THE RIGHTS OF NONRESIDENTS
At one time it was assumed that the only parties who had the legal standing to bring suit against a municipality's zoning ordinance were property owners, since it was their property whose value might be reduced by the ordinance. But since the early 1960s it has been understood and acknowledged by the courts that there are instances where nonresidents and people who do not own property within a municipality may have legal standing to bring suit against a municipality's land-use controls.
Generally such suits have been brought against suburban communities over the matter of land-use controls that, in the view of the plaintiffs, unnecessarily restrict the types of development permitted (hence the term restrictive zoning). Typically, the ordinance under attack is a zoning ordinance that limits development in a part, or in some cases all or virtually all, of the municipality to single-family houses on large lots.
Many suits have been brought by minority organizations or their advocates, sometimes in conjunction with builders or developers. Very often the legal basis has been the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. This is the last clause in the last sentence of section I and reads:
nor deny to any person within its jurisdiction the equal protection of the laws.
The argument is that if the law makes it almost impossible for people to live in a municipality by preventing the construction of housing that they can afford, the law is hardly offering them equal protection. It was also argued that because the average income of blacks is well below the average income of the entire U.S. population, the burden of such zoning laws falls with special force upon blacks and is thus discriminatory.
There have been other arguments as well. One is that if a municipality uses its zoning power to drastically reduce the amount of housing that can be built within its borders, that zoning decision drives up housing prices in other municipalities by displacing to them some housing demand that it would otherwise have satisfied itself. This, in turn, suggests that parties outside of the municipality may have a stake in that municipality's land- use policies.
One of the earliest decisions to accept the latter argument was handed down by the Supreme Court of Pennsylvania in 1965.
It is not difficult to envision the tremendous hardship, as well as chaotic conditions, which could result if all the townships in this area decided to deny to a growing population sites for residential development within the means of at least a significant segment of the population.10
Probably the best-known case involving the rights of outsiders is that of Southern Burlington NAACP v. Mt. Laurel (NJ). In 1975 the Supreme Court of New Jersey found that the town's zoning ordinance excluded entire classes of people including minorities and was invalid under the New Jersey Constitution. It ordered the town to prepare a new ordinance.
Since then the Mt. Laurel story has followed a complicated legal and political path, the latest installment of which was a court decision in 2013, 38 years after the initial decision. And there is no guarantee that further litigation and political maneuvering will not be forthcoming. But the story is not all gloom. Affordable housing advocates claim that over the years the Mt. Laurel saga has led to the building of thousands of affordable units in numerous New Jersey municipalities that would otherwise never have permitted them. Here is the Mt. Laurel story in brief.
In 1983 a group of cases, generally referred to as Mt. Laurel II, pushed the first decision further. It imposed an obligation on communities to take positive steps, not just eliminate exclusionary zoning ordinances, to provide housing opportunities for low- and moderate-income residents. The wording of the decision made clear that the range of such steps might be quite broad, including not only rezoning large blocks of land but also eliminating any ordinances that might stand in the way of low- and moderate-income housing—for example, subdivision controls on street widths or buffering requirements— and might also include preferential tax treatment or subsidization for low- and moderate-income housing. The decision also suggested that setting aside some units in more expensive development for low- and moderate-income residents might be required (see inclusionary zoning in Chapter 9).
Alarm among many suburban communities was considerable. In 1985 the New Jersey legislature passed a bill that established a state Council on Affordable Housing. If the Council approved the municipality's plan, the municipality would then be immunized against a Mt. Laurel-type lawsuit. And, indeed, being able to provide this type of immunity was widely understood to be one of the purposes of the law. The law essentially provided that the Council, working with the municipality, would set numerical targets. The municipality could meet those targets both by means of the units constructed within its own borders and by means of a Regional Contribution Agreement (RCA) under which a payment of $20,000 per unit would be given to another community to help it build the remaining units for which the first community was obligated. The Council on Affordable Housing (COAH) administered the process.
The RCA process by which a municipality could deal with its affordable- housing requirements seemed fine to some people but displeased others greatly. What you think of the RCA approach depends on how you define the problem. If you think the problem is how to achieve social and economic integration, you are likely to view the approach negatively. On the other hand, if you think the main problem is how to get low- and moderate-income housing built somewhere, you may view the approach favorably.
In any case, those who took the former position gradually gained ascendancy in New Jersey, and in 2008 the state adopted the Affordable Housing
Reform Bill, which abolished the RCA system, imposed direct affordable- housing requirements on municipalities, and provided some funding for implementation. In commenting on the bill when then Governor Corzine signed it into law on June 17, 2008, one of the bill's sponsors, State Senator Dana L. Redd, stated:
This isn't just an issue of reducing overcrowding in our cities; it's also about making sure that growth is fair and balanced. Towns that are able to sustain growth, should make sure that they are willing to welcome new residents from all walks of life. Household income is not an indicator of a family's worth, and it's time a number of our higher income, suburban municipalities took notice of that fact.
Subsequently the COAH adopted a "growth share" policy under which a municipality's obligation to foster affordable housing would be related to how many other housing units were built in the municipality. Affordable housing advocates were opposed because by blocking growth generally a municipality could walk away from its affordable housing obligation entirely.
Then matters appeared to get even worse from their perspective. By then, Democratic Governor John Corzine had been succeeded by Republican Chris Christie. While not conservative by Tea Party standards, Governor Christie was far to Governor Corzine's right. He moved to abolish the COAH entirely. That might have put an end to the whole affordable housing process that stemmed from the original Mt. Laurel decision. Advocates of affordable housing were pleased when the New Jersey Supreme Court blocked this move and stated that the Governor did not have the power to unilaterally abolish a unit of government created by the state legislature. Affordable housing advocates received some more good news on September 26, 2013 when the New Jersey Supreme Court disallowed the "growth share" method.
But there was still one more cloud on the legal horizon. The Department appealed the lower court's decision to the U.S. Supreme Court, asking the Court to reject the principle of disparate impact; that is, to reject the idea that there could be a finding of discrimination even if no intent to discriminate could be shown. In June 2015 the Court rejected the appeal and sustained the lower courts. The four liberal justices, Ginsburg, Breyer, Soto- mayor, and Kagan, voted to reject the appeal, the four conservative justices, Thomas, Scalia, Alito, and Roberts, voted to sustain the appeal and, as is often the case, Justice Kennedy who occupies an intermediate position cast the deciding vote. In this case he voted with the liberals. In Texas Department of Housing and Community Affairs et al. v. Inclusive Communities Project, Inc. et al. the decision written by Justice Kennedy included the words:
The FHA [Fair Housing Act of 1968] must play an important part in avoiding the Kerner Commission's grim prophecy that our nation is moving towards two societies, one black, one white—separate but not equal.
At this time affordable housing and fair housing seems to be on solid legal ground, but it moves slowly and sometimes not at all. The first impediment is simply money. Housing subsidy money, whether from the federal government or from lower levels of government, is limited. A second factor that slows it is simply citizen resistance. Westchester County, NY has been the scene of battles over affordable housing for the past 40 years or so and not much has been built there. The current County Executive Robert Astorino asked sarcastically whether the federal government (after having brought suit against Westchester County for resisting affordable housing efforts which would have had the effect of integrating a number of predominantly white communities) might not go after New Hampshire and Vermont because their populations are overwhelmingly white. A lot of his constituents support his opposition to affordable housing and, in fact, his opposition was one of the things that got him elected. The interested reader can pursue the Westchester County affordable housing saga by googling "Westchester fair housing" and by looking up the Yonkers housing controversy in earlier editions of this book.