Planning magazine — November 1983

The Road to Mount Laurel

For over a decade, Mount Laurel has been a byword in discussions of exclusionary zoning. In January of this year, the New Jersey supreme court issued its long-awaited second opinion, which is now beginning to have an impact on other states as well. In this article, Ernest Erber describes the strategy and the people responsible for the original decision.

By Ernest Erber

In its recent Mount Laurel II opinion, New Jersey's supreme court said that it was acting to end a situation that forever zoned poor people out of much of the state, "not because housing could not be built for them but because they are not wanted." It is a situation, said the court, "at variance with all concepts of fundamental fairness and decency that underpin many constitutional obligations."

In saying this, the court reaffirmed the doctrine it laid down in its first Mount Laurel opinion in 1975. But Mount Laurel II goes beyond its predecessor in a number of important ways. It requires that zoning and other land-use regulations be inclusionary not only in "developing communities" but in all others as well; that local planning and zoning conform to the State Development Guide Plan; and that local planning and zoning be subject to review by the courts under the supervision of three special judges, each empowered to appoint experts as masters where needed to expedite the rewriting of flawed ordinances.

Taken together, the two cases constitute the most far-reaching judicial pronouncements on the regulation of land use and urban development since the U.S. Supreme Court's Euclid v. Ambler decision gave the green light to planning and zoning in 1926. Although the Mount Laurel doctrine is currently in force only in New Jersey, its impact will be felt by the courts of every other state and, in time, by the federal bench. It is a judgment whose time has come — not only in New Jersey, but everywhere else.

To some extent, the new Mount Laurel decision points an accusing finger at local planning officials and professional planners everywhere who have been engaged in erecting barriers of the type the New Jersey court seeks to dismantle. As with much else in American life, the the purposes of planning and zoning at times have been warped to accommodate established mores. Members of local planning boards often reflect their communities on these issues. Professional planners — overwhelmingly from white, middle-class backgrounds — tend to be oblivious of the effect of discriminatory land-use arrangements upon poor people, or, if aware, feel powerless to resist the tide of community opinion and peer pressure.

At the same time, however, planners have led the way in opposing the exclusionary practices identified by the court in Mount Laurel. They created the rationale — the intellectual underpinning — for the inclusionary planning and zoning that was ultimately spelled out in the 247 pages of the Mount Laurel II opinion, and they were active in litigation at every stage along the way. The work of these planners, however unrepresentative it might have been of the profession as a whole, deserves to be better known. (In this regard, I must add that I cannot hope to acknowledge all the planners who helped combat exclusionary practices. I am sure that many who warrant recognition never came to my attention; others are not recalled. I ask their understanding and indulgence.)

Roots

The initiatives to challenge exclusionary zoning had a variety of roots, including one traceable to the dining room of a Newark hotel, where, in the mid-1960s, Norman Williams — then a Rutgers law professor — and I used to meet to discuss ways of translating planners' concepts of inclusionary zoning into litigative argument.

Later, as the outlines of a case began to emerge, Douglas Powell, then planning director of Middlesex County, New Jersey, and Peter Buchsbaum, staff head of the New Jersey Civil Liberties Union, would join us for breakfast in a local cafeteria.

Not until 1974 did the proposed case become a reality. Prepared by the National Committee Against Discrimination in Housing, it was filed as Urban League of Greater New Brunswick v. Borough of Carteret and 22 other municipalities in Middlesex County. The charge was that "the policies and practices of all defendant municipalities bar plaintiffs from securing housing and employment opportunities throughout a major and expanding market area." The remedy sought was a "joint plan to facilitate racially and economically integrated housing" throughout the area.

As it turned out, during the 1970s New Jersey state courts heard at least a dozen lawsuits challenging zoning ordinances. Each trial court decision striking down exclusionary provisions (Mount Laurel I, Oakwood at Madison, etc.) triggered new suits by builders or landowners. Some cases were thrown out. Some won minor points. Some reached the state appellate courts or supreme court. In 1975, the supreme court remanded certain aspects of Mount Laurel I to the trial court, which handed down a new decision in 1977. That decision was unsatisfactory to both plaintiffs and defendant, and both appealed.

In addition, the supreme court had before it on appeal our case involving Middlesex County, another case involving the township of Mahwah, and three cases that arose out of builders' challenges to the denial of building permits in Chester, Franklin, and Clinton townships. Because the original Mount Laurel I doctrine was involved in all six cases, the supreme court decided to hold omnibus hearings on all six appeals and use them as the basis for a reinterpretation of its Mount Laurel doctrine, with separate decisions and orders to be issued on each case. The package of cases known as Mount Laurel II came before the court in 1980.

Back in 1974, though, when the Middlesex case was being prepared, all this lay ahead. At that point, Douglas Powell was in the final stages of preparing a massively documented master plan for Middlesex County. Because the master plan was to be the source of abundant evidence in our case, his collaboration became increasingly discreet, until, as we neared completion of the complaint that would be filed in court, he asked to withdraw in deference to his official position.

During the trial, Powell was subpoenaed by both sides and also solicited for expert advice by the court. He showed courage in an extremely difficult position, both then and during the years of appeals, negotiations, and public controversy that followed. Despite his great deliberateness in adhering to professional behavior as county planning director, his commitment to social justice was well known and made him the target of innuendos that he was aiding the case against Middlesex communities. I cannot but believe that the resulting stress contributed to his untimely death in 1980.

Powell was never to have the satisfaction of knowing that in Mount Laurel II the court would refer to our Middlesex case as "a fitting conclusion" in the construction of a line of argument against exclusionary zoning. The language of the court's opinion had the effect of giving the force of law to the housing allocation section of Powell's master plan for Middlesex County. It seems like an eternity since we discussed this possibility in our cafeteria breakfasts in 1969.

Watershed years

In retrospect, it is now clear that the years 1969-71 were a watershed in the fight against exclusionary zoning. During the time that Norman Williams was counseling us on a litigative strategy for what became our Middlesex case, he was working with Thomas Norman on his article, "Exclusionary Land Use Controls: The Case of North-Eastern New Jersey" (published in the Syracuse Law Review in 1971). The article served as a comprehensive guide to the evolving case law on this subject and created the intellectual framework for a litigative strategy.

And 1969 was the year that Paul Davidoff launched the Suburban Action Institute, greeting the new decade in the January 1970 issue of the Journal of the American Institute of Planners with his article, "Suburban Action: Advocate Planning for an Open Society." This was a time when the planning profession was being exposed to the findings of the Commission on Building the American City, chaired by Paul Douglas, with penetrating analyses of exclusionary practices by Davidoff, George Raymond, and other planners. In Dayton, Ohio, Dale Bertsch was putting together the first metropolitan fair-share housing plan. In Minnesota, Trudy McFall was using her unique advantage as director of housing and redevelopment for the Metropolitan Council of the Twin Cities to pioneer balanced allocation of subsidized housing throughout the area, giving low-income families the choice of living in city or suburb.

In Chicago, Mary E. Brooks was putting together a publication entitled Exclusionary Zoning, containing her findings as a researcher for the American Society of Planning Officials — its first recognition of this subject area. In 1969, too, the National Committee Against Discrimination in Housing filed its first lawsuits against exclusionary zoning, going to federal courts to challenge zoning that excluded subsidized housing in Lawton, Oklahoma, and in Union City, California, and to a state court to oppose zoning in Montclair, New Jersey, that required a minimum construction cost. (All three cases proved substantially successful.)

In Philadelphia, Yale Rabin was using the planning research skills he had sharpened in school segregation cases to investigate residential exclusion, resulting in 1970 in a think piece, called "Challenging Discriminatory Development Controls: Some Thoughts on Future Directions," for an informal network of planners and civil rights lawyers. The future came quickly; before the year was out, he was asked to help two legal services lawyers in Camden, New Jersey, prepare statistical and mapped evidence of exclusionary zoning in a nearby, sprawling, highway-oriented suburban municipality called Mount Laurel.

Checkered history

In the decades before this watershed period, a few rare planners were aware that there might be something unfair in the manner in which planning and zoning were shaping the burgeoning development of America's suburbs, and these few were struggling to articulate the problem. But, for the planning profession as a whole, the task of the time was to protect zoning from the attacks of developers, builders, and landowners. Their instinct was to protect the local zoning ordinance at all costs. So, for example, Hugh R. Pomeroy, perhaps the best-known zoning authority among practicing planners in the decades after World War II and a widely used expert witness, made it a principle never to testify against a local government in zoning cases. Planners in this period were riding high on the zoning wave set in motion by the Euclid decision, and they ignored its reference to "the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way."

Norman Williams was one of the first planners to articulate the idea that the police power inherent in zoning could easily be used to protect parochial interests in ways that would be destructive of the broader public interest. He addressed the question of the discriminatory use of public powers as early as 1949 while serving as senior analyst for the rezoning of New York City — a position he took after five years of private law practice. In 1950, he became director of the planning division in New York City's department of city planning and chief of the office of master planning, and he used his enlarged perspective to write a seminal article on planning law and democratic living (which appeared in Law and Contemporary Problems in 1955). In that article, he documented the alarming trend toward using planning and zoning to discriminate and exclude. But Williams was not discouraged. "What is needed," he wrote, "is a conscious overall strategy for integration into a more democratic society." He saw the development of such a strategy to be "the creative task of the planning lawyer in a democracy" and made it the lodestar for his career.

His published works, above all his monumental, five-volume, American Land Planning Law; Land Use and the Police Power (1975), are evidence of his role in this creative task, without which Mount Laurel II would not have come so soon or been so encompassing. It is evident that New Jersey justice Frederick Hall, author of the first Mount Laurel opinion, was a devoted student of Williams's work.

Williams has conveyed his concern for democratic values in urban planning to generations of planning and law students at the University of Vermont Law School and the University of Arizona. Earlier, while he was lecturing at Yale's school of city planning in 1952, a law student in his audience, Paul Davidoff, caught a vision of a new cause — the fight for democratic values in urban planning — and was inspired to do something about it.

The troops

Paul Davidoff had gone to law school to follow the example of his boyhood hero, Clarence Darrow, renowned for defending society's victims and unpopular causes. Even before hearing Williams lecture, Davidoff questioned some of the things taught about zoning in a course on property law. He decided then to switch from law to planning, enrolling at the University of Pennsylvania's planning school at a time when it was bubbling with debates on urban renewal and related issues of public power and residents' rights, many triggered by Charles Abrams, then on the faculty. A paper by a student, Harry Schwartz, on the effect of large-lot zoning upon housing opportunities in Philadelphia's suburbs, helped Davidoff, by then on the school's planning faculty, decide that the zoning of vacant land in suburban areas was the central issue on which the battle for fairness in planning would be joined.

To be more effective in this battle, Davidoff decided that it would be advantageous to have a law degree after all. He earned one from the University of Pennsylvania in 1961, sandwiching in some experience with the New York City and New Canaan, Connecticut, planning offices. As a portent of things to come, he resigned from his New Canaan job to protest the city's exclusionary policies.

The social and political climate of the 1960s seemed specially made for Davidoff s temperament, outlook, and professional skills. As a faculty member, he spent the decade on campuses that were rife with activities on behalf of civil rights and against the war in Vietnam. In 1964, together with Walter Thabit, he organized Planners for Equal Opportunity, bringing together younger planners in a loose network for the purpose of sensitizing the profession and planning schools to the fairness issue in planning.

In 1969, in association with Linda Davidoff and others, Davidoff spearheaded the launching of the Suburban Action Institute as a center for studies, litigation, and the mobilization of public opinion on behalf of equality in access to suburban housing. Initial funding came from several smaller foundations that were interested in social change programs. Davidoff continues to direct the SAI program, now known as the Metropolitan Action Institute, at Queens College in New York City.

Into the unknown

Davidoff showed a genius for the exploitation of issues to force media attention upon his chosen targets. But he knew that, in the last analysis, litigation was the most potent weapon for securing the rights of the disadvantaged in American society and that all other actions could only be auxiliary to it.

Litigation against exclusionary land-use controls was, however, an unexplored territory, sure to be filled with hazards. Those who set out to explore were mainly lawyers with experience in litigation against racial segregation in schools, housing, public accommodations, and employment. Coming upon zoning, with its anchor in Euclid, they envisioned a definitive and conclusive U.S. Supreme Court victory that would replace the old doctrine with a new one in the way that Brown v. Board of Education replaced the "separate but equal" doctrine of the 1890s. There also were a few "planning lawyers" who were familiar with case law in state courts, although most of those cases were confined to site-specific litigation seeking a "builder's remedy," i.e., a court-ordered building permit for a given piece of land. And sui generis, there was Norman Williams.

Seeking to cross-fertilize the skills of these two groups of lawyers, the National Committee Against Discrimination in Housing (which I served as director of research and policy planning) convened a conference in May 1969. Besides Williams, I recall that Ann Louise Strong, Daniel Mandelker, Alien Fonoroff, and Clarence Funnye were among the planners who attended. It was my impression that the civil rights lawyers barely understood what Williams was talking about when he analyzed state courts' attitudes on land-use controls. These lawyers saw race-related suits in federal courts as the only hope.

But the participants parted feeling challenged to design a workable strategy for a problem that had been identified a bit more clearly. Several key concepts had emerged: Exclusionary zoning, though having racial implications, was not primarily a matter of race discrimination. An anti-exclusionary legal strategy would have to relate to the case law of zoning as fashioned in the various state court systems. The choice of states in which to litigate was, therefore, all-important. Finally, representatives of the excluded classes would have to replace the traditional builder, developer, or landowner as plaintiff.

During this period, several legal think tanks emerged, the best known the legal strategy sessions guided by Herbert Franklin, the Urban Coalition's legal counsel. Here, civil rights lawyers and a smattering of planners and social scientists monitored relevant court cases and debated litigation strategies. About the only agreement was on the need to discourage unwinnable suits that would create bad case law. The predominant note was caution. Long before the participants in these groups were ready to decide on a strategy, they were surprised to read on the front page of the New York Times that Paul Davidoff's Suburban Action Institute had brought suit on behalf of the NAACP against the Town of Oyster Bay, New York, charging that the local zoning ordinance excluded an entire class of potential residents by virtue of their low income and was, therefore, unconstitutional.

False start

Judged by subsequent history, the case was on the right track conceptually but wrong in its choice of state and locality and in its legal and factual preparation. As the suit got mired down, Davidoff — never one to agonize over bad fortune — was attracted in 1970 to what seemed a more promising case in Madison, New Jersey, filed by a builder seeking to construct multifamily housing on an environmentally questionable site. This was Oakwood at Madison, Inc. v. Madison.

The Suburban Action Institute joined the suit to broaden it into a challenge of the town's whole zoning ordinance as being in conflict with the general welfare provisions of the state constitution. The trial court invalidated Madison's zoning ordinance as exclusionary on the unprecedented ground that it did not meet its fair share of regional housing needs and thus did not serve the general welfare. (Later, though, Davidoff's group was out-lawyered before the state supreme court, which reduced Madison's obligation to zoning for "least cost" housing, thereby diluting the full force of the original Mount Laurel opinion.)

Oakwood at Madison was a great breakthrough; the framework of a litigative strategy was now clear. The plaintiff status of nonresidents and nonowners was established, at least in New Jersey. Even more important, the case validated the concept of regional housing needs as a general welfare obligation in zoning, with the subject municipality required to provide for its fair share.

The courts were now talking planners' language — gone was the mumbo jumbo about "highest and best use" — and beginning to look to planners, rather than real estate people and appraisers, for expertise. But the new doctrine was still subject to higher court review. From the perspective of 1971, the road to Mount Laurel II still stretched beyond the horizon.

Other developments

Meanwhile, outside the courtrooms, planners like Dale Bertsch in Dayton and Trudy McFall in the Twin Cities were using their professional skills to put together fair share housing programs — a new development that the courts would note.

Bertsch's "Dayton Plan," conceived when he was director of the Miami Valley Regional Planning Commission, included an allocation formula by which each locality in the region would take its allotted share of low- and moderate-cost housing. The idea was to offset the concentration of such housing in Dayton, the central city of the region.

Within a short time, the plan was known from coast to coast, and HUD officials in both the Ford and Carter administrations responded to Bertsch's entreaties to make it a national showcase. The approach was crystallized in the requirement for Areawide Housing Opportunity Plans (AHOPs) by HUD Assistant Secretary

Robert Embry and, later, in the Regional Housing Mobility Plan by Trudy McFall, who directed HUD's planning office from 1977 to 1981. Earlier, McFall had directed housing programs in the Twin Cities. At HUD, she infused the housing and planning programs she directed with the inclusionary doctrine enunciated in Mount Laurel, making it possible for lawyers to cite the intent of federal programs in litigation against exclusionary land-use controls.

The grand scheme

Despite the success of public advocacy against exclusionary practices, the courts still had to be educated on the nature of the exclusionary phenomenon. Those devising legal strategies during this time often referred to the need for a "scenario" that would give the judges a panoramic view of the effects of the urbanization that was rolling over the countryside. Such a scenario would be most important in cases that did not focus on a given piece of property.

The first planner challenged to do such documentation was Yale Rabin (now at the University of Virginia). As an expert witness during the first Mount Laurel case, he prepared the factual underpinning of the specific charges set forth in the NAACP's complaint against the Township of Mount Laurel. His brilliant performance in the original Mount Laurel trial in 1972 set a pattern for all such presentations in the cases that followed.

Immediately before getting into the Mount Laurel case, Rabin had had valuable experience in school segregation studies as related to land-use and housing policy. He also became a regular attendee at Herbert Franklin's sessions on legal strategy, where he believes he first met Carl Bisgaier and Peter O'Connor, the Camden Regional Legal Services attorneys who were sketching in the outlines of a challenge to the zoning in Mount Laurel township.

Bisgaier was, in fact, the heart and soul of the 12-year effort challenging the township of Mount Laurel. Unlike the plaintiffs in the other cases that eventually became part of Mount Laurel II, the plaintiffs in the case involving Mount Laurel had no backing from a Suburban Action Institute or a National Committee Against Discrimination in Housing. Bisgaier and O'Connor were pretty much on their own.

End of the road

As for Yale Rabin ... His documented and illustrated testimony spelled out for the Mount Laurel trial court the injustice of exclusionary land-use controls articulated earlier by Williams. When the case came before the state supreme court, Williams's amicus curiae arguments, based on Rabin's factual data, presented a planner's indictment of exclusionary zoning.

Overall, to understand the planner's role in creating the Mount Laurel doctrine, one must understand what is unique about Mount Laurel II. And that, simply put, is that the New Jersey courts will now administer local planning to conform with an otherwise legally toothless state development plan. Such a system is new in the history of planning in this country. Although it is not ideal, it is the New Jersey supreme court's way of giving the state comprehensive planning, as dreamed of by planners, despite the cowardly, essentially anti-planning, stance of the state's governors and legislators. At last, the long road of litigation that led to Mount Laurel II has brought us to a destination marked "planning."

Ernest Erber, AICP, is a planning consultant in Columbia, Maryland. He was director of the Regional Plan Association's New Jersey program from 1959 to 1969 and director of research and policy planning for the National Committee Against Discrimination in Housing from 1969 to 1980. From 1969 to 1972, Erber directed a Carnegie-funded study of the movement of jobs from the central cities to the suburbs and its effect upon the minority work force. The study's report, Jobs and Housing, was cited in the Mount Laurel decision.