Mount Laurel doctrine

The ''Mount Laurel'' doctrine is a significant judicial doctrine of the New Jersey State Constitution. The doctrine requires that municipalities use their zoning powers in an affirmative manner to provide a realistic opportunity for the production of housing affordable to low- and moderate-income households.

The doctrine takes its name from the lead case in which it was first pronounced by the New Jersey Supreme Court in 1975: ''Southern Burlington County N.A.A.C.P. v. Mount Laurel Township'' (commonly called ''Mount Laurel I''), in which the plaintiffs challenged the zoning ordinance of Mount Laurel Township, New Jersey, on the grounds that it operated to exclude low and moderate income persons from obtaining housing in the municipality.

History

Initial development

After the decision in ''Mount Laurel I'', suits were filed against numerous municipalities. The plaintiffs in such suits fell into three classes: lower income persons who actually sought housing and advocacy organizations on their behalf; the New Jersey Public Advocate; and builders who sought to construct developments containing affordable housing.

These early exclusionary zoning suits were beset by numerous difficulties and little, if any, affordable housing resulted. In 1983 appeals in several of these cases (of which ''Southern Burlington County N.A.A.C.P. v. Mount Laurel Township'' was again the lead case), gave the New Jersey Supreme Court the opportunity to reaffirm and tweak the ''Mount Laurel'' Doctrine and provide several mechanisms and remedies to make the doctrine more effective.

1980s legislative reaction

The New Jersey Supreme Court was aware that the ''Mount Laurel II'' decision would be controversial and would engender debate about the proper role of the courts. The opinion invited legislative action to implement what the court defined as the constitutional obligation.

In 1985 the New Jersey Legislature responded by passing th
Fair Housing Act
Accepting the premise that there was some constitutional obligation for municipalities to foster some degree of affordable housing, this legislation created an administrative agency, the Council on Affordable Housing (COAH), to establish regulations whereby the obligation of each municipality in terms of the number of units and how the obligation could be satisfied.

A municipality which elected to participate in COAH's administrative process prior to being sued was provided with protection from litigation and especially the builder's remedy. As a transitional provision, the act provided that municipalities involved in litigation when the act was passed were to be able to transfer the litigation to COAH unless manifest injustice would result.

COAH developed regulations under which the specific number of affordable units that each municipality would be required to provide (its "pre-credited need") could be determined. Participating municipalities developed compliance plans to address this need by such means as the application of credits (''e.g.'' filtering, spontaneous rehabilitation, extra credit for rental units), the use of regional contribution agreements (transferring part of the obligation to a willing municipality, usually an urban center, in the same region along with payment in an amount agreed by the municipalities) and zoning for affordable housing (usually involving increased density and mandatory set-asides). When COAH approved a municipality's compliance plan it would grant "substantive certification" which was designed to provide the municipality with protection from exclusionary zoning litigation.

From the municipal point of view, the advantages of COAH's administrative process included the use of a formula to calculate fair share that might produce a lower obligation than the court would impose, the availability of the regional contribution agreement to reduce the number of units and the ability to determine where in the municipality that affordable housing ought to be developed rather than being forced to permit a development as a reward to a successful builder-plaintiff. Those municipalities that chose not to participate in COAH's administrative process remained vulnerable to exclusionary zoning lawsuits and the prospect of the builder's remedy. The disadvantage would be that a participating municipality might be required to zone some land in a manner that extra housing would be produced. Some municipalities, believing that the likelihood of facing an actual exclusionary zoning lawsuit was low enough, took their chances in not participating.

Criticism of the decision

While the Mount Laurel decision mandates a state constitutional obligation for every municipality in a "growth area" to provide a fair share of its region's present and prospective housing needs for low and moderate income families, there is no funding source specified for low or very-low income families, in a state that already has some of the nation's highest property taxes. Some have accused the decision for being an example of judicial activism.

1980s judicial response to the Fair Housing Act

The New Jersey Supreme Court welcomed the legislature's adoption of the Fair Housing Act. A number of trial court decisions had denied transfer of pending cases to COAH under the manifest injustice standard, but the Supreme Court read that term very narrowly and ordered the cases transferred. The trial courts were directed to conform their rulings with regard to calculation of each municipality's obligation and how to meet it to COAH's regulations and the statute was found facially constitutional and interpreted to grant COAH ample authority, such as restraining the use of scarce resources (sewer capacity, potable water, land) for other than providing affordable housing, to assure that affordable housing might actually be built.

The Council on Affordable Housing (COAH)

COAH is a currently defunct government agency created in the 1980s to administer Mt. Laurel requirements. Some have argued it needs reinvigoration.

The Fair Share Housing Center

The Fair Share Housing Center, or FSHC, is a Cherry Hill-based nonprofit organization founded in 1975 that litigates against towns in enforcement of fair housing development.

Builder's remedy lawsuits

A "builder's remedy lawsuit" is a New Jersey lawsuit filed by a real estate developer in an attempt to force a New Jersey town to allow the construction of a large, multi-family housing complex that includes some affordable housing alongside ordinary apartments

Usually, the developer's court papers will make specific mention of the Mt. Laurel doctrine, which holds municipalities responsible for providing affordable housing to low and moderate income households. Some have argued that developers exploit the Mount Laurel doctrine with the builder's remedy and prevent town efforts to combat overdevelopment and sprawl. Some recent "builder's remedy" lawsuits or related concerns include:

*Annandale.
*Bridgewater.
*Cranford. The developers Samuel and Peter Hekemian sued the Township of Cranford to allow a mass-density development. One Cranford local opined that the builder's remedy "takes the power from our township engineers, public safety officials, board of education members and budget offices and gives it to the S. Hekemian Group, a Paramus-based builder of apartment complexes. And there is nothing anyone can do about it. It is a court order based on what they refer to as builder remedy litigation. Apparently, progress is only found in concrete."
*Emerson. Local officials expressed concerns over impact of Mount Laurel on development of a 19-acre patch of woods that town officials have been trying to turn into a park.
*Livingston. Despite the efforts of the Livingston-Short Hills Coalition, affiliates of the Kushner Companies filed an affordable housing suit to build developments in the town.
*Millburn. Residents of Millburn, New Jersey objected to a proposed land development by Canoe Brook, which would create a 250-room hotel, 200 residential units and a multi-deck parking structure adjacent to the Mall at Short Hills.
*Montvale. The S. Hekemian Group filed to intervene in Montvale's affordable-housing litigation to build 1,000 units, arguing the borough "is in violation of its constitutional duty to create sufficient realistic opportunities" for affordable housing. In June 2017, Mayor Mike Ghassali stated, "Now we are on a path to spend untold amounts of time, money and borough resources to defend our town from a monstrous development that would change our community forever" regarding the lawsuit.
*New Milford. Despite objections from a community group, "Stop Overdevelopment New Milford", the developer S.Hekemian Group (SHG), led by Robert S. Hekemian and Peter Hekemian, brought a Mount Laurel builder's remedy suit against New Milford, New Jersey

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