Commentary 30- On Government Zoning Powers

From the New Jersey Star Ledger, 5/14/08

Are Democrats making peace with the 'burbs?
Posted by Paul Mulshine May 14, 2008 8:00PM


The Democrats need to end the war.

The war against the suburbs, I mean. It's getting out of hand.

"We're discouraging jobs in this economy," says state Sen. Ray Lesniak. "It's dumb. Stupid, stupid, stupid."


Lesniak, who is a Democrat, was talking about the latest affordable-housing scheme. The Corzine administration recently signed off on new Council on Affordable Housing regulations that call for more than 100,000 new housing units to be shoehorned into the suburbs. Worse, the plan lists parks, schoolyards and even the Garden State Parkway right-of-way as available for development. And even worse than that, the Democrats plan to send the bill for much of this construction to anyone who wants to build a new business in the state.

That's what set Lesniak off. Though he himself is a city-dwelling Democrat - he lives in Elizabeth - Lesniak realizes that the COAH plan amounts to nothing less than a declaration of war on new business. His "stupid, stupid, stupid" comment was directed at the part of the plan that would make any new business moving into the state responsible for paying to build housing proportional to the number of new employees.

Even without the new regs, it's hard enough to get new businesses to locate in the state, says Michael McGuinness, who heads the state chapter of the National Association of Industrial and Office Properties.

"The proposed rules are real deal killers," said McGuinness. "We're not aware of similar affordable housing fees in other states, so it makes us less competitive."

That's only one reason the 1985 Fair Housing Act, which set up COAH, needs "a total overhaul," Lesniak said.

"Right now it's a very poor planning tool," he said. "It contributes to sprawl, increases infrastructure needs and increases the unaffordability of the state of New Jersey."

Indeed it does. But the Legislature may be powerless to do anything about it. The war on the suburbs originated in the state Supreme Court, not in the Legislature. Way back in the disco era, the seven justices of the court decided to straighten out suburbia by taking over both zoning and school funding. Since then, every effort by the Legislature to take back control has been rejected by the justices.

I predicted to the senator that the court would reject his reforms as well. Then what?

He's ready to take the nuclear option, that's what.

"If we adopt a plan that provides affordable housing where the jobs are and where the mass transit is and the court says that's unconstitutional, I would support a constitutional amendment," he said.

Such an amendment has long been pushed by state Sen. Gerry Cardinale, a conservative Republican from Bergen County. If the Democrats decided to put such an amendment on the ballot, said Lesniak, it "would pass overwhelmingly."

At that point, the suburbs would be free of the effects of the court's 1975 Mount Laurel ruling, the disastrous decision that started all of this. In the fuzzy memories of most liberals, the court was forced to reject Mount Laurel's zoning code because the town fathers had engaged in exclusionary zoning to keep minorities and poor people out.

In fact, that "exclusionary" zoning code permitted a housing density of more than four units per acre. That's a density roughly equal to the neighborhoods in Lesniak's own Elizabeth.

And here's a memorable line from that decision: "No forests or small towns need be paved over and covered with high-rise apartments as a result of today's decision."

Countless forests have been felled since then for the condos and townhouses required by the court. And countless more will be bulldozed in the future. Once the current COAH quotas are met, the next round will call for even more housing.

All of this is being done because long ago the justices of the New Jersey Supreme Court decided that the people who pay their salaries are a bunch of narrow-minded bigots and unrepentant racists. The same is true of the court's decision in the Abbott vs. Burke school funding cases. Thanks to those decisions, the court took over school funding decisions. As a result, more than half of state aid goes to 31 heavily Democratic and heavily urban "Abbott" school districts, while the remaining 580 school districts get to split up the rest.

Lesniak won't be leading the revolt against that decision though. Most of the Abbott districts just happen to be located in his backyard. In fact, his backyard is literally in one such school district. The Elizabeth school district gets more state aid than all of the school districts in Morris County combined.

So don't hold your breath waiting for the Democrats to end that aspect of the war on suburbia. They've already declared victory.

Original Referenced Link


My Commentary:

Posted by Zemack on 05/16/08 at 9:09PM
There is no question in my mind that the Mount Laurel decision that led to the COAH was prompted by widespread exclusionary municipal zoning practices that froze out large segments of homebuyers. Rather than another COAH mandate, though, what should be questioned is the very government zoning and land-use power that is at the root of the problem. Rolling back the so-called "home rule" powers of local governments, not the shifting of those powers to the state, is the answer.

Had local government's not interfered with the economic activities relating to the housing market, there would have been much greater availability of housing at much lower prices than we currently have. (There are a number of causes for the affordable housing crisis in NJ, but restrictive zoning and planning board practices is a major one.) By imposing these restrictions on land use, property owners are effectively barred from selling their land at market prices, builders from constructing housing to meet market demand, and potential buyers are frozen out of the market by artificially inflated prices and lack of supply in many locations.

This is not to say that government doesn't have a role, but that role is rooted in the American principle that government's proper function is to protect the rights of its citizens. When local groups use municipal zoning powers to impose land-use restrictions...whether for reasons of race, income level, preserving the "quality of life" of existing residents, esthetics, or to impose their own utopian vision of what the "character" of "their" town should look like, etc...they are violating the individual rights, including property rights, of property owners, builders, and homebuyers. (Never mind the "rights" of the local groups. Rights belong to individuals, and only individuals. There is no such thing as group rights.)

This does not mean that builders and property owners can do as they please regardless of the consequences to others. The builder cannot, for example, design his project so as to allow stormwater runoff to flood adjacent properties...or install insufficient sanitary waste removal facilities that can contaminate the property of others. In these or similar instances, the government can properly step in to require corrections and the payment of restitution to the affected property owners, as determined in a court of law. But as long as the builder causes no physical harm to the property or lives of others, he has violated no one's rights and thus should be free to build according to his best market judgement.

There is a strong demand here in New Jersey for affordable housing. The answer to the housing affordability problem is to eliminate the source of the problem...government impediments. The property and housing markets should be liberated from the tyranny of local "planners" using the illegitimate and un-American zoning powers of municipal governments to create "ideal" communities at the expense of individual rights, and to the exclusion of large segments of the population. So long as no one else's rights are violated, the location, price range, and quantity of residential development should be determined by the voluntary, uncoerced judgements of landowners, homebuilders and homebuyers...i.e., by the free market...and nothing else.


Other Commentary:

Posted by hglindquist on 05/17/08 at 6:44AM
Zemack writes: Never mind the "rights" of the local groups. Rights belong to individuals, and only individuals. There is no such thing as group rights.

Apparently Zemack is unfamiliar with a whole body of law regarding "groups" like corporations.

from http://www.capitalism.org/faq/corporation.htm

Isn't the right to form a corporation, really a "privilege" that can be revoked at whim by the state?

The basis of treating a group of individuals who form a corporation as a single entity are the rights of the individuals who make up the corporation, i.e. the rights of the shareholders, the rights of the corporate officers, the rights of the employees (management, etc.), and the rights of all individuals who choose to trade with that corporation under the terms of the corporate agreement. The right to form a corporation is not a "privilege" as socialists allege, but is an inalienable right.

The definition of a corporation as "An artificial person or legal entity created by or under the authority of the laws of a state" (Blacks Law Dictionary) is only valid when one understands that the laws of any proper state are based on the principle of rights. The point is that the state has no authority to violate rights.

I like that: The right to form a corporation is not a "privilege" as socialists allege, but is an inalienable right.


My Commentary:

Posted by Zemack on 05/17/08 at 5:44PM
Precisely, hglindquest.

Notice that the definitions you reference validate my contention that the group...the corporation, in this instance...possesses no rights, separate and apart from the individuals that comprise it. An individual neither forfeits his rights, nor acquires new rights, by joining a corporation. Each individual maintains his rights, which are inalienable. The corporation, as such, has no rights. It merely acts according to the authority delegated to it by the individual members, who themselves act together by mutual consent to mutual advantage. The concept of inalienable rights...rights possessed by all individuals, equally, and at all times...remains inviolate.

This is not so, in regards to municipal corporations under current law, though. And that's the problem. This relates to the crucial difference between private and governmental entities. Municipalities are governmental entities, and as such possess what no private corporation or group possesses...the power of legalized force and compulsion. Municipal zoning and land use authority conveys on certain individuals the extraordinary power to violate the rights of other residents, thus rendering the concept of inalienable individual rights inoperative. This state of affairs is more consistent with medieval feudalism than American principles.

My argument is not to say that municipalities do not possess these powers, but that they should not possess them. As is quoted in your reference, "The point is that the state has no authority to violate rights."
But that is precisely what local governments do! The NJ Supreme Court was right to address this issue, but their solution was worse than the disease. Rather than grant to the state the power to impose housing mandates on local communities, they should instead have rolled back the "home rule" authority of towns to arbitrarily block the construction of the low and moderate income housing that the market demands.