Tuesday, February 7, 2012

The Bizarro Mount Laurel Doctrine

How do you like the working title for my next law review article? In a recent decision, the New Jersey Supreme Court (of Mount Laurel fame) held that the first amendment does not necessarily require a particular municipality to provide access to adult businesses, as long as adult businesses can find adequate locations elsewhere in the metropolitan region --- even if the only accessible locations are across state lines. I call this the "bizarro" Mount Laurel doctrine because where Mount Laurel requires every municipality in New Jersey to accommodate its fair share of the regional need for a particular use (there, affordable housing rather than adult businesses,) under this reasoning municipalities do not need to accommodate their fair share provided that someone else in the region does. Several courts have used this bizarro logic to justify other forms of exclusionary zoning. Consider the Sixth Circuit's 1955 decision in Valley View v. Proffett, 221 F.2d 412 (6th Cir. 1955), regarding a zoning ordinance designed to maintain the exclusively residential character of a suburban village:

Traditional concepts of zoning envision a municipality as a self-contained community with its own residential, business and industrial areas.  It is obvious that Valley View, Ohio, on the periphery of a large metropolitan center, is not such a self-contained community, but only an adventitious fragment of the economic and social whole. . . .The council of such a village should not be required to shut its eyes to the pattern of community life beyond the borders of the village itself . . . [but has the authority] to pass an ordinance preserving its residential character, so long as the business and industrial needs of its inhabitants are supplied by other accessible areas in the community at large.

The bizarro Mount Laurel doctrine seems suspiciously like a recipe for ghettoization. Those communities that have permitted land uses deemed undesirable by other communities, perhaps out of a willingness to absorb their fair share, will be branded as red-light districts or ghettos and become dumping grounds for undesirable uses, while those that have guarded their exclusiveness most zealously will get to continue doing so for no better reason than that they always have. City leaders will of course get the message that it's better to exclude everything than even try to be a good neighbor and accommodate your fair share. At least adult uses can lean on the first amendment for some protection. Where are advocates of affordable housing to turn? Obviously not to New Jersey governor Chris Christie, who has denounced the Mount Laurel decision as an "abomination" and is working hard to dismantle its legacy.

Ken Stahl

(Here's the court's opinion:Download A6610BoroughofSayrevillev35Club)


Affordable Housing, First Amendment, Housing, Local Government, Zoning | Permalink

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Here is one possible institutional arrangement which attempts to mitigate these LULUs (locally undesirable land use): Pennsylvania's enablement of multi-municipal planning. Under certain conditions, municipalities can prepare a multi-municipal regional plan and implement it with land-use sharing agreements, such that in exclusionary zoning cases the courts or reviewing body would consider the availability of the land use in question within the multi-municipal planning region. (See 53 P.S. sec. 11101 et seq., "Intergovernmental Cooperative Planning and Implementation Agreements.")

The Pennsylvania system, of course, has some problems and requires voluntary cooperation (and, presumably, some negotiations) but it at least provides a framework for burden-sharing. In NJ, the RCAs (regional contribution agreements) to share Mt. Laurel obligations were eliminated, but there was never a way to share other land uses within an area. I think more states ought to look at specifically enabling these cooperative inter-municipal agreements with both carrots and sticks. I would imagine that under most states' intergovernmental cooperation laws, municipalities could enter agreements already, but there are few incentives to do so.

The alternative, of course, would have to be some Portland style regional governance regime to ensure adequate sharing of burdens for locally-unwanted but regionally-needed land uses.

Posted by: Kurt Paulsen | Feb 10, 2012 9:44:46 AM