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Thursday, December 16, 2010

Christie's War against the Mount Laurel Doctrine: Do Conservatives Really Like Private Property Rights?

Last Friday, the New Jersey Assembly approved A-3447, legislation that would abolish the Council on Affordable Housing ("COAH") and significantly reduce New Jersey municipalities' obligations to accommodate the regional need for affordable housing in their zoning ordinances. Republicans actually wanted the bill to reduce suburban obligations even further.

In effect, the bill is an effort by an unholy alliance of Republicans and suburban Democrats to eliminate the 1985 New Jersey Fair Housing Act, the statutory implementation of the Mount Laurel doctrine. That doctrine, in turn, is the product of the New Jersey courts' thirty-five year war on exclusionary zoning. Under Mount Laurel, each municipality's zoning ordinance must permit sufficient residential uses to accommodate that municipality's "fair share" of the "regional need" for affordable housing. Although the Assembly is controlled by Democrats, the impetus behind gutting the New Jersey Fair Housing Act comes from Governor Chris Christie who has made the war on the Mount Laurel doctrine a centerpiece of his tenure. The opposition has come from urban Democrats who as recently as 2008 have attempted to strengthen the Fair Housing Act.

This political alignment might seem paradoxical. After all, are not suburban conservatives supposed to be supporters of private property? How, then, can they now be cheerleaders for local zoning? Zoning law is the single most intrusive regulatory interference with property in land existing in the United States: The average zoning regulation makes EPA's rules look positively libertarian. Consisting of a detailed mesh of command-and-control style regulations governing virtually every aspect of buildings -- their use, height, bulk, footprint, etc -- zoning unquestionably raises the price of housing through the restriction of housing supply.

Have Republicans gone socialist in their fondness for zoning? I think that there are two ways to understand this odd conservative solicitude for suburban zoning: (1) Hostility to class and race integration of the 'burbs and/or (2) hostility to redistribution of wealth.



First, race and class might take priority over property rights in conservative ideology. Libertarian rhetoric against intrusive government is just fine -- but not when it allows low- and moderate-income housing to invade your suburban enclave. Second, hostility to redistribution of wealth might trump hostility to regulation in conservative ideology. By insuring that each resident live in a structure of similar value, restrictive zoning insures that each resident pays a similar property tax bill, thereby transforming ad valorem property taxes into an annual fee reflecting the average costs of living in the jurisdiction.

Of course, suburban homeowners who loathe Mount Laurel might embrace both motivations simultaneously. The test for disentangling these motivations (class/racial snobbery or simple fiscal stinginess) might be whether the centralization of New Jersey's fiscal system erodes support for suburban zoning exclusion. Already, the New Jersey courts have centralized property taxation to some extent by imposing a degree of fiscal equalization on municipal educational spending. If Christie follows through on his promise to cap property taxes, then the effect of zoning decisions on one's property tax bill will be further eroded. Will New Jerseyites' love of exclusion be eroded as well? If not, then we will have a data point about what matters most to conservatives who claim to love private property.

As a conservative with a soft spot in my heart for the fee simple absolute, I cannot help but pine for the days when Republicans actually fought against restrictive zoning. Under Jack Kemp's watch as Secretary of HUD, the Republicans actually issued a report denouncing regulatory barriers to affordable housing. Taking seriously their commitment to private property rights, the Kemp Commission actually recommended that the federal government take steps to break down suburban walls to accommodate poor households' housing needs.

Now an aspiring "moderate" Republican like Christie makes war on the very principles for which Kemp, then regarded as a darling of conservatives, once crusaded. How times have changed.

Posted by Rick Hills on December 16, 2010 at 07:45 AM | Permalink

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"Have Republicans gone socialist in their fondness for zoning?"

Here in Houston we have no zoning, but you can bet that at any given moment there are a fair share of "Republicans" driving through the city and thinking to themselves "man, we sure could use some zoning!". Were it not for collective deed-restrictions the entire city would be scattered lots of junkyards, used car dealerships and payday advance outfits.

Posted by: Houstonian | Dec 16, 2010 2:38:44 PM

It seems to me that a conservative attack on local zoning would seek to enforce the rights of property owners, not create additional burdens on property owners for the benefit of third parties.

Posted by: Thomas | Dec 16, 2010 9:28:18 PM

As described in the linked articles, the existing laws to implement Mount Laurel do not sound as if they merely order towns to stand aside while market forces build or fail to build low-income housing within their borders. Instead they assign towns quotas for construction of such housing. Can towns reach Mount Laurel compliance by arguing that they removed all artificial barriers, but no one chose to build inexpensive units? It sure doesn't appear that way from the two articles.

In short, the articles make Mount Laurel sound like something quite different from a law requiring towns to relax zoning or adopt a broader view of private property rights. One needn't invoke an "odd ... solicitude for suburban zoning" based on "hostility to class and race integration" to explain why state-imposed construction quotas might meet with resistance.

Posted by: Walter Olson | Dec 17, 2010 6:51:57 PM

This is also a battle between local and higher-level regulation. Republicans may well want their regulation to come from local, close-to-the-people planning boards and boards of adjustment, and view Mt. Laurel and its ilk as intrusive State-level interference. In other words, it's a "federalism" debate at the State level.

Posted by: Sean M. | Dec 17, 2010 9:39:57 PM

Walter Olson writes:

Can towns reach Mount Laurel compliance by arguing that they removed all artificial barriers, but no one chose to build inexpensive units? It sure doesn't appear that way from the two articles.

Neither Mount Laurel nor the statute and regulations implementing it allow towns to satisfy their obligation by removing all "artificial barriers" to housing, because the term "artificial barriers" has no meaning: All zoning is "artificial" in the sense that it is the artifice of positive law. To remove "artificial barriers" would be to overturn Euclid v. Ambler Realty and eliminate zoning altogether -- and the notion that suburbanites would somehow be less irate at such a prospect than the prospect of housing "quotas" is a facetious proposition. To the contrary, the "quota" aspect of Mount Laurel is intended to make the doctrine more palatable to the 'burbs by limiting their exposure: Once they satisfy their fair share, then they are off the hook.

The appellate division's most recent (2007) foray into the details of Mount Laurel shows that the doctrine has a strongly libertarian focus. The appellate division held that municipalities could not be permitted to load developers with expensive obligations to provide below-market housing in return for the right to develop market-rate housing, because such "inclusionary" obligations had exclusionary purposes and effects. n the Matter of the Adoption of N.J.A.C. 5:94 and 5:95, 390 N.J.Super. 1, 104-05, 914 A.2d 348 (2007). In effect, the Court adopted a state constitutional doctrine of takings, barring confiscatory land-use regulations because such rules would frustrate rather than further the goal of supplying affordable housing even when such rules were ostensibly written to force developers to supply such housing. In effect, the appellate division adopted Ellickson's 1982 article, "The Irony of Inclusionary Zoning," widely regarded as the preeminent libertarian critique of inclusionary zoning.

But Christie and his suburban base do not like such libertarianism when it cuts against their property values.

Posted by: Rick Hills | Dec 17, 2010 11:44:10 PM

The 2007 decision isn't the most-recent foray into Mt. Laurel. The Appellate Division issued an October 8, 2010 decision addressing the revised third-round of regulations in In re THE ADOPTION OF N.J.A.C. 5:96 AND 5:97 BY THE NEW JERSEY COUNCIL ON AFFORDABLE HOUSING. http://scholar.google.com/scholar_case?case=7221376199679683200&q.

The revised regulations were rejected on similar bases as the 2007 decision.

Posted by: Sean M. | Dec 18, 2010 9:38:18 AM

Thanks, Sean M.: My slip-up.

The larger point remains: The appellate division is construing the obligation in a libertarian direction, limiting mandatory inclusionary obligations and emphasizing density bonuses, and Christie still hates the doctrine. So if Walter Olson really thinks that our world is over-regulated, then he should join me in a crusade to save the truly libertarian Mount Laurel decision.

Posted by: Rick Hills | Dec 18, 2010 9:43:31 AM

Thanks for the great post, Rick. Since I am desperately trying to avoid grading finals, let me add a few thoughts. Defenders of zoning -- Republican or otherwise -- often see zoning as an extension of private property rights, not as an intrusion upon them. Homeowners apprehend that their property values, property taxes, community character, and local school quality are tied up with the existing zoning, and they accordingly treat zoning as a vested right belonging to them. Courts and legislatures often indulge this fantasy, as when courts accord neighbors standing to bring spot-zoning challenges, or when legislatures give neighboring homeowners heightened procedural protections against zoning changes in their neighborhoods.

Contrast homeowner attachment to zoning with the widespread hostility toward eminent domain, which, unlike zoning, is perceived as harming property rights rather than protecting them. The comparison with eminent domain also rebuts Sean M's contention that Republicans may be more favorably disposed toward local regulation than state or federal regulation. In reference to eminent domain, Republican legislators in Arizona have actually called cities little terorist organizations that steal people's property. But when they zone, cities are associated with home, family, and the protection of property.

There is, furthermore, a "public choice" justification for local exclusionary zoning, although I find it unconvincing. Where there are a large number of small municipalities in a metropolitan area, as in New Jersey, exclusion becomes a non-issue because each city exercises regulatory power over such a small portion of the metropolis. Those excluded are free to go elsewhere. At the same time, exclusion is efficient because it increases homogeneity within each community, which makes it easier for local governments to satisfy the preferences of their constituents than if they had to govern a much more diverse constituency. On this view, local zoning is little more than a private market function.

Where the public choice justification breaks down is when all the local governments in an area have identical or nearly identical exclusionary policies, squeezing out the poor and minorities entirely. This is, of course, exactly what prompted the Mount Laurel doctrine. Perhaps severing the link between property taxes and zoning will, as Rick suggests, solve the problem. But there's so much more than just taxes underlying homeowner support for local zoning.

Posted by: Kenneth Stahl | Dec 21, 2010 3:00:41 PM

Kenneth Stahl writes:

Defenders of zoning -- Republican or otherwise -- often see zoning as an extension of private property rights, not as an intrusion upon them. Homeowners apprehend that their property values, property taxes, community character, and local school quality are tied up with the existing zoning, and they accordingly treat zoning as a vested right belonging to them. Courts and legislatures often indulge this fantasy, as when courts accord neighbors standing to bring spot-zoning challenges, or when legislatures give neighboring homeowners heightened procedural protections against zoning changes in their neighborhoods.

I heartily agree with this assessment, with the caveat that I am not sure that homeowner's assessment of zoning as a "stick" in their bundle of property rights is a fantasy. Following Robert Nelson and Bill Fischel, I am inclined to think that the homeowners' evaluation of zoning is right on the money. Zoning is capitalized into the value of homes, such that it is indeed bought and sold like any other stick in the bundle. The analogy of zoning to nuisance law -- the less controversial "quiet enjoyment" stick in the fee simple bundle -- is built into the concept of zoning from the SCOTUS's initial blessing of zoning in Euclid.

The normative question remains, however, of whether good libertarians should protect and foster this "zoning stick" or view it with suspicion and narrowly circumscribe it. Alas, libertarian ideology sheds little light on the proper definition of property rights baselines. For all of their solicitude for private property, libertarian theory tends to have very little that is interesting or persuasive about which sorts of expectations ought to be protected. (Remember Nozick's old devestating dismissal of the "mixing labor with things" theory of property? The tomato juice's being mixed with the ocean does not give you the right to own the ocean just because you own the juice? Has any libertarian advanced the ball on the question of the normatively attractive definition of property rights past where Nozick left it?)

So the normative question remains of whether and how courts and legislatures should protect this "zoning stick" as part of the ideal bundle of private property. My own inclination is to view this particular aspect of property with some skepticism, in the same way that I'd view the vast "private" latifundia estates of feudal landlords. On grounds of distributive justice -- which could, perhaps, be given a theoretical sheen by reference to Locke's "enough and as good left over" proviso, the zoning stick ought to be narrowly constrained, such that a good libertarian court can in good conscience bar zoning laws that exclude multi-family housing from the 'burbs.

Posted by: Rick Hills | Dec 23, 2010 7:52:47 PM

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