To: RPP Board of Directors
From: Dianne Brake, President and David Kinsey, Board Member
Re: NJ Supreme Court's Recent Decision to Review the Mount Laurel Doctrine
This May, the New Jersey Supreme Court accepted review of Toll Brothers v. Township of West Windsor - the first review of a Mt. Laurel case in some time. The Supreme Court first articulated the Mount Laurel doctrine in 1975, reaffirmed and strengthened it in 1983, and upheld the Fair Housing Act in 1986. Because there was no dissenting view expressed in the lower court in Toll Brothers v. Township of West Windsor, the Supreme Court did not have to take this case. Their choice to review, therefore, signals their interest in evaluating how well the Mount Laurel doctrine has been working over the last 15 years.
For this reason, a group of planners, lawyers and environmentalists from
a number of public interest organizations are meeting to assess this situation
and determine whether to submit an amicus brief, or briefs, to promote
our interests and viewpoints in the Mount Laurel doctrine. This group includes
representatives from the Coalition for Affordable Housing and the Environment
(CAHE), the Housing and Community Development Network of New Jersey, the
Association of New Jersey Environmental Commissions (ANJEC), New Jersey
Future, the New Jersey Institute for Social Justice, and The Regional Planning
Partnership (RPP). (Dianne Brake is Secretary of CAHE and a member of the
Board of Trustees of New Jersey Future, as well as a former member of the
Council on Affordable Housing. RPP Board member and CAHE member, David
Kinsey is a planning consultant experienced as a Court-appointed master
in Mt. Laurel cases. David is the convenor of the group.)
The Toll Brothers case against West Windsor arises from a 293-acre site
zoned for inclusionary development since 1985. The entire site is located
between the AMTRAK main line and Bear Brook Road, east of Route 1, within
0.75-2.0 miles of the Princeton Junction commuter rail station. Although
there are environmental sensitivities on part of the site, the entire site
is in the Suburban Planning Area (PA 2) as mapped in both the 1992 and
2001 New Jersey State Development and Redevelopment Plan.
In 1985, the Township zoned this site for the construction of 2,655 units
(gross density of 9 units/acre), including some affordable housing, which
a trial court had found to be realistically possible. Between 1985-1993,
successive developers attempted to develop the property. In 1993, Toll
Brothers, a private developer, initiated a lawsuit under Mount Laurel alleging
that the Township had violated its Mount Laurel obligations and requesting
a builder's remedy. In 1996, the trial court ruled that the Township's
zoning ordinance was unconstitutional and awarded a site-specific builder's
remedy to Toll, requiring the rezoning of this site for the construction
of 1,165 units (400 single family detached units, 635 multi-family units,
130 townhouses, and 165 affordable family rental units) at a gross density
of 4.0 units per acre. In 2000, the Appellate Division affirmed the trial
court decision.
The Supreme Court has accepted review of three issues in the case: (a) whether the municipality prevented the required "realistic opportunity" for development of affordable housing, (b) whether the trial court should have considered the "market demand" for particular housing types in evaluating the realistic opportunity of the municipality's housing plan and zoning ordinance, and (c) the appropriateness of the builder's remedy in this case.
Attorneys affiliated with these public interest groups are still conducting an in depth review of the case. The New Jersey Supreme Court, however, has been receptive in similar situations to information and perspectives from public interest organizations about the broader issues related to Mount Laurel implementation. The voice of public interest organizations is expected to be particularly important in this case, since other stakeholders with significant political and economic power, such as the New Jersey League of Municipalities and the New Jersey Builders Association, will be participating in this case.
The public interest community could educate the Court, for example, that the 26,000 new affordable units built since 1983 under Mount Laurel are a miniscule fraction of the 600,000 residential building permits issued in New Jersey since 1983. This is important information, since press reports have recently reinforced popular perceptions that affordable housing development has significantly contributed to suburban sprawl.
Similarly, interested parties may be well placed to discuss the effectiveness of the existing incentives for voluntary municipal compliance with the doctrine, including the threat of the "builder's remedy" and immunity from litigation for municipalities with compliant housing plans and zoning ordinances. Currently, about 320 municipalities are under the jurisdiction of either the New Jersey Council on Affordable Housing ("COAH") or Superior Court. There are 220 municipalities with COAH-certified housing plans and at least 14 municipalities with housing plans approved by Superior Court.
There is support within the group that the following principles should be advanced in any amicus brief or briefs submitted to the Supreme Court:
(1) Mount Laurel is critically important in promoting meaningful access for low and moderate income (less than 80% of median income), minority, and urban residents to housing opportunities in suburban jurisdictions with better schools, safer neighborhoods, and better access to quality employment opportunities.
(2) Despite its successes to date, Mount Laurel implementation can be meaningfully improved, in particular by finding more incentives to municipalities to comply, and by finding ways to provide housing to income groups below 45% of the median.
(3) Any revisions in Mount Laurel implementation should emphasize maximizing affordable housing development in accordance with sound environmental and planning principles, as articulated in the State Development and Redevelopment Plan. These principles include:
- Providing an appropriate jobs-to-housing balance to provide an adequate labor force to protect the economy, keep housing prices reasonable, and reduce traffic congestion.
- Protecting natural resources, farmland and open space.
It is clear that the group will not be supporting either Toll Brothers or West Windsor in this case. Rather the group wants to articulate the principles outlined above as they relate to issues raised by the Supreme Court.
At this point, it is anticipated that interested parties would need to meet and decide on a general strategy for intervention by the end of June so that briefs could be drafted during July and August 2001. During these months, organizations could determine the exact policy positions they might wish to further by formally agreeing to sign on to one or more amicus briefs.