Credit: Amanda Brown

A perfect storm is heating up in the long-simmering feud between well-heeled developers and local environment protectors, often labeled “objectors” or, worse, as “Nimbies” (Not in My Backyard). At the center of this gathering storm is a fundamental misunderstanding of the Mount Laurel Doctrine. After four decades of litigation, judicial management and legislative tinkering, the doctrine remains as misunderstood as ever.

Call it the perfect storm, to borrow the title of Sebastian Unger’s book. A perfect storm requires the clash of powerful forces, complicating an already complex struggle — this time, over land use, not ocean tempests.

Also coming soon to the fray is the possible enactment of a “green” amendment to the state Constitution, enshrining protection of the environment as a new civil right in the state’s charter, shielding what nature remains in this densely populated “Garden State.”

Also arriving recently is the long-awaited but critically important update of the State Development and Redevelopment Plan, more than 20 years behind schedule.

Now adding to this hearty mix comes recognition that there is a national affordable housing crisis, as highlighted during the recent presidential race. Vice President Kamala Harris pledged to build 3 million units of affordable housing; President-elect Donald Trump countered with an offer of federal land to developers.

In 1983 the New Jersey Supreme Court spelled out a carefully nuanced balancing of rights to guide lower courts and municipalities on how to protect environmental values while also facilitating construction of low- and moderate-income housing, unimpeded by exclusionary zoning practices.

To achieve that, the court embraced the state plan to delineate where developments should, and should not, go, warning that developers cannot invoke the Mount Laurel Doctrine to justify building high-density housing — including lower income housing — “wherever they want.” But in practice that has become the doctrine’s main use, as “fair share” advocates join forces with private developers without much regard for the environmental damage wrought by high-density housing wherever a builder owns so-called vacant land, then race to the courthouse with a pledge to build X-number of low- or moderate-income units, subsidized by hugely increasing the number of “market-rate” units.

That is not how Mount Laurel was supposed to work. The court rejected what it described as “bad planning” — defined as zoning that leads to “sprawl,” paving over prime farmland, overwhelming rural and semirural towns, and requiring costly expansion of infrastructure — notably public water and sewerage replacing well water and septic systems as natural limits to growth.

When the court handed down Mount Laurel II, the late Henry Hill — who specialized in humbling municipalities — declared that zoning ordinances had become like helpless “baby harp seals” clubbed to death by eager pelt hunters. Instead of baseball bats, Hill would wield the aptly named “Builders’ Remedy” which rewards builders with massively oversize projects — provided they include 10% of the total number of units as lower-cost housing.

One of the latest and most egregiously “bad” development proposal is currently in hearings before the West Orange Township planning board. Described in West Orange’s 2010 Master Plan Update as a “roughly 120-acre property that is the largest vacant parcel in [the Township]. It is encumbered by environmentally sensitive [features] … It is currently zoned in accord with the [Master Plan] to allow [only very low-density] single-family homes west of the [Second Watchung Mountain] ridgeline provided the existing ridgeline, steep slopes and similar natural features are permanently protected…”

The builder aims to construct 495 housing units on this heavily wooded, hilltop site, straddling the Canoe Brook after clear-cutting thousands of trees, denuding the land and installing four-story apartment houses. If ever there was a site ripe for preservation, this hilltop forest is it. The site should never be built upon. (Disclosure: The author is  legal adviser to the “We Care” group challenging the project in hearings before the West Orange Planning Board.)

Behind all is a court-approved settlement of a Mount Laurel lawsuit that includes this misplaced development along with 100 units of lower-income housing subsidized by 395 market-rate units.

Here’s the rub: The reviewing court was not provided with an accurate or complete account of the many impediments to building on a hilltop or ridgeline. Additionally, the site lacks public sewerage and water service, has no public transit to any nearby shopping or employment centers, plus cascades of stormwater down the clear-cut hill can only worsen already serious flooding suffered by downstream homes. No wonder the site has remained “vacant” since time immemorial: It was never suited for large-scale, high-cost development of any sort.

And coming soon may be a ”green” amendment; it was introduced with 33 co-sponsors in the Assembly and seems poised to be approved in a referendum. The amendment declares that “every person has a right to a clean and healthy environment, including pure water, clean air, and ecologically, healthy habitats, preservation of the natural, scenic, historic, and aesthetic qualities of the environment.”

Finally, it proclaims that “the state shall not infringe upon these rights, by action or inaction.” Versions of the amendment have already been adopted in Montana, Pennsylvania and most recently by New York state voters.

In sum, builders and “fair-share” housing advocates who ignore the “green side” of the Mount Laurel Doctrine and try to build hundreds of housing units on ecologically “fragile” sites, do so at their peril. Local “objectors” can wield an expanding an array of tools, including the rejuvenated state plan followed by the “green” amendment.

Thus, we have the makings of a perfect storm with important societal values and policies in apparent conflict. The Mount Laurel Doctrine, properly understood, compels us to collaborate in preventing costly suburban “sprawl” while at the same time providing housing opportunities for the non-wealthy among us. A good start in calming these storm-tossed waters would be permanent protection for properties like the Watchung Ridgeline in West Orange — and finding more “developable” and shovel-ready sites for affordable housing.