Historic Background 

In 1975 the New Jersey Supreme Court determined, in So. Burlington Cty. NAACP v. Borough of Mount Laurel (Mount Laurel I) that every developing municipality in New Jersey had an affirmative obligation to provide for its fair share of affordable housing. In a subsequent decision in 1983 (Mount Laurel II), the Court acknowledged that the vast majority of municipalities had ignored this constitutional obligation.

The starting point for any discussion of Summit’s affordable housing obligation must be the landmark civil rights case, Southern Burlington County N.A.A.C.P. v. Mount Laurel Twp (1975, 1983). The New Jersey Supreme Court ruled that the State Constitution prohibits municipalities from using zoning and other land use regulations to exclude the development of housing affordable by low- and moderate-income people. The Court placed an affirmative obligation on all localities to provide their “fair share” of their region’s need for such housing.

The Court explicitly found that local land use restrictions significantly contribute to the State’s extreme residential segregation and that the lack of affordable housing in thriving communities unconstitutionally deprives low- and moderate- income people access to such communities and all the benefits that come with residing in them, such as quality education, better paying jobs, better health care, and other factors that contribute to overall health and wellbeing.

The Court reasoned that the power to control and zone land use is a state power that has been delegated to municipalities by the State; as such, the Constitution mandates that municipalities exercise their land use powers for the general welfare: 

When the exercise of that power by a municipality affects something as fundamental as housing, the general welfare includes more than the welfare of that municipality and its citizens: it also includes the general welfare – in this case the housing needs – of those residing outside of the municipality but within the region that contributes to the housing demand within the municipality. Municipal land use regulations that conflict with the general welfare thus defined…are unconstitutional. Mount Laurel II (1983)*

In other words, the State Constitution mandates that municipal land use regulations further the general welfare, and the general welfare extends to low- and moderate-income people residing in the region outside the municipality. If there is an unmet need for affordable housing in the region, the municipality must provide the opportunity for its fair share of such housing.

The Court in that decision refined this obligation to focus primarily on those municipalities that had portions of their boundaries within the growth area as delineated in a document that was the precursor to the State Development and Redevelopment Plan. The Court also called for the state legislature to enact legislation that would save municipalities from the burden of having the courts determine their affordable housing needs. The result of this decision was the adoption of the Fair Housing Act in 1985 as well as the creation of the New Jersey Council on Affordable Housing (COAH), which became the state agency responsible for overseeing the manner in which New Jersey’s municipalities address their low- and moderate-income housing needs.