Public Land Banking and Mount Laurel II - Can There Be a Symbiotic Relationship?

Abstract

The story behind the litigation that produced two decisions in Southern Burlington County NAACP v. Township of Mount Laurel may accurately be told in terms of plans having gone awry. The New Jersey Supreme Court invalidated the two attempts by Mount Laurel to regulate land through the implementation of fiscal zoning ordinances. In its most recent decision, Mount Laurel II, the court imposed upon communities a state constitutional obligation to provide adequate housing opportunities for low- and moderate-income families. Mount Laurel II thus defines the constitutional limitations on a municipality's power to regulate land. It also establishes a supporting corollary: in order to fulfill this constitutional obligation, a municipality must plan for the growth of its low- and moderate-income population by providing adequate housing opportunities for this population

This Article presents an alternative land use regulation, a municipal land bank, as a means to aid municipalities in planning for and providing housing opportunities for its low- and moderate-income families. Municipal land banks acquire, manage, and dispose of land according to legislatively authorized policies and objectives, and can help ensure that sufficient land is available to provide for a municipality's supply of fair share housing. In addition, a municipal land bank would shift the responsibility of designing affirmative measures to attack exclusionary zoning practices from the judiciary to the legislature. The Article presents a policy overview of legislation and planning regulations necessary for the establishment of land banks, as well as the interrelationship between the local governmental body an the state and regional agencies that will oversee the operation.

Part II focuses on the Mount Laurel doctrine through an examination of Mount Laurel I and Mount Laurel II. The section concludes that the establishment of a municipal land bank would better serve the Mount Laurel doctrine than the remedy proposed by the court in Mount Laurel II. Part III introduces the concept of land banking, and provides a description of its operation and its implementation in foreign countries. The American Law Institute's study of land banking is also considered. Part IV discusses the legal issues surrounding the land banking concept: the constitutionality of the acquisition of property, the requirement that the land banking objectives benefit the general welfare of the public, and judicial review of land dispositions. Finally, Part V considers issues related to the operation of the land bank, including the legislation necessary to establish entities to oversee the land bank, as well as local development plans.

Keywords: Southern Burlington County NAACP v. Township of Mount Laurel, municipal land banks, fiscal zoning ordinances, low-income families, moderate-income families, fair housing, local governments

JEL Classification: G21, G28, K11, K39, K49, R52