Legal Commentary

The New Jersey Senate is scheduled to vote tomorrow on whether to approve S-1/A-3447, a bill approved by the New Jersey Assembly that would radically cut back on New Jersey local governments' obligation not to exclude low- and moderate-income housing with their zoning ordinances. The bill eliminates the Council on Affordable Housing ("COAH"), the statewide agency charged under the 1985 Fair Housing Act with overseeing compliance with Mount Laurel obligations. More significant, the bill's new methodology for implementing Mount Laurel would require N.J. local governments to accommodate only an estimated 30,000-56,000 units of affordable housing. To view this number in perspective, keep in mind that the N.J. Appellate division struck down COAH's last set of regulations that required local governments to accommodate 115,666 units.

Despite S-1/A-3447's radical reduction in local governments' Mount Laurel obligation, Governor Chris Christie has vowed to veto the bill because it does not go far enough in eliminating local governments' duty not to exclude poor people. As I have noted before, this is an odd position for a Republican governor to take, because Mount Laurel is, at its core, a libertarian doctrine that eliminates excessive regulation of housing markets. Zoning regulations are impose outrageously costly mandates on developers to (for instance) build single-family houses on ten-acre lots, on the theory, apparently, that the public health and welfare requires that each household have ten football fields of lawn on which to cavort. Given that Christie purports to dislike Big Government, he ought to love Mount Laurel's libertarian attack on the most meddlesome regulations of all. Christie claims that he is attacking Mount Laurel in order to defend the sacred right of local government in New Jersey, but this gubernatorial defense of local autonomy seems a little threadbare, coming from a politician who capped local property taxes at 2%. If the state can limit taxes in the name of private freedom, then why can the state not also limit zoning as well? It seems that local autonomy only matters for Christie when it can be used to keep poor people out of the 'burbs, not when it can be used to make homeowners pay a higher tax bill.

But I digress. The real news is not Republican hypocrisy about Big Government but rather the impending constitutional crisis in New Jersey. Will the Court back the Appellate Division and stand up to the combined forces of the state legislature and governor? Or will the Court cave? After the jump, I will suggest that the New Jersey courts have made the judicial defense of Mount Laurel much more difficult by making the doctrine itself so complex.

The legal formulae on which each municipality's "fair share" is based are horribly obscure: they rely on complex data-driven statistics about future employment, numbers of substandard housing units, and rates of residential conversion. One is at a loss to describe these formulae concisely, let alone defend them. (I attempted to do so for my students in land-use regulation with this attached memo (Download memo), with mixed success: It took me fifteen single-spaced pages, complete with sample calculations). These formulae were calculated by three appellate division judges (Skillman, Gibson, and Serpentelli) who were trying to put flesh on the bones of the New Jersey Supreme Court's command that each municipality accommodate a "fair share of the regional need for low- and moderate-income housing." Unfortunately, the judges forgot that courts have a duty not only to reach the right result but also explain that result intelligibly to the public: Reducing the Constitution to a prolix code that the public can scarcely understand is a surefire way to lose public backing for one's opinions -- or so I am told by one prominent jurist.

If Mount Laurel falls, therefore, some of the blame must rest at the feet of a judiciary that lost sight of the prime directive of constitutional doctrine: Keep the principles simple enough to put on a tee shirt. Durable doctrine requires some memorable ringing phrase from which the mass of constitutional details can be easily deduced: "One person, one vote," "Separate is inherently unequal," "beyond a reasonable doubt," and so forth. "Fair share of the regional need for affordable housing" suggests the morally and empirically muddled world of quotas and statistics that conceals the libertarian and egalitarian virtues of Mount Laurel.

Could the basic principles of Mount Laurel be implemented more directly and simply? Perhaps -- but such implementation might require the New Jersey courts to challenge the legacy of Euclid v. Ambler Realty by stating in a forthright fashion that the banning of multi-family housing from residential zones serves no legitimate purpose. Such a doctrine, to my libertarian ears, has a nice ring to it. But New Jersey homeowners might feel differently about the matter, and one can forgive New Jersey judges from arousing the ire of the homeowners by threatening the sanctity of the residential zone that allows only the single-family detached house.

A less inflammatory doctrine would cleanly and simply strike down minimum lot sizes that served no purpose in protecting health and safety. Oddly, Judge Skillman, champion of Mount Laurel, has actually upheld a zoning ordinance requiring a ten-acre minimum lot size, justifying the law as a legitimate way to preserve a community's "rural character." I would suggest that this solicitude for egregiously costly zoning in pursuit of dubious aesthetic goals like "rural character" undermines both the housing market and the environment, requiring individual homebuyers to be land gluttons with a useless ten-acre field in order to build a single structure and thereby encouraging pointless sprawl.

Why not draw a line in the sand against such wasteful regulation? True, such a line would be judicially "activist -- but no more so than the complex arithmetic of Mount Laurel. And, unlike that impenetrable math, such simple per se rules would be a lot easier to understand and defend. Christie can easily denounce (as he did) "some arbitrary, ridiculous formula that nobody could ever explain": Will he be able to defend with equal ease a zoning law that requires a family to buy ten acres of land in order to have a home? I suggest that the libertarian merits of a judicial ban on such zoning will be harder for Christie and other fairweather friends of de-regulation to attack, because those merits are easier for everyone else to see.