From Mt. Laurel to the Future: Examining the Impact of the Doctrine on Affordable Housing

Introduction

Following the historic economically discriminatory practices of many municipalities, the New Jersey Supreme Court issued a landmark ruling in the cases of Mount Laurel I in 1975 and Mount Laurel II in 1983. This historic and greatly ambitious doctrine newly asserted the unconstitutionality of municipal land use regulations that prevented affordable housing opportunities for the economically disenfranchised. As a remedy, the doctrine resulting from these landmark cases mandated that all New Jersey municipalities plan, zone for, and take based actions to deliver realistic housing and living opportunities for their ‘fair share’ amount of the region’s low- and moderate- income people. The Mount Laurel Doctrine was the first case to address economic disparity and discrimination with a mandate of regulation placed upon the state and municipalities exercise of their land use powers and as a result is widely regarded as “one of the most significant civil rights cases in the United States since Brown v. Board of Education (1954)” (Fair Share Housing Center).

Mount Laurel I and Its Meaning

In 1975, the New Jersey Supreme Court issued a historically significant decision in Southern Burlington County NAACP v. Township of Mount Laurel (“Mount Laurel I”), 67 N.J. 151 (1975), known ever since as establishing the Mt. Laurel doctrine. The New Jersey Supreme Court established the requirement that “…every developing municipality within the State of New Jersey must ensure a realistic opportunity for the construction of its fair share of the present and future regional need for low and moderate-income housing” (Knupp 9). The Mt. Laurel doctrine declared local zoning laws that exclude housing opportunities for lower and moderate-income households were contrary to the general welfare principle of the New Jersey state constitution and were thus invalid. The doctrine was likened to Brown v. Board of Education with regard to its impact on civil rights.

The aim of this paper is to examine the Mt. Laurel doctrine with a view toward reaching some conclusions about whether and to what extent the doctrine achieved its stated goal of creating housing opportunities in communities where housing for lower and moderate-income persons and families could live.

The Origin Story of the Mt. Laurel Doctrine

The township was experiencing a period of growth at the time. A community of primarily single-family detached houses, there were concerns expressed about decreased property tax revenue and increased public service costs if denser housing, such as the proposed garden apartments, were built. This prompted Mt. Laurel to enact a re-zoning plan which resulted in approximately one-half of its land was dedicated to industrial uses and two-thirds to single-family housing. This, of course, had the effect—and likely the purpose—of preventing the construction of housing for families unable to afford a single- family house. It also had an exclusionary effect on lower and moderate-income persons and families. This undeniably had racial implications as well.

New Jersey state law, prior to Mt. Laurel, had no provision that prohibited a community from using its local zoning and other land use regulations to exclude the less wealthy persons and families from living there. But once the Mt. Laurel decision was announced, the law was dramatically changed. An affirmative obligation was imposed on towns in New Jersey to make realistically possible an appropriate variety and choice of housing for the benefit of lower and moderate-income housing.

However, the Court’s decision also included language which appears to soften this new legal obligation—referring to it as applying to the extent of a municipality’s fair share of the present and prospective regional need lower and middle-income housing and an obligation that must be met unless a municipality can sustain the heavy burden of demonstrating peculiar circumstances which dictate that it should not be required so to do. This introduced uncertainty about the implementation of the doctrine from the outset (S. Burlington County NAACP v. Mt. Laurel).

Specifically, the Court determined that the Township of Mount Laurel had enacted zoning ordinances that had unlawfully excluded lower and moderate-income persons and families from living there. It required affirmative relief and immediate modification of the zoning ordinances. Analogizing zoning laws to state police power— the authority of state and local governments to protect the health safety, and general welfare of its citizens– the Court invoked the general welfare clause of the New Jersey. Constitution to establish that a zoning regulation “must promote…general welfare” (Klein 6). Adopting a broad interpretation of the “general welfare,” the Court held that all municipalities must provide for appropriate housing through its land use regulations.

With the great prospect of forced removal through economic manipulation hiding under the guise of rejuvenation many groups organized most notably Mount Laurel’s historic black community. Ethel R. Lawrence, a teacher, mother of nine, and member of the Burlington County Community Action program petitioned Mount Laurel Township’s zoning board with the goal of gaining permission for the development of thirty-six affordable garden apartments by congenial nonprofit organizations. They had lobbied to establish relocation housing for the displaced African American families. The petition clearly stated the goal of remaining in township. This antecedent proposal was met with great opposition from the political and zoning officials in the Mount Laurel Township. This sentiment of unwavering noncompliance would continue to characterize the township’s response to the request of reasonable affordable housing for decades. This sentiment was so prominent that Bill Haines, the mayor at the time, revealed to a grove of African American parishioners at Jacob’s Chapel A.M.E. Church that, “If you people can’t afford to live in our town, then you’ll just have to leave…” Even when met with a legal mandate requiring the production of affordable housing, Mount Laurel Township as well as droves of other localities masked their noncompliance claiming judicial overreach. The Mount Laurel decision and doctrine was seen as an extremely controversial judicial interpretation of the New Jersey State Constitution and as a result sparked widespread noncompliance. Between 1975 and 1983 most municipalities openly defied the implementation of housing regulations implemented in Mount Laurel I and little action was taken in response to the outward defiance because as stated by original council Peter J. O’ Connora “the political opposition was deeply entrenched and well financed…” Opposition further reinforced there main claim and excuse for noncompliance was that the New Jersey Supreme Court violated the separation of powers clause by forcing municipalities to surrender their home rule powers. For almost a decade, political leaders from more than 100 communities alongside legal council met monthly in Mount Laurel Township in the hopes of developing greater strategies of noncompliance and eventual overturn of the decision in Mount Laurel I. Those who sought economic exclusion became synonymous with the racial exclusion of African and Hispanic Americans.

This 1975 landmark decision was a significant civil rights cases in the United States which established New Jersey as a leader in the use of the law to create fair and affordable housing. It was an ambitious social experiment with the goal the economic integration of New Jersey’s towns and cities.

Mount Laurel II

Eight years later, it was clear that the Mt. Laurel doctrine was falling short in terms of its implementation. The lack of compliance was primarily attributed to the Supreme Court and lower courts for failing to adequately articulate what the doctrine required.

Consequently, in 1983 the Supreme Court returned to the doctrine it had first announced in 1975. It began by reaffirming the finding of Mount Laurel I. Southern Burlington County NAACP v. Township of Mount Laurel (“Mount Laurel II”), 92 N.J. 158 (1983). The Court then turned issues raised by housing developers who complained that their sincere efforts to build affordable housing had been blocked by what they regarded as the improper denial by recalcitrant local town officials of the licenses and permits needed to construct new housing. The Court’s response was to try to spur the implementation of the doctrine by creating special courts to hear, on an expedited basis, legal challenges from housing developers against zoning, licensing, and permit decisions were wrongly preventing the construction of housing consistent with the Mt. Laurel doctrine. These lawsuits came to be known as the “builder’s remedy” (Klein 1).

These “builder’s remedy” actions allowed a housing developer to allege that a specific piece of land should be re-zoned to allow higher-density housing than a municipality would normally permit—as long as the developer committed to set aside a certain number of units for lower and moderate-income persons and families.

However, it soon became clear that the “builder’s remedy” had serious shortcomings. Litigation proliferated, the courts were over-burdened, and others weighed in to argue that it was unrealistic and economically unsound for the courts to micromanage the real estate and housing market. A public perception began to question why the judiciary was using “affirmative action” to promote affordable housing— especially over the objection of local zoning decisions (Kraham 1-2).

Introducing a New Implementation Strategy: The Creation of a New Administrative Agency

Under the procedures and enhanced mechanisms outlined under Mount Laurel II developers and public interest groups could sue under the “builder’s remedy” to ensure compliance. This remedy allowed outside parties such as developers to take litigative action against a noncompliant municipality in order to change zoning regulations to build affordable housing units. However, in an effort to move the Mount Laurel obligations out of the courts, the Fair Housing Act of 1985 was passed.

This Fair Housing Act created the infamous Council on Affordable Housing (COAH). The COAH was a state founded agency that allowed municipalities to voluntarily devise a plan to comply with guidelines, procedures, and requirements set by the Mount Laurel litigations which allowed complete immunity from any new builder’s remedy lawsuits. The COAH used certain criteria to define housing regions, estimate the need for lower and moderate-income within each region, allocate the “present and prospective share” of affordable housing by municipality, and review compliance plans (Klein 7). Ultimately, it was working with hundreds of jurisdictions in the state to develop their fair housing goals and how best to meet them.

Unfortunately, the Fair Housing Act also introduced Regional Contribution Agreement (“RCA”s) which allowed wealthier towns to reduce by up to one-half their obligation to build affordable housing by subsidizing a neighboring town to build more such housing. The COAH also witnessed other compliance problems, such as “…requiring developers to pay for affordable housing, restricting unit ownership by age, allowing municipalities to gain additional ‘credits’ for providing rental housing…” (Klein 10). The slow and complex process of COAH issuance of compliance guidance in its First, Second, and Third Round of rules led to a loss of confidence in the capacity of COAH to make progress on its administrative mission.

The Appellate Division invalidated the COAH’s revised Third Round Rules specifically with respect to the growth share calculation of affordable housing needs (Klein 10). The growth share rules provided for the number of affordable homes to be calculated based on actual residential and non-residential growth. This allowed municipalities to reduce their obligation by controlling their rate of growth. In sum, the goal of more effectively implementing the Mount Laurel doctrine appeared to have become lost in a haze of complex calculations and creative ways for municipalities to evade their fair share of affordable housing.

In 2008, Governor Jon S. Corzine repealed the RCAs by signing the A-500 Bill, which guarantees housing opportunities to low-income families and prohibits economically prosperous towns from entering RCAs and pushing their affordable housing obligations to economically struggling towns. In 2010, State Senator Lesniak pushed for the passage of a bill that would end COAH completely and return power back to the municipalities to determine their local affordable housing needs. The basis for this change was asserted to be because of increased judicial intervention in the COAH, which ran counter to the initial reason of the agency’s creation—which was to move the implementation of Mt. Laurel from the courts to an agency created by the legislature. (Klein 12-13).

In 2011, Governor Christie issued an Executed Order ending its existence of the COAH. Governor Christie supported municipalities in their position to resist the construction of affordable housing. He justified his position by blaming COAH with violating “…sound planning principals, [being] a catalyst for urban sprawl, an attack on the environment, and a financial burden that local budgets are ill-equipped to handle.” (Klein 3). This argument begs the question: what social purpose do “sound planning principals” serve if people who are in dire economic conditions cannot afford them? Regardless of the shortcomings of the COAH, Governor Christie failed to provide an alternative approach to ensure the continuing vitality of the Mt. Laurel doctrine as a vehicle for the building of affordable housing and the economic integration of New Jersey’s communities.

Future of the Doctrine and Conclusion

To determine the future of the doctrine, further research was conducted through transpiring interviews and online correspondences with attorney, Adam Gordon, the Executive Director of the Fair Share Housing Center. The Fair Share Housing Center labels itself as, “the only public interest organization entirely devoted to defending the housing rights of New Jersey’s poor through enforcement of the Mount Laurel Doctrine, the landmark decision that prohibits economic discrimination through exclusionary zoning and requires all towns to provide their ‘fair share’ of their region’s need for affordable housing.”

When asked about whether the doctrine has achieved its goal of providing affordable housing for lower income persons and families the organization’s response was, “The doctrine itself has been incredibly successful. We have seen thousands of affordable units built across New Jersey because of Mount Laurel. Despite the non- enforcement of the doctrine between 2000 and 2015, between 2015 and present day, development in New Jersey has rapidly increased. In fact, a recent analysis of building permits in the NYC region found that the 8 counties in Northern New Jersey alone permitted more housing in 2020 than all of NYC, despite only having about 60 percent of the NYCs population. And the New Jersey part of the metro area, which comprises about 30 percent of the metro area’s population, permitted about 50 percent of the housing for the metro area in 2020; in comparison, all of Westchester, Long Island, the Mid-Hudson suburbs, and the Connecticut suburbs, which also combined comprise about 30 percent of the metro area’s population, permitted about 17 percent of the housing for the metro area, or roughly one third of the rate of permitting of New Jersey. While not all this growth can be attributed to Mount Laurel, a significant share of the production comes from over 300 Mount Laurel settlements that allow for the construction of previously prohibited homes—responding to a deep need for affordable homes in these areas.”

In terms of measuring the success of the doctrine, representatives from the Fair Share Housing Center believe that “The success of Mount Laurel is hard to quantify, but there are certain indicators that we think are most important to that analysis. [The first indicator is the] development of affordable units – as mentioned above, the rapid production of new affordable housing options in New Jersey, particularly in historically exclusionary towns, demonstrates the success of the doctrine. We estimate that over 70,000 units have been built throughout the state with another 50,000 in the midst of being developed. [The second being] shifting demographics in historically exclusionary towns – shifting demographics in historically exclusionary towns is another way to quantify the success of Mount Laurel. As affordable options become available in historically exclusionary towns, we have seen changing demographics, both by income- levels and race, in those places.

One of the policy issues that we are increasingly focused on is access to affordable units. While the Mount Laurel doctrine is largely successful in making sure affordable units get built, there are still policies that prevent many people from actually gaining access to those units. New Jersey has some of the worst racial disparities in the nation, and with that comes a web of policies rooted in structural racism that make it more difficult for people of color to rent and buy homes. Housing policies that rely on criminal background checks, credit checks, eviction records, and source of income, harm communities of color and make it harder for them to find housing.

Most recently, FSHC worked in coalition with other social and racial justice organizations in New Jersey to pass landmark legislation, the Fair Chance in Housing Act, that creates a statewide prohibition on asking about an individual’s criminal record on an initial housing application. This is the first statewide law of its kind in the nation. Once a conditional offer of housing is made, the landlord is prohibited from asking about or considering certain types of records and offenses altogether and may only consider certain offenses based on a tiered framework with specific lookback periods. The law also has a strong enforcement provision that allows for landlords to be fined up to $10,000 per violation.

The Fair Chance in Housing Act is just one example of a housing policy that attempts to extend the reach of the Mount Laurel doctrine. FSHC is also looking at policies to address issues with source of income, credit checks, home appraisals, insurance rate setting, and eviction filings. We wouldn’t necessarily call these shortcomings of Mount Laurel, but instead important complementary policies given structural racism.” The notice of action was most definitely clear and, “Most, if not all, communities understand that they have an obligation, but that doesn’t mean they are eager to comply. As mentioned above, New Jersey has some of the worst racial disparities in the country— across multiple indicators of well-being. We have one of the worst racial wealth gaps in the country, and for a state that is almost 50% people of color, we are also one of the most segregated in the nation. New Jersey was the last northern state to ratify the 13th amendment. Our racial history is directly tied to hesitancy around Mount Laurel. Despite our status as a northeast, blue, progressive state, racism in New Jersey is deeply entrenched, and for many of these towns, the idea of building affordable housing and integrating communities is tied to that history. Attitudes are definitely changing in some places. As we get closer to settling almost all of the cases, it’s clear that the increase in development and growth in the state is impacting how people perceive Mount Laurel. And in some cases, rapidly growing communities of color, coupled with a local and national movement about racial justice, is forcing people to grapple with and think about their own communities in a different way. That’s not to say that we are no longer met with opposition and racist undertones in our interactions with some towns and developers, but there are definitely some towns – including Mount Laurel itself – where the experience of actually seeing affordable homes built has led to increased municipal support for having a racially and economically diverse community.”

When asked to reflect on the creation and subsequent moribund labeling of the COAH the response was that “The creation of COAH was largely driven by municipal resistance to Mount Laurel. While some good things did come out of some of COAH’s early work, COAH’s failure to implement Mount Laurel from 1999 to 2015 caused incredible harm to New Jersey’s lower-income residents – during that period, rents rose at twice the rate of incomes and home prices rose at three times the rate of incomes. It’s hard to argue that an agency hasn’t become moribund when it did not function for 16 years.”

According to the FSHC, the current litigation strategy is a dual action plan that goals itself in safeguarding, “access to safe, healthy, and affordable housing for individuals and families from low-income communities. Our approach couple’s litigation with policy advocacy. As our legal team works diligently to enforce Mount Laurel, and ensure that towns across the state are meeting their fair share obligations and not creating other exclusionary policies, our policy team works to expand the reach of Mount Laurel, by identifying and advocating for policy solutions that dismantle structural barriers to housing, that provide the necessary funding to build new affordable units and redevelop those in need of repair, and that tackle racial discrimination other racial disparities that must be addressed for communities of color to thrive in our state. In the litigation context, we have settled cases in 340 towns brought since the Mount Laurel IV decision in 2015, and only three of the cases initially filed after that decision remain unsettled.”

Since the current plan relies on the courts and litigation the current plan for expedition involves, “one or two designated Mount Laurel judges who handle other cases as well but develop expertise in this area by handling multiple cases. Also judges often appoint special masters, usually urban planners, to assist the court with the cases.”

“Most communities have approved plans to comply with Mount Laurel but we are monitoring to make sure they actually do implement those plans. As noted above, we have agreements with almost all towns in New Jersey, and while some have taken longer than others, we are very happy with where we are. We anticipate some issues with enforcement going forward in resistant towns, but generally feel very positive about the direction we are heading.”

Throughout the history of the doctrine and the treatment of such principles pertaining to the township’s materialization of fair and equitable housing there has been a great fluctuation in results. Although not executed in its entirety without massive resistance, the outcome was definitely a positive with 60,000 affordable units built, with a plan to double that number in the coming years. This doctrine itself has provided almost a quarter of a million people in New Jersey with affordable housing and opportunity to many more. The adaptation of such a shift in public policy goaled in affordable housing created a movement residing in residential equity. Furthermore, an evaluation from independent Commission supports the conclusion that a positive orientation has surfaced. Through the actualization of such affordable housing developments and the enforcement of such a doctrine symbolizes the transition from complete Township control to one of equity run through the court and previously moribund councils. Despite some views that the morabundness was an indication of failure, the discussion that resulted speaks to its true success as an implemented movement.

Works Cited

Klein, Corey. 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 Klein 1 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.

Kraham, Susan. RIGHT for a REMEDY: OBSERVATIONS on the STATE CONSTITUTIONAL UNDERPINNINGS of the MOUNT LAUREL DOCTRINE.

Mitchell, Silberberg, and Knupp. “The Selling out of Mount Laurel: Regional Contribution Agreements in New Jersey’ S Fair Housing Act Rachel Fox.” Fordham Urban Law Journal, vol. 16, ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1678&context=ulj.

“Resources – Fair Share Housing Center.” Fair Share Housing Center, 22 Sept. 2022, www.fairsharehousing.org/resources/.

“S. Burlington County NAACP v. Mt. Laurel | Case Brief for Law School | LexisNexis.” Community, 2023, www.lexisnexis.com/community/casebrief/p/casebrief-s- burlington-county-naacp-v-mt-laurel.

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