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An historic time for the Mount Laurel Doctrine

Posted by Kevin Walsh on November 16th 2009

This is my inaugural blog posting, which comes at an important time in the history of the Mount Laurel doctrine. On December 1, 2009, the Appellate Division will hear oral argument on the 30 appeals of the Third Round housing regulations filed by municipalities, builders, and Fair Share Housing Center. The panel of three judges will decide whether the Council on Affordable Housing’s regulations satisfy the requirements of the Mount Laurel doctrine and whether municipal claims of being unfairly treated are legitimate.

Background on how we got to this point, through a decade-long delay of implementation of the Third Round rules, is available here.

The problems that led us to appeal the new Third Round rules include continued under-calculation of the actual need for affordable housing and an ongoing reliance on municipalities to decrease their obligations simply by discouraging growth. Municipalities are now assigned numerical obligations that they must meet, but COAH has been intentionally ambiguous about what that means. The agency is attempting to walk a line between violating the Appellate Division’s January 2007 decision and interfering with mayors’ desire to manipulate zoning regulations to attract only the wealthiest New Jerseyans to their towns.

There is also a problem with how much of the 116,000 units of need will actually be provided. We have reviewed virtually all fair share plans in the state and concluded that less than 50,000 units will be provided due, to name just a few of many problems, to the existence of bonus credits; 12,000 units that were not allocated to any municipality; and 13,000 units that were allocated to the Highlands but will not be met there.

Although the regulations in place today are better than those adopted in 2004, we expect the Appellate Division will invalidate them because they still fall far short of meeting the constitutional standard. We have urged the Court, however, to avoid further delay and thus to direct municipalities to continue to implement their fair share plans. While municipalities do so, COAH can reallocate additional obligations and otherwise revise its regulations to ensure that they appropriately implement the Mount Laurel doctrine. By sometime in 2011, the court’s remedy could begin to be implemented statewide.

The frustrating history of the Third Round reminds one how important the constitutional nature of the Mount Laurel doctrine is and the important role the judiciary plays. There are times, such as last year, when bold leadership and a unified voice will prompt the Legislature, with the acquiescence of the Governor, to act to meet the housing needs of our state. There are other times when demagoguery, xenophobia, or a bureaucratic disarming of the constitution win out, and it is in those times that the judiciary must step in.

And so on December 1, 2009 we will present our arguments about what changes to the Third Round regulations the Mount Laurel doctrine requires. We have been doing so in various forums for close to a decade now and are proud to say that we’re making progress one step at a time.

For more information about the argument and how you can watch it, please e-mail Kevin Walsh at kevinwalsh@fairsharehousing.org.