Hank Kalet

With the Assembly poised to vote on a major reform of New Jersey’s affordable housing laws — a vote that was scheduled for this afternoon — it is important to remind people that the goal of the state’s program is to ensure that municipalities cannot zone classes of people out of their communities. (UPDATE: The Assembly approved the bill by a 45-33 vote, with two abstensions.)

The question of affordable housing and zoning has been on the state’s agenda — and, to a degree, unresolved — since the first Mount Laurel decision in the late-1970s. In that decision, the state Supreme Court ruled that Mount Laurel, a suburban community in Burlington County, was using its land-use laws to boost upper-income housing at the expense of housing for lower-income residents. The court overturned the local zoning rules and determined that “developing towns” had a responsibility to provide their fair share of the regional need for low- and moderate-income housing.

The idea was to prevent municipal boundaries from becoming hard and fast “red lines” separating New Jersey citizens by race and class.

The Legislature failed to respond and a second Mount Laurel decision came in 1983 — eight years after the first — ordering the state to create a mechanism to ensure the provision of affordable housing. The state was carved up into income zones — Cranbury, Jamesburg, Monroe and South Brunswick are in the Middlesex, Somerset, Hunterdon zone — and each developing town was assigned a number of units for which it was responsible.

South Brunswick, for instance, has been responsible for about 937 units during the first two rounds, Cranbury 223 and Monroe 613.

A provision was built-in, however, allowing towns to pay urban communities to take on up to half the units — which both Cranbury and Monroe have done. South Brunswick has built or zoned for the full number in town.

The mechanism, called a regional contribution agreement, were designed to allow developing communities to limit the impact at home of the state-mandate, but in my view violated the spirit of the Mount Laurel decisions. In the second Mount Laurel decision, Chief Justice Robert Wilentz wrote (quoted from New Jersey: Spotlight on Government (fifth edition), published by the League of Women Voters of New Jersey Education Fund) that:

The basis for the constitutional obligation is simple: the State controls the use of land, all of the land. In exercising that control it cannot favor rich over poor. It cannot legislatively set aside dilapidated housing in urban ghettos for the poor and decent housing elsewhere for everyone else. The government that controls this land represents everyone. While the State may not have the ability to eliminate poverty, it cannot use that condition for the basis for imposing further disadvantages. And the same applies to the municipality, to which this control over land has been constitutionally delegated.

The clarity of the constitutional obligation is seen most simply by imagining what this state could be like were this claim never to be recognized and enforced: poor people forever zoned out of substantial areas of the state, not because housing could not be built for them but because they are not wanted; poor people forced to live in urban slums forever not because suburbia, developing rural areas, fully developed residential sections, seashore resorts, and other attractive locations could not accommodate them, but simply because they are not wanted. It is a vision not only at variance with the requirement that the zoning power be used for the general welfare but with all concepts of fundamental fairness and decency that underpin many constitutional obligations.

RCAs, as they are know, have always been an out, a way of diminishing obligations in the suburbs and ensuring that a large number of affordable units stay in the cities. While some of the rationales used to defend the use of RCAs are legitimate — preservation of open space and historic properties, as in Cranbury — the end result is the same: fewer affordable units in the suburbs.

It is no accident that New Jersey is among the most segregated states in the nation.

The RCA is not the only flaw in the Fair Housing Act. It also fails to recognize other public needs and impacts — such as land preservation, the tax costs associated with adding students to schools and building new infrastructure — and generally has left builders in the driver’s seat (towns that do not comply with the state Council on Affordable Housing and receive certification could be prone to lawsuits that might force an even greater amount of housing, both affordable and market-rate, on the community).

The Roberts bill offers a first step toward reform by ending RCAs, replacing the cash generated for poor communities with a trust fund and requiring that land preservation be taken into account.

But it still leaves in place the possibility that a community could be required to increase its housing obligation by such a degree as to alter the community’s character. This is the argument being made in Cranbury — 600-plus affordable units, which is what would end up being required under the latest round (the 120 built plus nearly 500 new ones), would represent more than 40 percent of the total housing stock in this new Cranbury — an absurd calculus that is driving the debate and could result in some drastic solutions.

As I wrote in an editorial last week, a much broader set of reforms is needed — including revenue sharing or a new tax system that allows jobs and housing to be viewed regionally rather than as parochially as it has been (too many decisions are made right now that are based solely on whether a project will generate property tax revenue and not on other factors) and a cap on the number of units any town can be forced to accept (somewhere between 15 percent and 25 percent of the total housing stock.

The Roberts bill is not perfect, but it has the potential to renovate the system and make it better.