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Suburbs under Siege

Suburbs under Siege: Race, Space, and Audacious Judges

Charles M. Haar
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    Suburbs under Siege
    Book Description:

    InSuburbs under SiegeCharles Haar argues passionately that all people--rich or poor, black or white--have a constitutional right to live in the suburbs and that a socially responsible judiciary should vigorously uphold that right. For various reasons, American courts have generally failed to question local zoning regulations that trap the urban poor in the squalor of inner cities, away from decent housing and jobs in the suburbs. No U.S. Supreme Court case, for instance, has confronted exclusionary zoning rules, asBrown v. Board of Educationonce attacked school segregation. Instead, judges at all levels have most often reinforced the residential segregation that may well destroy American society. In this provocative book on the landmark Mount Laurel cases, Haar shows how the N.J. state judiciary broke out of this pattern of judicial behavior. These courageous, innovative judges attracted nationwide attention by challenging the forces of affluence that ruled the suburbs (and the legislature) of their state. Furthermore, they based their reasoning on the N.J. state constitution in order to protect their rulings from invalidation by the U.S. Supreme Court.

    In the early 1970s, when the cases began, the plaintiffs, Ethel Lawrence and her daughter Thomasene, were barely making ends meet in the Philadelphia suburb of Mount Laurel, a town where their African-American ancestors had lived for seven generations. The Lawrences' dream was to live in a Mount Laurel garden apartment planned by a grassroots reform group as affordable housing: in their way stood a typical minimum acreage zoning ordinance. The eventual court victory of the Lawrences and their young public interest attorneys inspired other N.J. suits and a process of remediation that continues to this day, as judges, experts (special masters), the state legislature, and other citizens work to carry out the Mount Laurel principles. Haar's book is a bold attack on conventional doctrines of the separation of powers limitations on the judicial branch and a plea that judges across the country assume their proper responsibilities for fair housing before it is too late.

    Originally published in 1998.

    ThePrinceton Legacy Libraryuses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

    eISBN: 978-1-4008-6426-3
    Subjects: Law

Table of Contents


    • I Breaking New Ground: The Role of the Courts in Social Change
      (pp. 3-12)

      In April 1974, Ethel Lawrence launched a lawsuit destined to dominate the suburban agenda of the country for the next two decades. The forty-one-year-old homemaker, a part-time practical nurse, could not find a house she could afford in her hometown of Mount Laurel, New Jersey. Heeding her minister’s advice, she and her daughter, Thomasene, invoked the help of young legal service attorneys in their search for an affordable home.¹ This simple action would become a flashpoint in the nationwide debate over exclusionary zoning and the destiny of American metropolitan areas. One immediate consequence was that the NewJersey Supreme Court undertook...


    • II Launching the Mount Laurel Doctrine: “Pack Up and Move to Camden!”
      (pp. 15-29)

      In the 1970s, following a decade of soaring residential growth, New Jersey burst on the developers’ firmament as the most desirable state for real estate investment. With the expansion of U.S. Route 1 and the migration of industry, offices, and population out of the New York City area to the north and Philadelphia to the south, New Jersey land values skyrocketed. Housing production surged to record levels; shopping centers and industrial parks sprouted up from Princeton north to the Lincoln and Holland tunnels. There seemed an insatiable demand for land to develop. And in response to this runaway market, many...

    • III The View from the Mount
      (pp. 30-54)

      There was perhaps a certain inevitability to the second pronouncement from Mount Laurel. For nearly a decade the New Jersey Supreme Court chafed under a municipal resistance that made a near mockery of its much-heralded ruling in Mount Laurel I. In outlawing exclusionary zoning, the court had run smack into the dedication to home rule that dominates American land-use control law. American municipal law entails a delicate balance between the powers that reside in municipalities and those that the state has delegated, between those functions inherently local and those whose implementation must be statewide.¹ Of all the powers held by...

    • IV Judges into the Fray
      (pp. 55-71)

      And now for the hard part.

      The battle of words had been won with Chief Justice Wilentz’s pronouncement on January 20, 1983. The Mount Laurel Doctrine stood reaffirmed. If Justice Hall had been the visionary, Chief Justice Wilentz was the realist. He knew he had a huge war ahead of him, and like a field marshal preparing for battle, he needed the foot soldiers to fight in the trenches. The general chose three distinguished trial judges—Anthony Gibson, Eugene Serpentelli, and Stephen Skillman—for the special mission of bringing the Mount Laurel Doctrine down to earth and rebuffing the anticipated...

    • V Of Special Masters and the Front Line
      (pp. 72-86)

      If the three trial judges introduced by Mount Laurel II were the one-star generals in Chief Justice Wilentz’s army, then the special masters were the infantrymen, equal parts judicial officers, facilitators, mediators, and fact finders. One of the novel powers that the New Jersey Supreme Court conferred on the troika of trial judges was broad discretion in the appointment of experts. They could be used to assist in identifying a municipality’s fair share obligation, or in determining the adequacy of revised ordinances under the doctrine, or in monitoring remedies, or wherever the trial judge thought they could be useful. Originally...


    • VI The Legislature Strikes Back . . .
      (pp. 89-116)

      The determined behavior of the New Jersey judiciary—the high court rulings, the three specialized judges presiding over their respective geographic jurisdictions and becoming zoning and administrative experts by virtue of continuous involvement—coupled with the active participation of the court-appointed special masters, further advanced by stratagems of judicial prodding, mediation, and negotiation, and capped by an implementation campaign devised to assure compliance, began to inspire genuine movement toward the realistic availability of low-income housing in the suburbs. New Jersey municipalities could no longer hide from their constitutional obligation to provide access for affordable housing. Hundreds of zoning ordinances were...

    • VII . . . And the Judiciary Responds: Holmdel and Warren
      (pp. 117-126)

      Enactment of the fha extended the interdepartmental dance. Now that the legislature had introduced COAH into the situation, the court’s participation, if any, in enforcing the Mount Laurel Doctrine remained up in the air. In two ensuing opinions,HolmdelandWarren, the New Jersey Supreme Court resolved any doubts about its role, spelling out continued and rigorous protection of its previously articulated stand. COAH or not, determinations by the supreme court would continue to affect the operation of fair share determinations. Indeed,HolmdelandWarrenwell deserve their popular labels of Mount Laurel IV and Mount Laurel V.



    • VIII The New World of Judicial Remedies
      (pp. 129-147)

      The Mount Laurel Doctrine’s checkered twenty-year history provides a social science laboratory that tests whether courts, through wide-ranging, often intrusive remedies, can effectively reorder ongoing institutional practices that systematically breach constitutional or statutory norms. How do the benefits of such judicial implementation measure up against the costs of achieving its objectives? “The measure of any desegregation [or other] plan is its effectiveness.”¹ Without resultant housing in suburbia, the sound and the fury signify little.

      Several key questions order this inquiry. Is the judiciary capable of effecting lasting change in society, given the inherent limitations that shape and bind it as...

    • IX Discretion and Its Discontents: Checking Abuses
      (pp. 148-158)

      In Aeschylus’sPrometheus,Zeus is described as a tyrant because he exercises power “according to no fixed known law.” Pronounces Prometheus, “I know that he is a savage and his justice is a thing he keeps by his own standard.” The rallying cry of some critics of judicial land-use reform is similar: will not the wide discretion that necessarily accompanies the setting of institutional remedies result in the unprincipled application of power by the courts?¹

      Remedies aimed at providing affordable housing in suburbs within a metropolitan area, involving so many land configurations, variables, and conflicting values as they do, cannot...


    • X Leadership in Institutional Reform: Rallying Support for a Vision
      (pp. 161-174)

      Over a long and tedious period, the New Jersey courts engaged in a struggle with the state’s localities and legislature that stretched the judiciary to the limits of its power. This battle for reform made New Jersey the cynosure of urban planners and land-use lawyers nationwide. Recently, local planning experts have been tapped to testify in New York, Pennsylvania, Oregon, and other states seeking to adapt the Mount Laurel experiment. The reason? The spirit of America is uneasy: throughout the country, communities are grappling with the ominous spectacle of two separate nations evolving within major metropolitan areas, one locked into...

    • XI The Last Recourse: Why Judges Intervene
      (pp. 175-185)

      The Mount Laurel litigations bring to the fore the residual role of the courts in the checks-and-balances system of a constitutional democracy. Local governments, ordinarily endowed with total discretion in the exercise of zoning power, are found to be seriously and chronically in constitutional default. In such a state of affairs, whatever a court’s adherence to the separation of powers as usually enunciated or whatever the loyalty to the conventional division of powers among the levels of government as typically argued, the strict rules of judicial insulation become inapposite.¹

      To modify a phrase from the philosopher David Hume, it is...

    • XII National Ramifications: Judges as Social Innovators
      (pp. 186-208)

      When the long-brewing crisis over local exclusionary zoning ordinances finally erupted, the constitutional responsibility to enforce public law norms forced the judiciary to undertake an extensive and, at times, coercive reordering of the way localities managed their land-use regulations. No longer would it be enough that the law “forbids rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread.”¹ The time for substantive equality had arrived. Each town had to establish land-use regulations that would offer opportunities for satisfying its obligation to provide a fair share of the regional need for...