The Persistence of Exclusionary Zoning in New Jersey
Noelle van Baaren
20 September 2013
Since 1975, the Mount Laurel doctrine has required that New Jersey municipalities provide their fair share of the regional need for low and moderate-income housing. Yet despite this landmark decision, New Jersey is still one of the top ten most racially and economically segregated states. In this paper, I will provide a working definition of exclusionary zoning in the both the economic and racial contexts. I will argue that despite the powerful efforts of the judiciary to position New Jersey’s at the forefront of inclusionary land use policy, the practice of exclusionary zoning is both persistent and widespread.
In Part I of this paper, I will provide a definition of exclusionary zoning in the context of both economics and race. In Part II, I will examine the types of ordinances that municipalities use as subterfuge to create the same exclusionary effect that existed before the Mount Laurel cases. In Part III, I will argue that exclusionary zoning is not legally permissible in New Jersey under the New Jersey Fair Housing Act NJFHA. In Part IV, I will examine census data to see to what degree exclusionary zoning still exists in New Jersey, despite the Mount Laurel Doctrine, NJFHA and Council on Affordable Housing (COAH) and demonstrate that where exclusionary zoning does exist, it disproportionately impacts minorities. Finally in Part V, I will look at the practice of inclusionary zoning – and the impact that implementing these type of land use policies could have in the greater context of regional equity.
Exclusionary zoning is a municipal government’s use of land use controls or zoning ordinances, singly or in concert, in such a way that tends to exclude people of low or moderate income from the municipality. Municipalities accomplish this economic exclusion through the use zoning ordinances that limit the supply of housing, increasing its desirability and ultimately raising the price of residential access to the affected area. Through this practice, municipal governments are able to accomplish two distinct but interrelated objectives: (1) they can take advantage of the benefits of regional development without having to bear the burdens of such development; and (2) they can maintain themselves as enclaves of affluence. In New York, the court identified a two-part test to determine whether a municipal ordinance is exclusionary. This test looks to (1) “whether the town has provided a properly balanced and well-ordered plan for the community . . . that [ensures]. . . the present and future housing needs of all the town's residents [are]. . . met” and (2) whether the regional needs have been considered. Under this flexible standard, courts in the state and throughout the country have balanced a regions housing needs against concerns such as school overcrowding, water supply crisis, air pollution, budgetary and tax limitations, and preservation to a communities’ rural character. In Pennsylvania, the courts have identified the practice exclusionary zoning by looking at “whether the challenged zoning scheme effected an exclusionary result or, alternatively, whether there was evidence of a ’primary purpose’ or exclusionary intent to zone out the natural growth of population.” Under this standard, the courts examine whether a zoning ordinance has the impact of excluding as opposed to whether there was underlying motivation of the legislature to exclude. What is central to these definitions of exclusionary zoning is the idea that a municipality can, thru its land use policy, create a situation in which the poor and near poor cannot gain entrance to the wealthy often homogenous suburbs. What they ignore is the potential correlation between class and race.
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