On this date in 1975, the Supreme Court of New Jersey decided Southern Burlington Cty. NAACP v. Mount Laurel Tp., 67 N.J. 151 (1975). There, the Court held that each municipality “must, by its land use regulations, make realistically possible the opportunity for an appropriate variety and choice of housing for all categories of people who may desire to live there, of course including those of low and moderate income.” That decision rested on State constitutional law.
The unanimous opinion of the Court, written by Justice Hall was, for its era, a fairly long decision, filling page 157-192 of 75 New Jersey Reports. Justice Mountain filed a half-page concurring opinion, and Justice Pashman wrote a concurrence that was nearly as long as the opinion of Justice Hall.
Little did anyone know then that what later became known as Mount Laurel I would lead to Mount Laurel II, 92 N.J. 158 (1983), a unanimous opinion by Chief Justice Wilentz that consumed roughly one-third of 92 New Jersey Reports and was intended to “put some steel” into the Mount Laurel doctrine, as the Chief Justice stated near the beginning of the opinion. Mount Laurel II generated much criticism of the Supreme Court in some quarters, and soon begat the Fair Housing Act (“FHA”), N.J.S.A. 52:27D-301 et seq., by which the Legislature sought to restrict the Mount Laurel doctrine. In Hills Dev. Co. v. Bernards Tp., 103 N.J. 1 (1986), Chief Justice Wilentz, again writing for a unanimous Court, upheld the validity of the FHA, thus giving the lie to claims that the Court was going beyond its constitutional role and usurping the function of the Legislature in the area of low and moderate-income housing.
The FHA created the Council on Affordable Housing (“COAH”), which was empowered to determine the total need for lower income housing, the regional portion of that need, and the standards for allocating to each municipality its fair share, instead of leaving those issues to the courts. COAH too has been the subject of criticism, from both advocates and opponents of low and moderate-income housing. Only last month, the Appellate Division rejected COAH’s latest proposed rules and sent them back for more retooling. The Legislature is seeking to abolish COAH altogether.
Low and moderate-income housing remains a serious issue in New Jersey, especially in these difficult economic times. Some progress has been made in this regard, thanks in siginficant part to the Mount Laurel decisions. But more remains to be done.