Stockman, Gerald R.

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THE ART OF THE POSSIBLEby Senator Gerald R. Stockman *On July 2, 1985, Governor Kean signed into law the "FairHousing Act."' The statute incorporates the Mt. Laurel II man-date that "every municipality in a growth area has a constitu-tional obligation to provide through its land use regulations, arealistic opportunity for a fair share of its region's present andprospective needs for housing for low and moderate income fam-ilies."' 2 The Act is an attempt to remove the courts from localzoning disputes by establishing an administrative framework fordetermining the extent of a municipality's Mount Laurel obliga-tion, and the manner in which it will be satisfied. Responsibilityfor administration of the statute is conferred upon a newly estab-lished state administrative agency called, "The Council on Af-fordable Housing."'Legislative activity in the area of land use and planning, aswell as with the specific question of affordable housing greatlyincreased in early 1983. Within days of the Mt. Laurel II decision,the administration had dismantled the Division of State and Re-gional Planning in the Department of Community Affairs. Thatagency had produced the State Development Guide Plan utilizedby the court in fashioning its Mt. Laurel II decision. In the deci-sion, the court urged that the Guide Plan be updated and revised.In May, 1983, the Senate Legislative Oversight Committee beganhearings to inquire into "the continued suitability of the StateDevelopment Guide Plan, or any aspect thereof, in light of cur-rent and foreseeable state and local planning needs and other* Senator Stockman (D-Mercer) is one of the co-sponsors of the Fair HousingAct. He graduated from Holy Cross College (1956), and received his law degreefrom Villanova Law School (1959). Senator Stockman was elected to the Assemblyin a special election in 1978 and was re-elected in 1979. He was elected to his firstSenate term in 1981, and was re-elected in 1983.1 1985 N.J. Sess. Law Serv. 222 (West) (to be codified at N.J. STAT. ANN.§§ 52:27D-310 to -334).2 Southern Burlington County NAACP v. Township of Mt. Laurel, 67 N.J. 151,179 (1975); Southern Burlington County NAACP v. Mount Laurel Township, 92N.J. 158, 199 (1983).3 N.J. STAT. ANN. 52:27D-305 (West Supp. 1986).SETON HALL LEGISLATIVE JOURNAL [Vol. 9:581relevant considerations, including the constitutional obligationsdefined by the supreme court in its recent decision in [Mt. LaurelIII ."The committee hearings increased pressure on the adminis-tration to respond to both the Mt. Laurel II mandate and to thebroader need for some state level planning mechanism to dealwith land use and development in our state. The administra-tion's response to the former was quite hostile; to the latter moresympathetic. Working with committee staff as well as an ad hocgroup of persons representing a diverse cross-section of inter-ests, including planners, environmentalists, representatives ofthe League of Municipalities, the Regional Planning Association,the League of Women Voters and an "unofficial" representativeof the administration, on March 1, 1984, I introduced Senate Bill1464, the State Planning Act.' The State Planning Act (specifi-cally referred to in the Fair Housing Act) 6 will create a State Plan-ning Commission as well as an Office of State Planning.7 TheAct's goals are to prepare and adopt a statewide developmentand redevelopment plan; to prepare and adopt a long-term localand regional infrastructure needs assessment; to coordinate stateand local inter-government planning; to provide technical assist-ance and to identify investment strategies for urban developmentand redevelopment; and to coordinate with other planningentities.By linking the Mt. Laurel II housing doctrine to the State De-velopment Guide Plan, the court forcefully brought to the publicattention the absolute need for an ongoing coherent, deliberativeand unified planning process within the state of New Jersey. In-deed, state and regional planning can no longer be ignored.Efforts to fashion litigation in the area of affordable housingas called for in the Mt. Laurel II holding proved much more diffi-cult, however. As indicated above, the administration showed ex-treme hostility to the Mt. Laurel decision. In addition, somelegislators attempted to totally politicize this landmark civil rights4 See New Jersey Senate Resolution, April 19, 1983.5 P.L. 1986, c. 398 (1986).6 N.J. STAT. ANN. 52:27D-304(j) (West Supp. 1986); N.J. STAT. ANN. 52:27D-307(West Supp. 1986).7 P.L. 1986, c. 398 (1986).582THE ART OF THE POSSIBLEdecision. In that atmosphere, compromise and a well-balancedbill became extremely difficult to achieve.The original bill S-2046, sponsored by Senator Lipman andco-sponsored by Senator Lynch and myself, was the product ofcompromise. After further legislative compromise, a committeesubstitute for S-2046 and Senator Lynch's separate proposal (S-2334) passed both houses. This bill was conditionally vetoed bythe Governor on April 22, 1985.The ten-page conditional veto message severely threatenedthe integrity of the legislation. Both Senator Lipman and I feltcompelled to attempt to defeat the final version of the bill in theSenate. We met with no success. We argued that the Governor'sproposal, among other things, threatened to deprive personswho need housing from representation on the board; establishedfair share housing criteria that easily could be used to rewardthose affluent municipalities that have been most blatantly exclu-sionary; reduced the commitment of resources so that the pro-posed financial program after the first year was largely illusoryand introduced provisions into the act which clearly raised seri-ous constitutional questions.Politics is the art of the possible and legislation is no less.The Legislature and the Governor have spoken. For that reason,the Act and the new Council itself must be supported. Thecourts have already shown some willingness to attempt to workwith the legislation. Judge Skillman has ruled that on its face, theAct is constitutional.' He endorsed the concept of regionalizationand transfer development rights. He did observe that "the coun-cil will find itself walking through a constitutional mine fieldwhen it undertakes in conformity with the Act, to establish hous-ing regions to determine regional needs for low income housing;to adopt 'criteria and guidelines' for determining municipal fairshare allocations; and to review municipal petitions for substan-tive certification of housing elements." 9 Nevertheless, the initialindications are that the Council and its chairmen are sincere andintent on doing the job. Whether they succeed in large measuredepends on the support and cooperation of the Governor, the8 Morris County Fair Housing Council v. Boonton, No. L-6001-78 P.W., L-42898-84 P.W., L-55343-85 P.W., L-29176-84 P.W., L-38694-84 P.W., L-86053-84P.W., slip op. (Law Div. 1985).9 Id. at 41.1986]SETON HALL LEGISLATIVE JOURNAL [Vol. 9:581administration and the Legislature.' 0For me, Mt. Laurel II represents a landmark civil rights deci-sion. It offers some small hope for breaking the obvious cycle ofcontinuing the concentration of our poor, our weak, our minori-ties in older underdeveloping cities, of ending a long and dan-gerous trend in New Jersey toward two societies, separate butunequal. It is critical that the Act and the Council be given anopportunity to do theirjob. Meanwhile, the State Planning Com-mission can begin to deal with broader issues of land use anddevelopment including conservation, air and water quality, farmpreservation, historic preservation and other major issues facingthe state as it enters a new century.Governor Kean must resist the extremists who may attemptto continue hostile actions against Mt. Laurel H. To tamper withour Constitution and restrict the courts in their exercise ofresponsibilty to protect the poor and the weak in our societywould be a serious mistake. If this were to happen (and perhapsonly the Governor can avoid it), it would be a blemish onThomas Kean's public record. A serious question would ariseconcerning his image as a moderate republican with an ability toattract many of those people who are most in need of low andmoderate income housing. Obviously, this issue is a test for theleadership in the Legislature. It is especially a test for the demo-cratic leadership in the Senate. To the extent that they waiver orcompromise on this issue of a constitutional amendment, I be-lieve they will further undermine the unity and integrity of thedemocratic party in this state.10 Since writing this article the Supreme Court of New Jersey did in fact upholdthe Act as constitutional and (under obvious political pressure) defer to the FairHousing Council in litigation pending before the court.

The Art of the Possible

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The Art of the Possible

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