New Jersey

New Jersey is a state that has long been at the forefront of the affordable housing debate, much of which has also been played out in the courts. Many of its communities had adopted exclusionary zoning provisions by the 1960s and 1970s. However, rather than communities using the courts to oppose affordable housing development, advocacy groups began to use the courts as the means to enforce constitutional provisions that were not being guaranteed through legislative action. For instance, in 1975, the National Association for Coloured People (NAACP) sued a community (Mount Laurel) that exercised blatantly exclusionary zoning ordinances in suburban New Jersey. The New Jersey Supreme Court ruled that under the state constitution, municipalities that used zoning had to provide a realistic opportunity for low- and moderate-income housing to be developed on a regional fair-share basis. It held that communities that are planning for development have the legal obligation to provide housing for their fair share of low- and moderate-income households. The fair-share concept was defined in relation to the percentage of low- and moderate income earners found in the regional population, that is, the region beyond the boundaries of the community.

The ‘Mount Laurel’ decision was a condemnation of exclusionary zoning practices. Unfortunately, the original decision failed to offer specific guidance on how to overcome these exclusionary practices. Not surprisingly, exclusionary communities did not take steps to remedy the problems, and the case was returned to court. The second time through the legal system caused the court to impose affirmative planning systems that would make the fair-share concept a metric for planning. The court imposed density bonuses and mandatory set-asides of units for low- income occupancy. The court also endorsed what are known as ‘builder’s remedies’ which are mechanisms whereby a developer is able to build units on different sites (not necessarily designated for housing) to meet the overall requirement of providing low- and moderate-income housing for the community (Calavita et al. 1997).

The New Jersey experience forced several exclusionary communities to address the issue of social and racial integration and has raised complex questions about the role of the judiciary in promoting social change (Calavita et al. 1997). Many of the suits filed by developers against suburban municipalities in New Jersey between 1983 and 1985 in the wake of the second Mount Laurel decision led to negotiated settlements. Many local governments placed pressure on the state legislature to modify the process. This resulted in the passage of the New Jersey Fair Housing Act of 1985. Under the act, the executive branch assumed responsibility for administration of the Mount Laurel fair-share doctrine. An administrative agency, the Council on Affordable Housing (COAH), was established with the responsibility of determining the fair-share obligations of all municipalities in the state and of creating a process of certification for municipalities that developed fair-share plans acceptable to COAH.

New Jersey made progress with the Mount Laurel decisions, but that progress has been slowed by unsupportive administrations which have not been willing to carry the fair-share concept forward (McCann 2006), as well as inconsistencies in the calculations of fair-share requirements (Calavita et al. 2010). In 2004 and again in 2008, the approach was modified, ultimately incorporating an inclusionary scheme requiring that each municipality needed to deliver one affordable housing unit for five market units constructed (offset by higher residential density entitlements) (Calavita et al. 2010). With the latest changes introduced during a market downturn, it is difficult to assess the outcomes of the current scheme, which remains controversial.

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