* J.D., Harvard Law School. Mr. Russell teaches environmental law in the graduate program at Tufts University, and has taught property law at Northeastern University School of Law, as well as environmental law and policy courses at Boston College Law School, Brown University, and Boston University. He also consults with government agencies and nonprofit organizations on environmental matters. The author thanks Jean Healey, a second-year student at Northeastern University School of Law, for assisting in the research for this Article.
1 See, e.g., Werner Lohe, Command and Control to Local Control: The Environmental Agenda and the Comprehensive Permit Law, 22 W. New Eng. L. Rev. 355, 361 (2001) [hereinafter Lohe, Environmental Agenda] (“[I]f anything, affordable housing is set in opposition to environmental issues.”). The Article suggests that Massachusetts’s affordable housing need could be addressed through the controversial Comprehensive Permit Law, if coordinated with emerging approaches to land use planning. See Massachusetts Low and Moderate Income Housing Act, Mass. Gen. Laws. ch. 40B, §§ 20–23 (2000); Lohe, Environmental Agenda, supra, at 362–64; see also Peter H. Schuck, Judging Remedies: Judicial Approaches to Housing Segregation, 37 Harv. C.R.-C.L. L. Rev. 289, 293 (2002) (referring to the “unanticipated effects [arising from] the conflict between exclusionary zoning (and other laws often justified by environmental and aesthetic considerations) and the goal of improving access for low-income people to the suburbs by reducing their housing costs”); Andrew Jacobs, New Jersey’s Housing Law Works Too Well, Some Say, N.Y. Times, Mar. 3, 2001, at A1 (“In the realm of laws with unintended consequences, a chapter could be devoted to the [New Jersey affordable housing] doctrine . . . .”); Werner Lohe, The Massachusetts Comprehensive Permit Law: Collaboration Between Affordable Housing Advocates and Environmentalists, Land Use L. & Zoning Dig., May 2000, at 4–9 (providing an earlier and somewhat expanded version of the same analysis); Clark L. Ziegler, Will “Smart Growth” Drive Up Housing Costs in Massachusetts?, Housing Partnership Network (Mass. Hous. P’ship, Boston, Mass.) Winter 2000, at 1 (noting that “the smart growth movement . . . at the moment . . . seems to be a part of the problem”), http://www.mhp.net/termsheets/winternews-letter_00.pdf (last visited Apr. 24, 2003).
2 See Douglas A. Kysar, Sustainability, Distribution, and the Macroeconomic Analysis of Law, 43 B.C. L. Rev. 1, 40–44 (2001); Julia D. Mahoney, Perpetual Restrictions on Land and the Problem of the Future, 88 Va. L. Rev. 739, 780–81 (2002).
3 See, e.g., Lisa Heinzerling, Discounting Our Future, 34 Land & Water L. Rev. 39, 39–41 (1999); Paul S. Weiland & Robert O. Vos, Reforming EPA’s Organizational Structure: Establishing an Adaptable Agency Through Eco-Regions, 42 Nat. Resources J. 91, 102 (2002).
4 See, e.g., Charles M. Haar, Suburbs Under Siege: Race, Space, and Audacious Judges 199 (1996) (noting that, under the New Jersey approach, “judges were inclined to dismiss claims of environmental disruption [and] in some instances . . . may have . . . refuse[d] to face up to environmental problems posed by particular projects”).
5 See id. at 170; Note, State-Sponsored Growth Management as a Remedy for Exclusionary Zoning, 108 Harv. L. Rev. 1127, 1137 (1995).
6 See, e.g., Russell M. Lazega & Charles R. Fletcher, The Politics of Municipal Incorporation in South Florida, 12 J. Land Use & Envtl. L. 215, 219 (1997).
7 See Myron Orfield, American Metropolitics: The New Suburban Reality 18–19, 88–89 (2002). On average, property taxes account for nearly three-quarters of all local revenue. Id. at 89. In the New York, Philadelphia, Boston, and Portland, Oregon metropolitan areas, property taxes are the only generalized means of raising such revenue across the metropolitan area. Id. at 18–19.
8 Richard Briffault, Our Localism: Localism and Legal Theory (pt. 2), 90 Colum. L. Rev. 346, 352 n.37 (1990) (noting that school spending consumes half to two-thirds of most suburban budgets).
9 See William A. Fischel, The Homevoter Hypothesis 65–67 (2001).
10 See id. at 162–64. Fischel argues that local governments are, in fact, highly responsive to their taxpaying residents and that the latter, if anything, are “too reluctant to trade environmental amenities for fiscal gains.” Id. at 205. But Fischel does not directly address a narrower issue considered here—whether affluent communities “over-protect” the environment in the service of zoning regimes designed to suppress low- and medium-income housing. See id.
11 See id. at 184–85.
12 Garrett Hardin, The Tragedy of the Commons, 162 Science 1243, 1243 (1968).
13 See id.
14 Indeed, the term NIMBY (“not in my back yard”) is said to have gained currency from a 1991 report by the Advisory Commission on Regulatory Barriers to Affordable Housing. See Eric S. Belsky & Matthew Lambert, Joint Ctr. for Hous. Studies, No. W01-9, Where Will They Live: Metropolitan Dimensions of Affordable Housing Problems 5 (2001), available at http://www.jchs.harvard.edu (publications); Mass. Executive Office for Admin. & Fin., Pol’y Report No. 4, Bringing Down the Barriers: Changing Housing Supply Dynamics in Massachusetts, at iii (2000).
15 See Haar, supra note 4, at 170; Florence Wagman Roisman, Sustainable Development in Suburbs and Their Cities: The Environmental and Financial Imperatives of Racial, Ethnic, and Economic Inclusion, 3 Widener L. Symp. J. 87, 87 (1998) (noting a “checkered relationship between environmentalism and advocacy for low-income and minority people”); Note, supra note 5, at 1137.
16 See Henry A. Span, How the Courts Should Fight Exclusionary Zoning, 32 Seton Hall L. Rev. 1, 8–9 (2001) (explaining motives and methods used to exclude low-income housing).
17 See Note, supra note 5, at 1137.
18 All zoning “is exclusive in that it excludes something.” Span, supra note 16, at 8. The term “exclusionary zoning” generally refers to zoning practices that permit a municipality to minimize the possibility that members of groups classified on the basis of race, ethnicity, income, or physical or mental disability will choose to live in the jurisdiction. See Daniel R. Mandelker, Land Use Law §§ 1.10, 7.01 (5th ed. 2003).
19 Data and commentary are divided over the extent to which affirmative exclusion signals discrimination based on race, class, or other invidious grounds. See Fischel, supra note 9, at 271; Lohe, Environmental Agenda, supra note 1, at 360; Florence Wagman Roisman, Opening the Suburbs to Racial Integration: Lessons for the 21st Century, 23 W. New Eng. L. Rev. 65, 96 (2001) (“While part of the opposition to lower-income suburban residents is classist and racist, part of it is based on real economic issues: the separation of needs from resources.”).
20 See, e.g., Anthony Flint, In Duxbury, Defining Affordable: Plan for Lower-Cost Housing Stirs Exclusive Coastal Town, Boston Globe, May 27, 2002, at A1.
21 See id.
22 See Richard Briffault, Localism and Regionalism, 48 Buff. L. Rev. 1, 3–5 (2000).
23 For example, Title II of the Clean Air Act (CAA), 42 U.S.C. § 7543 (2000), expressly preempts states from establishing emission standards for mobile sources. Both the CAA, 42 U.S.C. §§ 7401–7671 (2000), and the Clean Water Act, 33 U.S.C. §§ 1251–1376 (2002), delegate substantial segments of their regulatory programs.
24 See Richard Briffault, Our Localism: The Structure of Local Government Law (pt. 1), 90 Colum. L. Rev. 1, 10–17 (1990) (observing that forty-one states currently provide home rule to local governments).
25 A municipality, for instance, might extend its power over nuisances into a general licensing regime. See G.P. Affordable Homes Corp. v. Falmouth Bd. of Appeals, No. 89-24, slip op. at 9–11, 21 (Mass. Hous. App. Comm. Nov. 12, 1991) (zoning overlay district for freshwater recharge); Andy Newman, Cup of Kafka? Coffee Roaster Cited for Coffee Smell, N.Y. Times, Dec. 11, 2002, at B1 (citing regulations against “offensive coffee odors”); see also Charles C. Euchner & Elizabeth G. Frieze, Pioneer Inst. for Pub. Policy & Rappaport Inst. of Greater Boston, Getting Home: Overcoming Barriers to Housing in Greater Boston 15, 27 (2003), available at http://www.ksg.harvard.edu/rappaport/ downloads/gettinghome.pdf (last visited Mar. 14, 2003); Jeffrey R. Lacy, Metro. Dist. Comm’n, Growth Management Tools: A Summary for Planning Boards in Massachusetts 8 (2002) (discussing local wetlands bylaws), available at http://www.state.ma.us/ mdc/MDC%20Growth%20Management%20Tools.pdf (last visited Mar. 8, 2003).
26 For example, the deadline to achieve the central goal of the Clean Water Act, that the nation’s waters be “fishable and swimmable,” was 1983. See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 156 (4th Cir. 2000). It now appears to lie in the indefinite future. See S. Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot., 145 F. Supp. 446 (D.N.J. 2001) (noting that even if fully enforced, key National Ambient Air Quality Standards under Title I of the Clean Air Act, 42 U.S.C. § 7408, may not fully abate the risk of air pollution), rev’d on other grounds, 274 F.3d 771 (3d Cir. 2001), cert. denied, 536 U.S. 939 (2002); Office of Wastewater Mgmt, U.S. Envtl. Prot. Agency, No. EPA 833-F-98-003, Water Pollution Control: 25 Years of Progress and Challenges for the New Millennium 7 (1998), available at http://www.epa.gov/npdespub/pubs/ 25PROG.PDF (last visited Dec. 20, 2002); Office of Water, U.S. Envtl. Prot. Agency, No. EPA 841-R-02-001, National Water Quality Inventory: 2000 Report, ES-3 (2002). See generally U.S. Gen. Accounting Office, No. RCED-99-111, Superfund: Progress Made by EPA and Other Federal Agencies to Resolve Program Management Issues (1999) (discussing burdens of implementing the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601–9675 (1994)).
27 E.g., Oliver A. Houck, TMDLs IV: The Final Frontier, [1999 News & Analysis] 29 Envtl. L. Rep. (Envtl. L. Inst.) 10,469, 10,469 (Aug., 1999) (stating that, because the Clean Water Act fails to control nonpoint source pollution, many regulated water bodies will never meet health and recreation standards); Andrew C. Revkin, Government Outlines Plan for Research on Warming, N.Y. Times, Nov. 13, 2002, at A25 (noting that knowledge about the risks of climate change has expanded greatly in the past decade).
28 For instance, apparently without engaging in a detailed consideration of the science, Congress enacted the acid rain allowance-trading program embodied in Title IV of the Clean Air Act. See Lisa Heinzerling, Selling Pollution, Forcing Democracy, 14 Stan. Envtl. L.J. 300, 319, 322–27 (1995).
29 FedStats Web site, People MapStats at http://www.fedstats.gov/qf/states/00000. html (last visited Apr. 19, 2003) (U.S. government data).
30 Daniel R. Mandelker, Managing Space to Manage Growth, 23 Wm. & Mary Envtl. L. & Pol’y Rev. 801, 801–02 (1999).
31 Id.
32 See id. at 802.
33 Id. at 802 n.2.
34 See id.
35 See Roisman, supra note 15, at 99.
36 William W. Buzbee, Urban Sprawl, Federalism, and the Problem of Institutional Complexity, 68 Fordham L. Rev. 57, 71–72 (1999) (discussing employment conditions and automobile use). Today, two-earner households constitute nearly 45% of the entire U.S. workforce. Id. at 68 n.41.
37 See Mandelker, supra note 30, at 802.
38 See Robert H. Abrams, Superfund and the Evolution of Brownfields, 21 Wm. & Mary Envtl. L. & Pol’y Rev. 265, 278–80 (1997).
39 See Thomas W. Ledman, Note, Local Government Environmental Mitigation Fees: Development Exactions, the Next Generation, 45 Fla. L. Rev. 835, 836 (1993).
40 See Fischel, supra note 9, at 232 (stating that “[s]prawl is caused by using an excessive amount of land for housing”).
41 Another disconnect, although perhaps one of necessity, is the almost total failure of policymakers to engage in a serious dialogue about the “possible federal role in addressing the problems associated with sprawl and other land use harms.” Buzbee, supra note 36, at 61 n.9. At present, it appears that no significant governmental institution is seriously considering the federalization of any aspect of local land use planning or any other area traditionally managed by municipalities. See Solid Waste Agency v. Army Corps of Eng’rs, 531 U.S. 159, 174 (2001) (quoting his opinion in Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 44 (1994), Chief Justice Rehnquist notes: “‘[R]egulation of land use [is] a function traditionally performed by local governments.’”).
42 See Buzbee, supra note 36, at 84–85.
43 See id. at 89.
44 Orfield, supra note 7, at 89.
45 See S. Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713, 723 (N.J. 1975) [Mount Laurel I] (“Almost every [municipality] acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base . . . .”).
46 Id.; Orfield, supra note 7, at 88–93.
47 Anthony Flint, Planners Turn to “Seniors Only” Housing: Age Restrictions on Developments Help Check Overcrowding in Schools, Boston Globe, Feb. 26, 2002, at A1 (reporting that nearly 15% of all planned affordable housing in Massachusetts is age-restricted).
48 See Buzbee, supra note 36, at 65–67.
49 Anthony Downs, Dealing Effectively with Fast Growth 1 (The Brookings Inst., Policy Brief No. 67, 2000), available at http://www.brook.edu/dybdocroot/comm/policybriefs/ pb067/pb67.pdf (last visited Mar. 25, 2003).
50 Orfield, supra note 7, at 99 (noting that one reason the American “political system places a high value on local autonomy . . . [is] because the actions of local governments have a direct impact on the economic well-being of voters, primarily through their effect on home values . . . . [L]ocal control creates a powerful incentive for voters to monitor those actions . . . .”). This phenomenon is described in detail by Fischel. Fischel, supra note 9, at 232 (“A nation of homeowners is likely to be a nation of NIMBYs, and their anxieties are likely to be manifest in zoning laws.”). On the other hand, the value imputed to local autonomy springs to some extent from the fragmented nature of the political system itself. See Gerald E. Frug, City Making: Building Communities Without Building Walls 80 (1999). In 1997, 87,453 local governmental units existed in the United States, and 39,044 of them were general-purpose bodies. U.S. Census Bureau, Government Organization: 1997 Census of Governments, at v (1999), available at http://www. census.gov/prod/gc97/gc971-1.pdf (last visited Mar. 25, 2003).
51 Sprawl is not just an environmental problem, but also an economic one. James H. Wickersham, Note, The Quiet Revolution Continues: The Emerging New Model for State Growth Management Statutes, 18 Harv. Envtl. L. Rev. 489, 495–96 (1994).
52 Matthew W. Ward et al., National Incentives for Smart Growth Communities, 13 Nat. Resources & Env’t 325, 325 (1998).
53 Gretchen Weismann & Maggie Adams, How Local Regulations Can Help Meet Our Housing Needs, in Communities & Banking 2, 6 (Fed. Reserve Bank of Boston, Mass., Publication No. 30, 2000), available at http://www.bos.frb.org/commdev/pdf/fall00.pdf (last visited Mar. 25, 2003).
54 Between 1995 and 1990, the population of the nation’s major metropolitan areas increased by 128% (from 84 to 193 million), while the size of those areas grew by 181% (from 208,000 square miles to 585,000 square miles). Gregory D. Squires, Urban Sprawl and the Uneven Development of Metropolitan America, in Urban Sprawl: Causes, Consequences & Policy Responses 6 (Gregory D. Squires ed., 2002). During the 1990s, land consumption advanced at about twice the rate of population. Id. By decade’s end, consumption outpaced population growth nearly threefold. David Rusk, Growth Management: The Core Regional Issue, in Reflections on Regionalism 78 (Bruce Katz ed., 2000). Indeed, from 1982 to 1997, population nationwide increased by 17%, but the land area converted to urbanized uses grew by 47%. Elizabeth Becker, 2 Acres of Farm Lost per Minute, Study Says, N.Y. Times, Oct. 4, 2002, at A22. By the latter part of the decade, development was consuming farmland at an estimated rate of fifty acres an hour. Dan Eggen, A Growing Issue: Suburban Sprawl, Long Seen as a Local Problem, Emerges as a Hot Topic in State, National Politics, Wash. Post, Oct. 28, 1998, at A3. Four years later, a second study concluded that the rate of loss was approaching 120 acres an hour. Becker, supra, at A22.
55 Michael Lewyn, Suburban Sprawl: Not Just an Environmental Issue, 84 Marq. L. Rev. 301, 302 (2000) (noting that by the end of the 1990s, two-thirds of all new jobs were being created in the suburbs, down slightly from the 95% peak recorded in the preceding decade); Douglas R. Porter, Reinventing Growth Management for the 21st Century, 23 Wm. & Mary Envtl. L. & Pol’y Rev. 705, 708 (1999); Anthony Flint, State Weighs Steps to Stem Rampant Sprawl: Officials Are Pushing “Smart Growth” Efforts, Boston Globe, July 8, 2001, at B1 [hereinafter Flint, Pushing Smart Growth]; Bruce Katz & Jennifer Bradley, Divided We Sprawl, Atlantic Monthly, Dec. 1999, at 28 (stating that in 1996, 2.7 million people moved from a central city to a suburb; fewer than a third of that number went the opposite way); Laura Mansnerus, Trying to Hold Back the Sprawling Suburbs Through “Smart Growth”: Patterns Encouraged for 50 Years Haunt Mount Laurel, Where “It’s as Bad as It Gets, N.Y. Times, June 20, 1999, § 14NJ, at 1.
56 See Downs, supra note 49, at 1.
57 Id.
58 See Katz & Bradley, supra note 55, at 30.
59 See Downs, supra note 49, at 1.
60 Id.
61 The issue is not just the sheer expanse of land lost to development—only about 5% of the total United States landmass is inhabited. Katz & Bradley, supra note 55, at 40. Rather, it is the manner in which that loss fragments ecosystems, the increasing potential for current living patterns to destroy even more land, the tendency for key drivers of sprawl (e.g., high-end homeowners) to seek out areas of natural beauty, and the duration of the loss—in combination with other impacts not directly related to the consumption of land, such as air pollution, water pollution, wetland loss, overuse of resources, and the socioeconomic effects. See text infra notes 30–45.
62 Patrick Gallagher, The Environmental, Social, and Cultural Impacts of Sprawl, Natural Res. & Env’t, Spring 2001, at 220.
63 See Robert H. Freilich, The Social Costs of Sprawl, 29 Urb. Law. 183, 193 (1997).
64 Or “communities”—one issue implicit in this analysis is that reformers remain professionally isolated; mainstream environmentalists, land use planners, and, importantly, housing and civil rights advocates do not work together or share ideas frequently enough.
65 For instance, in 2001, voters in thirty-eight states acted on 553 limited-growth measures, three-quarters of which passed (and in the northeast, nearly all did). Squires, supra, note 54, at 16; Timothy Egan, The Nation: Dreams of Fields—The New Politics of Urban Sprawl, N.Y. Times, Nov. 15, 1998, § 4 (Week in Review), at 1; Rachel Garbarine, In the Region/New Jersey: In Plainsboro, Clustering for Conservation, N.Y. Times, June 27, 1999, § 11, at 9; Nicolas Retsinas, Editorial, Declare a Truce on Sprawl, Boston Globe, Jan. 1, 2002, at A19. But see Michael Janofsky, In Towns That Slowed Growth, Backlash Stirs, N.Y. Times, Feb. 9, 2003, at A7 (reporting that economic downturn was causing some municipalities to reject growth-control policies).
66 See, e.g., Oliver A. Pollard III, Smart Growth: The Promise, Politics, and Potential Pitfalls of Emerging Growth Management Strategies, 19 Va. Envtl. L.J. 247, 253 (2000) (“[S]mart growth is still an evolving concept . . . ; there is no agreed-upon definition of the term . . . .”). The phrase is said to have been coined in Massachusetts. Flint, Pushing Smart Growth, supra note 55, at B1.
67 Village of Euclid v. Ambler Realty Co. was the Supreme Court’s validation of what continues to be the fundamental approach to local zoning in the United States. See generally 272 U.S. 365 (1926).
68 The federal mortgage tax deduction provides subsidies worth more than $50 billion per year. Given graduated income tax rates, those subsidies are greater for wealthier taxpayers. Peter Dreier, Editorial, Sprawl’s Invisible Hand, Nation, Feb. 21, 2000, at 6; see Sam Stonefield, Affordable Housing in Suburbia: The Importance but Limited Power and Effectiveness of the State Override Tool, 22 W. New Eng. L. Rev. 323, 345 & n.77, 346 (2001) (noting that the combined federal subsidy to homeowners exceeded $74.7 billion in 1993; in contrast, the subsidy for low-income housing assistance was $18 billion).
69 See, e.g., David Rusk, Inside Game Outside Game: Winning Strategies for Saving Urban America 91–92 (1999).
70 See Anthony Flint, Smart Growth Expands Its Thinking, Boston Globe, Feb. 9, 2003, at A7.
71 Kenneth T. Jackson, Crabgrass Frontier 4 (1985).
72 Id. at 190.
73 Id. at 217.
74 Id. at 216.
75 Id. at 215.
76 Id. at 288.
77 Jackson, supra note 71, at 293. In addition to mortgage insurance issued by the Federal Housing Administration (FHA) for properties located almost exclusively in the suburbs (but generally not in cities), these policies include decades of federal (and to some extent state) highway subsidies and the massive federal residential mortgage tax deduction.
78 Id. at 287.
79 The FHA, according to Jackson, “exhorted segregation and enshrined it as public policy.” Id. at 213. “Multitudes of studies” confirm the results: “racial composition [is] . . . a clear component in the formation of spatially isolated suburban districts,” with recent data suggesting that “this balkanization has continued in the 1990s.” Belsky & Lambert, supra note 14, at 5; see David L. Kirp, et al., Our Town: Race, Housing and the Soul of Suburbia 168 (1995) (noting that “racism was a way of life”). Section 937 of the 1938 FHA Underwriting Manual provides:
Quality of Neighborhood Development . . . Areas surrounding a location are investigated to determine whether incompatible racial and social groups are present, for the purpose of making a prediction regarding the probability of the location being invaded by such groups. If a neighborhood is to retain stability, it is necessary that properties shall continue to be occupied by the same racial classes. A change in social or racial occupancy generally contributes to instability and a decline in values.
Kerry D. Vandell, FHA Restructuring Proposals: Alternatives and Implications, 6 Housing Pol’y J. 299, 302 (1992) (quoting Fed. Hous. Admin., FHA Underwriting Manual: Underwriting and Valuation Procedure Under Title II of the National Housing Act (1938)), available at http://www.fanniemaefoundation.org/programs/hpd/pdf/hpd_ 0602_vandell.pdf (last visited Mar. 6, 2003).
80 Lewyn, supra note 55, at 303–05.
81 See id. 82 The precise extent of the crisis varies by location, and by observer. Compare Letter from Robert C. Ellickson, Professor, Yale Law School, Letter to the Editor, N.Y. Times, July 6, 2002, at A26 (“There is no ‘housing crisis’ nationwide.”), with United States Representative Bernard Sanders, Letter to the Editor, N.Y. Times, July 6, 2002, at A26 (“This country is facing a severe crisis in affordable housing.”). Most appear to agree that it has been going on for so long that the phrase “affordable housing crisis” has “practically become a cliché.” Paul K. Stockman, Note, Anti-Snob Zoning in Massachusetts: Assessing One Attempt at Opening the Suburbs to Affordable Housing, 78 Va. L. Rev. 535, 535 n.1 (1992).
83 World Res. Inst. Web site, Facts About Urbanization in the U.S.A., at http:// www.wri.org/enved/suscom-facts.html (last visited Mar. 15 2003).
84 Belsky & Lambert, supra note 14, at 4.
85 Id.; see discussion supra Part II.
86 Briffault, supra note 8, at 361–62 (identifying the relationship between broadening notions of community as a prerequisite to municipal incorporation, and the ascendancy of zoning as the primary means of achieving and enhancing the uniformity that became the hallmark of community).
87 Id.
88 David Rusk, Cities Without Suburbs 33–34 (1993).
89 In central cities, rehabilitation, not new construction, is the primary way that the residential housing stock is replenished. [1 Findings & Analysis] David Listokin & Barbara Listokin, Office of Policy Dev. & Research, U.S. Dept. of Hous. Dev., Barriers to the Rehabilitation of Affordable Housing 1 (2001).
90 The extent to which lack of affordable housing is rooted in racial rather than economic discrimination is a matter of continuing debate and most likely in flux. E.g., Rusk, supra note 54, at 78. But see Stonefield, supra note 68, at 329 n.19 (citing studies suggesting that metropolitan housing segregation generally increased between 1970 and 1990, but more recently may have started to abate, at least in some sections of the country).
91 Massachusetts Low and Middle Income Housing Act, 1969 Mass. Acts 712 (codified as amended at Mass. Gen. Laws ch. 40B, §§ 20–23 (2000)). This statute and its associated regulations will be referred to herein as the Comprehensive Permit Law or 40B.
92 See S. Burlington County NAACP v. Mount Laurel, 456 A.2d 390, 441 (N.J. 1983) [Mount Laurel II]; Mount Laurel I, 336 A.2d 713, 744 (N.J. 1975).
93 Mount Laurel I, 336 A.2d at 728.
94 See Robert L. Liberty, Oregon’s Comprehensive Growth Management Program: An Implemenation Review & Lessons for Other States, [1992 News & Analysis] 22 Envtl. L. Rep. (Envtl. L. Inst.) 10,367, 10,379 n.171 (June 1992).
95 Massachusetts was the first state in the nation to enact a zoning override. Since then, only three other states have followed a similar path. The Rhode Island and Connecticut statutes closely resemble the Massachusetts approach. See Affordable Housing Land Use Appeals Act, Conn. Gen. Stat. §§ 8–30g (1999 & Supp. 2002); Rhode Island Low and Moderate Income Housing Act, R.I. Gen. Laws §§ 45-53-1 to -53-8 (1999 & Supp. 2002). The third is California, but courts have deferred to local determinations of housing need, and no zoning overrides have yet been issued under California’s statutory provisions. Cal. Gov’t Code §§ 65580–65589.8 (West 1995 & Supp. 2003); see Ben Field, Why Our Fair Share Housing Laws Fail, 34 Santa Clara L. Rev. 35, 73 (1993).
96 See John Charles Boger, Toward Ending Residential Segregation: A Fair Share Proposal for the Next Reconstruction, 71 N.C. L. Rev. 1537, 1594 (1993).
97 See Liberty, supra note 93, at 10,369 nn.11–14, 10,379 n.172.
98 Anthony Flint, Romney Faces Tussle on Affordable Housing, Boston Globe, Dec. 30, 2002, at A1 [hereinafter Flint, Romney].
99 The project developer must be a public agency, or a limited dividend or nonprofit corporation. Mass. Regs. Code tit. 760, § 31.01 (2002). The housing itself, to be rented or sold, must be “subsidized by federal and/or state government and/or local housing authority under any program to assist the construction or substantial rehabilitation of low- or moderate-income housing.” Id. § 31.02. The scope recently was expanded to include group homes for the mentally disabled, community housing, and accessory apartments. Mass. Regs. Code tit. 760, § 30.02 (2002). Generally, no housing is considered “affordable” unless the persons occupying it fall within the low- or moderate- income guidelines of the subsidizing agency. Typically, the ceiling is 80% of area median income. The development must remain subsidized for as long the comprehensive permit requires (generally at least fifteen years), or, if no term is specified, for as long as it fails to meet zoning or other local regulations. See Zoning Bd. of Appeals of Wellesley v. Ardemore Apartments Ltd., 767 N.E.2d 584, 586 (Mass. 2002).
100 Stockman, supra note 82, at 548–53 (providing a detailed history of the law’s passage); see also Kenneth Forton, Note, Expanding the Effectiveness of the Massachusetts Comprehensive Permit Law by Eliminating Its Subsidy Requirement, 28 B.C. Envtl. Aff. L. Rev. 651, 653–58 (2001).
101 The local zoning board of appeals is granted “the same power to issue permits or approvals as any local board or official who would otherwise act with respect to [the application to construct affordable housing].” Massachusetts Low and Middle Income Housing Act, Mass. Gen. Laws ch. 40B, § 21 (2000). Although the statute does not otherwise establish standards to guide this process, the comprehensive permit program clearly contemplates that the local board’s decision will be “consistent with local needs.” See id. §§ 20–21.
102 Under the Local Initiative Program, the most popular 40B program of the 1990s, if at least 25% of the units in a qualifying rental development are not affordable, the municipality may include in its total “subsidized housing inventory” (the numerator employed in calculating the 10% threshold) only the affordable units. Otherwise, it may count all of the units in the project, whether affordable or not. Mass. Regs. Code tit. 760, § 45.06(3) (2002).
103 See The Zoning Act, Mass. Gen. Laws ch. 40A, § 14 (2000).
104 Mass. Gen. Laws. ch. 40B, § 22; Mass. Regs. Code tit. 760, § 31.02. The Housing Appeals Committee was established within the Department of Housing and Community Development. Mass. Gen. Laws ch. 23B, § 5A (2000).
105 The applicant bears the burden of demonstrating that the local board’s conditions render the project “uneconomic.” Mass. Regs. Code tit. 760, § 31.06(1).
106 Mass. Gen. Laws. ch. 40B, § 23.
107 Mass. Regs. Code tit. 760, § 31.06(6)–(7).
108 Id. § 31.06(8).
109 As of March 2003, only thirty-two of the state’s 351 cities and towns met the 10% threshold, and most of these fall into one of three categories: older cities, very small towns, or municipalities with a particular interest in social justice (e.g., Amherst, Cambridge, Greenfield, Northampton). Anthony Flint, Zoning at Issue in Affordable Housing, Boston Globe, Mar. 31, 2003, at B2.
110 Mass. Gen. Laws. ch. 40B, § 20; Mass. Regs. Code tit. 760, § 31.06(4). Two other, less commonly used thresholds exist as well. Mass. Regs. Code tit. 760, §§ 31.04(2), 31.07(1)(d). A fourth presumption, added by regulatory amendment effective December 20, 2002, permits a municipality to conclusively satisfy the local needs test for up to two years by developing an affordable housing plan and then meeting interim milestones. Mass. Regs. Code tit. 760, § 31.07(1)(i).
111 Mass. Regs. Code tit. 760, § 31.08(1). A recent regulatory amendment, however, creates a conclusive presumption that shields local action where the municipality has developed an affordable housing plan approved by the state Department of Housing and Community Development. Among other things, the provision requires consistent annual progress in meeting the 10% threshold. Id. § 31.07(1)(i)3.c.
112 See Zoning Bd. of Appeals of Greenfield v. Hous. Appeals Comm., 446 N.E.2d 748, 750 (Mass. 1983).
113 See Lohe, Environmental Agenda, supra note 1, at 362.
114 For example, when a conservation commission enforces the state Wetlands Protection Act it is not acting as a “local board.” Massachusetts Wetlands Protection Act, Mass. Gen. Laws ch. 131, §§ 40–40A (2000); Roman Petyk & Daniel D. Sullivan, The Anti-Snob Zoning Act: New Potential in a Booming Housing Market, Boston B.J., July–Aug. 1986, at 11, 13.
115 See Mavro v. C.K.A., L.L.C., No. 2001-00050, slip op. at 15 (Mass. Super. Ct. May 29, 2002) (endorsing a functional definition of “local board” and citing Martin R. Healy et al., Massachusetts Zoning Manual § 5.4.4 (MCLE, Inc. ed., 1995)); cf. Dennis Hous. Corp. v. Zoning Bd. of Appeals, 439 Mass. 71, 80 (2003) (holding a local historic committee is a “local board” under 40B).
116 Mass. Regs. Code tit. 310, §§ 15.00–.505 (2002).

117 Although claims persist that the Comprehensive Permit Law is harming the environment, little authoritative evidence exists to support them. See, e.g., Flint, Romney, supra note 98, at A1; Anthony Flint, Housing Plan Raises Growth Concerns, Boston Globe, Nov. 24, 2002, at B1; Anthony Flint, Grafton Fights Losing Battle on Development, Boston Globe, Sept. 29, 2002, at B1. Such claims have been a part of the affordable housing controversy for some time, in Massachusetts and elsewhere. See Kirp et al., supra note 79, at 85, 87.
118 See Zoning Bd. of Appeals of Wellesley v. Hous. Appeals Comm., 433 N.E.2d 873, 878 n.7 (Mass. 1982). If the units are for sale, a municipality may count only those that are affordable. Citizens’ Hous. & Planning Ass’n, Recommendations to Improve Chapter 40B, the Massachusetts Comprehensive Permit Law 4, at http://www.chapa.org/ Chapter40BRecommendations.PDF (last visited Mar. 25, 2003).
119 Daniel D. Sullivan & Josephine A. McNeil, The Anti-Snob Zoning Act: New Direction in a Soft Market, Boston B.J., July–Aug. 1990, at 10 (citing The Special Commission Relative to the Implementation of Low and Moderate Income Housing Provisions (1989) (unpublished report, on file at the State Library of Massachusetts)). More than a decade ago, a special state commission recommended that cities and towns develop local housing plans to comply with the 40B requirement that affordable housing application decisions be consistent with local needs. See discussion infra Part IV.A.
120 Statewide affordable housing need was estimated to be 100,000 units at end of the 1990s, but the approximate rate at which the Comprehensive Permit Law added affordable units between 1970 and 2000 was about 600 per year. Sharon Perlman Krefetz, The Impact and Evolution of the Massachusetts Comprehensive Permit and Zoning Appeals Act: Thirty Years of Experience with a State Legislative Effort to Overcome Exclusionary Zoning, 22 W. New Eng. L. Rev. 381, 392, 394 (2001) (asserting that the “number of units built still falls far short of the need”).
121 Zoning Bd. of Appeals of Wellesely v. Ardmore Apartments, Ltd. 767 N.E.2d 584, 592 (Mass. 2002).
122 See Eric J. Gouvin, Rural Low-Income Housing and Massachusetts Chapter 40B: A Perspective from the Zoning Board of Appeals, 23 W. New Eng. L. Rev. 1, 21–23 (2001) (arguing that the point at which marginal environmental impact exceeds marginal affordable housing benefit has a geographic component that the current law ignores).
123 One conclusion is that not a lot is happening. Much of the 40B housing of the past has consisted of relatively expensive single-family homes, either for the elderly, or for those of moderate income. Eighty percent of the area average income can be substantial in some suburban communities. Weston, for instance, the state’s wealthiest town, had a median income of nearly $110,000 in 1989. Mass. Inst for Soc. & Econ. Res., Report No. 92-02 Summary of Income Characteristics in 1989: Massachusetts Cities, Towns, and Selected Other Areas; 1990 Census of Population and Housing (1992), at http:// www1.miser.umass.edu/datacenter/population/topical2.xls (last visited Feb. 23, 2003). In addition, the currently popular Local Initiative Program (LIP) allows 70% of the units to be reserved for those with local ties. And although LIP projects must set aside 10 to 15% of 40B units for minorities, it is not clear that these units are being marketed to target groups. Krefetz, supra note 120, at 411 & n.135; Stonefield, supra note 68, at 334 n.33 (noting the lack of “reliable data on the Massachusetts . . . housing units built pursuant to the override statute[]”).
124 Krefetz, supra note 120, at 411 n.135 (stating that “systematic records on the characteristics of all the projects’ occupants are not kept by any state agency”). The Krefetz study is an excellent resource, and at the moment it is the only source of data about many aspects of the 40B program. See Stonefield, supra note 68, at 334 n.33.
125 See Krefetz, supra note 120, at 393.
126 In the past thirty years, only about 20% of the affordable housing constructed in Massachusetts was 40B housing, although more recently that percentage has increased sharply as state and federal housing subsidies have been trimmed or phased out. Nonetheless, without the Comprehensive Permit Law, “the locations of this housing would be . . . much more heavily concentrated in the cities and ‘inner ring’ suburbs.” Id. at 395.
127 See discussion supra note 99.
128 This has followed the collapse of more direct government housing subsidies. Forton, supra note 100, at 665 (finding that “state and federal funds have all but dried up”).
129 See Krefetz, supra note 120, at 410–11; Ziegler, supra note 1, at 1 (stating that nearly 90% of all Massachusetts housing development at end of the 1990s consisted of single-family homes).
130 Id. at 410 (finding that nearly half of all comprehensive permits sought in the 1990s were LIPs). Other funding also played a role and may have provided some counterweight to trends toward sprawl. Id. at 414.
131 Id. at 410.
132 Id. at 412–13.
133 Id. at 410. About 30% of the affordable units supplied by the 40B program are reserved for the elderly and another 12% for a mixture of families and the elderly. Id. at 399.
134 Stuborn Ltd. P’ship v. Barnstable Bd. of Appeals, No. 98-01, slip op. at 7 (Mass. Hous. App. Comm. Mar. 5, 1999) (jurisdictional decision) (holding that the NEF program satisfied 40B). If appeals to HAC are a guide, the number of NEF projects has increased rapidly in the past few years. E-mail from Werner Lohe, Chairman, HAC, to Rusty Russell (Jan. 31, 2003, 11:09:29 EST) (on file with author); E-mail from Kristen Vanasse, counsel and clerk, HAC, to Rusty Russell (Mar. 6, 2003, 9:56 EST) (on file with author) (73% of open cases before HAC involve NEF program); see Massachusetts Department of Housing and Community, Total Number of Units with Project Eligibility Letters by Subsidy Program; 3/2/01–2/12/03 (2003) (unpublished table) (on file with author).
135 See Mass. Regs. Code tit. 760, § 31.01(1)(a), 2(f) (2002).
136 Recent amendment of the State’s affordable housing regulations permits cities and towns to apply Massachusetts Community Preservation Act (CPA) funding to qualifying affordable housing projects. The CPA permits municipalities to adopt a real estate tax surcharge of up to 3% to fund, among other things, housing for low- and moderate-income families, individuals and senior citizens. Mass. Gen. Laws Ann. ch. 44B, §§ 3–7 (West 2000); Mass. Regs. Code tit. 760, § 30.02 (2002). It requires that preference be accorded to the adaptive “reuse of existing buildings or construction of new buildings on previously developed sites.” Mass. Gen. Laws. ch. 44B § 5. Within a given community, this will tend to minimize environmental impacts. Signed into law in September 2000, the CPA provides for up to $25 million a year in state aid to cities and towns that vote to adopt it. As of April 8, 2003, fifty-nine municipalities (of 351) had done so. Adopting communities tend to be situated in several suburban blocks, particularly northwest and southeast of Boston. By April 2003, fifty-eight housing units had been created under the CPA, with forty more awaiting local approval. At least some of these units will qualify as affordable under 40B. They are scattered primarily among relatively affluent suburbs along Boston’s outer ring. See Trust for Public Land Web site, http://www.tpl.org/tier3_cdl.cfm?con-tent_item_id =11075&folder_id=1045 (last visited Apr. 21, 2003). Given its modest scale, the CPA adds relatively little environmental risk to the 40B program, particularly given the current tendency of suburban municipalities to use CPA grants for land acquisition, not housing. Euchner & Frieze, supra note 25, at 41; see Anthony Flint, Open Space, Not Housing, Is Priority, Boston Globe, Feb. 16, 2003, at B1 (“Many suburbs are spending [CPA funds] lavishly to protect open space,” with a goal of blocking affordable housing—particularly communities with few 40B units now).
137 E.g., Mass. Gen. Laws ch. 41, § 81M (2000).
138 Weismann & Adams, supra note 53, at 6 & n.4 (“[T]he economics of the subsidy often recommend a low-density location.”).
139 Massachusetts Low and Middle Income Housing Act, Mass. Gen. Laws ch. 40B, § 21 (2000) (“Any person aggrieved by the issuance of a comprehensive permit or approval may appeal to the court as provided in section seventeen of chapter forty A.”). Even so, principles of standing weigh in the developer’s favor: aggrieved persons are members of the limited class able to demonstrate special injury. Cummings v. City Council, 551 N.E.2d 46, 50 (Mass. App. Ct. 1990) (must demonstrate legal rights infringed); Green v. Bd. of Appeals, 529 N.E.2d 159, 166 (Mass. App. Ct. 1988) (only those whose property interest will be effected by grant of permit), reviewed, 531 N.E.2d 1274 (Mass. 1988), rev’d on other grounds, 536 N.E.2d 584 (Mass. 1989). The Massachusetts Supreme Judicial Court recently held that other town boards do not have standing to appeal a 40B permit. Planning Bd. v. Hingham Campus, L.L.C., 780 N.E.2d 902, 906 (Mass. 2003).
140 One observer also has pointed out that the Comprehensive Permit Law’s requirement that a qualified developer be a nonprofit, a public agency, or a limited dividend organization “at a practical level . . . probably excludes many smaller . . . builders.” Stonefield, supra note 68, at 326. If so, this might lead to larger projects, which require larger open spaces.
141 Weismann & Adams, supra note 53, at 6 (stating that “nothing in the [Comprehensive Permit Law] encourages developers to follow locally selected patterns of density or dwelling type”).
142 Sullivan & McNeil, supra note 119, at 9.
143 Krefetz, supra note 120, at 396–98. These figures actually understate the effectiveness of the override process because a number of cases were settled, almost certainly on terms favorable to the developer. Local boards approved fewer than 20% of the applications, and slightly more than half were approved with conditions. Id. The appeals rate for outright denials is over 90%, and for conditional approvals is about 48%. Id.
144 See Mass. Regs. Code tit. 760, § 31.07(2)(b) (2002).
145 See, e.g., Scippa v. Wayland Bd. of Appeals, No. 00-12, slip op. pt. V.C. (Mass. Hous. App. Comm. July 17, 2002).
146 If local regulations overlap, HAC will determine which ones apply. See, e.g., C.S.R. Mgmt., Inc. v. Yarmouth Bd. of Appeals, No. 95-01, slip op. at 7 (Mass. Hous. App. Comm. Sept. 7, 1995) (choosing the local health board’s narrower and less exact delineation of aquifer protection district over the water department’s broader definition).
147 Massachusetts Low and Middle Income Housing Act, Mass. Gen. Laws ch. 40B, § 20 (2000) (stating that local requirements must be applied “as equally as possible to both subsidized and unsubsidized housing” for a local board’s ruling to be “consistent with local needs”).
148 See G.P. Affordable Homes Corp. v. Falmouth Bd. of Appeals, No. 89-24, slip op. at 37, 40–43 (Mass. Hous. App. Comm. Nov. 12, 1991).
149 Coop. Alliance of Mass. v. Taunton Zoning Bd. of Appeals, No. 90-05, slip op. at 14 (Mass. Hous. App. Comm. Apr. 2, 1992).
150 See Bd. of Appeals of Hanover v. Hous. Appeals Comm., 294 N.E.2d 414, 414–16 (Mass. 1973).
151 HAC usually has had a staff of three full-time employees. Due to budget cuts, it has been reduced to two, including the committee chairman. E-mail from Werner Lohe, HAC Chairman, to Rusty Russell, (Jan. 6, 2003, 12:46:15 EST) (on file with author). Contrast the New Jersey Council on Affordable Housing, which has approximately twelve staff members and a budget of $1.6 million, with the Oregon Department of Land Conservation and Development, which has a staff of about forty-two in the early 1990s, and a $7 million budget. Liberty, supra note 93, at 10,372 n.68; Telephone Interview with E.J. Miranda, Spokesperson for the New Jersey Department of Community Affairs (Feb. 9, 2003).
152 See, e.g., Woodland Heights P’ship v. Bourne Zoning Bd. of Appeals, No. 91-06, slip op. at 4–14 (Mass. Hous. App. Comm. June 14, 1993).
153 See generally Sheridan Dev. Co. v. Tewksbury Zoning Bd. of Appeals, No. 89-46 (Mass. Hous. App. Comm. Jan. 16, 1991). Of course, a local board’s failure to present specific proof leads to the same result. See, e.g., Delphic Assocs. v. Middleborough Bd. of Appeals, No. 00-13, slip op. at 14 n.7 (Mass. Hous. App. Comm. July 17, 2002) (stating that “mere speculation . . . cannot justify the denial of a comprehensive permit”).
154 Hilltop Pres. Ltd. P’ship v. Walpole Bd. of Appeals, No. 00-11, slip op. pt. III.B.3–4 (Mass. Hous. App. Comm. Apr. 10, 2002).
155 Id.
156 KSM Trust v. Pembroke Zoning Bd. of Appeals, No. 91-02, slip op. at 12 (Mass. Hous. App. Comm. Nov. 18, 1991).
157 Ipswich Hous. Auth. v. Ipswich Zoning Bd. of Appeals, No. 91-01, slip op. at 10 (Mass. Hous. App. Comm. June 14, 1993). HAC has frequently required the use of monitoring wells. See also Oxford Hous. Auth. v. Oxford Zoning Bd. of Appeals, No. 90-12, slip op. at 13 (Mass. Hous. App. Comm. Nov. 18, 1991).
158 Woodbridge Realty Trust v. Ipswich Bd. of Appeals, No. 00-04, slip op. pt. III.C.1 (Mass. Hous. App. Comm. June 28, 2001) (reversing the local board’s decision and directing it to grant a comprehensive permit).
159 Id.
160 This idea had been gestating for some time. See, e.g., Hilltop Pres. Ltd. P’ship, No. 00-11, slip op. at 27 (stating that if a local zoning bylaw is consistent with master plan, and the plan “provides sufficiently for affordable housing, we will give it deference”); KSM Trust, No. 91-02 slip op. at 6 (“[HAC] has long held . . . that comprehensive or master plans are to be given considerable weight . . . .”); Harbor Glen Assocs. v. Bd. of Appeals of Hingham, No. 80-06, slip op. at 6–15 (Mass. Hous. App. Comm. Aug. 20, 1982); Planning Office for Urban Affairs, Inc. v. N. Andover Bd. of Appeals, No. 74-03, slip op. at 13–16 (Mass. Hous. App. Comm. May 5, 1975).
161 No. 98-01, slip op. at 7–15 (Mass. Hous. App. Comm. Sept. 18, 2002) (decision on the merits noting that one quarter of the units were to be affordable).
162 Id. at 6. HAC suggested that in subsequent cases it also might consider the extent to which the plan had actually achieved results. Id.
163 Id. at 14–15.
164 Indeed, this area encompassed twenty-seven of only eighty-three acres in the entire town zoned for such uses. Id. at 8–10, 14.
165 Id. at 13.
166 Id. at 13, 14.
167 For example, will HAC require proof that affordable housing units are in final planning stages, under construction, or in the ground? To what extent will HAC defer to less remarkable zones? How clear, detailed, and mandatory must the plan be? What is the scope of the “least restrictive alternative” test? See id.
168 Compare Lohe, Environmental Agenda, supra note 1, at 359 (recent cases “indicate that if towns take control of their own planning processes in a meaningful way and put affordable housing on their agenda, their autonomy will be respected”), with Joel S. Russell, Massachusetts Land-Use Laws—Time for a Change, Land Use L. & Zoning Dig., Jan. 2002 (under current Massachusetts land use law, “the zoning regulation is the guiding law of the community and the master plan is largely irrelevant” because it is not enforceable), http://www.planning.org/LULZD/masslaws.htm (last visited Apr. 17, 2003). An Act to Promote Land Use Reform in Massachusetts, a bill that would mandate that local master plans (which already are required) be consistent with locally adopted zoning was introduced into the 2003 state legislative session. S. 1174, 2003 Gen. Ct. (Mass. 2003). The measure updates Massachusetts’s land use planning system, but does not call for specific smart-growth techniques. See Russell, supra.
169 See sources cited supra note 95.
170 New Hampshire has been the only jurisdiction to take up this call, and only by half-measure. See Britton v. Town of Chester, 595 A.2d 492, 496–97 (N.H. 1991) (deriving Mount Laurel-type remedy from state zoning enabling statute, but rejecting “the calculation of arbitrary mathematical quotas which Mt. Laurel requires”). California has taken a similar approach, but it has largely gone unenforced. See Note, supra note 5, at 1136 & n.58. Courts in other states have attempted to promote affordable housing by applying alternative doctrines, although these have been met with only modest success. See Span, supra note 16, at 38–48.
171 Mount Laurel I, 336 A.2d 713, 728 (N.J. 1975).
172 Mount Laurel’s population had been rapidly expanding—the result in part of sprawling movement out of urban areas—when the first lawsuit was filed in 1971. According to the Mount Laurel I decision, the population in Mount Laurel was 2817 in 1950, 5429 in 1960, and 11,221 in 1970. Id. at 718. Today, it is 40,221. Of that total, 7% are African-American, compared with 13.5% for all of New Jersey, and 12% for the United States as a whole. For Hispanic/Latino populations, it is 2%, 13%, and 12.5%, respectively. See Mount Laurel Township, N.J. Web site, Census 2000, http://www.mountlaurel.com/ census1.htm (last visited Mar. 15, 2003).
173 Mount Laurel II, 456 A.2d 390 (N.J. 1983); Mount Laurel I, 336 A.2d 713, 718 (N.J. 1975).
174 Hills Dev. Co. v. Township of Bernards, 510 A.2d 621, 623 (N.J. 1986) (sometimes referred to as Mount Laurel III); John M. Payne, Lawyers, Judges and the Public Interest, 96 Mich. L. Rev. 1685, 1689 n.13 (1998) [hereinafter Payne, Lawyers].
175 E.g., Haar, supra note 4, passim; Payne, Lawyers, supra note 174, at 1686–1713; John M. Payne, Tribute to Chief Justice Robert N. Wilentz: Politics, Exclusionary Zoning and Robert Wilentz, 49 Rutgers L. Rev. 689, 689–712 (1997). See generally Kirp et al., supra note 79.
176 Fair Housing Act, N.J. Stat. Ann. §§ 52:27D-301 to -329 (West 2001 & Supp. 2002) (creating the Council on Affordable Housing (COAH)).
177 See discussion supra note 151.
178 Mansnerus, supra note 55, at 1.
179 Mount Laurel I, 336 A.2d 713, 724 (N.J. 1975). The court stated:
We conclude that every [developing] municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity . . . for low- and moderate-income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality’s fair share of the present and prospective regional need therefor.
180 Id. Justice Pashman’s concurrence did not help in this regard:
By environment, I mean not just land or housing, but air and water, flowers and green trees. There is a real sense in which clean air belongs to everyone, a sense in which green trees and flowers are everyone’s right to see and smell. The right to enjoy these is connected to a citizen’s right to life, to pursue his own happiness as he sees fit provided his pursuit does not infringe another’s rights.
Id. at 750 (Pashman, J., concurring).
181 456 A.2d 390, 441–52 (1983).
182 Id. at 452–53.
183 Id. at 479 n.68 (“In fact, . . . the kind of higher density development that is necessary to provide lower income housing can actually result in far less environmental pollution than traditional suburban development patterns.”). This is the anti-sprawl argument, and it has a lot of force. But it has not carried the day in New Jersey. See infra Part VI.B.
184 See Mount Laurel I, 336 A.2d at 750 (Pashman, J., concurring).
185 Mount Laurel II, 456 A.2d at 418.
186 Id. at 420 (“We reassure all concerned that Mount Laurel is not designed to . . . leave our open spaces and natural resources prey to speculators . . . . No forests or small towns need be paved over and covered with high-rise apartments as a result of today’s decision.”).
187 Id. at 418–19.
188 Id. at 452–53.
189 Id. at 418.
190 See id. at 422–52.
191 Fair Housing Act, N.J. Stat. Ann. §§ 52:27D-301 to -329 (West 2001 & Supp. 2002).
192 Hills Dev. Co. v. Township of Bernards, 510 A.2d 621, 634 (N.J. 1986).
193 Mount Laurel II, 456 A.2d at 410.
194 N.J. Stat. Ann. § 52:27D-313; Mount Laurel II, 456 A.2d at 422–41. The presumption that a municipality’s housing plan meets its regional fair-share obligation may be overcome only by “clear and convincing evidence.” Toll Bros. v. Township of W. Windsor, 803 A.2d 53, 59–60 (N.J. 2002).
195 N.J. Stat. Ann. § 52:27D-312; see discussion infra note 248.
196 See N.J. Stat. Ann. §§ 13:1B-15.50 to -15.53 (repealed 1986). The State Development and Redevelopment Plan replaced the State Development Guide Plan. N.J. Stat. Ann. § 52:18A-196.
197 Mount Laurel II, 456 A.2d at 423.
198 Id.
199 See id. at 424–29.
200 John M. Payne, General Welfare and Regional Planning: How the Law of Unintended Consequences and the Mount Laurel Doctrine Gave New Jersey a Modern State Plan, 73 St. John’s L. Rev. 1103, 1112 (1999) [hereinafter Payne, General Welfare and Regional Planning].
201 Haar lists the current classifications as: “(1) metropolitan planning area; (2) suburban planning area; (3) fringe planning area; (4) rural planning area; (5) rural/ environmental[ly] sensitive planning area (agricultural preservation district); and (6) environmentally sensitive planning area.” Haar, supra note 4, at 105 n.51. The last three categories are now basically two: rural areas and those that are environmentally sensitive. See N.J. Office of Smart Growth, New Jersey State Development and Redevelopment Plan 186 (2001), available at: http://www.nj.gov/dca/osg/docs/stateplan030101.pdf (last visited Feb. 28, 2003).
202 Merely ordering that towns rezone to allow low-income housing would not work if other more profitable housing could be constructed on the same site. But the builder’s remedy offered something more: higher-than-permitted density, provided affordability standards were met. See Mount Laurel II, 456 A.2d at 443.
203 Id. at 431.
204 Id. at 480 (emphasis added).
205 Id. at 452.
206 Compare J.W. Field, Inc. v. Township of Franklin, 499 A.2d 251, 261 (N.J. Super. Ct. Law Div. 1985) (project might be approved even within a limited growth area if it did “little or no violence” to the environment), with AMG Realty Co. v. Township of Warren, 504 A.2d 692, 723–24 (N.J. Super. Ct. Law Div. 1984) (“heavy burden . . . to prove that the [environmental risk] is substantial and very real”), and Urban League of Essex County v. Mahwah, 504 A.2d 66, 125 (N.J. Super. Ct. Law Div. 1984) (distance from water or sewer connections not enough to preclude remedy), and Orgo Farms & Greenhouses, Inc. v. Township of Colts Neck, 471 A.2d 812, 814 (N.J. Super. Ct. Law Div. 1983) (impact of proposal on environment must not be “clearly contrary to sound land use planning”).
207 Toll Bros. v. Township of W. Windsor, 803 A.2d 53, 88 (N.J. 2002).
208 See Payne, General Welfare and Regional Planning, supra note 200, at 1115 (1999). Payne argues that the Mount Laurel decisions produced a “workable” state plan. Id.
209 An Act Establishing a State Planning Commission and an Office of State Planning, 1985 N.J. Laws 398 (codified as amended by N.J. Stat. Ann. § 52:18A-196 to -209 (West 2001)).
210 Payne, General Welfare and Regional Planning, supra note 200, at 1115; see Mount Olive Complex v. Township of Mount Olive, 774 A.2d 704, 722 (N.J. Super. Ct. App. Div. 2001) (“[C]urrently the State Plan has no regulatory effect and, unlike master plans, ordinances are not required to be submitted for review.”), remanded by 807 A.2d 192 (2002), aff’d on reh’g, 813 A.2d 581 (N.J. Super Ct. App. Div. 2003).
211 Payne, General Welfare and Regional Planning, supra note 200, at 1115.
212 Id.
213 See discussion supra note 194.
214 See N.J. Admin. Code tit. 5, § 93-5.4 (2002).
215 In those planning areas, “the Council shall require inclusionary development [e.g., affordable housing] to be located in centers . . . .” Id. § 93-5.4(c).
216 Id. § 93-4.2. The regulations note that when the state legislature requires that other natural resources be identified and protected, COAH “shall include such resources in its criteria and guidelines” for calculating the amount of land available for housing.
217 Id.
218 Span, supra note 16, at 61–62.
219 At times, it has been accused of abusing that discretion. See Payne, General Welfare and Regional Planning, supra note 200, at 1116 (describing COAH’s substantive certification of a 3000-unit mixed-income development on land primarily designated as rural and environmentally sensitive). Courts have not been immune either. “[I]n some instances,” Professor Haar speculates, “they may have gone so far as to refuse to face up to environmental problems . . . .” Haar, supra note 4, at 199.
220 E.g., N.J. Future Web site, Recommendations for Land Use Reform (2001) (a smart growth advocacy group), at http://www.njfuture.org/HTMLSrc/rc_recommenda-tions.html (last visited Feb. 22, 2003).
221N.J. Council on Affordable Hous. (COAH), Dep’t of Cmty. Affairs, COAH’s Municipal Status Report [hereinafter COAH’s Status Report] (providing information on the status of municipalities within COAH’s jurisdiction as of December 4, 2000). Although certification does not block development, it does mean that a municipality has planned for it. This potentially reduces the risk of sprawl induced by builders’ suits.
222 Id. Professor Payne argues that the actual rate is much lower, possibly no more than 12.6%, because some of the certified communities have little or no obligation to provide affordable housing. John M. Payne, Norman Williams, Exclusionary Zoning, and the Mount Laurel Doctrine: Making the Theory Fit the Facts, 20 Vt. L. Rev. 665, 676–77 (1996) [hereinafter Payne, Norman Williams]. Moreover, COAH has excused some heavily developed municipalities from the fair-share requirement. Id. at 679.
223 State Planning Commission Memorandum of Understanding, N.J. Admin. Code tit. 5, § 93 app. F (2002).
224 Haar, supra note 4, at 195 n.26.
225 See John M. Payne, Fairly Sharing Affordable Housing Obligations: The Mount Laurel Matrix, 22 W. New Eng. L. Rev. 365, 373 (2000) (stating that inclusionary zoning does not work well in older suburbs due to a lack of large development sites) [hereinafter Payne, The Mount Laurel Matrix].
226 See Mount Olive Complex v. Township of Mount Olive, 774 A.2d 704, 722 (N.J. Super. Ct. App. Div. 2001).
227 Haar, supra note 4, at 195 n.26.
228 Id. at 199 n.41.
229 Although Mount Laurel II directed that cases be assigned to only three trial judges, since 1986 COAH has taken over day-to-day implementation of the constitutional mandate, meaning that Mount Laurel litigation has been cycled through the trial court’s ordinary statewide assignment system. Span, supra note 16, at 61 n.256.
230 Because it became a “lightening rod for opposition to the Mount Laurel Doctrine,” Professor Payne writes, “[t]he court’s attempts to condition the builder’s remedy on compliance with environmental and other sound planning considerations was [sic] simply drowned out . . . .” John M. Payne, Reconstructing the Constitutional Theory of Mount Laurel II,” 3 Wash. U. J.L. & Pol’y 555, 563 (2000) [hereinafter Payne, Reconstructing].
231 Payne, Norman Williams, supra note 222, at 677 n.49.
232 Jacobs, supra note 1, at A1. A partner in one law firm has won more than sixty such suits in recent years and compares defendant towns to “baby harp seals. They can slither and squeal, but no municipality seems to have won a Mount Laurel II lawsuit.” Kirp et al., supra note 79, at 105; see also Span, supra note 16, at 62 n.259 (noting that sixty-five municipalities sued from 1987 to 1999). Although builder’s remedies, in theory, are available in COAH proceedings, they are far easier to obtain in court. Span, supra note 16, at 63 n.257.
233 See Payne, Reconstructing, supra note 230, at 559 n.8.
234 See Note, supra note 5, at 1133.
235 See Payne, Lawyers, Judges and the Public Interest, supra note 174, at 1700 (asserting that rental units—arguably the most efficient from an environmental standpoint—lose money).
236 See text supra notes 137–141.
237 Although, formally, the Mount Laurel II decision left the ratio to the judgment of the trial court, the justices appear to have viewed the 20% affordability requirement as a floor. 456 A.2d at 452 n.37 (N.J. 1983) (observing that “20 percent appears to us to be a reasonable minimum”). Perhaps not surprisingly, it has become a ceiling. This tends to increase the environmental impacts of inclusionary developments in New Jersey. Haar, supra note 4, at 111.
238 But not always. COAH regulations permit a set-aside of only 15% for rental units. N.J. Admin. Code tit. 5, § 92-14.4(c) (2002); see Toll Bros. v. Township of W. Windsor, 803 A.2d 53, 98 (N.J. 2002) (Stein, J., dissenting) (urging that the 15% set-aside not bind trial courts supervising the builder’s remedy).
239 See supra text accompanying notes 89–90.
240 Toll Bros., 803 A.2d at 82–86.
241 All else equal, this means that even very rural towns (like Mount Laurel itself) potentially must provide affordable housing. Conversely, more established suburbs may be able to avoid it simply because they offer little or no land attractive to developers. Unfortunately, the “clustering” of affordable housing in established suburbs—municipalities that are served by transit, as well as those close to employment, commercial, and recreational opportunities—will be far better for the environment, and need not be any less supportive of the goals underlying the Mount Laurel doctrine.
242 336 A.2d 713, 732 (N.J. 1975). Such an approach would be more effective from an environmental standpoint.
243 Id. at 732–33.
244 Id.
245 Jacobs, supra note 1, at A1.
246 See N.J. Future Web site, supra note 220.
247 Id.
248 Regional Contribution Agreements (RCAs) have been roundly criticized by housing advocates on the grounds they undermine the integration that the Mount Laurel doctrine was expected to promote. See COAH’s Status Report, supra note 221 (noting that as of December 4, 2002, ninety-one New Jersey communities have entered into at least one RCA); Span, supra note 16, at 65–66 (approximately 7500 RCA units transferred from suburbs to cities). Courts at times may have approved RCAs in the belief that they avoid environmental harm. E.g., In re Township of Warren, 588 A.2d 1227, 1232 (N.J. Super. Ct. Law Div. 1990).
249 Indeed, in Hills Development Co. v. Township of Bernards, the court repeated nearly a dozen times that implementation of the State’s affordable housing policies by the executive and legislative branches was superior to implementation by the judiciary. 510 A.2d 621 (N.J. 1986); see Paula A. Franzese, Mount Laurel III: The New Jersey Supreme Court’s Judicious Retreat, 18 Seton Hall L. Rev. 30, 50 (1988).
250 See N.J. Future Web site, supra note 220.
251 See id.
252 Richard Briffault, Smart Growth and American Land Use Law, 21 St. Louis U. Pub. L. Rev. 253, 267 (2002).
253 E.g., Robert Yaro, Portland Oregon: A Lesson to Be Learned in Connecticut, 34 Conn. L. Rev. 617, 619 (2002); N.J. Future Web site supra note 220.
254 1973 Or. Laws 80 (codified as amended at Or. Rev. Stat. §§ 197.005–.860 (2001)).
255 See Liberty, supra note 94, passim (describing the structure in detail).
256 Or. Rev. Stat. § 197.175(2)(a)–(b).
257 Id. § 197.175.
258 Id. § 197.075–.095.
259 See Or. Dep’t of Land Conservation & Dev., 19 Statewide Planning Goals & Guidelines [hereinafter 19 Goals] (listing and providing links to pdf files for each of the nineteen goals), available at http://www.lcd.state.or.us/goalhtml/goals.html (updated Nov. 1, 2002).
260 See id.
261 Or. Rev. Stat. §§ 197.040(2)(d), 197.251(1)–(2), (4)–(6). Specifically, plans developed by municipalities within a county must be submitted to the county, which is required to ensure that they are consistent with each other and that they constitute “an integrated and comprehensive plan for the entire area of the county” consistent with overall state goals. Id. § 197.190. But see § 197.656 (allowing the LCDC, through a “collaborative regional problem-solving process, . . . to acknowledge amendments” to municipal land use plans and “new regulations, that do not fully comply with the rules implementing the statewide planning goals”).
262 Id. § 197.320.
263 See Henry Richmond, From Sea to Shining Sea: Manifest Destiny and the National Land Use Dilemma, 13 Pace L. Rev. 327, 340–43 (1993). The LCDC also could take a number of additional enforcement measures, including suspending a municipality’s authority to issue building permits or approve subdivisions in rural areas, and ordering it to issue permits or approve subdivisions in growth areas. Liberty, supra note 94, at 10,371 n.41.
264 See Gerrit Knaap & Arthur C. Nelson, The Regulated Landscape: Lessons on State Land Use Planning from Oregon 80 (1992); Liberty, supra note 94, at 10,370 n.32.
265 See Averil Rothrock, Oregon’s Goal Five: Is Ecologically Sustainable Development Reflected?, 31 Willamette L. Rev. 449, 458 (1995).
266 The Land Use Board of Appeals (LUBA) was created in 1979 to deal with the large caseload of the Land Conservation and Development Commission (LCDC) and the Oregon trial courts. See Span, supra note 16, at 76.
267 Liberty, supra note 255, at 10,374. It retains more direct enforcement powers, however, to address poor municipal performance immediately following plan approval. Id. at 10,372 n.63.
268 Or. Rev. Stat. § 197.296(2)–(3) (2001); Or. Admin. R. 660-015-0000(14) (2002).
269 See Or. Rev. Stat. § 197.296; Or. Admin. R. 660-015-0000(10).
270 See Span, supra note 16, at 74.
271 See Or. Rev. Stat. § 197.296(2); Liberty, supra note 94, at 10,378 (explaining that “needed housing” includes multifamily and manufactured housing).
272 Or. Rev. Stat. § 197.296(2); see Mandelker, supra note 18, § 7.30.
273 See Dep’t of Land Conservation & Dev. v. City of McMinnville, 41 Or. LUBA 210 (2001), 2001 WL 1910349, at *8.
274 The LCDC so found in Seaman v. City of Durham, 1 LCDC 283, 290 (1978), and later informally extended this interpretation as unofficial policy. Mandelker, supra note 18, § 7.30. The Legislature subsequently codified the requirement: “When a need has been shown for housing within an urban growth boundary at particular price ranges and rent levels, needed housing . . . shall be permitted in one or more zoning districts . . . of sufficient buildable land to satisfy that need.” Or. Rev. Stat. § 197.307(3)(a).
275 Or. Rev. Stat. § 197.307(3)(a)–(b). The need must be assessed on a regional basis. See Residents of Rosemount v. Metro, 21 P.3d 1108, 1113 (Or. Ct. App. 2001) (rejecting the proposition that housing need could be established solely by reference to areas in close proximity to preselected site of urban growth boundary expansion); Seaman, 1 LCDC at 289–90. This can mean that a local area without immediate need must provide housing if the surrounding region requires it, or that a local area with such need may not have to do anything if it is being met elsewhere in the region. See Span, supra note 16, at 75 n.329.
276 E.g., Span, supra note 16, at 79 n.342 (noting that from 1978 to 1982, the maximum number of permissible units in Portland area increased nearly 150%, even though only 10% more land had been zoned residential).
277 Liberty, supra note 94, at 10,379 nn.173–77; see Anthony Downs, Regulatory Barriers to Affordable Housing, 1992 Am. Plan. Ass’n J. 419, 420 (stating that by eliminating unnecessary dimensional minima, housing costs could be decreased by half).
278 See Liberty, supra note 255, at 10,379 nn.174–77.
279 See Arthur C. Nelson, et al., The Link Between Growth Management and Housing Affordability: A Review of the Evidence 26 (The Brookings Inst. Ctr. for Urban & Metro. Policy ed., 2002) (citing a study finding “no statistically significant association between metropolitan Portland’s [urban growth boundary] and housing prices” from 1991 to 1996); Gordon Oliver, Portland Sees Gain in Affordable Housing, The Oregonian, Jan. 25, 2000, at C01. Portland’s affordability ranking, calculated by the National Association of Home Builders, an industry lobbying group, has improved from its 1997 ranking as the second least-affordable region in the nation. In the third quarter of 1999, it was ranked twenty-fourth least-affordable region and in the first quarter of 2001, it had dropped to thirty-first. Nat’l Ass’n of Home Builders, Housing Opportunity Index, at http:// www.nahb.org/reference_list.aspx?sectionID=135 (last visited Mar. 11, 2003). Between 1980 and 1990, the average price of a single-family home in Portland grew 3.6%, compared with 4.9% in other western cities. Span, supra note 16, at 80. Nonetheless, additional data may be required to ascertain the relationship between housing supply and housing need in the Portland area. See id. at 78.
280 See Euchner & Frieze, supra note 25, at 41 (“Chapter 40B . . . has sucked the oxygen out of the housing debate.”). By early 2003, more than sixty bills had been introduced in the Massachusetts Legislature to amend or repeal the State’s affordable housing law. See Flint, Romney, supra note 98, at 1A.
281 See Liberty, supra note 94, at 10,379.
282 Jerry Weitz & Terry Moore, Development Inside Urban Growth Boundaries: Oregon’s Empirical Evidence of Contiguous Urban Form, 1998 Am. Plan. Ass’n J. 424, 436 (noting that Oregon’s growth policies are being achieved, yet “there is significant room for improvement”).
283 See generally 19 Goals, supra note 259 (listing and providing links to pdf files for each of the nineteen goals).
284 See Liberty, supra note 94, at 10,368–69 (noting that “land use planning in Oregon is not advisory, but an integrated hierarchy of legally binding Goals, plans, and regulations”); Knaap & Nelson, supra note 264, at 81 (LCDC forcefully implemented high-density, fair-share housing policy that local governments would not have chosen on their own).
285 Before the 1973 Oregon Land Use Act was passed, planning was not performed at a regional or statewide level. Rather, like Massachusetts and New Jersey, Oregon authorized each municipality to plan and zone on its own. See Rothrock, supra note 265, at 456–57.
286 Massachusetts has 351 municipal units. Bd. of Appeals of Hanover v. Hous. Appeals Comm., 294 N.E.2d 393, 403 (Mass. 1973). New Jersey has 566. McCann v. Clerk of Jersey City, 771 A.2d 1123, 1138 (N.J. 2001).
287 Approximately 43% of the state’s population lives in the Portland metropolitan area. Span, supra note 16, at 75 n.330.
288 Richmond, supra note 263, at 338, 342.
289 See Cynthia Cumfer, Original Intent v. Modern Judicial Philosophy: Oregon’s Home Rule Case Frames Dilemma for State Constitutionalism, 76 Or. L. Rev. 909, 913–18 (1997). With a legal tradition that made municipal mergers difficult, but deconsolidation relatively easy, New Jersey has been called “the most municipally fragmented state in the nation.” Kirp et al., supra note 79, at 23.
290 The Willamette Valley encompasses 83% of the Oregon’s best farmland and produces 48% of its agricultural goods. Its 2.2 million acres also are home to about 2.8 million people, slightly larger than Delaware, but with nearly 3.5 times the population. Knaap & Nelson, supra note 264, at 130–31; Population Research Ctr., Portland State Univ., Certified Estimates for Oregon; Its Counties and Cities, July 1, 2002, at www.upa. pdx.edu/CPRC/certified%20estimates%202002.PDF (release date Dec. 16, 2002).
291 Kirp et al., supra note 79, at 123.
292 See Krefetz, supra note 120, at 392; Payne, The Mount Laurel Matrix, supra note 225, at 368.
293 For example, it might be disappointing if thirty years of effort had been spent just so local police officers could live in the town where they work.
294 See Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 324–25 (1987).
295 See Kirp et al., supra note 79, at 81.
296 Conversely, in theory, the absence of a municipality-based, fair-share principle could result in the further concentration of housing in urbanized areas. But neither the economics of development, nor history, bears this out.
297 In Massachusetts, the requirement is 25%; in New Jersey, it generally is 20%, but may be lower.
298 Although one could argue that this also may mean more affordable housing, that question has not been closely examined. Furthermore, better planning could provide for an equivalent amount of profit-driven development, but with lower impact on the environment.
299 State or federal statutes or regulations controlling development are, of course, not waived.
300 Current precedent centers on efforts to site housing in areas accorded special protection, like historic districts. But nothing appears to bar the extension of these decisions to towns seeking to steer affordable housing to specified areas for sound planning reasons, including proximity to shopping, employment, recreation, or transit.
301 Span, supra note 16, at 72–73. Span suggests that a confluence of factors particular to Oregon produced its unique system. These include the presence of a powerful, focused statewide advocacy group (1000 Friends of Oregon); a well-staffed state agency dedicated to land use planning (LCDC); and a supportive and streamlined administrative enforcement process (LUBA). See id. This is not much help to a state, with entrenched and embattled interests, that lacks most of the foregoing factors.
302 There seems to be no lack of professional planners. A recent tally in Massachusetts suggests that more than half of its municipalities have at least one planning professional on staff, and some that do not are served by outside planners. E-mail from Bob Mitchell, AICP, Planning Director, Town of Amherst, to Rusty Russell (Jan. 14, 2003, 15:04 EST) (on file with author); E-mail from Juliet T. Hansel Walker, Planner, John H. Chafee Blackstone River Valley National Heritage Corridor Commission, to Rusty Russell (Jan. 14, 2003, 14:47:46 EST) (on file with author).
303 Russell, supra note 168; see The Zoning Act, Mass. Gen. Laws ch. 40A, § 6 (2000) (authorizing a freeze on existing zoning for eight years if a preliminary subdivision plan is submitted to the local planning board and is followed within seven months by a definitive plan).
304 Payne, General Welfare and Regional Planning, supra note 200, at 378–79.
305 See discussion supra Part II.
306 Toll Bros. v. Township of W. Windsor, 803 A.2d 53, 93 (N.J. 2001) (Stein, J., concurring in part and dissenting in part) (pointing out that in the twenty years since Mount Laurel II, only 5.4% of all residential dwelling units built in New Jersey were affordable, and that, during that same period, 60 million square feet of office and retail space was constructed).
307 Id. at 118 (Stein, J., concurring in part and dissenting in part). “[I]f overdevelopment has occurred, the source of that overdevelopment is market-priced housing and commercial construction, not affordable housing.” Id. (Stein, J., concurring in part and dissenting in part); see, e.g., Kate Spinner, Tiny Turtles Push Back Development Effort, Daily News (Newburyport, Mass.), April 18, 2003, at 1 (describing conflict between industrial development and wetlands and species protection).