ABSTRACT: Given the major role that the State Plan plays in affordable housing issues and the New Jersey Supreme Court's earlier heavy reliance upon the State Guide Plan in Mt. Laurel II, the time has come for the Court to affirm its commitment to comprehensive and sound land use planning by recognizing the significance the State Plan should play in assessing the appropriateness of Mt. Laurel remedies applied in not only the West Windsor case but in future matters.

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Twenty-five years ago, the New Jersey Supreme Court, in an effort to incentivize municipalities to zone for affordable housing, fashioned what has become known as the Mt. Laurel Doctrine. That Doctrine exposed a non-complying municipality to what the court called a “builder’s remedy” which allows a successful plaintiff to build its proposed development, notwithstanding the absence of zoning for low and moderate income families, so long as the development includes provision for at least 20% low and moderate income units. The Mt. Laurel Doctrine has been the subject of much debate and criticism but remains the law of the State of New Jersey and has served as a model for promoting affordable housing throughout the country.

The Mt. Laurel Doctrine was strengthened by the Supreme Court in 1983 in what became known as Mt. Laurel II. The court held that where a developer succeeds in Mt. Laurel litigation, a builder’s remedy should be granted unless a municipality establishes, because of environmental or other substantive planning concerns, the plaintiff’s project is clearly contrary to sound use planning. The court emphasized that the builder’s remedy should not be denied solely because the municipality prefers some other location for lower income housing, even if it is, in fact, a better site.

In Mt. Laurel II, the Supreme Court relied heavily upon the then N.J. State Development Guide Plan as a remedial tool in Mt. Laurel disputes to insure that the imposition of affordable housing obligations coincided with the State’s regional planning goals and objectives. Significantly, the Court emphasized:

This brings us to Toll Brothers v. West Windsor Township heard by the Supreme court in November of last year, representing the first significant review of Mt. Laurel remedies in 18 years. I had the privilege of representing the American Planning Association and its N.J. Chapter, as amicus curiae, in that case, filing a brief and presenting oral argument on their behalf.

Limitations of time prevent a thorough discussion of the West Windsor case. Suffice it to say that West Windsor Township is a suburban community, located just north of the State Capital in Trenton, whose housing stock, from 1982 to 1992, more than doubled, increasing from 2907 units to 6115 units – and is comprised primarily of high priced large lot single family houses. Of the 3208 new homes build in West Windsor, the total number of constitutionally-mandated affordable units constructed was but 139. Toll Brothers, a large housing developer and owner of a 293 acre tract, sued West Windsor alleging that it had been engaged in a pattern of exclusionary zoning in violation of the N.J. Constitution as interpreted in the Mt. Laurel cases and the Fair Housing Act of New Jersey. Both the Trial Court and Appellate Division agreed awarding Toll Brothers a builder’s remedy. The Township appealed to the Supreme Court contending that it had, in fact, zoned for affordable housing by providing for, among other things, multi-family units and single family detached housing, having zero lot lines, where one side of the house is windowless and lies directly on a side lot line. The Township asserted, among other things, that the Trial Court, erred when it considered market demand for particular housing types in determining that the Township had failed to provide a realistic opportunity for development of affordable housing. The Trial Court was persuaded by Toll Brothers’ expert proofs that there was no market for multi-family and single family zero lot line units and thus the zoning was illusory – holding that appropriately sized and priced conventional single family dwellings may provide an alternative to multi-family housing to meet Mt. Laurel mandate.

West Windsor presented a unique opportunity for the APA and its N.J. Chapter to argue the vital importance of the Supreme Court’s consideration of the N.J. State Development and Redevelopment Plan, which replaced the State Guide Plan, as a tool to assist the State’s courts in adjudicating affordable housing disputes and compliance. I argued this was a logical progression from the Supreme Court’s earlier emphasis upon the State Guide Plan in its 1983 Mt. Laurel II decision, pointing out that much had happened in the legislative arena since Mt. Laurel II, most notably the adoption of the State Fair Housing Act and the State Planning Act.

The Fair Housing Act was a legislative response to Mt. Laurel and, among other things, created the Council on Affordable Housing, known as COAH to fix affordable housing obligations for every municipality and regulate compliance. Municipalities who receive substantive certification from COAH evidencing compliance with their affordable housing obligations are immunized from Mt. Laurel builder’s remedy lawsuits for the period encompassing substantive certification – 6 years.

In the State Planning Act, the Legislature declared that New Jersey, s the nation’s most densely populated state, requires sound and integrated statewide planning and the coordination of statewide planning with local and regional planning. In furtherance of that objective, the Legislature created the State Planning Commission and directed replacement of the State Guide Plan by a State Development and Redevelopment Plan, designed for use as a tool to assess suitable locations for infrastructure, housing, economic growth and conservation. Among the critical priorities identified in the State Planning Act was the need to promote local planning which makes provision for housing at a reasonable cost.

The first State Development and Redevelopment Plan was adopted in 1992 and has since been revised and readopted in 2001. Sharply contrasting the State Guide Plan, prepared by the then Division of State and Regional Planning, with virtually no public input, the State Development and Redevelopment Plan was the product of a painstaking and arduous process, knows as Cross-Acceptance, involving thousands of representatives from State, regional, county and local governments and other public and private sector interests, making it the most significant participatory planning effort in N.J. history. I thus argued to the Supreme Court that the soundness of the State Plan as a planning document is validated by the fact that it was formulated through this highly collaborative process and warranted discussion by the Court, given its earlier observations in Mt. Laurel II that it would continue to rely upon revisions in the predecessor State Guide Plan so long as those revisions were procedurally and substantively sound.

The State Plan essentially maps the state into 5 Planning Areas: Metropolitan, Suburban, Fringe, Rural and Environmentally Sensitive, each of which has specific goals and objectives to guide regional and local planning. The Plan also contains a series of statewide goals, strategies and policies whose purpose is to foster coordination among State regional, county and municipal planning. Those strategies and policies include provision of housing at reasonable cost, particularly for those most in need. The State Plan emphasizes that such housing should be focused in the Metropolitan and Suburban Planning Areas and in what are called “Centers” in the other planning areas, at densities which support transit, reduced commuting time and costs and at locations easily accessible to employment, shopping, services and recreational and cultural activities.

I cited the APA’s Housing Policy Guide, which has goals that parallel those of the State Plan in the area of affordable housing, to demonstrate the soundness of the State Plan which, like the APA, stresses the importance of comprehensive land use planning to provide for livable communities which include affordable housing.

I also highlighted the fact that there is Memorandum of Understanding between the State Planning Commission, which oversees the State Plan, and the Council on Affordable Housing (COAH), which administers the Fair Housing Act, that promotes coordination of State Plan policies with COAH regulations governing affordable housing compliance by the State’s municipalities. In fact, COAH’s regulations require new construction and zoning for affordable housing developments to conform with the State Plan, a fact recognized by the Trial Court in its West Windor decision below.

Given the major role that the State Plan in affordable housing issues and the Supreme Court’s earlier heavy reliance upon the State Guide Plan in Mt. Laurel II, I argued that the time has come for the Court to affirm its commitment to comprehensive and sound land use planning by recognizing the significance the State Plan should pay in assessing the appropriateness of Mt. Laurel remedies applied in not only the West Windsor case but in future matters, asserting there is a compelling need for such judicial direction, given a paucity of reported decisions involving the State Plan and none by the Supreme Court.

Not one party nor any of the numerous amici in their briefs or in their oral argument to the Supreme Court took exception to the position I advanced on behalf of the APA and its N.J. Chapter. I remain cautiously optimistic that the Court will embrace those arguments in its decision expected this Spring, underscoring the importance of the role that comprehensive and sound land use planning should play in affordable housing issues.

West Windsor, together with two companion cases, when decided, will likely become known as Mt. Laurel III. While the facts and issues in West Windsor have obvious significance to affordable housing policies for the State of New Jersey, the ultimate decision, I believe, will have broader implications which transcend New Jersey’s borders. Regional public welfare is a universal central theme at the core of many planning policies and strategies. It underlies not only planning for affordable housing but also balancing the need for such housing with competing concerns to control sprawl through effective environmental, conservation and resource management in the context of comprehensive land use planning. There is an ever present tension between the need for housing and corresponding need to protect the environment. All too often, it pits development interests against the conservationists. Regional public welfare thus becomes a lens through which courts try to achieve a balance. This was evident in Mt. Laurel II where the Supreme Court recognized that once a municipality has adopted land use regulations which provide a realistic opportunity for construction of affordable housing, the Mt. Laurel Doctrine requires it to do no more, emphasizing

My prediction is that the Supreme Court in West Windsor will reaffirm and likely strengthen the Mt. Laurel Doctrine to further incentivize voluntary municipal compliance to avoid the harshness of a builder’s remedy, by adding market demand for particular housing types as a factor to be considered in assessing whether a municipality has provided a realistic opportunity for development of affordable housing. The court may also fashion a fee-shifting remedy (i.e. the award of legal fees to a successful non-profit plaintiff) or suggest a legislative response creating such a remedy to cover voids where development interests do not pursue non-complying municipalities.

My hope is that the Supreme Court in West Windsor will reaffirm the importance of comprehensive land use planning and latch on to the State Development and Redevelopment Plan, as it did with the State Guide Plan, as a vehicle by which to assess the reasonableness of local planning strategies and regulations – recognizing that effective planning should meet both the housing and environmental needs of expanding populations in the interest of promoting the regional public welfare.

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Author and Copyright Information

Copyright 2002 by author

Howard D. Cohen

Practice Areas: Complex Litigation State and Federal Courts; Special Counsel to Municipalities and Public Sector Clients; Land use; Commercial Litigation

Mr. Cohen was born in Newark, New Jersey. He earned a B.A. degree with honors from Gettysburg College where he was elected to Pi Lamba Sigma and Phi Beta Kappa and earned a J.D. with honors from George Washington University Law School. Prior to joining Parker, McCay & Criscuolo, Mr. Cohen was a partner in Stern Greenberg & Kilcullen from 1991-2002, and a partner in Gutkin Miller Shapiro & Selesner from 1978-1991. He was associated with Sills Beck Cummis Radin & Tischman (now Sills Cummis) from 1975-1978, and trained under the late Honorable Arthur J. Sills, former Attorney General of the State of New Jersey. He was Law Secretary to the late Honorable Leon Gerofsky, Assignment Judge, Superior Court of New Jersey, Middlesex County and his successor, the late John C. Demos, Assignment Judge from 1974-1975.

Mr. Cohen is a member of the New Jersey and New York Bar, the American Bar Association and numerous county bar associations of the State of New Jersey.

Mr. Cohen has been a Certified Trial Attorney by the New Jersey Supreme Court for over 15 years. A highly experienced trial lawyer, Mr. Cohen practices in the State and Federal Courts in diverse complex litigation, including corporate, commercial, environmental, intellectual property, real estate, probate, family and land use and public sector matters.

Mr. Cohen is Special Counsel to numerous New Jersey municipalities, retained to provide counsel in complex land use issues and to defend them in litigation. His statewide recognized achievements include successful defense of the Township of Bedminster's R-10 Rural residential Zoning District in the landmark case of F.M. Kirby v. Township Committee of the Township of Bedminster, et al., 341 NJ Super. 276 (App. Div. 2000).

Mr. Cohen lectures extensively on land use related issues and litigation strategy and has appeared before the New Jersey State League of Municipalities, the New Jersey Planning Officials, the Stony Brook-Millstone Watershed Association, the Association of New Jersey Environmental Commissions, the American Planning Association and numerous other land-use organizations.

The American Planning Association retained Mr. Cohen to file an amicus curiae brief and argue before the New Jersey Supreme Court in its first re-examination of the Mt. Laurel II doctrine in 18 years in Toll Bros. v. W. Windsor Township, et al. Mr. Cohen lectured on that subject at the American Planning Association's National Meeting in Chicago.

Mr. Cohen previously served as a member of the New Jersey Supreme Court District V-B Ethics Committee.

In addition to his significant legal experience, Mr. Cohen has been a leader in the Jewish Community for over 22 years. He served as President of Temple Sholom in Bridgewater, New Jersey, member of its Board of Trustees and Executive Committee and Chairman of its successful two million dollar physical expansion; Regional Vice President of the United Synagogue of Conservative Judaism - New Jersey Region; and member of the Board of Trustees of the Jewish Federation of Somerset, Hunterdon and Warren Counties. He has been honored by the State of Israel Bonds at a President's Breakfast for distinguished service to the Jewish community.