In Part 1 and Part 2 of “Affordable” Housing Sprawl, we considered how a government leadership vacuum and profit-minded developers and lawyers have plagued New Jersey with affordable housing sprawl, and how the Highlands Council is developing new planning and legal guidance to reign in the overbuilding as the next wave of affordable obligations looms.
The Council’s goal is simple: Protect the environment and the drinking water for 70 percent of the state’s residents.
But the Highlands Council is responsible only for the Highlands region, which includes more than 800,000 acres across 88 towns and parts of seven counties.
Clubbing towns like baby harp seals
What’s good for the Highlands may turn out to be good for all New Jersey towns. And how the Highlands will handle the next wave of the affordable obligation may finally put an end to what has been referred to as “affordable housing sprawl.”
Towns outside of the Highlands may recognize that the settlements they are negotiating or have already signed with the so-called Fair Share Housing Center may be profoundly flawed and may deserve reconsideration.
The Fair Housing Act itself, as well as the seminal Mt. Laurel court decisions, seem to be on the Highlands Council’s side — and every town should consider how to take back the law for the advantage of its citizens.
If asked, most New Jersey mayors would say the FSHC is a cudgel used by developers. The late attorney Henry Hill, who sued towns on behalf of developers, was quite outspoken about how easy it is: “I once stated actually in a law review article that municipalities who are faced with Mt. Laurel litigation are not unlike baby harp seals during the periodic Canadian massacres. They can slither and they can squeal, but not for very long.”
Town officials succumb quickly to such legal threats rather than defend their rights. Although a bit indelicate, Henry Hill was right. Today, FSHC carries on Hill’s bullying strategy.
The ultra-high-density rezoning scam
In town after town where well-established zoning has a legal presumption of validity, FSHC forces towns to undo that zoning and adopt ultra-high-density zoning so developers can build loads of highly profitable market housing units.
New Jersey’s problem is not “racist, exclusionary” towns. It’s greedy developers. It’s FSHC’s lawyers that set the table so those developers can gorge on available land. And it’s the courts that facilitate the scam of affordable housing sprawl.
Contrary to the word and spirit of the Fair Housing Act, and in what can only be called a scam, the settlements often violate sound planning practices, dispense with important environmental considerations, and needlessly throw towns into massive debt.
The Highlands Council seems to suggest that legal protections the courts and FSHC have stripped away from towns through intimidation and threats are in fact still in place — but towns are not using them.
The 1975 and 1983 New Jersey Supreme Court Mt. Laurel I and II decisions, and the Fair Housing Act, readily reveal the core rights of towns and property tax payers.
It’s the law: Towns not obligated to pay for affordable housing
“The Supreme Court of New Jersey in its Mount Laurel decisions demands that municipal land use regulations affirmatively afford a reasonable opportunity for a variety and choice of housing including low and moderate cost housing, to meet the needs of people desiring to live there. While provision for the actual construction of that housing by municipalities is not required, they are encouraged but not mandated to expend their own resources to help provide low and moderate income housing.” N.J.S.A. § 52:27D-302h
“Nothing in P.L.1985, c.222 (C.52:27D-301 et al.) shall require a municipality to raise or expend municipal revenues in order to provide low and moderate income housing.” N.J.S.A. § 52:27D-311d
It’s the law: Towns not obligated to ignore sound planning or environmental constraints
“Builders may not be able to build just where they want — our parks, farms, and conservation areas are not a land bank for housing speculators… The specific location of such housing will of course continue to depend on sound municipal land use planning.” Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel, 92 N.J. 158, 211 (N.J. 1983)
“Of at least equal importance, the criteria will not necessarily result in the imposition of the obligation in accordance with sound planning. There may be areas that fit the ‘developing’ description that should not yield to ‘inevitable future residential, commercial and industrial demand and growth.’ Those areas may contain prime agricultural land, open spaces and areas of scenic beauty; apart from these their development might impose unacceptable demands on public investment to extend the infrastructure required to support such growth.” Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel, 92 N.J. 158, 224 (N.J. 1983)
The Highlands Council’s thrust to enforce water-quality protection laws to curtail unsupportable new housing of any kind seems to be a warning to the courts themselves — and to the courts’ hit-men at FSHC.
Outdated courts and judges
Echoing the executive director of the Highlands Council is R. William Potter, a leading attorney in land use, environment and energy at Potter & Dickson. Potter explicitly takes to task the outdated activism of courts and judges that seem to favor the always extremist and often thuggish FSHC lawyers. In a New Jersey Spotlight op-ed sure to raise cries of blasphemy from FSHC’s adherents, Let’s reexamine impact of the ‘Mount Laurel doctrine’, Potter also chides lazy and unsophisticated municipal personnel and their consultants:
“It’s high time for planners, lawyers, municipal officials, environmental groups and journalists, among others, to take a deep dive into the record of how the ‘Mount Laurel doctrine’ has been construed and applied over the past four decades: What did it mean then and what does it mean today, and — most important — what are the lessons learned and not learned.
“A further question that has received scant attention is the impact on the judiciary, which may raise delicate issues of judicial fairness and even-handedness.” -R. William Potter
With the sometimes questionable support of certain judges (see South Brunswick Accuses Judge Of Conflict Of Interest In Affordable Housing Battle) FSHC has bullied hundreds of towns into settlement deals that deliver many more market units than affordable units.
Together with the courts, FSHC clearly puts market-housing construction and builders’ profits ahead of sound planning, water quality, environmental protection and prudent public fiscal practices. It is impossible to imagine how FSHC’s disregard does not hurt “the poor.”
For example, when the Highlands Council warns that FSHC has negotiated settlements with Highlands towns for 16,000 affordable units — more than the region’s resources can support — doesn’t resulting ground water pollution infect new affordable housing residents, too? What does FSHC tell the judge at the required “fairness hearing” where each settlement receives court approval? (For an illustration of how haphazard fairness hearings can be, see Clinton Township violates Sunshine Law, interferes with affordable housing fairness hearing.)
A more robust approach to affordable housing & protection of natural resources
Perhaps the Highlands approach will show the way for towns to fulfill a legitimate obligation to provide housing, while also protecting — for residents old and new, well-to-do, and of average and lesser means — their critical natural resources from exploitation by profiteers who have selectively interpreted the law to their advantage.
There are at least two stark examples in the law that reveal towns have always had the power to control their planning, their natural resources, their finances, and their future.
- It’s clear in the law and in the Mount Laurel Court decisions that sound planning, water quality, farmland, open spaces and scenic beauty are not to be compromised in the course of building affordable housing.
- The Fair Housing Act makes it clear that towns are not obligated to raise or expend municipal revenues to pay for affordable housing.
Asserting protections under the law does not make towns “racist” or “exclusionary.” We’ll have to see whether the FSHC tries to paint the Highlands Council with the same well-worn brush.
Questions for the courts
It’s time for municipalities to stop cowering before the cudgel. They are not helpless baby harp seals. There is no requirement to bond for millions or tens of millions of dollars to build housing of any kind — or to make “donations” to FSHC’s lawyers to get them to sign a settlement deal.
It’s time for municipalities to use the law against the indefensible affordable housing sprawl loosed by the courts. Towns must no longer stand by for the gun-on-the table negotiating style of FSHC’s lawyers — it’s clear the Highlands Council won’t.
This instantly begs the question every town should immediately ask the courts to answer: Will you review all the FSHC settlements against a legal and data model like the Highlands will use? Will you validate the FSHC’s “numbers”?
Affordable housing, YES. Affordable housing sprawl, NO
The Highlands Council’s robust new technical and legal tools may profoundly change the way all towns in New Jersey calculate the number of affordable housing units they are required to build — finally facilitating the delivery of legitimate affordable housing that limited natural resources and taxpayers can support.
Certainly the state can achieve its goals without turning the Highlands region and the rest of New Jersey into a failing land bank for housing speculators.
Special thanks to veteran news editor Curtis Leeds, affordable housing attorney Mike Jedziniak, and Highlands Coalition Policy & Communications Director Elliott Ruga.