Fair Share Housing Center


Any Reform Should Be Constitutional

Posted by Kevin Walsh on January 29th 2010

The Senate Economic Growth Committee has scheduled a hearing on Monday at 10:30 a.m. in Trenton to discuss changes to the Fair Housing Act. The effort appears to be principally driven by wealthier municipalities that do not want affordable housing. Totally lost in the conversation thus far, and in the proposed legislation, is the constitutional nature of the Mount Laurel doctrine. As an organization that defends the common sense constitutional principles underlying the doctrine, we want to share our view of what has been proposed.

To begin with, it is important to note that although we have long fought for better housing policies and remain open to changes that actually improve how NJ provides housing opportunities, we are skeptical that Monday’s hearing is motivated by a genuine interest to make housing affordable. Indeed, the legislation that is being discussed would turn the clock back 35 years to a time when municipalities could use heavy-handed government regulation to ensure housing for only the wealthy and exclude regular working folks. The legislation would free municipalities from any real standards and thus put them in control of whether they have an obligation at all. The legislation would also bring back regional contribution agreements, which were abolished in 2008, and eliminate requirements for very low income housing.

But, for purposes of discussion, let’s assume that genuine progress is what is being discussed and consider what minimally must be done to meet the standards of Mount Laurel decisions in which the New Jersey Supreme Court required municipalities to provide their fair share of the region’s need for affordable housing. To meet the standards of the Mount Laurel doctrine, legislation or regulations implementing the doctrine must include the following:

  • A check on municipal discretion. Municipalities covet “home rule,” but that tradition has made New Jersey one of the most racially- and economically-segregated states in the nation. The Mount Laurel doctrine requires municipalities to provide opportunities for housing even when they would prefer to close the door. Any system that lets municipalities calculate their own obligations is impermissible.

  • The elimination of municipal red-tape. Governor Christie has made much of red-tape in state government, but the red-tape at the municipal level is one of the greatest impediments to housing affordability. Draconian land use regulations discourage development in even the areas of our state most appropriate for growth, such as major employment centers and areas around train stations, which in turn drives up housing prices. The Mount Laurel doctrine prohibits municipalities from taking steps that interfere with the production of starter homes by adopting unnecessarily restrictive zoning and other policies.

  • Calculation of housing need for low- and moderate-income people. The municipal obligation is based on the housing needs of the region for low- and moderate-income people. Together, municipalities in a region are required to adopt plans that meet the region’s full need. Municipalities cannot limit the housing opportunities they provide to the need within their own borders.

  • Realistic opportunities. Municipalities may not demand affordable housing be produced without providing some incentive to builders to make the opportunity realistic. This can be done without cost to municipalities through the adoption of zoning. Requiring that 20-percent of a development be set-aside as very-low, low- and moderate-income housing has been proven to work, given appropriate densities.

  • No preference based on residency. The New Jersey Supreme Court long ago found that municipalities cannot favor their own residents over people living in the region because doing so reinforces the racial and economic segregation of our state.

  • Provide opportunities for families. The Mount Laurel doctrine is principally geared toward providing opportunities for families with children, permitting them to leave low-opportunity municipalities to access opportunities, such as good schools, jobs, and transit, throughout the region.

Mount Laurel sets the minimum requirements of a constitutional land use scheme, but otherwise permits affordable housing policy to be made by the Legislative and Executive Branch. The elected branches thus have the discretion to ensure that our housing, environmental, and transportation policies are mutually supportive.

We will continue to work to improve the existing system affordable housing system in NJ, including through the litigation before the Appellate Division in which we seek to increase the affordable housing need and further restrain municipalities from excluding lower-income households. We will insist that any changes that occur do not offend the progress made thus far in the Third Round and that the state government continue to enforce the laws that are on the books now. Our experience has been that delay frequently is used to interfere with affordable housing production and we thus must be vigilant that NJ’s wealthy municipalities do not use the mere discussion of change as a basis for doing nothing.