''Mount Laurel'' doctrine

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.

History

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.

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

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

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.

Historic public opinion

A 2008 survey conducted by Fairleigh Dickinson University's PublicMind revealed New Jersey voters’ attitudes towards and awareness of important New Jersey Supreme Court decisions, including what are known as the Mount Laurel decisions. The survey found that New Jersey voters were mostly 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]

The Council on Affordable Housing (COAH)

COAH is a currently defunct government agency created in the 1980s to administer Mt. Laurel requirements. Some have argued it needs reinvigoration. ^[5]

The Fair Share Housing Center

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.^[6] Some have alleged that the FSHC has "ties to developers."^[7]

Builder's remedy lawsuits

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.^[8] Some recent "builder's remedy" lawsuits or related concerns include:

• Annandale. ^[9]

• Bridgewater. ^[10]

• Cranford. The developers Samuel and Peter Hekemian sued the Township of Cranford to allow a mass-density development. ^[11][12][13] 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." ^[14]
• 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.^[15]

• 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. ^[16][17]

• 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.^[18];^[19]

• 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.^[20][21]

• New Milford. Despite objections from a community group, "Stop Overdevelopment New Milford,"^[22], 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.^[23] "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.^[24]

• West Orange. The Fair Share Housing Center,and Garden Homes, an affiliate of the Wilf family, owners of the Minnesota Vikings,^[25] have brought legal action to create more affordable housing units in West Orange, New Jersey.

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.” ^[26]

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.^[27]

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?"^[28]

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.^[29]

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."^[30]

2017-era 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.

^[31][32],^[33];^[34][35]

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. ^[36][37]

Legislator outcry

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. ^[38]

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 entirce borough of Manhattan," she stated, calling the issue one of overdevelopment "madness."

In the summer of 2017, Assemblywoman Schepisi held the first of several planmed public hearing in Paramus with various civic leaders on mandated affordable housing with local mayors and other state assembly members. ^[39]

“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. ^[40]

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." ^[41].

In Union County in the summer of 2017, the Clark town council issued a unanimous resolution demanding that the state legislature take action to reform the affordable housing issue; the mayor stated that, otherwise, "Union County will look like Queens in 25 years." ^[42]

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." ^[43]

Regional town partnership approaches

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." ^[44]

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

References

External links

• Works related to Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel at Wikisource
• Rutgers School of Law-Newark's Mount Laurel Archive
• http://www.politicsnj.com/mchose-says-fair-housing-bill-misses-mark-doesnt-address-why-housing-unaffordable-new-jersey-9290
• http://www.huduser.org/publications/fairhsg/lending.html