January 1, 1900

by Stephen M. Eisdorfer

With various slogans and catch phrases - "anti-sprawl," "smart growth," "State Plan," "the Big Map," "red light areas," "timed growth"-state and local governments in New Jersey have embarked upon a campaign to limit or prevent construction of housing in the suburbs. As construed by the New Jersey Supreme Court, however, the New Jersey Constitution mandates that suburban municipalities create realistic housing opportunities. This constitutional mandate provides a powerful shield against some of the potential excesses of the anti-growth campaign.

Experience elsewhere in the country, corroborated by empirical social science research, indicates that anti-sprawl initiatives tend to reduce housing production, increase housing prices (especially for middle and working class families), and perpetuate racial and economic segregation. This is not surprising. The very purpose of antisprawl initiatives is to decrease the supply of land and to add additional layers to the regulatory process to make it a more effective barrier to "undesirable" development-both of which decrease housing production and increase housing prices.

The impact of anti-sprawl initiatives upon housing opportunities is likely to be especially intense in New Jersey. New Jersey is already one of the most expensive housing markets in the nation. It is also one of the most intensely segregated by race and income.

Effect Upon Racial and Economic Segregation

The effect of anti-sprawl initiatives upon racial and economic segregation is most clearly exemplified by the "Big Map" anti-sprawl plan proposed by the New Jersey Department of Environmental Protection. The "green light for development" areas shown on this map are largely restricted to areas that are already developed, and include all the portions of northern and central New Jersey with high proportions of minority and low income households. The area outside the "green light" area in northern and central Jersey is almost entirely white and affluent. Strikingly, the "Big Map" does not include in the "green light" area the several hundred "centers" designated in the official State Development and Redevelopment Plan (State Plan) for development of affordable housing in suburban and rural communities. If effectively implemented, the "Big Map" would create a regulatory wall imprisoning minority and low income households in their current locations.

As construed by the New Jersey Supreme Court in cases such as Southern Burlington County NAACP v.Tp. of Mt. Laurel, the New Jersey Constitution requires every municipality to create realistic housing opportunities to meet its fair share of the unmet regional need for housing. Although the New Jersey courts have held that the State can engage in statewide planning encouraging growth in some municipalities and discouraging it in others, and can adjust municipal housing obligations accordingly, the courts have also held that the State has an affirmative duty to implement, and facilitate compliance with, the Mount Laurel mandates. The State cannot, under the guise of planning, impose exclusionary barriers to affordable housing. It cannot lawfully act in a manner which fosters or perpetuates racial or economic segregation.

Mount Laurel Compliance a Key Factor

Significantly, in recent cases such as Kirby v.Tp. of Bedminster and Mt.Olive Complex v.Tp. of Mt.Olive, in which courts have upheld local anti-sprawl initiatives, the courts have been careful to first consider whether the municipality has met its constitutional fair share housing obligation. The courts have upheld three, five, or ten-acre zoning only after finding that the municipality has met its constitutional obligation. Moreover, the courts have recognized that, where municipalities cannot meet their fair share housing obligations within State-designated growth areas, municipalities must permit those obligations to be met outside such growth areas.

Because state and local anti-sprawl campaigns must give way to implementation of the constitutional fair share housing mandate, builders may still be able to build inclusionary developments in suburban towns that have not yet met their constitutional obligations. Perhaps this is the only housing that builders will be able to build in "non-growth" areas designated locally or by the State. Builders will, however, need sophisticated legal guidance to navigate their way through conflicts between the constitutional fair share housing mandates and state and local anti-sprawl campaigns.

Stephen M. Eisdorfer is also a partner within the Land Use Division of Hill Wallack. A Member of the Board of Directors of the New Jersey State Bar Association's Land Use Section, he concentrates his practice in land use litigation, including Mount Laurel litigation and litigation involving the civil rights statutes.