“Opening up the Suburbs”: An Evaluation of Affordable Housing in New Jersey

American Literary Critic, Henry Louis Gates once stated, “If Martin Luther King came back, he’d say we need another civil rights movement built on class not race”. Although Gates statement is expandable by many examples, an area particularly demonstrating this inequality among classes, is exclusionary zoning. These local laws have been seen to detain lower-income individuals from residing in certain communities by mandating specifications on lot sizes, types of housing, and the number of buildings and occupants allowed. Consequently these factors trigger an increase in community housing costs, and thus drive away lower-income individuals.
In the past few decades however, states’ tolerance for exclusionary zoning have dissipated, and new zoning requirements to enforce realistic housing opportunities have been enacted. Particularly, the state of New Jersey has chosen to tackle affordable housing through the judicially enforced Mount Laurel Doctrine. Yet even under its establishment, the doctrine’s history and evolvement has proven that “opening up the suburbs” follows with the opening of controversy. Since the doctrine’s creation, courts have been confronted with hundreds of litigations from developers and municipalities stemming from Mount Laurel’s questionable creditability and changing demands. The Mount Laurel Doctrine was originally created off the court decision made in Southern Burlington County NAACP v. Mount Laurel Township now known as Mount Laurel I. This court decision however, only sparked the path for many more litigations and legislative decisions to come. Specifically Mount Laurel I was followed by Mount Laurel II, The Fair Housing Act of 1985, the Council of Affordable Housing and Mount Laurel III, all aimed at improving the credibility and mechanisms behind New Jersey’s affordable housing efforts. With each new change however, a new set of resistant communities or developers subsequently developed due to their lose of zoning control. This effect reveals the struggle, which exists to satisfy all parties involved in affordable housing while also achieving successful results. Although the Mount Laurel Doctrine has provided affordable housing to the state of New Jersey, the constant changes of the doctrine and the laws it has since generated reveal that finding the ideal strategies and mechanisms to achieve affordable housing will always be a struggle as long as the municipalities and developers involved continue to demand control.
In 1975, the court decisions made in Southern Burlington County NAACP v. Mount Laurel Township, commonly known as Mount Laurel I, established the affordable housing standards, which comprise the Mount Laurel Doctrine. The initial issue in Mount Laurel I arose when the plaintiffs, composed of poor and minority citizens, argued that the Township of Mount Laurel had effectively excluded them from its municipality through land use regulations. According to the case facts, these land use regulations forbade attached townhouses, mobile homes, and apartments from being “anywhere in the township under the general ordinance”. These restrictions therefore kept the plaintiffs from residing in the community, and “realistically only [allowed] homes within the financial reach of persons of at least middle income”. This exclusionary result therefore raised a clear legal question of whether a municipality may make it “physically and economically impossible to provide low and moderate income housing”. Although this issue may appear overly fundamental now, before this time, municipalities were always able to control their zoning decisions around the desires of local residents. Thus, the court’s decision ruling that affirmative steps must be taken to offer affordable housing options was quite detested by municipalities. Specifically, in defining the state’s new expectations, Mount Laurel I ordered in its decision that each municipality “must affirmatively afford [the] opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need”. This language thereafter would act as the basis in determining affordable housing contributions, but it would also prove to be quite controversial.
Because Mount Laurel I, failed to explicitly define the terms of a “municipality’s fair share” and the “present and prospective regional need,” the doctrine was soon seen to lack enforceability and municipalities did not abide by it. A specific example of this early failure is found in the case Oakwood at Madison, Inc. v. Madison Township, in which the court chose not to define a fair share housing quota or to distinguish regional boundaries. Instead, the court allowed municipalities to satisfy their fair share obligation by proof of a “bona fide effort” to provide a realistic opportunity. The court chose this method because, being wary, it knew it did not want to get involved in such a complex determination. Specifically, the court noted, “because of the conjectural nature of such calculations, utilization of the court as the forum for determining a municipality's fair share may result in 'statistical warfare' between the litigants”. Instead the court wanted to burden each municipality and each developer to prepare its own study to support its position. Without a court-defined basis however, the results gathered in such studies proved to be too inconsistent to reach a valid housing conclusion. Municipalities simply retained their zoning power and no affordable housing was built. The Mount Laurel I decision therefore failed to provide the doctrine with a credible strategy that would give it authority.
Recognizing these shortfalls, the conclusions reached in Mount Laurel I were reversed and remanded eight years later in order to give the court the opportunity to better determine the mechanisms needed to fulfill the doctrine’s purpose. These new rulings officially established Mount Laurel II, with the Builder’s Remedy being one of its most powerful devices. This remedy incentivized builders to initiate litigation by demonstrating that a municipality’s zoning was exclusionary. If the litigation was successful the builder would “be granted permission to build at a higher density than would otherwise be provided so long as the builder also provided a portion of affordable housing in its construction”. Under these considerations, the court ruled that “a builder's remedy should be granted unless the municipality establishes that because of environmental or other substantial planning concerns, the plaintiff's proposed project is clearly contrary”. Although the litigation-based strategy of the Builder’s Remedy left municipalities powerless in their zoning decisions, the power it consequently granted developers was large enough to raise concern. In the three years after Mount Laurel II was decided, more than one hundred lawsuits were filed against over seventy New Jersey municipalities. “As community after community found itself dragged into court and saw its zoning powers usurped,” it became clear that granting so much power to developers was not the most respected solution to affordable housing.
In response to this controversy, the New Jersey State Legislation passed the Fair Housing Act in 1985 to codify the Mount Laurel Doctrine and created an administrative agency, known as the Council on Affordable Housing (COAH), to give municipalities the option to protect themselves from the builder’s remedy. In order to gain this protection however, municipalities needed to comply with COAH’s methodology and administrative process, which continued to keep municipalities away from control. Along with hearing zoning disputes, COAH was responsible for calculating the present and prospective need for affordable housing using its own methodology to determine the value of each municipalities’ fair share obligation. Specifically COAH “established a fair share calculation to provide every New Jersey municipality with the number of affordable units it was required to build”. Although this procedure was successful in securing municipalities’ obligations, it resulted in yet another new concern based on the calculations’ lack of transparency. Created by “Professor Robert Burchell at Rutgers University, the fair share methodology has been widely panned by housing advocates and municipalities alike,” being thought as a “black box”. In other words, municipalities were concerned that COAH could have been easily manipulating numbers in order to obtain results in their favor. Yet as the only way to avoid the Builder’s Remedy, most municipalities incorporated COAH’s results into their housing plans to gain proper certification and protection.
COAH’s certification process for housing plans however, brought a different type of concern from the standpoint of developers, who claimed that the Fair Housing Act was unconstitutional due to the delays the certification process caused in starting construction. Developer’s main concern was that the Act was “sabotaging the Mount Laurel Doctrine,” but in the dispute Hills Development Co. v. Bernards Tp in Somerset County, now known as Mount Laurel III, the court was able to uphold the constitutionality of the Fair Housing Act against the developers’ claims. In the case, plaintiff-developers claimed that the Fair Housing Act brought “manifest injustice” due to the “alleged delay in the construction of low and moderate income housing, the potential loss of suitable sites, and the significantly increased infrastructure costs for developers”. In response, the court stated, “the claim is based on a totally false premise, namely, that there is some constitutional timetable implicit in the obligation [of Mount Laurel]”. However, the court refuted that there is no such suggestion of a deadline after which legislation would not accept the satisfaction of the obligation. Although the court denied the developers’ claims, the premise behind the claims, served to reveal the underlying agitation the developers felt about the Act’s impact. Specifically, because many municipalities were choosing to participate in COAH’s certification process, less municipalities were subject to the builder’s remedy, which therefore left developers angered by their loss of power. On a different point, another important aspect of this decision serves to show the “innovative refinement of techniques for the process of [Mount Laurel] litigations”. Although the Mount Laurel III decision may have not left all parties satisfied with the current approach, it did affirm that the Fair Housing Act could successfully stand up against the claims, which came its way.
Under this consideration, it may have appeared that New Jersey had finally found a successful system to ground affordable housing, but the underlying strategies to determine contributions still needed improvement. Specifically the complexity and transparency problems in COAH’s fair share calculation continued to pose issues in the years to come. Included in the response to the 2002 Mount Laurel litigation, Toll Brothers, Inc. v. Township of West Windsor, the Rutgers Environmental Law Clinic confronted that “the formula [to calculate affordable housing] is unnecessarily complex and, more importantly, fails to take into account the growth anticipated to occur in the subject municipality in the ensuing years”. Furthermore the fixed result from the fair share calculation was not always realistic. Specifically in slow economies, meeting these numbers posed a great challenge to municipalities. Although during the time of the Toll Brothers’ case the court chose not to address these formula problems, it did acknowledge that changes in COAH’s housing methodology were needed. In 2004, COAH finally made these changes by doing away with the “black box” of the fair share calculation, and introduced “growth share” as the new mechanism to determine affordable housing contributions. Under growth share, municipalities were provided with a clear explanation that they only needed to build affordable housing if market-rate units or commercial properties were also developed. Based on municipality growth projections from the New Jersey Department of Labor and Workforce Development, “the rules require one affordable unit to be built for every four market-rate residential units built, and one affordable unit for every sixteen new jobs created”. Under this approach, COAH had finally established a transparent system that municipalities could actually understand, support, and perhaps even control.
Although municipalities embraced the growth share technique with much satisfaction, builders and other public advocates viewed growth share in a negative light, claiming that the approach contradicted the goals of the Mount Laurel Doctrine. A representative from the New Jersey Builders Association called the growth-share approach “a burden not only on poor people, but on the whole economy,” because it encouraged towns to deny potential commercial development to diminish their growth projections. Under this concern, the court’s appellate division changed the rules by putting COAH in charge of the growth projections, which left municipalities powerless once again. This revision therefore fixed the concerns from one standpoint, but it also made the ones from the municipalities’ standpoint return. Along with being left powerless, some municipalities showed further dissatisfaction from the newest change by raising that the strategy ignores unique community circumstances, such as land shortages, and “fails to distinguish between growing towns that already provide affordable housing and those that presently have no affordable housing”. Because of these oversights, municipalities have approached COAH, seeking immunity from these new standards, which is a matter that could have been easily avoided if possible faults were considered in advance. Although the growth share approach remains the current device for affordable housing determinations, the issues it has already caused show that an ideal method has still not been found. Even after almost four full decades of Mount Laurel’s history, the mechanisms used to generate affordable housing are still far perfect.
Despite the fact that the Mount Laurel Doctrine has delivered affordable housing results in New Jersey, the constant changes of the doctrine and the laws it has since enforced show that finding an appropriate strategy to achieve affordable housing will always be a struggle as long as the parties involved continue to demand control. Differences among parties are natural, however they also make satisfying each party’s individual needs extremely difficult. The municipality will always want to build less, the developer will always want to build more, and COAH will always need to find a compromise somewhere in between. While focusing on all the problems happening among these groups however, it is easy to lose sight of another group extremely impacted by affordable housing. This group is of course the lower-income individuals. Although problems have constantly been occurring in the background, “ approximately 40,000 affordable housing units have been built in New Jersey's suburbs” on account of the Mount Laurel litigations. This end result supports that the process endured to create affordable housing truly is worth it, since each housing unit equals a bettered life. Take for example Helen Hodges, a teacher from Trenton, who “never thought it would be possible for her to own her own home”. In DePalma’s article Hodges recalls her first night in her two-bedroom condominium, stating, “I just kept wanting to pinch myself. I just worked up till the time it got dark and then relaxed and enjoyed myself knowing I was away from the drugs in the city”. Being just one of thousands, Hodges’s experience exemplifies how the Mount Laurel Doctrine and Fair Housing Act have improved the lives of lower class citizens all throughout the state. It serves as a reminder that affordable housing is not about retaining power, but about granting an opportunity. It is for the betterment of lives, and it is this purpose, which makes the long line of struggles that affordable housing has endured, and will continue to endure, truly worth it.

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