Legal Commentary

Last Friday, the New Jersey Assembly approved A-3447, legislation that would abolish the Council on Affordable Housing ("COAH") and significantly reduce New Jersey municipalities' obligations to accommodate the regional need for affordable housing in their zoning ordinances. Republicans actually wanted the bill to reduce suburban obligations even further.

In effect, the bill is an effort by an unholy alliance of Republicans and suburban Democrats to eliminate the 1985 New Jersey Fair Housing Act, the statutory implementation of the Mount Laurel doctrine. That doctrine, in turn, is the product of the New Jersey courts' thirty-five year war on exclusionary zoning. Under Mount Laurel, each municipality's zoning ordinance must permit sufficient residential uses to accommodate that municipality's "fair share" of the "regional need" for affordable housing. Although the Assembly is controlled by Democrats, the impetus behind gutting the New Jersey Fair Housing Act comes from Governor Chris Christie who has made the war on the Mount Laurel doctrine a centerpiece of his tenure. The opposition has come from urban Democrats who as recently as 2008 have attempted to strengthen the Fair Housing Act.

This political alignment might seem paradoxical. After all, are not suburban conservatives supposed to be supporters of private property? How, then, can they now be cheerleaders for local zoning? Zoning law is the single most intrusive regulatory interference with property in land existing in the United States: The average zoning regulation makes EPA's rules look positively libertarian. Consisting of a detailed mesh of command-and-control style regulations governing virtually every aspect of buildings -- their use, height, bulk, footprint, etc -- zoning unquestionably raises the price of housing through the restriction of housing supply.

Have Republicans gone socialist in their fondness for zoning? I think that there are two ways to understand this odd conservative solicitude for suburban zoning: (1) Hostility to class and race integration of the 'burbs and/or (2) hostility to redistribution of wealth.

First, race and class might take priority over property rights in conservative ideology. Libertarian rhetoric against intrusive government is just fine -- but not when it allows low- and moderate-income housing to invade your suburban enclave. Second, hostility to redistribution of wealth might trump hostility to regulation in conservative ideology. By insuring that each resident live in a structure of similar value, restrictive zoning insures that each resident pays a similar property tax bill, thereby transforming ad valorem property taxes into an annual fee reflecting the average costs of living in the jurisdiction.

Of course, suburban homeowners who loathe Mount Laurel might embrace both motivations simultaneously. The test for disentangling these motivations (class/racial snobbery or simple fiscal stinginess) might be whether the centralization of New Jersey's fiscal system erodes support for suburban zoning exclusion. Already, the New Jersey courts have centralized property taxation to some extent by imposing a degree of fiscal equalization on municipal educational spending. If Christie follows through on his promise to cap property taxes, then the effect of zoning decisions on one's property tax bill will be further eroded. Will New Jerseyites' love of exclusion be eroded as well? If not, then we will have a data point about what matters most to conservatives who claim to love private property.

As a conservative with a soft spot in my heart for the fee simple absolute, I cannot help but pine for the days when Republicans actually fought against restrictive zoning. Under Jack Kemp's watch as Secretary of HUD, the Republicans actually issued a report denouncing regulatory barriers to affordable housing. Taking seriously their commitment to private property rights, the Kemp Commission actually recommended that the federal government take steps to break down suburban walls to accommodate poor households' housing needs.

Now an aspiring "moderate" Republican like Christie makes war on the very principles for which Kemp, then regarded as a darling of conservatives, once crusaded. How times have changed.