the rent or monthly mortgage payment but also utilities or in the case of a purchase, costs for real estate taxes, casualty and mortgage insurance and homeowners association charges. Affordability depends upon household income and in this context the household income must qualify as low or moderate.

exclusionary zoning: municipal use of the zoning power to exclude persons based on socioeconomic status. Exclusionary zoning will commonly refer to requirements, such as minimum lot sizes, which have the effect of increasing the cost of housing so that it is beyond the means of lower income households.

household: the person or group of persons residing in a dwelling unit. (The term "family" is not used because there is no requirement that a household members be related by blood or marriage.)

inclusionary development: a development which includes an affordable housing component

low income: a household with an annual income equal to or less than 50% of the county's median income for a household of that size, as determined by the United States Department of Housing and Urban Development (HUD)

moderate income: a household with an annual income equal between 50% and 80% of the county's median income for a household of that size, as determined by HUD

Initial development

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.

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. Among the innovations of this ruling (commonly called Mount Laurel II) were the following:

providing for the designation of a small number of trial court judges who would have jurisdiction over all Mount Laurel actions in several counties, thus allowing for development of specialized knowledge and a consistent approach to decision-making. (Three Mount Laurel judges were thereafter designated, Stephen Skillman for the northern part of the state, Eugene Serpentelli for the central part and Anthony Gibson for the southern part. In 1989 these centralized "Mount Laurel" courts were dissolved in favor of the designation of one Mount Laurel judge in each jurisdiction.)

expanding the remedial authority of trial judges to compel action by municipalities including, perhaps most controversially, the so-called "builder's remedy" which allowed a successful builder-plaintiff to proceed with a development at a higher density than would otherwise be permitted if a sufficient portion of the project was dedicated to providing affordable housing. The builder's remedy was contrary to the concept of municipal "home rule" but also carried the potential of significant population growth. Typically at that time builders were permitted to build four market-rate units for each "affordable" unit provided.

a strong discouragement of interlocutory appeals in affordable housing litigation (In New Jersey parties may not appeal interlocutory (non-final) orders of a trial court without leave to appeal from the Appellate Division, which leave is rarely granted.)

providing for the use of special masters to assist the trial judge in evaluating municipal compliance. The masters appointed were usually licensed professional planners and their fees were the responsibility of the municipality.

modifying the rules of collateral estoppel to provide municipalities who came into compliance within a six-year period of repose from further affordable housing litigation.

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.^[1] Some have accused the decision for being an example of judicial activism.^[2]

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.

Public Opinion

A 2008 survey conducted by Fairleigh Dickinson University's PublicMind revealed New Jersey voters’ attitudes towards and awareness of important NJ Supreme Court decisions, including what are known as the Mount Laurel decisions. The survey found that New Jersey voters were by and large unaware of the Mount Laurel decisions with 74% of voters reporting that they had “heard or read” little or nothing at all about the rulings. Notwithstanding widespread lack of awareness, voters largely supported the decisions with 55% of voters approving and 28% disapproving. Likewise, New Jersey voters were largely unaware of the Council on Affordable Housing with 73% reporting that they had “heard or read” little or nothing at all about the agency.^[3]

The PublicMind surveyed voters again in March 2009 with similar results. Voters were still largely unacquainted with the Mount Laurel decisions with 75% responding that they had “heard or read” little or nothing at all about the rulings. Equally, New Jersey voters were still in the dark about COAH with 72% reporting that they had “heard or read” little or nothing about the agency. The majority of voters still supported the court decisions with 52% approving and 36% disapproving. There was, however, a striking partisan divide in the results in which 69% of Democrats approved while 60% of Republicans disapproved of the Mount Laurel decisions.^[4]

References

↑ "McHose Says 'Fair Housing' Bill Misses the Mark; Doesn't Address Why Housing is Unaffordable in New Jersey"], Alison Littell McHose press release dated June 11, 2007 on PoliticsNJ.com. Accessed June 22, 2007.
↑ 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."
↑ Fairleigh Dickinson University's PublicMind Poll “Voters Unfamiliar with Abbott and Mount Laurel" press release (June 25, 2008)
↑ Fairleigh Dickinson University’s PublicMind Poll “Mt. Laurel, COAH, and the Race for Governor” press release (March 13, 2009)

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