Saving Mount Laurel?

Article excerpt

Introduction   I. The Need for Mount Laurel. Municipal Collective Action        Problems   II. The Problem with Mount Laurel. Informational Burdens of        the Unit-Based Approach   III. A Solution to Mount Laurels Problems? Focus on Zoning        Restrictions        A. The Proposal: A Presumptive Ceiling on Zoning           Restrictiveness        B. Comparing Mount Laurels Fair Shares to a Ceiling on           Zoning Restrictiveness        C. Implementing a Ceiling on Zoning Restrictiveness           Through Filtering Credits 

This is about getting Trenton the hell out of the business of telling people how many units they're supposed to have--some arbitrary, ridiculous formula that nobody could ever explain. (1)

--New Jersey Governor Chris Christie, on his efforts to dismantle the Mount Laurel doctrine

INTRODUCTION

Mount Laurel is in trouble--again. But has there ever been a time when this statement has not been true? The Mount Laurel doctrine seems perennially hovering on the brink of extinction. It was surrounded by controversy when it was finally made effective with a "builder's remedy" in 1983, (2) and it barely survived its transition to statutory implementation in the form of the New Jersey Fair Housing Act in 1985. Both Governors James McGreevey, a Democrat, and Chris Christie, a Republican, made open war on it. (3) Governor Christie has gone so far as to attempt to abolish by executive order the Council on Affordable Housing (COAH), Mount Laurels statutorily created guardian. (4) COAH itself has attempted to weaken the doctrine with a "growth share" definition of the "fair share" obligation that the New Jersey appellate division has ruled illegally weak. (5)

Yet Mount Laurel stubbornly draws breath, albeit on life support: Despite the important constituencies in New Jersey that would like to pull the plug, there are other constituencies that stop the euthanizing of the doctrine. The State Assembly, controlled by Democrats with leadership from New Jersey's impoverished cities, has refused to let Governor Christie gut the doctrine with his own version of "growth share," (6) and the New Jersey state courts doggedly resist Governor Christie's efforts to dismantle COAH or municipalities' "fair share" obligation. (7)

It is an oddity when a legal doctrine cannot settle down to a comfortable middle age after thirty years of turmoil. One might impatiently say about Mount Laurel what Oscar Wilde's Lady Bracknell said about Algernon's fictional friend Bunbury in The Importance of Being Earnest. "It is high time that [Mount Laurel] made up [its] mind whether [it] is going to live or to die. This shilly-shallying with the question is absurd." (8)

Why cannot Mount Laurel make up its mind whether it is going to live or die? The dilemma arises from Mount Laurels serving a genuine need in a clumsy way. On one hand, as I explain in Part I, the doctrine helps New Jersey's 566 municipalities and townships overcome collective action problems that otherwise might excessively impede an adequate supply of housing. (9) On the other hand, the specific design of the doctrine--in particular, the assignment of specific numbers of housing units to particular municipalities--undermines the doctrine's effectiveness as a device for overcoming these collective action problems. As I suggest in Part II, this "unit-based" rule--that is, a rule that assigns housing units to particular jurisdictions--places extraordinary informational burdens on judges and bureaucrats, because such a rule forces public officials to do the job of siting housing, a task usually reserved for housing markets rather than law. (10) Because the data and siting criteria are so controversial, unit-based doctrines invite maximum homeowner resistance, as each suburban and rural jurisdiction vies with each other to skew the contestable formulae in their own favor. Inner-ring suburbs, for instance, will want to emphasize "buildable land," as a factor for siting affordable housing, while rural townships will want to encourage infill and redevelopment. …