Preemption in New Jersey: A Foundation for Locally-Led Change?
The Local Solutions Support Center is excited to continue a blog series featuring our 2022 Research Cohort. Each month, a member of our Research Cohort will explore a different topic and its connection to preemption. Here, Noah Kazis explores a case study in New Jersey.
Sometimes, it’s easy to identify the abuse of preemption.¹ New state laws have targeted individual local lawmakers, in their personal capacity, for merely trying to represent their constituents; others intrude on the most basic and traditional processes of self-organization; still others attempt to silence dissent and discourse, stifling local voice in addition to local power. (And of course, many of these laws come at the behest of corporate special interests—not any broader populace represented at the state level).
For example, in housing, where my research is focused, three states have stopped local governments from protecting low-income renters from discrimination, overturning bans on “source of income discrimination” in which landlords refuse housing to the holders of housing vouchers. Those local efforts helped voucher-holders find more options, in better neighborhoods, to secure affordable, quality homes. These preemptive laws disproportionately harm people of color and impede vouchers’ ability to promote integration—even prompting concern about whether such preemption runs afoul of the Fair Housing Act. Nor do the sponsors of such preemptive laws offer any real argument that state intervention is needed, beyond a policy disagreement with more progressive local governments. It’s just a tool for increasing power for conservative state legislators to wield.
But understanding how preemption has gone wrong also requires a better understanding of how preemption can be used productively—and even to ultimately enhance local politics. It’s harder to pinpoint the misuse of this legal technique without knowing the contours of its proper use.
One place deserving of much closer study is New Jersey’s land use laws, and specifically, its famous Mount Laurel doctrine, which requires all local governments to contribute their fair share of their region’s affordable housing needs. On the one hand, Mount Laurel represents a significant state-led intrusion into local land use prerogatives. Yet at the same time, today local governments in New Jersey are taking important actions to build housing beyond what Mount Laurel demands, and beyond what their neighbors in other states are doing. In ways we as scholars don’t quite understand yet, this preemption has coexisted with—and perhaps set the foundation for—locally-led change. It is worth asking how, and why.
First, some background about Mount Laurel. The doctrine arose out of ground-breaking civil rights litigation brought by a local NAACP chapter. In 1975, the New Jersey Supreme Court held that local zoning powers existed only as a delegation of the state’s power—a classic anti-localist legal move—and that as such, those powers could not be used to exclude new residents and especially low-income households.² To implement that obligation, the New Jersey courts first created a “builder’s remedy,” which allowed affordable housing developers to build regardless of local zoning in towns that hadn’t already built their fair share of affordable housing.³ Later, the state legislature stepped in to codify and implement the Mount Laurel doctrine, creating a new state agency in charge of administering the process and assigning local governments their housing production obligations (the courts later reclaimed control of and reinvigorated Mount Laurel due to executive-branch obstructionism).⁴ Today, compliance with the core mandate to provide a fair share of affordable housing is generated through a mix of top-down and bottom-up techniques: most localities, facing the threat of state-imposed sanctions, instead have reached locally-negotiated settlements. Over the strenuous objections of New Jersey’s many suburban communities, the doctrine has led to the construction of roughly 80,000 affordable homes, with tens of thousands more in the pipeline—a remarkable accomplishment.⁵
But the implementation of the Mount Laurel fair share requirement isn’t the only interesting thing happening in New Jersey land use. At the same time, New Jersey has become a regional leader in market-rate housing production, even in places that Mount Laurel has not forced into action. Indeed, it is providing the lion’s share of the entire tri-state New York City region’s housing production, outside NYC itself. In 2020, Northern New Jersey permitted twelve times more new housing units than Long Island, and more than twice as many as all of New York City’s suburbs in Long Island, the Hudson Valley, and Connecticut combined.⁶ This badly-needed housing supply helps keep housing prices from soaring even higher than they are already, contributes to racial diversity and integration in New Jersey, and in many cases drives down residents’ greenhouse gas emissions.⁷
“New Jersey is a place with two major stories in land use today—one led by the state against local prerogatives, and one led by localities themselves. Understanding the relationship between those two stories may teach us much about what preemption can and can’t do. ”
Many New Jersey localities have found their own path—entirely outside the Mount Laurel framework—to moving beyond NIMBYism, exclusionary zoning, and housing scarcity. Small towns like Palisades Park (near the George Washington Bridge) have moved beyond outdated regulations that prohibit multi-family housing, regulations that are historically rooted in elitism and discrimination (including discrimination against racial and ethnic minorities, poor families, and those living outside traditional family structures). Palisades Park has received national acclaim as a model of how to build duplexes and other “light touch density” in a way that is attentive to local needs and strengthens the local housing market and tax base.⁸ Jersey City has become arguably a national leader in transit-oriented development, growing fast, dense, and with limited parking provided—often allowing more housing near transit than can be found in much of Brooklyn.⁹ Remarkable land use success stories—though far from universal—can be found across New Jersey.
Which all raises the question – is this just a coincidence? New Jersey has taken a very different path from its neighbors in New York and Connecticut, where exclusion remains the rule.¹⁰ It doesn’t seem likely that New Jersey’s distinctive growth is a demand-side story, at least outside the very most urban areas along rapid transit—Long Island and Westchester would seem to share roughly the same regional demand for new housing as New Jersey. Rather, it seems that something about New Jersey’s legal and political systems has changed the decision-making process, letting communities chart a path towards growth and inclusion rather than scarcity and exclusion. It is at least plausible that changes first driven by an aggressive state intervention to produce more housing (of one kind, in one place) have helped produce more housing statewide. Many of the closest observers of New Jersey’s land use processes have surmised that Mount Laurel led to broader shifts in the culture of development in the state, and they may be on to something.
It would behoove land use and local government scholars to better understand this connection. Within land use, are there state law changes which, in New Jersey, have enabled local governments to overcome exclusion without directly preempting their land use powers? Were those changes necessarily connected to Mount Laurel, or can they be pulled out separately? And as a broader question for state and local governments, what features of preemption can help “reset” local politics, putting localities on a new track without fully displacing local lawmaking? In New Jersey, it’s possible that by preempting one bad set of local policies, the state actually empowered localities (as a practical matter) to pursue more, different visions of local land use—including more inclusive and affordable options. If so, this may indicate that preemption can actually strengthen localism, withdrawing from local governments one set of policy options but providing them many more in exchange.
It may be that the New Jersey land use story is idiosyncratic, contingent, and not generalizable. It may turn on hard-to-capture questions of culture, which aren’t easily exported elsewhere. There may be no actual connection between Mount Laurel and the path of non-Mount Laurel development (just to spitball, it may be a matter of growth-friendly fiscal structures, or local machine politics—or something else entirely). And land use, where local actions are well-understood to have extensive (and frequently destructive) spillovers beyond city limits, is not analogous to other policy areas where preemption is used more abusively.¹¹ Still, New Jersey is a place with two major stories in land use today—one led by the state against local prerogatives, and one led by localities themselves. Understanding the relationship between those two stories may teach us much about what preemption can and can’t do.