The New Jersey Supreme Court & Judicial Activism: Zoning Rights The New Jersey Supreme Court went

beyond its constitutional authority when it waged an all-out attack on suburban New Jersey through its Mount Laurel Doctrine, established in Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel (Mount Laurel I) (1975) and revised and expanded in Mount Laurel II (1983). In Mount Laurel I, the Court declared that the Township of Mount Laurel’s zoning ordinance was unconstitutional because it violated the general welfare by not providing “realistic” opportunities for the construction of affordablei housing for low and moderate incomeii individuals and families. Eventually the Court mandated that all municipalities throughout the state had to provide a “realistic” opportunity for the construction of its regional “fair share” of low and moderate income housing. Article IV, Section VI, paragraph 2 of the State Constitution states:
The Legislature may enact general laws under which municipalities, other than counties, may adopt zoning ordinances limiting and restricting to specified districts and regulating therein, buildings and structures, according to their construction, and the nature and extent of their use, and the nature and extent of the uses of land, and the exercise of such authority shall be deemed to be within the police power of the State. Such laws shall be subject to repeal or alteration by the Legislature.

In Mount Laurel I, the plaintiffs challenged the township zoning ordinance. Mount Laurel was a suburban community in South Jersey that was in a development stage in the 1970s. Its zoning ordinance was tailored by the municipality to keep property taxes down for the benefit of its citizens. Its laws did not permit high density housing and, for the most part, permitted only single-family homes in its residential zoning sections. The town attracted industry to support its fiscal objective to keep its property taxes low. The plaintiffs filed suit claiming that Mount Laurel’s zoning ordinance was unconstitutional because it prohibited housing that was affordable for poor and moderate income families. The Court agreed with the plaintiffs and ruled that because housing is a basic human need, the town could not justify its zoning regulations on fiscal grounds. By ruling that housing was a basic human need, the Court reached into the role of the legislature and inserted a right that is nonexistent in the New Jersey Constitution. This is a clear violation of the authority granted to the judiciary and judicial activism at its finest. Moreover, because Mt. Laurel’s land use restrictions did not permit construction of housing that the Court deemed “affordable” for low and moderate income families who lived in sub-standard housing within Mt. Laurel or other developed suburbs or cities, it was economically discriminating against them. Under the Mount Laurel Doctrine, a municipality must not just be concerned about its citizens’ “welfare.” The Court wrote that “a municipality must provide a “reasonable opportunity for an appropriate variety and choice of housing…to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries” (Mount Laurel I). “When regulation does have a substantial external impact,” the Court said, “the welfare of the state's citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served” (Mount Laurel I). By stretching out the application of and determining what

violated the “general welfare,” a concept that is not explicitly mentioned in the state constitution, the Court attempted to legally justify social engineering schemes that have long been goals of the Left. The Court felt that it, not the Legislature or municipalities, should decide what policies and laws promote or violate the “general welfare,” Which is another clear example of judicial activism. As conditions change, the Court argued, legislative and judicial attitudes must change as well in the application of the zoning power. Polices that serve the general welfare will change with circumstances. The Court ruled that the situation before it required a “broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all” (Mount Laurel I). The Mount Laurel I decision was limited to “developing municipalities.” Mount Laurel II would expand the requirement further to any “growth area” as designated by the State Development Guide Plan (1980). A growth area, which would be determined by regional and state planners, could be an entire municipality or part of a municipality. Mount Laurel II stated that each municipality, including those in non-growth areas, must provide a realistic opportunity to satisfy the present need for low and moderate income housing for those within its boundaries. Those in growth areas, however, “have an obligation to meet the present need of the region that goes far beyond that generated in the municipality itself.” The Mount Laurel Doctrine required that municipalities in “growth areas” provide regional “fair share” opportunities for the construction of low and moderate income housing. Through the necessity of defining “region,” “regional need,” and “fair share,” the Court drastically expanded its power, usurping more power from the legislature. The Court has since micromanaged and supervised the meaning of each of these concepts, which is formulated by the Court’s “experts.” Mount Laurel II stated that the State would be divided into three regions, each supervised by a judge chosen by the Chief Justice of the NJ Supreme Court. Each judge would develop standards and achieve consistency in adjudicating disputes over application of the Mount Laurel Doctrine. Trial courts would work with “experts” to calculate a municipality’s “fair share” of the regional need for low and moderate income housing. This move was nothing more than a power grab by the judiciary disguised as a duty to enforce the Constitution. As the Court itself deemed in Mount Laurel II, “Enforcement, to be effective, will require firm judicial management.” Instead of the Court declaring an act of another branch unconstitutional, if in fact it was, and holding the other branch in contempt of court, it decided it would take over the role of legislating for the sake of political expedience, not because it is a check the judiciary has over the legislature. Mount Laurel II expanded the mandates that municipality must meet to comply with the Court’s orders. Prior to Mount Laurel II, in Oakwood at Madison, Inc. v. Township of Madison (1977), the Court set forth legal standards to evaluate lawsuits after Mount Laurel I. In Madison the Court said that the trial court should evaluate the “substance” of the ordinance and the “bona fide efforts” of the municipality to remove exclusionary barriers to housing construction. The Court, in Mount Laurel II, overruled Madison and said that municipalities must go beyond that standard. “The municipal obligation to provide a realistic opportunity for low and moderate income housing is not satisfied by a good faith attempt,” the Court said. “The housing opportunity provided must, in fact, be the substantial equivalent of the fair share.” The municipality must go further than procedural

opportunity and is responsible for producing results. It cannot simply remove “restrictive barriers,” but must also use “affirmative governmental devices” to fulfill its substantive requirement. These devices include subsidies and incentives. Incentives can come in the form of “bonuses” for participating in the program or density bonuses, which “increases the permitted density as the amount of lower income housing provided is increased” (Mount Laurel II). Mount Laurel II set the course for trial courts to order the implementation of a “builder’s remedy” to the alleged constitutional violation. If a developer successfully sued a municipality, the trial court could order the town to allow the builder’s plan for construction, provided the court approved of the amount of low and moderate income housing in the builder’s plan. The Court thus allowed developers to usurp a municipality’s zoning power. If a trial court declares a town in violation of the Mount Laurel Doctrine, a special master may be appointed to assist the town in revamping its zoning regulations to meet the pleasures of the Court. This is a check on the legislature that was never afforded to the judiciary by the Constitution. The Mount Laurel Doctrine led to the creation of the infamous Council on Affordable Housing (COAH) in the 1985 Fair Housing Act. COAH has been a nightmare of red tape and commands from bureaucrats for municipalities. COAH’s website speaks for itself: “COAH is empowered to: (1) define housing regions, (2) estimate low and moderate income housing needs, (3) set criteria and guidelines for municipalities to determine and address their own fair share numbers and then (4) review and approve housing elements/fair share plans and regional contribution agreements (RCAs) for municipalities. As a quasi-judicial organization, COAH can also impose resource restraints and consider motions regarding housing plans.” (http://www.state.nj.us/dca/affiliates/coah/regulations/) In sum, The New Jersey Supreme Court injected itself into local zoning decisions to create a new right that every resident of New Jersey must have the ability to live in any municipality they want no matter what their socio-economic background. This power grab has led to endless litigation and judicial czarism. Municipal officials are no longer able to use their zoning power to serve the preferences of their constituents, who elected them, because they must worry about the “general welfare” of those in the region and throughout the State. The Mount Laurel I and II decisions have led to higher property taxes, increased bureaucracy at all levels of state government to comply with the Court’s mandates, and a loss of local control over how development shall proceed in New Jersey’s suburbs. This is another example of the New Jersey Supreme Court usurping the power of the legislature and engaging in wild judicial activism.

i

The Court used several studies to define “affordable”: the family pays no more than 25 percent of its income for housing (Mount Laurel I)
ii

The Court used the requirements of the federal housing subsidy program to define “low” and “moderate” income: “Moderate income families" are those whose incomes are no greater than 80 percent and no less than 50 percent of the median income of the area, with adjustments for smaller and larger families. "Low income families" are those whose incomes do not exceed 50 percent of the median income of the area, with adjustments for smaller and larger families (Mount Laurel I)

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