NJ Spotlight, July 1, 2013
By Colleen O’Dea
In 1975, Mount Laurel was the first ruling in the country to prohibit communities from enacting "exclusionary zoning" practices.
Named after a South Jersey township, the Mount Laurel decisions are New Jersey Supreme Court rulings that have defined the responsibility communities have to provide a certain amount, known as their “fair share,” of affordable housing to people with low or moderate incomes.
What it means
Every New Jersey municipality must provide its share of affordable housing. The first Mount Laurel decision, in 1975, was the first of its kind in the nation, prohibiting municipalities from “exclusionary zoning” practices, so towns cannot enact land-use rules that make it impossible for affordable housing to be built. The second decision, in 1983, went further and ordered communities to provide housing for those with low or moderate incomes. In response, the state Legislature passed theFair Housing Act that created the Council on Affordable Housing to determine municipal housing needs and approve plans to meet those needs.
In the 1960s, then-rural Mount Laurel began developing housing and commercial units designed to attract tax ratables and middle- and upper-middle-class families. At the same time, the township was condemning substandard homes – some wereconverted chicken coops — of mostly poor blacks, who worked on the farms. They could not afford the new single-family homes. A nonprofit group sought approval to build 36 garden apartments for displaced residents and the township turned them down, with the mayor saying that anyone who couldn’t afford to live there should leave town. So a group of citizens led by Ethel R. Lawrence, who has been called the Rosa Parks of affordable housing, and the NAACPs of Southern Burlington and Camden filed a class-action lawsuit against Mount Laurel.
The case ultimately made it to the New Jersey Supreme Court, which in March 1975 issued what would become an oft-cited decision barring the practice of exclusionary zoning. The court ruled that all municipalities, through zoning, had to allow enough housing for people of all classes, including the low- and moderate-income, to meet its share of the need in its region. The U.S. Supreme Court declined to hear a challenge.
Mount Laurel II
But many municipalities refused to follow the decision. Mount Laurel itself rezoned three tracts of land that were less than ideal – one site was in an industrial park and another was wetlands. The plaintiffs went back to court, saying the township had not met the Supreme Court mandate. They lost in Superior Court and appealed, prompting the state Supreme Court’s Mount Laurel II ruling.
In that decision, the court said that every municipality must provide its “fair share” of the regional need and set up some requirements for doing so. Towns have to provide realistic zoning opportunities for the housing and show how their zoning and other actions would lead to the actual construction of affordable housing. It also established the “builder’s remedy,” allowing a developer willing to make 20 percentof a development low- and moderate-income housing to sue for a zoning change.
Fair Housing Act of 1985
In response, the Legislature passed the Fair Housing Act of 1985, creating theCouncil on Affordable Housing, which oversaw municipal efforts at providing housing for the low- and moderate-income. COAH was charged with devising municipal housing quotas every six years. Voluntary participation in the council would protect a municipality from builder’s remedy lawsuits.
Some towns have complied and others have not, choosing to try their luck in the courts instead. The Mount Laurel decisions have led to the construction of about40,000 affordable units throughout the state. But some municipal officials continue to balk at providing any such housing.
The system is currently in a state of uncertainty. The third set of quotas issued by COAH cut housing obligations and exempted municipalities that choose not to grow from having to provide any additional affordable units. They also allow communities to transfer half of their obligation to another municipality and fulfill up to half their units with senior-citizen housing. The Appellate Division of Superior Court ruled in January 2007 that those rules violated the earlier Mount Laurel decisions and the FHA and ordered COAH to issue new regulations. It did so in October 2008 and those are the subject of a current legal challenge.
The COAH Conundrum
In the meantime, Gov. Chris Christie tried to abolish COAH twice and ultimately was told by the courts that he did not have the authority to do so. Legislators have sought to do the same, but have not been able to agree with Christie on a new mechanism to replace the COAH process. The council has met only once since the court ordered its reinstatement and that was primarily to start the process of taking money meant to help build affordable housing from municipalities and giving it to the state. That action, too, has been the subject of court action. And while COAH has not been functioning, little affordable housing has been built.
NJ Spotlight, July 1, 2013