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For the past 10 years or so, the Oregon Legislature has been directing local land use policy regarding housing. Such actions include authorizing inclusionary zoning (by which cities may set aside lots and apartments for those of low or moderate income), authorizing accessory dwelling units and 鈥渕iddle housing鈥� with higher densities in single-family zones, requiring 鈥渃lear and objective standards鈥� for most housing developments, providing for an Oregon Housing Needs Analysis as a measure of municipal response to that need, appropriating public funds for housing and infrastructure, and providing for an enforcement mechanism to assure that regulatory housing barriers are reduced or eliminated.

But Oregon is not the only state with a highly intensive level of housing activity. To our south, California has responded to its housing crisis by legislative intervention previously unknown in a state with a strong 鈥渉ome rule鈥� deference to local plans and land use regulations. That legislative intervention is a work in progress. For another state that has seen a significant change in the regulatory landscape for housing despite a strong home rule orientation, we might turn to New Jersey.

Fifty years ago this past March, the New Jersey Supreme Court handed down the first of several 鈥淢t. Laurel鈥� decisions, concluding that exclusionary zoning patterns (such as large lots, unnecessary development regulations, and the like) restricting housing access to substantial segments of the population聽were contrary to the legislative delegation of zoning authority to local governments for the public welfare and thus violated its state constitution.

The court established a 鈥減resumptive obligation鈥� that each municipality affirmatively 鈥減lan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of聽people聽who may desire to live within its boundaries.鈥� Thus, cities cannot adopt regulations or policies that thwart or preclude that opportunity.

Moreover, each municipality was required to accept its fair share of the regional housing need. To provide meaningful relief, the court allowed a 鈥渂uilder鈥檚 remedy鈥� by which a housing project denied or unfairly burdened by conditions may be taken to the Superior Court, which could order approval notwithstanding local government actions. These decisions caused an outraged reaction by local governments in a state with a strong tradition of local home rule.

The Legislature reacted in 1985 by adopting the Fair Housing Act, by which courts would generally not provide the builder鈥檚 remedy in exchange for a state agency, the Council on Affordable Housing, undertaking the regional fair share allocation. By 2000, over 50,000 new housing units were provided for low- and middle-income residents, and those units would not have been available under previous local zoning regulations. The courts then stood down on the builder鈥檚 remedy, and for about 15 years, the administrative remedy was successful.

However, after 2000 the Fair Housing Act was not enforced and was in fact sabotaged by first Gov. James McGreevey and then Gov. Chris Christie, who attempted to abolish the council by executive fiat, failed to appoint its members, manipulated the formula, and generally presided over a system that failed to provide for adequate numbers of low- and moderate-income housing in the state鈥檚 564 municipalities.

In 2015, the court again took over the enforcement of housing rights under the Mt. Laurel decisions and recognized the Fair Share Housing Center, a nonprofit housing advocacy entity that had participated in the early Mt. Laurel cases and has since been recognized by the courts as an intervenor in almost every subsequent fair housing case, as a public advocate for housing fairness. In doing so, the court required that local governments make up for the 15-year inactivity in housing oversight between 2000 and 2015.

In 2024, the New Jersey Legislature revisited its housing legislation by eliminating the Council on Affordable Housing discretionary housing need determinations and utilizing a statutory formula administered by the state鈥檚 Department of Community Affairs, by which nonbinding regional and present and prospective municipal fair share housing obligation numbers are incorporated in a local housing plan element and 鈥渇air share plan.鈥� The new law provided a permanent mechanism for establishing enforceable fair shares every 10 years beginning in 2025. If municipalities wish to avoid developer 鈥淢t. Laurel鈥� suits, they must adopt fair share numbers, using a series of vacant land, economic capacity, and population growth factors specified in the statute. Within five months (normally by June 30) after adopting the local share, they must adopt and file zoning and other regulations for implementing these plans.

Challenges to the fair share projections and the implementing plans must be quickly resolved through the Affordable Housing Dispute Resolution Program, administered by the state courts and involving judges who were previously charged with hearing Mt. Laurel cases. Local government calculations are presumed valid but may be challenged for conformity with the statutory formula. A similar dispute resolution process is used to adjudicate disputes over the adequacy of municipal fair share plans and housing elements. The state expects to see all these challenges be resolved by March 31, 2026, so that local governments will have a clear understanding of their housing obligations for the next 10 years.

Both Oregon and New Jersey have been pragmatic and iterative in the way they seek local participation in achieving statewide objectives. Both stress the importance of supportive use of numbers to assess the current and projected housing pictures and have an adequate system to resolve disputes. While neither system controls non-land-use factors, they both provide some promise in dealing with the barriers imposed in the regulatory system.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the 91视频 guarantees the accuracy or completeness of any information published herein.