Mt. Laurel Man (1) Courting Justice

The best thing for me about New Jersey is the library system where I have access to millions of books well-chosen by professional librarians. The worst thing, in far too many instances, is government by kakistocracy.

This series will spell out a scam being played on Kenilworth taxpayers that has cost us over one million dollars so far (enough to run the Kenilworth library for a year). I have been barred from asking related questions of Kenilworth officials and OPRA requests have been embargoed so this will all be based on what I have uncovered on my own without feedback from here on from government sources.

First a bit of perspective with excerpts from a 2013 book on “New Jersey cases that shook the nation” which includes a chapter on the Mount Laurel Affordable Housing mess that is the basis of the scheme being played out here and then some short clips that I can now better identify with.

However, because the judiciary’s ability to bring about social change is ultimately dependent upon the elected branches’ cooperation and enforcement, the considerable promise of the court’s bold rulings in Mount Laurel remains largely unfulfilled. (Page 46)

Ethel Lawrence’s own daughter was able to remain in Mount Laurel Township only by living in a converted chicken coop. (page 47)

The trial court in the Mount Laurel case bypassed the issue of inequality based on race. Instead, the court focused on inequality based on economic status, ruling that Mount Laurel Townships’ system of land use regulation was invalid because it unlawfully excluded low- and moderate-income families from the municipality. (page 48)

Justice Hall went on to say: “We have reference to young and elderly couples, single persons and large, growing families not in the poverty class, but who still cannot afford the only kinds of housing realistically permitted in those places – relatively high-priced, single family detached dwellings on sizable lots.” (page 48)

Directly on the issue of race, Justice Hall declared, “we accept the representation of the municipality’s counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility….This ruling was based on the justices’ finding that governmental power can only be exercised for the general welfare of the people – that is, governmental power cannot be used to favor one group of citizens over another. The justices concluded that, because the state controls the use of all land in the state, neither the state nor local municipalities can enact land use laws effectively favoring the rich over the poor. Such discrimination was considered unconstitutional and, because exclusionary zoning favored the rich to the disadvantage of the poor, that land use practice was unconstitutional. (page 49)

Although a large proportion of New Jersey’s black residents lived in “poor” cities, they were far from a majority of those cities’ residents (page 51)

Such change is only possible when the people in our more fortunate communities understand that what is required of them is not an act of generosity toward the people in the ghettos, but a decision of direct and deep self-interest. In Mount Laurel, the New Jersey Supreme Court used its broad conception of the “general welfare” to convert the theme of economic integration from an expression of an American ideal reflecting direct and deep self interest to a constitutional mandate. (page 53)

While the Mount Laurel court raised many interrelated issues for consideration, the court remained consistent in its position that these issues were more appropriately dealt with by the legislature. (page 54)

The court’s action, according to its critics, amounted to an inappropriate encroachment on the role of the elected branches of government that are supposed to be more accountable to the will of the people. (page 54)

The relevant state constitutional obligation, according to the court, included the right to substantive due process of law and to equal protection under the law. To satisfy these rights in the context of the constitutional power to zone, a municipality must exercise that power for the general welfare, not just for the welfare of that municipality and its current residents. (p0age 55)

The New Jersey Supreme Court’s declaration of housing as a fundamental right and its imposition of an affirmative obligation on municipalities to provide for a fair share of housing needs for all income groups go beyond what any court, state or federal, had done by 1975 or has done since. Nor has any other court, state or federal, gone as far in recognizing poverty as a factor to be weighed in the constitutional inquiry. With its bold pronouncements in Mount Laure, the New Jersey Supreme Court surely shook the nation. (page 55)

However, even if the judici8al branch were willing to entertain litigation that reaches deeply into the political and legislative arenas by taking on cases at the intersection of law and policy, judicial rulings in such cases are almost never self-executing. Their implementation depends upon subsequent actions of the executive and legislative branches of government, both of which ultimately are dependent upon and responsive to the political will of the majority. Almost any court-inspired reform that lacks substantial community or political support is more likely to be reversed or to languish for years with little or no progress. such has been the fate of Mount Laurel. (page 58)

The reality, however, was that little if any effective direct pressure was brought to bear behind the enforcement of the Mount Laurel doctrine. Perhaps symptomatic was the state’s dismantling of the Office of the Public Advocate in the 1990s after that office demanded that the state be more responsive to the supreme court’s rulings. (page 58)

As a transitional step toward delegating Mount Laurel’s enforcement to the state legislature, the aforementioned State Development Guide then was adopted by the court. It served as the primary standard to determine the focus and extent of each municipality’s fair share obligation to provide a realistic opportunity for the construction of low and moderate income housing. Transition from the judiciary to the elected branches of government was completed after the state supreme court’s ruling in Hills Development Co. v. Bernards Twp. In that case, the court upheld as fair and constitutional a statutory provision requiring all cases concerning the constitutional obligation embodied in the Mount Laurel doctrine to be transferred to an administrative body for review and appropriate action toward compliance. The Hills case is often referred to as Mount Laurel III. (page 59)

Any properly adopted constitutional amendment will take precedence over a judicial ruling. Chief Justice John Marshall may have been correct in his assertion that it is the duty of the judicial department to declare what the law is. Such declarations must conform to constitutional language, however, and changing that language would almost certainly change the judiciary’s interpretation. (page 60)

Ultimate control over implementation of Mount Laurel’s principal mandates by the elected branches was provided for by the adoption of two new laws: the Fair Housing Act in 1985 and the State Planning Act in 1986. (page 60)

For a much different reason, builders joined attempts to forestall enactment of the Fair Housing Act. For them, passage would signal the judiciary’s virtual removal from enforcement of the Mount Laurel rulings and the subsequent loss of the “builders’ remedy” designed by the court to provide a site-specific right to rezoning in cases involving noncompliant municipalities. (page 61)

One provision in the governor’s conditional veto recommendations particularly troubled Senator Lipman, housing advocates, and others interested in seeing the Mount Laurel doctrine implemented. This provision allowed one municipality to enter into an agreement with another under which the “receiving” municipality could assume, for a price, up to 50 percent of the “sending” municipality’s fair share housing allocation. These arguments, known as Regional Contribution Agreements (RCAs), were to be regulated by COAH, including the price to be paid to a receiving community, and were generally executed between a suburban sending municipality and an urban receiving municipality. (page 62)

Unfortunately, COAH’s implementation of RCAs actually worsened the preexisting situation. For example, COAH set the sale price of housing units transferred pursuant to RCAs so low (initially $20,000 per unit) that it only supported rehabilitation of existing substandard units, not the construction of new units. As a result, a suburban sending municipality would get credit for providing an affordable housing unit, reducing the statewide assessment of the need for such units, even though no additional affordable unit was actually added to the state’s inventory. The deleterious effects of RCAs were not reversed until 2008 when, amid widespread jubilation among the remaining Mount Laurel loyalists, legislation outlawing their use was adopted. Just one year later, however, COAH proposed new regulations that appeared to resurrect the RCA concept under a new name – Regional Affordable Housing Development Planning Programs (RAH-DPPs). (page 63)

COAH’s decisions, since its inception in 1985, amount to an effort to both minimize and dilute the production of affordable housing in New Jersey….Unfortunately, in upholding the Fair Housing Act in 1986 and transferring all pending litigation to COAH, the court’s retreat from the affordable housing controversy, and the more fundamental matter of eradicating economic inequality in access to housing, was complete. (page 64)

As was the case with the Fair Housing Act, however, there is reason to question whether the State Planning Act was actually intended to advance the Mount Laurel doctrine or to provide yet another open invitation to circumvent its spirit. (page 64)

Furthermore, many of the state’s previously attractive and highly functional suburbs in near proximity to urban areas have, over time, taken on many of the unattractive and dysfunctional characteristics of the state’s urban areas. (page 66)

As to Mount Laurel’s dispersal goals, the [Wish and Eisdorfer] Report reveals that implementation has resulted in very few urban residents moving to suburban areas, and even fewer black or Latino urban residents doing so. (page 67)

The reality, however, has proven to be that placing emphasis on the proximity of the workplace to the project site only perpetuates the vicious cycle that the Mount Laurel doctrine sought to eliminate. Moreover, it has produced a constitutionally indefensible Catch 22: a person’s home should be in reasonable proximity to his or her workplace, but he or she first needs the job to qualify for access to such a home. In creating this unintended outcome, the court likely misunderstood the relationship between housing and employment. It is more likely that employment opportunity, not housing opp0ortunity, dictates migration patterns….It would app-0ear that being poor enough to qualify for a Mount Laurel home often also meant one was too poor to obtain a mortgage loan to buy it. (page 68)

Suburban municipalities and builders appear to have taken care of their own. (page 69)

That Mount Laurel positioned New Jersey as a pioneer in the area of state growth management is attested to by the fact that, as of 1983, only six other states had adopted laws creating statewide agencies and planning regulatory systems to address land use growth management issues. Of these six, only Oregon included housing needs explicitly as part of a statewide growth management program…as of 1983, only California regularly assessed and allocated housing needs to local governments albeit in a much less direct manner than provided for under the Mount Laurel doctrine. (page 70)

The difference between the two events is that the former [Rosa Parks] mobilized great numbers of outraged black Americans and launched a movement for social change and social justice that found sympathy and cooperation from similarly large numbers of white Americans. The latter [Ethel Lawrence] launched a long and tedious series of lawsuits. (page 71)


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