Suburbs Under Siege: Race, Space, and Audacious Judges.

• Author: Payne, John M.

Suburbs Under Siege; Race, Space, and Audacious Judges. By Charles Haar. Princeton: Princeton University Press. 1996. Pp. xiv, 256. $29.95.

Charles Haar, the Louis D. Brandeis Professor of Law Emeritus at the Harvard Law School and a certified elder statesman of the housing and land-use community, was one of those scholar-politicians of the 1960s who spun out innovative theories in law reviews and then moved into government to see them applied. His generation inspired mine to pursue law as a means to serve the public interest. But the days of the Kennedy brothers' Camelot are long past. Today, big government and "big courts" alike are seen as parts of the problem. In the more austere political climate of the 1990s, however, Charles Haar is not the least bit repentant, and he has found a magnificent topic around which to reaffirm his faith in the capacity of big government and, particularly, big courts to move us collectively toward the just society. In Suburbs Under Siege: Race, Space, and Audacious Judges,. Professor Haar dissects New Jersey's famous Mount Laurel cases,(1) finding in them not only a compelling demonstration of judicial success in the arduous task of law reform, but confirmation that courts can be better than legislatures at such a task.

Suburbs Under Siege is a very welcome book. For too long, commentary on the Mount Laurel doctrine, one of the most important social initiatives of our time, has been left in the hands of people like myself who are day-to-day players at the grassroots level, and who therefore inevitably risk commenting with an advocate's bias.(2) Charles Haar brings into the conversation not only his wealth of experience and formidable analytic skill, but also his fresh perspective. He renewed my faith in what I have been doing for the past two decades. There was an unmistakable goodness about the best of the 1960s commitment to social reform through law, and that goodness pervades Suburbs Under Siege. If Professor Haar's vision sometimes exceeds his grasp, then as now, his unshakable conviction that humankind is perfectible and that lawsuits can lead the way reminds me of why I decided to become a public-interest lawyer in the first place. The book is about late-century land-use law, but it should be read by anyone who wishes to understand the heart and soul of postwar legal liberalism.

Despite my enthusiasm for Suburbs Under Siege, however, I have two fundamental disagreements with Professor Haar's approach to the Mount Laurel saga. Our differences are important, because the Mount Laurel doctrine has not traveled well beyond New Jersey, and it is important to understand why.(3) He and I are in complete agreement that there is a legitimate role for courts in breaking the political stalemate that has brought us exclusionary zoning, racial discrimination, and an unacceptable degree of social distress in sheltering our people. But our different takes on the Mount Laurel cases may explain why those cases have not sparked a land-use revolution. Specifically, it is my view that Professor Haar overvalues the importance of co-opting the private sector as a key element in the success of the Mount Laurel process. I also believe that he overstates the case for the legitimacy of the New Jersey Supreme Court's intervention into land-use policymaking by not inquiring closely enough into the precise nature of the constitutional violation at hand and the possibility of different paths to the goal of land-use equity.

THE MOUNT LAUREL STORY

In all likelihood, the reader whose attention has been drawn to Suburbs Under Siege is already familiar with the New Jersey Supreme Court's bold experiment in law reform, the Mount Laurel doctrine, and it is not my intention to retell the story here under the guise of reviewing the book. Nor, in all frankness, would I send the reader to Professor Haar's account solely for the purpose of acquiring the narrative details of the events in question; while his telling of the tale is serviceable, his real interest in telling it -- and mine in his telling -- is so that he can then use the story as a case study in judicial activism.(4)

The Mount Laurel Litigation

Let this skeletal summary suffice, then. In 1971,(5) a team of young legal services lawyers in Camden, New Jersey came to the aid of black residents of Mount Laurel Township, a once-rural community that was rapidly developing as a bedroom suburb of Philadelphia. Their goal was to break the municipality's exclusionary land use system, which consisted of zoning laws and habitability codes operating in tandem to force demolition of the poor, rundown housing that was all the plaintiffs could afford -- a chicken coop in one notorious example -- and to preclude the construction of modest new homes and subsidized public housing that could have given them safe, sanitary, and affordable alternatives. When the case reached the New Jersey Supreme Court, it was welcomed by Justice Frederick Hall, who had been campaigning within the court for years to reform its excessive deference to municipal autonomy in land-use matters.(6) Justice Hall's opinion gave voice to what is now known as the Mount Laurel doctrine:

We conclude that every such [developing] municipality must, by its

land use regulations, presumptively make realistically possible an

appropriate variety and choice of housing .... at least to the extent of

the municipality's fair share of the present and prospective regional

need therefor.(7)

This first Mount Laurel opinion prompted furious political opposition, municipal intransigence, and a flood of lawsuits, but very little actual progress toward breaking the back of exclusionary zoning. Then, in 1983, under the vigorous leadership of new chief justice Robert Wilentz, the court issued a second major decision, Mount Laurel II,(8) in which it reaffirmed the holding of the first Mount Laurel case and outlined a sweeping set of remedial steps designed to ensure that municipalities obeyed their obligations under the New Jersey Constitution. Three specially assigned trial judges were given responsibility for all Mount Laurel-related litigation throughout the state. They were told to develop a formula that would assign specific numerical "fair share" obligations to individual municipalities, and they were authorized to grant "builder's remedies" to plaintiffs who successfully demonstrated that a municipality's land use ordinances were exclusionary. Pursuant to a "builder's remedy," the successful developer-litigant could bypass the local zoning and win a court order permitting its project to be built, so long as the builder proposed an "inclusionary development" -- that is, one in which at least twenty percent of the units were made affordable to low- and moderate-income households.(9)

The Legislative Response

When the Mount Laurel trial judges began implementing their Mount Laurel II powers vigorously in 1984 and 1985, the legislature finally responded, as the court had been urging it to do since 1975. It enacted the Fair Housing Act of 1985,(10) arguably the most progressive piece of state housing legislation anywhere in the country. The Act's centerpiece was a new agency, the Council on Affordable Housing (COAH), which was authorized to take over from the courts the task of calculating housing obligations and certifying compliance plans for any municipality that voluntarily submitted to the Council's jurisdiction. The bait for doing so was that "substantively certified" municipalities were effectively immunized from Mount Laurel litigation.(11) The Act also authorized municipalities to transfer up to fifty percent of their fair share obligations to other municipalities pursuant to so-called Regional Contribution Agreements (RCAs), so long as the "sending" municipality also financed the housing activity in the "receiving" municipality.(12) In practice, this permitted a reallocation of fair share housing obligations -- and the low-income housing itself -- from all-White middle-class suburbs to poorer and non-White urban centers.

In 1986, in Hills Development Co. v. Township of Bernards,(13) the New Jersey Supreme Court upheld the constitutionality of the Act, even while acknowledging that in some respects it diluted the methods of compliance that had been developed judicially. Since then, the supreme court has largely withdrawn from the field. It has tinkered at the edges, generally in ways that are helpful to the proponents of housing equity(14) but has not revisited first principles, as it did in Mount Laurel II. The process remains controversial, but not at the white-heat level of a decade ago -- when the governor could score political points by denouncing Mount Laurel II as "communistic."(15) The Council on Affordable Housing has bent over backward to accommodate municipal interests and concerns, and while housing advocates have decried the slow pace of progress, they have lacked the political power to control the process to the extent that they did in the courts.

In recounting all of this, Suburbs Under Siege takes an understated approach, but Professor Haar leaves no doubt about his admiration for the Mount Laurel doctrine and the judges that produced it. He has a deft way of capturing points of the story in a phrase that is just right; he describes the odious RCAs, for example, as a "safety valve" (p. 114), the kind of messy compromise that politicians regularly craft and that judges must learn to accept if they are to infiltrate the politician's turf in law reform cases. His characterization of the internal division between "the infantry of the trial courts and the strategic headquarters of the supreme court" (p. 32) puts into clear perspective a problem that bedeviled administration of the first Mount Laurel opinion. Cases under the Mount Laurel doctrine prior to 1983 were so numerous, so complex, and so never ending that the lower courts at times all but subverted Justice Hall's mandate in...