Defending Progressive State Housing and Land Use Policies

The fates of three venerable policies on fair share housing and sustainable land use can point the way for how to support similar efforts in other states.

Early in 2009, after announcing his candidacy for governor of New Jersey, Chris Christie told an audience in largely-suburban Monmouth County, “If I am governor, I will gut COAH [the Council on Affordable Housing], and I will put an end to it.” According to Max Pizarro of PolitickerNJ.com, “The comment got a raise-the-roof response.”

“Imagine a law that allows a developer to come into your town and ignore all of your zoning, to tell you your rules don’t matter. That law is the Massachusetts Comprehensive Permit Law, commonly called Chapter 40B.” So says a 2010 video (NIMBY: The 40B Movie, Part One), supporting an effort to repeal 40B.

A number of states have housing and land use policies that promote broad progressive public goals such as compact, sustainable development or affordable housing development in areas of opportunity. Some have emerged from the courts and others from legislative action, and sometimes they override local zoning or planning board decisions to achieve their goals. Not surprisingly, these programs are usually contentious and often face vigorous efforts by resident groups, property owners, or local officials to weaken or revoke them.

Passions surrounding the 40B repeal effort were high, and they have run high more than once in New Jersey and Oregon as well as they fought to preserve their progressive housing and land use legislation. The stories of these challenges to three of the oldest and most well-known of these initiatives can teach us something about how to craft and defend such policies going forward.

New Jersey and Mt. Laurel

The New Jersey Supreme Court’s Mt. Laurel decisions (1975 and 1983) ruled that local zoning had to take into account regional housing needs, obligating the state’s 566 localities to each provide their “fair share” of affordable housing. As a result, in 1985, the New Jersey Legislature enacted the New Jersey Fair Housing Act. There are two hotly contested aspects of this statute.

First, is the “builder’s remedy,” which affects municipalities that do not have a plan that has been certified by COAH for providing their “fair share” of their region’s affordable housing. (COAH is the state agency created to implement the Fair Housing Act.) A developer of a project that would include a reasonable share of affordable housing that has been rejected by one of these municipalities can sue and receive approval directly from the court.

Second, COAH’s formulas to set those “fair share” affordable housing targets are complex and hotly disputed. Even before the governor’s move to eliminate COAH, the agency was basically at a stand-still with ongoing litigation, after a set of rules enacted in 2004 — widely seen as based on egregious statistical manipulation to minimize municipal fair share obligations — were invalidated by the courts in 2007.

Opposition to COAH has come from developers, municipal officials, and even housing advocates. Numerous court suits have been filed and needed regulations have been delayed, stalling the program. After Christie’s election, various bills to eliminate the agency were presented in the state Assembly. A bill was approved by the Legislature to say that all municipalities would have to have 10 percent of their housing stock as affordable to low- and moderate-income households. The governor, however, issued a conditional veto, killing the bill, and subsequently tried to abolish COAH through an administrative reorganization process without legislative approval. His authority to do so has been rejected by the Appellate Division of the State Superior Court. Although technically still in existence, COAH has been largely dismantled, and the official state website continues to treat its abolition as a fait accompli.

For 25 years, the tensions inherent in the process of implementing New Jersey’s Fair Housing Act were managed successfully, grounded in a political consensus that the Mt. Laurel doctrine was to be respected, however grudgingly. When state government began to move away from playing a balancing role in the process, however, opponents of Mt. Laurel were able to mount increasingly direct attacks, not only on COAH but also on the principles behind it. With the election of a governor not even concerned with giving lip service to those principles, the future of the Mt. Laurel doctrine is uncertain.

Massachusetts: Chapter 40B

Chapter 40B was passed by the Massachusetts Legislature in 1969 as a mechanism to counter exclusionary zoning practices in the state. It set the goal that each municipality should have 10 percent of its year-round housing stock earmarked as affordable housing. Under the Chapter 40B comprehensive permit process, if a local zoning board of appeals denies a builder a comprehensive permit for a development that has certain number of units (usually 25 percent) set aside as affordable and subsidized through one of several local, state, or federal programs, and the municipality is not in compliance with the 10 percent goal, then the state-created Housing Appeals Committee may override the local zoning decision and zoning codes and permit the development.

Most proposals filed under Chapter 40B are negotiated at the local level and eventually receive local approval. In fact, increasingly, 40B proposals are what are known as “friendly 40Bs,” meaning that a municipality and a developer work out a project under 40B together, sometimes with the development actually initiated by the local government.

For much of the 1970s and 1980s, 40B was used relatively little. By the early 2000s, as the housing market heated up, critics of the state’s ability to override local zoning were becoming more outspoken. In response, the statute was changed to give localities more opportunities for immunity from unwanted developments and more flexibility in achieving the 10 percent affordable housing goals.

Opposition continued, however, and through the 2000s, many municipalities filed lawsuits in response to 40B developments. A movement formed and got repeal of 40B on the ballot in 2010. Housing advocates led a highly organized effort to defeat the proposal, and with the support of Gov. Deval Patrick, beat it back with about 58 percent of the electorate voting against repeal. Nevertheless, opposition persists.

Oregon Land Use Regulation

In response to considerable growth in the late 1960s and early 1970s, the Oregon Legislature created the Land Conservation and Development Commission (LCDC) in 1973 to formulate and implement state land use planning goals. It then created the Land Use Board of Appeals (LUBA) in 1979, which was given the power to overturn local governmental decisions that conflicted with those goals.

LCDC’s Goal 14 required that urban growth boundaries (UGBs) be established and updated periodically to manage urban growth and contain sprawl. Opponents of UGBs argued that by limiting the development of housing outside UGBs, the cost of housing within the UGBs would escalate.

A citizen group, 1000 Friends of Oregon, helped implement the Oregon statute and opposed efforts to weaken or repeal Oregon’s land use policies. An opposing organization, Oregonians in Action (OIA), formed to represent disgruntled home and property owners. OIA argued for compensation for the loss of value caused by governmental limitations on the development of private property through regulations like the UGBs.

Measure 37, a ballot initiative approved in 2004, required compensation (or waiver of the regulation) if a land use regulation reduced the fair market value of private real property. In response to the number and magnitude of the claims filed under Measure 37, the Oregon legislature enacted a corrective measure, Measure 49, in 2007. While eliminating the potentially disastrous compensation features of Measure 37, Measure 49 allowed eligible property owners to apply for development that had not previously been allowed in protected areas, including developments of 3 to 10 homes. The result is expected to be more, though limited, development outside the urban growth boundaries.

Lessons

These three cases offer a number of broad lessons for states considering the adoption of anti-exclusionary zoning policies or other types of state-based land use overrides, or states trying to preserve existing statutes.

  1. Base an initiative on legislative action or a popular vote. A court decision won’t necessarily establish political legitimacy, satisfy local governments, or even appease housing advocates.
  2. A statute must be clear, understandable, and simple to implement. Providing opponents details (like a complex “fair share” formula) to argue over can slow down and undermine the credibility of an initiative.
  3. Repeal efforts never go away. Advocates need to remain organized and ready to launch a defense or counter-attack.

Responding to Attacks

If a statute is threatened with repeal, there are a number of steps for its advocates to take.

Form a broad-based coalition of constituencies. Since progressives are often outspent in statewide political campaigns, they need both well-financed allies and grassroots supporters ready to actively participate through an organization like 1000 Friends of Oregon, which was on hand to act as a watchdog on Oregon’s land use reforms, lobbying state and local government to preserve them, as well as engaging in political campaigns and turning out the vote when conservative and business interests attempted to undermine or repeal reforms at the ballot box.

Collect as much information as possible on the myths and realities of likely talking points for repeal. In Massachusetts, the state’s leading housing advocacy organization, Citizens’ Housing and Planning Association, contracted with several local researchers to gather information on the economic contributions of housing permitted through Chapter 40B. The resulting report demonstrated that Chapter 40B stimulated a great deal of economic activity, including over 20,000 jobs created from projects completed between 2000 and 2010. The program also generated over $178 million dollars per year during that decade in income, property, and sales taxes paid by residents of developments built under it.

Use the media effectively and time important messages to maximize impact. The Massachusetts report on economic effects was released less than two months before the November statewide referendum. The Boston Globe ran this headline: “Affordable-housing law called a big boon,” and called the significant economic impact of affordable housing a prime reason for opposing repeal.

Link the policy to broadly held values. In Oregon, opponents of reimbursing aggrieved property owners embraced the slogan: “Yes on Measure 49 — Protect our Homes” (e.g., from sprawl and over-development). This relatively simple message countered opponents’ appealing slogans like “fairness.” Supporters framed the growth control measure as protecting the environment and communities’ quality of life.

In Massachusetts, 40B advocates urged voters to Vote NO on 2 (the ballot initiative) to Protect the Affordable Housing Law for Seniors and Working Families, presenting the successes of the statute in terms of meeting the needs of people whom the electorate generally views positively, rather than focusing on poor households. (However, be careful with this. If the issue is framed to explicitly avoid “the poor,” it is possible that some of the original goals of the statute will be compromised.)

Locales all across the country are grappling with both how to deal with suburban sprawl and how to house diverse populations, and more states may look to statewide initiatives. Addressing these concerns inevitably requires a powerful mechanism to override local zoning and other local regulations that conflict with broader regional and statewide policy goals. Vigorous opposition is virtually certain and advocates need to be prepared.

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