[*PG437]EQUITY IN EDEN: CAN ENVIRONMENTAL PROTECTION AND AFFORDABLE HOUSING COMFORTABLY
COHABIT IN SUBURBIA?

Rusty Russell*

Abstract:  State-based affordable housing initiatives have survived decades of controversy. Two of the most successful—in Massachusetts and New Jersey—encourage homebuilders to bypass local regulations when zoning ordinances limit available land. Opponents assert that these programs invite developers to pillage open space, impairing wetlands and promoting sprawl. This Article examines the low- and moderate-income housing programs established by the so-called “Anti-Snob Zoning Act” in Massachusetts and the Mount Laurel doctrine in New Jersey. Drawing on Oregon’s integrated planning regime as a point of contrast, it analyzes the potential for tension between policies that advance affordable housing in the suburbs and the asserted municipal interest in safeguarding the local environment. Finding that elements of the legal and regulatory structure appear to promote this conflict, the Article concludes with the observation that a more coherent statewide planning system could better integrate affordable housing and the environment, and offers thoughts on how to alter the perception that the two are adversaries.

Introduction

This Article examines the potential for conflict—and congruencebetween the benchmark state efforts of Massachusetts and New Jersey to site affordable housing in municipalities that historically have opposed it, and initiatives by communities and their citizens to [*PG438]protect the local environment. When not pretextual, such initiatives seek to address the health and safety impacts of disaggregated living patterns, consumption of open space, short- and long-term harm to ecosystems, and loss of biodiversity. The State of Oregon’s land use planning system serves as a point of contrast, and accusation.

I.  The Equity Dimension

Policies favoring environmental protection and affordable housing are sometimes said to conflict because they embody differing perspectives on the principle of equity.1 Environmentalism tends to focus on intergenerational distribution—equity over the long term. A fundamental concern is the extent to which the present generation can defer the costs of its activities.2 Affordable housing policy, conversely, concentrates more intensely on existing inequalities. These include disparities in available resources for shelter, as well as the ability of local government to supply services such as education, fire and police protection, and public works. Considerations of intergenerational equity frequently yield to more immediate demands.3 Institutional [*PG439]remedies supported by housing advocates appear to favor housing over the environment,4 despite repeated expressions of concern for the latter. But the relationship between the two is more complex. Feigned environmentalism may not save any trees, yet it may be decisive in obstructing low-cost housing.5

Another major source of tension is governmental. It surfaces when a decision to promote affordable housing, usually made at the state level, collides with local financial needs and political limitations. Under the authority typically delegated by state constitutions, municipalities can and do provide a wide range of public services.6 In the usual case, a sizable percentage of the local budget must be raised through property assessments,7 and K–12 education can easily consume half of it or more.8 A direct relationship exists between the level and quality of municipal services, and the structure of local zoning regulations.9

As a result of this interplay, current residents of a given community work hard to maximize their own economic prospects.10 By deciding what package of services to offer and how to cultivate the most robust tax base to pay for it, communities exercise powers delegated by the state legislature to shift as much of their costs as possible onto the citizens of other towns and cities.11 This permutation of the famil[*PG440]iar “tragedy of the commons”12 ensures that many municipalities will “over produce” land that is off-limits to low-cost housing. This objective may be advanced by a variety of antiquated zoning and land use practices that inhibit the transition to a more diverse and affordable housing stock.13

A strain of local environmentalism animated by variations on the NIMBY theme can add to this tension.14 The problem arises when local environmental solicitude serves as camouflage for less wholesome agendas.15 Intentionally, or by indirection, existing residents seek to maximize their net benefits by pursuing strategies that limit or eliminate affordable housing, particularly housing for growing families. The cost of municipal services that these residents demand may exceed their property tax allotment, whether paid directly or through rent. Education costs incurred by families will nearly always exceed tax receipts, unless the family owns an expensive home.16

Given these conditions, the meaning of environmental protection takes on increasing subjectivity.17 To housing advocates and those who seek affordable shelter in suburban communities, saving the local environment may serve as code for exclusionary zoning18 and all it conceals.19 To those who seek to protect the environment, an aggres[*PG441]sive affordable housing policy may be received as the lumbering intervention of a distant and ill-informed regulatory state.20

This Article extensively analyzes the Massachusetts and New Jersey approaches to affordable housing and then compares these approaches with Oregon’s system. The first two are widely considered to be the pathbreaking affordable housing initiatives in the nation. The third incorporates housing into a much broader set of planning goals. The Massachusetts and New Jersey programs parallel one another. The Oregon system significantly differs. Together they illustrate the range of strategies attempted with some success so far. This Article examines each of these approaches for evidence that, in intent, structure, or result, a particular approach may cause conflict between legitimate local environmental programs and the more equitable distribution of housing. To accomplish this task, it is necessary to investigate the relationship among local governmental structure, local and regional environmental quality, and affordable housing policy.

II.  Local Environmental Concerns

Degradation of air, water, and land—the fundamental elements of an ecosystem—eventually harms almost all living things and every human community. Impacts big and small spill with abandon across political boundaries of all dimensions.21 Yet, in the end, their effects are felt locally. Unfortunately, cities, towns, and myriad other municipal divisions may not offer a sound platform from which to address environmental risk.22

Some threats are addressed primarily at the national level, although several major environmental laws delegate significant responsibility to the states, allowing them to impose stricter environmental standards.23 Through state delegation, this cooperative federalism extends to municipalities, which typically enjoy broad latitude in ad[*PG442]dressing matters of local concern.24 As a result of this delegated authority, cities and towns may adopt additional controls, especially those that address particular sensitivities.25

This might be sufficient to protect the environment if the federal environmental statutes achieved their objectives. But they often cannot.26 A significant reason is that these laws, along with their many state counterparts, do not adequately address the expansion of existing environmental risk or new risk,27 and they do not specify a defensible level of risk reduction.28

[*PG443] One of the major drivers—arguably, the major driver—of environmental risk is intensifying human occupation of the 2.7 billion-acre land area29 of the United States.30 When that growth is unplanned, or poses untoward environmental risk, it is commonly referred to as “sprawl.” The definition of sprawl, like its essence, is nebulous.31 Nonetheless, its impacts are widely acknowledged, and include: (1) a preference for the consumption of undeveloped “greenfields”;32 (2) scattered, “leapfrog,” strip, or low-density development;33 (3) housing that delivers a great deal of personal space to meet the demands of individuals or individual nuclear families;34 (4) employment patterns calling for lengthy commutes;35 (5) economic conditions requiring more household members to be employed outside the home and, as a result, more automobiles and driving per household;36 (6) increased segregation of land uses, which cuts residential areas off from the loci of consumption and employment; and (7) development that does not relate to its surroundings, either in use, size, structure, or appearance.37

Sprawl is a dynamic that favors chaotic patterns of growth and reinforces environmental risk. That risk comes in all sizes—some is exceedingly local, some widespread. By definition, out-of-control development consumes land unwisely. Too much undeveloped acreage is taken, and it is taken too quickly. Sprawl development ignores potential sites in more built-up areas in favor of the lower prices of exurban greenfields.38 Even with an exaction aimed at compensating [*PG444]local government for the required infrastructure, much of the externalized costs will continue to be borne by the wider community.39

The environmental impact of sprawl arises from two mutually reinforcing phenomena: (1) inefficient use of land40 and (2) a significant disconnect between the political jurisdiction having control over key land use decisions, and the jurisdictions that must bear the negative consequences of those decisions.41 In the face of wasteful demand, many municipalities under price inputs (undeveloped land and services), and thus create an incentive to use those inputs at an inefficiently high level. But because others elsewhere pay part of their cost, the municipality has little reason to desist. The incentive to do so is further reduced because most of the benefits of the development remain local.42 Those burdened by the impacts will find objection difficult, facing significant costs just to discover they are victims, and even more to organize a legal or political response.43 It may simply be impossible to challenge such local actions successfully.

It is also well settled that cities and towns have an incentive to encourage certain types of development, and to discourage others.44 Because they are small, compete with many other political subdivisions, and enjoy the benefit of customized legal tools, these communities often find it easier to avoid what they perceive is bad than to entice the good.45

[*PG445] Desirable development earns a positive fiscal dividend46—that is, it returns more in local taxes than it consumes in municipal services. Commercial development of all types generally qualifies, as does a narrow spectrum of residential uses, including housing for the elderly,47 units restricted to one or two bedrooms, and expensive single-family homes. The latter, due in part to efficiency and in part to demand, tend to be sited on large lots in large subdivisions. The ideal conditions for development of this type often are found in natural areas, lying far from employment, education, and urban centers.48

The result is environmental degradation. Its impacts are widespread and difficult to trace, and do not easily lend themselves to effective local regulation. Even assuming that preemption is not an obstacle, often the most that a community can do to address it is to impose high costs on its residents and voters in exchange for a range of benefits that are far more broadly distributed, both in distance and in time. Needless to say, regulatory initiatives of this type do not receive a high priority. Typically, a homeowner’s most valuable asset is his or her home49 and any threat to that asset’s value will be stoutly resisted.50

Despite this, the myriad impacts of sprawl are well documented and growing.51 Decreases in population density have greatly out[*PG446]stripped population growth over the past five decades.52 The trend has been particularly dramatic in urbanized areas. In Massachusetts, for instance, developed land area expanded at a rate more than six times higher than the rate of population growth.53 At the national level, the trend has been similar, if not as pronounced.54 Demographics and employment are mutually reinforcing. The data show that as the suburban population has increased, so have the number of suburban jobs.55

The effects of sprawl also must be considered in connection with tasks that municipal governments typically undertake. These include the provision of local services, zoning and land use planning,56 and revenue collection.

[*PG447] As unplanned and premature development, sprawl results in a host of environmental insults. Its effects range from the highly-localized to small but significant contributions to major national and international concerns. Sprawl is at least partially responsible for increases in:

(1)Air pollution and climate change emissions57 resulting from the purchase and excessive use of fuel-inefficient vehicles by relatively affluent suburbanites;

(2)nonpoint source pollution of water bodies, caused by runoff from paved areas, as well as infiltration from faulty or under-regulated septic systems;58

(3)loss of wetlands59 and open space;60

(4)ecosystem fragmentation, and the resultant loss of habitat and species;61 and

(5)inefficient consumption driven by non-renewable, limited, and polluting inputs, such as water,62 electricity, and on-site fossil fuels like natural gas, heating oil, and propane.63

To address sprawl, the environmental and planning community64 has lately focussed on “smart growth,” the subject of numerous recent political initiatives.65 Smart growth, although fuzzy around the [*PG448]edges,66 generally straddles the boundary between the reactive and the innovative. Smart growth planning retrospectively attempts to correct years of sprawl-inducing policies, including Euclid-inspired zoning;67 the over-reliance on local governments to regulate development and land use; and suburb-68 and automobile-oriented governmental subsidies.69 It also looks forward, opening a broad tent to new ideas that promise to be environmentally benign, as well as equitable and aesthetically pleasing.70

III.  Affordable Housing: Background

Sprawl may be the primary force behind environmental degradation in suburbia, but to what extent does affordable housing policy intensify diffuse, inefficient patterns of development? That question must be addressed within the broader context of the rise of American suburbanization and powerful government policies that have supported and reinforced it for decades.

The suburban ideal has deep roots.71 For at least two centuries, “the easy availability of housing and land has distinguished the United States from other nations of the world.”72 Over that time, frontier ideology of a particularly American character sharpened into a distaste [*PG449]for urban life, and reinforced a “drift . . . toward the periphery.”73 Over time, this grew into an “affinity for a detached home on a private lot [providing] the psychic value of privacy or castlehood.”74 Government policy responded to and intensified this migration. Between the mid-1930s and mid-1970s, for example, the Federal Housing Administration issued $119 billion worth of mortgage insurance, directly abetting the spreading carpet of suburbia.75 Even without the strong hand of the federal government, the “national distrust of urban life and communal living”76 ensured that residential diffusion would continue. Yet that hand repeatedly did intervene, and, in some cases, ensured that the only private housing the average middle-class family could afford was a suburban tract home.77 As historian Kenneth Jackson noted, “[T]here were two necessary conditions for American residential deconcentration—the suburban ideal and population growth—and two fundamental causes—racial prejudice and cheap housing.”78 Government responded to these conditions in a manner that reinforced their causes.79

[*PG450] Homeownership remains a central feature of the American Dream. It also presents a central policy challenge. The challenge arose directly from the suburbanization that started in the early part of the century and accelerated significantly as a result of government assistance after the Second World War.80

The fragmentation of the suburbs, from the central city and from each other, has contributed to the continuing perception that the supply of housing cannot meet perceived and projected demand.81 This affordable housing “crisis”82 is rendered more acute by the problem of diffusion—a problem that is worse for some communities than others.

Suburbs were developed as a haven for the middle- and upper-middle classes. Today, more people live there than in either cities or rural areas.83 Although government policy after 1945 opened up these areas to a wider segment of the populace, that slice remained almost exclusively white and relatively affluent.84 Suburban municipalities perpetuated this imbalance by exercising zoning and other regulatory power in a manner that tended to increase the price of land and thus the price of housing. Economically rational cities and towns possessed a strong interest in attracting residents and businesses that could pay their own way, and fending off those that could not.85 Small governmental units arose on the currents of population, and state law evolved to facilitate suburban incorporation and protect new municipalities from annexation.86 These two forces helped to infuse communities with a strong self-interest in their own brand of uniformity.87 [*PG451]Ultimately, the widespread fragmentation of local government yielded high levels of suburban segregation.88

These complex changes have generated continuing, intense concern about affordable housing. It embodies several discrete issues. They include: (1) inadequate shelter in the core of many urban areas;89 (2) lack of racial and ethnic diversity; (3) a wide gap between the location of affordable housing and the workplace; (4) barriers confronting middle-class families who seek to relocate to more affluent suburbs; (5) obstacles preventing the elderly from remaining in their home communities; and (6) the overall lack of housing options that lie within the economic reach of lower-income groups.90

IV.  State Programs: Massachusetts, New Jersey, and Oregon

The question posed by this analysis is whether, and to what extent, three key approaches to affordable housing affect the local environment, for good or ill. These are the affordable housing programs developed in Massachusetts, New Jersey, and Oregon. Each State has followed a different path. In 1969, Massachusetts implemented an administrative process through the Massachusetts Low and Moderate Income Housing Act,91 often called the “Anti-Snob Zoning Act,” the “Comprehensive Permit Law,” or just “40B.” New Jersey’s approach was announced by the state supreme court in a series of decisions arising out of the Mount Laurel litigation.92 It rests on state constitutional principles.93 Oregon’s system is part of a broader statewide land use [*PG452]program designed to direct growth and housing to identified areas in or near urban centers.94

The earliest of these efforts, the Massachusetts program, offers builders a waiver of most local land use restrictions if they agree to construct housing that meets low- and moderate-income guidelines.95 The New Jersey approach, announced in 1975 and converted into an administrative process a decade later, attempts more directly to identify local and regional need for affordable housing, and permits builders to sue municipalities that fail to establish a state-certified program to meet that need.96 Oregon’s approach, which differs significantly from the others, addresses housing in the context of nineteen statewide planning goals. These goals must be achieved by each county and by the Portland metropolitan area, or the communities risk losing state aid.97

A.  The Massachusetts Comprehensive Permit Law: A Bright Line Test

The Massachusetts program, though no stranger to controversy,98 offers the virtue of simplicity. This is achieved through a combination of bright-line triggers and a passive approach that requires a relatively modest level of administrative oversight.

The Comprehensive Permit Law empowers public or specified private developers to site qualifying low- and moderate-income housing99 without regard to zoning restrictions, or other local land use [*PG453]regulations, in any city or town where less than 10% of the housing stock is considered affordable.100 Through its zoning board of appeals, a municipality may authorize affordable housing by issuing a comprehensive permit that replaces all other local approvals.101 Depending on the specific requirements of federal- or state-sponsored housing programs, at least 20 to 25% of the units in the project must be priced below market.102 The local appeals board may deny the application outright or attach conditions before approving the comprehensive permit.103 If those conditions render the project “uneconomic,” or if the permit is simply denied, the developer may appeal to an administrative agency, the Housing Appeals Committee (HAC).104

HAC will reverse the local board of appeals and permit the project to go forward105 unless the municipality demonstrates that the conditions it has imposed are consistent with local needs.106 Basically, the local appeals board must first show that “valid health, safety, envi[*PG454]ronmental, design, open space or other local concern . . . supports such denial [or conditions], and then, that such concern outweighs the regional housing need.”107 Furthermore, if denial or conditional approval is based on a lack of municipal services or infrastructure, the local appeals board also must demonstrate that it would not be technically or financially feasible to provide them—with financial constraints relevant only “where there is evidence of unusual topographical, environmental, or other physical circumstances . . . .”108

This burden is difficult to meet, given the regulatory presumptions that HAC regulations impose: if a city or town does not satisfy one of four affordable housing thresholds—the primary one being that affordable housing units exceed more than 10% of the community’s total housing stock109—there arises a rebuttable presumption that “substantial regional housing need . . . outweighs local concerns.”110 Unless the municipality meets one of the statutory minima and is, therefore, conclusively presumed to have satisfied the “local needs” test, it will most certainly either lose its appeal outright or be required to settle the matter on terms favorable to the developer.111

Not surprisingly, the top priority of the Massachusetts affordable housing program is the development of low- and moderate-income housing, not environmental protection.112 Nonetheless, the Comprehensive Permit Law embodies an awareness that legitimate environmental concerns must be taken into account.113 Indeed, the power [*PG455]delegated to local appeals boards to issue a single municipal permit that overrides local zoning—and the power of disappointed developers to obtain one on appeal—has no impact on the enforcement of state or federal environmental laws and regulations. Even some decisions of local conservation commissions and boards of health are unaffected by 40B,114 because the State has delegated to these bodies the authority to administer a “comprehensive state statutory or regulatory program”115—such as the Wetlands Protection Act or septic system permitting under title 5 of the State Environmental Code.116

Several elements of the Massachusetts affordable housing program should, at least in theory, deflect the perception that the Comprehensive Permit Law weakens environmental protection.117 First, the 40B program includes incentives that encourage the development of affordable rental housing. A municipality may count all units—both market-rate and below-market—in calculating its 10% affordable housing threshold, an advantage generally not available if mixed-income housing is to be sold.118 Because rental projects are more likely to achieve higher levels of density, they naturally fit better into a community’s environmental goals. Second, as discussed below, the 40B process rewards planning.119

[*PG456] Third, although various thresholds—particularly the 10% affordability target—may be low,120 once one of them has been met, communities have greater discretion in determining whether, and how, to pursue additional affordable development. Thus, despite the goal of the 40B program to enhance income diversity on a geographical basis,121 it may not be the engine of unplanned rural development that some critics claim.122

Fourth, although a choice by city residents to relocate to affordable housing in the suburbs might contribute to sprawl,123 virtually no data suggest that this has happened.124 Moreover, as a general proposition, the Comprehensive Permit Law appears to function more successfully in urban environments.125 Of the thirty-two municipalities [*PG457]over the threshold by year 2003, nineteen were cities or older industrial centers such as Boston, Worcester, Lowell, and Holyoke.126

Finally, the Massachusetts affordable housing program, unlike those in New Jersey and Oregon, requires that the projects receive some type of subsidy.127 Environmental impacts will vary depending on the structure of the subsidy program.

Application of the affordable housing mandate on a town-by-town basis, in combination with a trend towards intra-project cross-subsidization,128 has made 40B appear to be more threatening to the environment than its authors may have intended. At the moment, much 40B development consists of non-rental units in the form of detached dwellings.129 This promotes sprawl.

Specifically, for the past decade, the subsidy program of choice has been the Department of Housing and Community Development’s (Department) Local Initiative Program (LIP), which requires local participation and approval.130 At first blush, it would seem that the impacts of LIP housing would be relatively modest. A LIP project must be approved by the local executive, and up to 70% of its units may be reserved for those with local ties. In addition, the projects tend to be small, usually no more than twenty-five units, and often no more than eight.131 But that is not precisely so.

LIP projects satisfy the public support requirement by accepting technical assistance from the Department. In the absence of a monetary subsidy, builders compensate in two ways for the lower profit or loss they must take on the affordable units. First, they stick to moderate-income housing; then they ensure that 75% of the units are offered at market rate.132 These dual imperatives pull them in one di[*PG458]rection, toward single-family housing. In fact, some 90% of all LIP projects consist of single-family homes. The affordable component has been reserved for middle-income owners, with priority often accorded to those with local ties or the elderly.133

A growing number of 40B units in the past few years have qualified under a non-governmental program, the New England Fund (NEF).134 Operated by the Federal Home Loan Bank of Boston, the NEF provides affordable housing loans through member banks. In the past, many local lenders have supported sprawl-inducing “greenfield” projects. But as a result of HAC’s recent round of regulatory amendments, the Department may designate a public or quasi-public entity to issue site approvals for NEF housing, and later monitor compliance with the Comprehensive Permit Law.135 Thus the State is empowered to adopt review criteria to examine whether these projects induce sprawl or otherwise harm the environment.136

[*PG459] Less direct influences on developers also play a role. Though data are lacking, it is predictable that a builder will prefer to seek a comprehensive permit for a site that is not otherwise desirable or developable. Such a site is likely to offer three advantages: (1) low development costs; (2) relatively few potentially objecting neighbors; and (3) the opportunity to bypass local regulatory constraints, such as zoning restrictions or subdivision review by planning boards.137 The first advantage is likely to be more available in relatively undeveloped areas.138 As for the second, nearby residents may cause political problems and, if able to demonstrate special damages, may sue in superior court to challenge a comprehensive permit.139 The third feature is relevant because it creates the circumstances under which the regulatory relief offered by 40B becomes a valuable commodity. Thus, the paradigmatic 40B parcel is more likely to be situated within reach of existing infrastructure, yet outside the ambit of sensitive areas regulated by state environmental laws—such as wetlands or rare species habitat.140

Together, these forces create a weak incentive, promoting dispersed development and its sprawl-related impacts. Furthermore, the Massachusetts affordable housing program does little to integrate the fundamental goals of the Comprehensive Permit Law with concern [*PG460]about the environmental impacts of sprawl.141 The former approach looks at numbers; the latter at dynamic systems.

HAC has made an effort to fill this gap. Although characterized at times as distant and insensitive to local concerns,142 the five-member HAC appears to strike a cautious balance between housing and the environment. It serves as a sort of truth squad to counteract the municipal predilection to determine that affordable housing must yield to the community’s strongly held environmental values. The numbers alone underscore the inherent power of the Comprehensive Permit Law. As of 1999, developers had filed more than 300 appeals of local decisions, and one half had been formally adjudicated. Of these, HAC reversed ninety-four and upheld eighteen, a ratio of more than five-to-one.143 Many decisions involved allegations by the local appeals board that the proposed development failed to meet local needs because of harm to the environment.

Nonetheless, a review of relevant decisions supports the view that HAC has taken to heart its obligation to balance housing and the environment in the course of evaluating the frequently-voiced concerns that a proposed 40B development will compromise public health, consume valuable open space, and degrade natural surroundings.144 Cases before HAC raise environmental issues in several distinct, albeit overlapping, settings. The first involves allegations by the municipality that local policies establish a protective standard precluding the proposed affordable housing project. Sometimes it is based on general environmental concerns, rather than local regulation. HAC will accord such “standards” little weight.145 It is interesting to note that no decisions so far appears to have presented a direct conflict between local environmental regulation and affordable housing.146

[*PG461] In the second setting, a developer demonstrates that a city or town seeks to apply local environmental standards more rigorously in the face of an affordable housing proposal.147 HAC has made it clear that a city or town will not be heard to argue that, if approved, the 40B proposal will be the straw that breaks the environment’s back, at least where the municipality has been more lax with other, market-rate projects.148 As HAC wrote a decade ago, where “there is no clear-cut standard to be reviewed, . . . the Committee has often found as a factual matter that there is no significant danger to the public health or safety.”149

A third setting involves a failure of proof. This is perhaps the most troubling because the ultimate judgment by the local agency (here, the appeals board) is not accorded the level of deference customary in many appellate forums. Rather, HAC reviews the evidence de novo,150 with the municipality under a heavy burden to demonstrate the importance of its environmental concerns. In effect, HAC sits as a quasi-environmental regulator, but without the depth of expertise typically available to a larger agency.151 When the developer’s experts disagree with the local board, HAC may be called upon to resolve complex scientific questions.152 Given that the municipality [*PG462]bears the burden of proof, HAC usually finds for the project proponent.153

A fourth setting is directly related to sprawl: Does a municipality have the power to deny access to local infrastructure like water and sewer service, or to require that the developer pay for the marginal increase in load on the existing system? HAC decided recently that the local board may require a 40B developer to mitigate “specific” problems created by the new development itself.154 But it did not explain in detail how to differentiate the specific from the general, except to suggest that mitigation measures must take place in the vicinity of the project itself.155 It is difficult to assess what effect HAC’s approach will have, particularly if local efforts to internalize marginal costs are not applied equally to all development.

Overall, HAC’s decisions send a message that major environmental concerns will be reviewed with care only when they are presented with specificity. When a town asserted that its density restrictions were linked to environmental protection, HAC observed that “no meaningful analysis is possible at that level of generality.”156 When, in a rare opinion affirming the local board’s decision, HAC upheld the installment of septic systems—rather than a sewer tie-in—for a twelve-unit low-income housing project, it required that monitoring wells be installed and operated under the supervision of the town’s planning board.157

In another recent case, a builder sought to construct a two-family house with one affordable unit on a vacant lot in a residential area near a town center, a project HAC described as “a textbook example of in-fill housing.”158 HAC noted that the recycling of existing lots [*PG463]“typically raises fewer environmental concerns than so-called ‘greenfields’ development,” and represents “smart growth” winning out over “urban sprawl.”159 Finally, in late 2002, HAC again tackled the problem of sprawl, requiring that a permit be issued for a ten-story apartment building with 183 units of mixed-income rental housing to be located near a large suburban mall, other shopping areas, transit nodes, a state park, and a rail trail.

Recently, HAC set forth its clearest statement to date of what might be called the principle of planning priority—the idea that in appropriate cases a local board’s denial of a permit will be upheld if the project is inconsistent with a municipal plan, provided the plan is bona fide and sufficiently inclusive.160 For example, by a three-to-two vote, in Stuborn Limited Partnership v. Barnstable Board of Appeals, HAC upheld the denial of a comprehensive permit for a thirty-two-unit retirement condominium located on the town harbor.161

HAC has articulated a two-part test to evaluate comprehensive plans. The first part focuses on whether the plan is legitimate and viable, promotes affordable housing, and has been implemented in the project’s proposed location. The second part of the test is to determine how much weight to give the plan in light of the results of the first part, as well as the extent to which “the provisions of the plan are unnecessarily restrictive as applied specifically to the proposed project.”162

In Stuborn, HAC found that the Town of Barnstable had indeed developed strategies to stimulate affordable housing, including new multifamily housing districts, construction incentives, and detailed municipal plans that focused on housing.163 In addition, the comprehensive plan had been implemented in the section of town where the [*PG464]affordable housing project would be built, and without exception, this area had been zoned for marine business use.164

In reaching its conclusion, HAC rejected the developer’s argument that “housing would be friendlier to the environment than the marine use proposed by the [local appeals] Board.”165 While noting that any project could have an impact on the environment, HAC treated marine-related development as almost a rarity of nature: “Harbors are distinct, limited resources, and the interest in preserving them is even stronger than many of the more general planning interests articulated in local comprehensive plans.”166

Although the Stuborn ruling does not answer every question,167 it signals that municipalities willing to envision a future that includes affordable housing will find ways to achieve their overall land use goals, provided this is accomplished through a comprehensive planning process that is concrete and enforceable. This is the sort of planning regime that is likely to mitigate sprawl.168

B.  New Jersey’s Regional Fair Share: A Constitutional Directive

Unlike the Comprehensive Permit Law, which has been copied by several other jurisdictions,169 the evolution of New Jersey’s approach to affordable housing is sui generis.170 A reformist New Jersey [*PG465]Supreme Court announced a new doctrine founded on the state constitution that became the first step in the articulation of more detailed requirements for creating statewide low- and moderate-income housing opportunities.171 Both the case that announced first principles, and the subsequent one that sharpened them into a powerful program, involved the then-small township of Mount Laurel,172 located about ten miles east of Camden, in southern New Jersey.173 A third decision often regarded as the final step in the judicial development of the State’s affordable housing policy found that the legislative response to the first two rulings—to establish an administrative process to implement the policy—did not violate New Jersey’s nascent constitutional right to affordable housing.174 The history and political and social drama of what is widely known as the Mount Laurel doctrine have been recounted in extensive and illuminating detail elsewhere.175

In some ways, the Mount Laurel doctrine, as modified by the New Jersey Fair Housing Act of 1985,176 is not unlike the Massachusetts Comprehensive Permit Law. Both programs give builders preference in siting affordable units until a municipality has met certain housing targets. Both are overseen by small administrative agencies.177 And [*PG466]both incorporate environmental protection into their decision-making processes.

In New Jersey, the most densely populated state in the nation,178 the potential environmental impacts of affordable housing were recognized in Southern Burlington County NAACP v. Mount Laurel (Mount Laurel I), more than a quarter century ago. In that case, Justice Frederick Hall announced that the New Jersey Constitution required every developing municipality in the state to meet its fair share of the region’s affordable housing needs.179 Mount Laurel I left many matters unresolved, such as the nature of the fair-share obligation and the manner in which its fulfillment would be policed. The court’s treatment of environmental preservation was similarly vague: “This is not to say that land use regulations should not take due account of ecological or environmental factors or problems. Quite the contrary. Their importance . . . should always be considered.”180

Eight years later, in Southern Burlington County NAACP v. Mount Laurel (Mount Laurel II), the New Jersey Supreme Court held that each municipality in a “growth area” must remove obstacles to affordable housing and take affirmative remedial steps to attract it—requiring, if necessary, developer incentives and housing set-asides.181 Perhaps most importantly, the justices announced the so-called “builder’s remedy.” This permitted a disappointed developer to sue a municipality that had not provided its “fair share” of affordable housing. The [*PG467]trial court could then waive that community’s zoning regulations to allow construction of higher-density housing, provided that at least 20% of the units satisfied low- and moderate-income guidelines.182

The Mount Laurel II court, expressing its optimism that “meeting housing needs is not necessarily incompatible with protecting the environment,”183 attempted to strike a balance between “everyone’s right” to green trees and flowers, and a constitutionally grounded opportunity to secure affordable housing all across the Garden State.184 Throughout its more than 110 pages, Chief Justice Wilentz’s opinion offered frequent reassurances that municipalities’ newly-quantified obligation “to provide a realistic opportunity [to satisfy] a fair share of the region’s present and prospective low and moderate income housing need”185 did not extend to settings in which growth should be discouraged, such as open spaces, conservation land, prime farmland, and “environmentally sensitive areas.”186

The court made several improvements upon Mount Laurel I. It transferred implementation to three handpicked trial judges187 with orders to award a builder’s remedy, a type of one-stop development approval, to qualifying affordable housing projects.188 It broadened the housing obligation to include communities not in the process of development.189 Further, it articulated centralized planning guidelines to help the trial courts and municipalities strike a balance between environmental protection and affordable housing.190

Two years later, the state legislature approved the Fair Housing Act, which established the Council on Affordable Housing (COAH), an agency under the leadership of an eleven-member council appointed by the governor.191 The New Jersey Supreme Court held shortly thereafter that this transfer of day-to-day implementation of [*PG468]the Mount Laurel doctrine from the judicial to the administrative branch did not violate the state constitution.192 COAH continues to be guided by these constitutional principles, and the environmental guidelines articulated in Mount Laurel I and II. Questions remain, however, about how well those guidelines are working.

New Jersey’s Mount Laurel doctrine and the Massachusetts 40B program differ in one key respect: the former is founded on state constitutional principle, the latter is not. Otherwise, both derive much force from variations on a single theme, the builder’s remedy. In Massachusetts, builders must be public entities, nonprofits, or limited dividend corporations; proposed projects must receive public assistance of some sort; and generally at least 25% of the units must be “affordable.” Proponents may obtain a local permitting waiver until the municipality has met a specified affordability threshold, which is typically 10%.

Despite the “steel”193 that, eight years later, Chief Justice Wilentz sought to inject into the more credulous Mount Laurel I decision, the New Jersey affordable housing doctrine remains amorphous, and its enforcement heavily depends on a builder’s remedy that in many ways resembles Massachusetts’s 40B permit override mechanism. There are significant differences, however, between New Jersey’s builder’s remedy and 40B. First, need in New Jersey is based on a complex calculation that varies from municipality to municipality. Second, COAH has developed a certification process, which, in theory, now shields communities from builder’s lawsuits for ten years.194 Third, the builder of a project in which, generally, at least 20% of the units will be offered at low- and moderate-income prices may sue a resistant municipality to override local permitting requirements. Finally, through the much criticized Regional Contribution Agreement (RCA), a community can discharge up to half of its Mount Laurel obligation by funding affordable housing elsewhere, usually in economically disadvantaged urban areas.195

From the standpoint of environmental protection, however, the key departure from Justice Hall’s pathbreaking opinion was the Mount [*PG469]Laurel II court’s linking of constitutionally-mandated housing opportunities to New Jersey’s nascent statewide planning process. The State Development Guide Plan (SDGP)196 was issued without fanfare after several years of drafts and public hearings. In 1980, the SDGP offered the court “a statewide blueprint for future development.”197 In Mount Laurel disputes, the SDGP would “ensure that the imposition of fair share obligations will coincide with the State’s regional planning goals and objectives.”198

The court spoke of the SDGP as though its authority was self-evident,199 even though it contained no obvious enforcement mechanism and was drawn up by an obscure agency. Yet, the SDGP served as a useful foil.200

The SDGP classifies land by development priority. It identifies areas suited to rapid development, with others to be given lower priority or maintained as open space, conservation land, environmentally sensitive ecosystem or farm.201 By connecting the newly announced statewide affordable housing obligation to what he expansively characterized as a comprehensive growth plan, Chief Justice Wilentz was able to discard the vague “developing community” limitation and extend the Mount Laurel doctrine statewide, while avoiding the accusation that the court had set New Jersey’s powerful development industry loose upon the countryside.

The Mount Laurel II court understood that, through the builder’s remedy, it had created its own blueprint for market-driven housing reform.202 Indeed, “it [would] be the unusual case that concludes the [*PG470]locus of the Mount Laurel obligation is different from that found in the SDGP.”203 The thumb has remained on housing’s side of the scale.

Nonetheless, in practice, as in Massachusetts, lower courts could refuse to grant a builder’s remedy “only if the proposed development . . . is contrary to sound planning principles, or represents a substantial environmental hazard.”204 Did this mean that more substantial proof of environmental risk would be required unless the municipality engaged in a formal planning process? Maybe. Muddying the waters further, the justices stated:

[A] builder’s remedy should be granted unless the municipality establishes that because of environmental or other substantial planning concerns, the plaintiff’s proposed project is clearly contrary to sound land use planning. We emphasize that the builder’s remedy should not be denied solely because the municipality prefers some other location for lower income housing, even if it is in fact a better site.205

Lower courts have come up with slightly different formulations of this directive.206 The current view parallels that of Massachusetts: the municipality bears the burden of proving that a “site is environmentally constrained” or that the project represents “bad planning.”207

Although statewide planning and housing policies in New Jersey were thus formally merged, did the participants in these two processes know that a union had taken place? This much is certain: statewide planning became more rigorous after Mount Laurel II.208 In 1986, for [*PG471]example, the governor signed the State’s planning act into law.209 Nonetheless, planning efforts have not been rigorous enough to avoid the environmental impacts of the Mount Laurel doctrine reliably.

At present, the successor to the SDGP, the New Jersey State Development and Redevelopment Plan (SDRP), remains an advisory document. The State Planning Commission does not have the authority to enforce it.210 A few courts have begun to apply some of the SDRP’s provisions, however, and at least one agency has incorporated the SDRP’s goals directly into its regulations.211 Ironically, that agency is COAH.212 As a condition of certifying that a municipality is providing its fair share of Mount Laurel units—a designation that provides significant protection from builders’ lawsuits for ten years213—COAH requires that the city or town demonstrate that it has met SDRP guidelines.214 Specifically, it must show that its low- and moderate-income housing has been directed towards the appropriate planning areas, and generally steered away from those designated as rural or environmentally sensitive.215

COAH regulations require that municipalities exclude environmentally sensitive areas from their inventory of land potentially suitable for affordable housing.216 This exclusion encompasses specific areas along the coast and in the Meadowlands, as well as much of the Pinelands, a huge area in southeastern New Jersey.217 In addition, communities may exclude flood hazard areas, slopes, and inland wetlands.

[*PG472] Yet, COAH’s authority is not great. Most of it is exercised in the certification of local affordable housing plans.218 Like many agencies, COAH wields significant discretion in determining which provisions—so-called “housing elements”—are acceptable.219

Does this result in a sufficient level of environmental protection? COAH has been criticized for approving local plans that promote sprawl.220 Moreover, only 265 of the state’s 566 cities and towns have petitioned for certification.221 COAH has awarded final approval to 199 of them, which represents just over a third of all jurisdictions.222 In addition, the agency convinced SRDP223 to allow affordable housing in agricultural and environmentally sensitive areas “when properly safeguarded.”224

Apart from the possibility that those safeguards will prove inadequate, a systemic problem has arisen. First, much of the area not set aside as rural or environmentally sensitive is located in already-developed cities and older suburbs.225 A significant percentage of this area may not be well suited to new development. Second, successive revisions of the state plan have led to the protection of an increasing [*PG473]inventory of agricultural and environmentally sensitive areas.226 Finally, understanding of environmental risk has grown considerably since the first Mount Laurel suit was brought. The convergence of these forces is “potentially a time bomb,”227 which could cause an explosion of poorly planned development in rural areas that now are valued as open space. Simply because COAH requires that greenfield development be clustered does not make it environmentally sound. Moreover, it does not greatly reduce the impact of one environmental risk that housing has the capacity to heighten: sprawl.228

Although some of the 301 municipalities that have not filed housing plans are weak candidates for certification, many are not. Those that have failed to file are targets for builder’s remedy lawsuits. Thus, the power to harmonize housing and environmental goals remains in the hands of the courts.229 The future of certification is difficult to predict, but the builder’s remedy has been effective, albeit controversial,230 in the past. Between 1983 and 1986, before COAH was established, more than 100 homebuilders brought lawsuits against approximately seventy municipalities.231 In the past few years, dozens of additional lawsuits have been filed, and the recent record suggests that municipalities have lost most of them.232

Although many New Jersey cities and towns, under the pressure of the Mount Laurel doctrine, have rezoned to permit affordable housing, the builder’s remedy appears to be driving the process. Moreover, [*PG474]most affordable housing units thereby created—whether a result of a successful builder’s suit or a local housing plan (perhaps developed under threat of litigation)—include both market-rate and below-market units.233 This approach raises environmental concerns.

The predominant development strategy—the builder’s remedy—is closely associated with sprawl. It is a blunt instrument applied on a case-by-case basis, the antithesis of sound planning.234 It favors the construction of freestanding housing over rental units, and much of the former is single-family.235 For two general reasons, it is partial to large parcels. First, developers finance the low-cost units through cross-subsidies, and try to construct as many profitable units as possible. Second, development costs tend to be lower in less urbanized settings.236 The result is additional pressure on COAH’s less-than-completely successful effort to incorporate state planning policies into its affordable housing program. And, because the builder’s remedy effectively sets 20% as the maximum237 ratio of low-cost units to market-rate units,238 the strategy of choice in New Jersey is one that calls for a great deal of market-rate housing to create one unit for its intended beneficiaries—whoever they may be.239 Finally, the market itself may favor single-family units, and the Mount Laurel approach follows the market. A recent decision of the New Jersey Supreme Court confirmed that, in the face of such demand, an inclusionary housing plan may not satisfy a municipality’s fair-share obligation if it provides too much multifamily housing and too little single-family housing.240 This decision effectively permits one of the primary determinants of [*PG475]sprawl, a land-intensive lifestyle, to gain a stronger foothold in the affordable housing process.

In addition, the Mount Laurel fair-share obligation applies more or less equally to all cities and towns, and this favors more dispersed development than otherwise might be the case.241 The Mount Laurel I court noted that “[f]requently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than in another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason.”242 But the idea of regional development “nodes” was rejected because, under New Jersey law, the municipalities in which these were sited would be required to bear the impact of likely decreases in the ratio of property tax revenue to the cost of providing local services.243 New Jersey, like most states, requires that each city and town enforce zoning and levy property taxes individually.244

The environmental community is split over the effectiveness of the current approach.245 One influential group recently proposed a system that engrafts an affordable housing requirement, as a fixed percentage of total development, on municipalities that are in a growth phase.246 Proponents contend that this “growth share” strategy offers several advantages. It is fairer, more effectively protects the environment, permits stronger integration of regional planning and housing policies, will be easier to administer, and—importantly—will create more affordable housing.247 The proposed system would site that housing in a manner that makes environmental sense, without bringing into play the equity issues raised by Regional Contribution Agreements.248 But any move to embrace this, or any other approach, [*PG476]will have to come from the legislative branch of state government. Ever since it resoundingly endorsed delegation to COAH in 1986,249 the New Jersey Supreme Court has done nothing to encourage the belief that it would revisit and adjust the sweeping principles it announced in Mount Laurel I, or to involve itself in matters of program design. In New Jersey, affordable housing doctrine teeters uncomfortably between a policy excursion and comprehensive planning.

C.  Oregon: Statewide Integrated Planning

Oregon is different. It started planning years ago,250 and at that time it focused on growth, not housing.251 With only a few partial exceptions, nothing like the Oregon approach exists—or has ever existed—in the United States.252 Planning, Oregon-style, is widely regarded to be the gold standard.253 The key and often unstated question is whether the Oregon way is portable.

Since enactment of Senate Bill 100, sometimes referred to as the Oregon Land Use Planning Act of 1973 (Land Use Act),254 Oregon has attempted to balance environmental and economic concerns within a unified system that carefully weighs regional political considerations. The Land Use Act set statewide planning requirements and established the institutional structure to carry them out.255 First, the Land Use Act required that all cities and counties adopt new comprehensive land use plans consistent with statewide planning goals.256 It also required those entities to promulgate regulations to implement [*PG477]the comprehensive plans, and to ensure that the new rules also were consistent with statewide goals.257

To implement this new program, the Land Use Act created a seven-member citizens body, the Land Conservation and Development Commission (LCDC), and established an agency, the Department of Land Conservation and Development (DLCD), to provide it with staff support.258 The LCDC adopted fourteen—soon after increased to nineteen—statewide planning goals.259 At least half of the goals directly address environmental and natural resource matters, and virtually all are related to environmental protection.260

The Land Use Act required each local and regional comprehensive land use plan to be submitted to the LCDC to ensure consistency with the statewide program.261 The LCDC was empowered to order a municipality to bring its plan or regulations into compliance with state goals.262 If a plan was not developed or was inconsistent with those goals, then consistency review for each of that jurisdiction’s development decisions could be required on an individual basis—an extraordinarily time-consuming and expensive process.263 Municipal and county plans have, by now, largely been submitted and approved,264 so the LCDC enforces the statewide planning policies embodied in its goals by periodically auditing all local plans and review[*PG478]ing proposed plan amendments.265 With regard to the latter, it generally exercises its enforcement authority by taking an appeal to an administrative body, the Land Use Board of Appeals (LUBA),266 and subsequently, to the state’s intermediate appellate tribunal, the Oregon Court of Appeals.267

Planning Goal 14 requires that each of Oregon’s cities protect development over a twenty-year period and establish urban growth boundaries designed to accommodate areas best suited for compact patterns of habitation.268 Goal 10 requires municipalities to create housing plans that inventory buildable land within the urban growth boundary, project future needs, and plan for and zone enough land to meet those needs.269 The housing plan must address a variety of housing types, and “encourage the availability of adequate numbers of needed housing units [including multifamily units and manufactured homes] at price ranges and rent levels which are commensurate with the financial capabilities of Oregon households.”270 When a plan is amended, its urban growth boundaries must encompass enough buildable land to meet the estimated need for all types of housing, including affordable housing,271 for the twenty-year horizon.272

The LCDC and the Oregon Legislature have made it clear that they consider the Goal 10 program, as incorporated in Goal 14’s mandate for urban growth boundaries,273 to embody the essence of Mount Laurel.274 Echoes of the New Jersey doctrine can be discerned [*PG479]in the statutory requirement that affordable housing proposals be reviewed only pursuant to “clear and objective approval standards,” and in the requirement that the need for such housing be met within urban growth areas.275 Evidence suggests that the combined application of these two goals has promoted higher-density residential development.276 The result has been relatively inexpensive housing that counteracts the effects of sprawl.277

This last claim has been subject to controversy. Some have argued that strictly enforced urban growth boundaries merely raise the price of housing and eliminate the added affordability that clustering can provide.278 Recent data, however, cast doubt on these assertions.279 Moreover, these critics miss a larger point: in Oregon, concerns about housing costs have replaced concerns about exclusionary zoning. Although this might appear to be simply a variation upon a theme, the Massachusetts and New Jersey experiences suggest that, if the local polity does not accept the premise that affordable housing is needed in a diverse range of communities, a long and expensive struggle will [*PG480]ensue merely to site a relatively small number of relatively non-controversial examples of it.280

Oregon has gone beyond Massachusetts and New Jersey. The State long ago decided it wants low- and moderate-income housing and that it should be sited in growth clusters. It is now merely working out the details—where affordable housing units should go, and who should live there. The details are important, but the steps taken already by Oregon have advanced the debate markedly.

From an environmental perspective, the contrast is even sharper. Oregon is one of the few states—perhaps the only one—that has implemented a broadly effective growth management and sprawl-control program.281 True, the program is a point on a continuum,282 and it certainly has its critics, but the Oregon approach offers three features that commend it. First, as noted, it contains a strong top-down element. Second, justification arises from concern about the environment and land use, not housing.283 Finally, it is enforced directly by a specialized government agency.284

In contrast, Massachusetts and New Jersey focus on the legal (and moral) responsibility of each municipality for its portion of affordable housing, termed “fair share,” “regional share,” or “proportionate share.” To succeed in these states, action must begin at the grassroots, though often it does not. The Massachusetts and New Jersey programs are sequestered in the local in another way: achievement of their policy objectives depends on the presence of builders seeking to pursue specific projects. Those projects are driven by short-term economics, not by environmental protection or thoughtful, long-term planning.

[*PG481] The Oregon way has other advantages, including the benefit of long-term planning.285 Further, with only 241 major local political jurisdictions, it is considerably less Balkanized than its eastern counterparts.286 Eighty percent of Oregon’s population lives in the 100-mile long Willamette Valley,287 and, thus, is highly concentrated.288 Unlike New England and the Atlantic states, it has a weaker home rule tradition.289 The Willamette Valley also is Oregon’s premier agricultural region; thus, the community contains a relatively strong counterweight to development interests.290

Perhaps the question should not be whether other states can emulate Oregon’s model. Instead, it should be whether elements of the model can survive elsewhere, complementing existing structures. If so, what is the optimal organizational transplant?

Conclusion

In pressing for an RCA provision in the New Jersey Fair Housing Act, then-Governor Thomas Kean said that his objective was to inspire communities to engage in planning.291 Based on the experiences of Massachusetts and Oregon, the converse might have been the better strategy: planning, under the right circumstances, can establish an appropriate incentive to create affordable housing.

Despite their controversial histories, the Massachusetts and New Jersey programs have met at least some benchmarks of success. Each, [*PG482]for example, has produced approximately 20,000 units of affordable housing.292 These numbers are small, but not insignificant. Whether the programs have come close to meeting other goals, however, is another matter, and the extent to which those goals justify the investment is an open question.293

From an environmental standpoint, the Massachusetts and New Jersey initiatives suffer from an obvious defect—they are not coordinated with other policy objectives. As a result, they tend to be shaped by existing patterns of sprawl.

This lack of coordination is reinforced by the structure of the two programs. Both are founded on the concept that each community is responsible for a “personal” share of a larger region’s housing needs, which may play into much-criticized notions of home rule and local autonomy. Additionally, states that follow the Massachusetts or New Jersey approach may inadvertently mischaracterize the nature of the racial and class discrimination that affordable housing programs are presumably designed to ameliorate.294 Indeed, this personalistic approach has been received as an accusation and resisted. This can increase program costs unnecessarily.295 In addition, where a town-by-town affordable housing obligation is the default position, its successful pursuit will tend to promote sprawl.296 Yet, no obvious way exists to balance this environmental impact against potential equity considerations.

Both the Massachusetts and New Jersey approaches require municipalities to allow more development than they otherwise might allow on their own. Massachusetts sets a clear numerical threshold, whereas New Jersey has a more complex process that, nevertheless, arrives at a similar result.

Both states rely on market-based approaches, such as the zoning waiver or the builder’s remedy, to provide a regulatory subsidy to developers. At a time of rapidly diminishing public housing funds, the [*PG483]builder’s remedy cross-subsidizes affordable units through sale of market-rate units.

Economics and existing practices favor housing that promotes sprawl. First, the required percentage of low-cost units is small,297 and builders have little, if any, incentive to offer more. Second, the cross-subsidy favors building more profitable single-family homes. Because some of the potential profits are lost on the affordable units, developers have an even stronger reason to build the most profitable housing possible. Third, these economic signals tend to promote construction in locations that, although not necessarily the most environmentally sensitive open spaces, are nonetheless unconnected to other development or to public transit. Developers will seek such areas because they accommodate the kinds of housing that the cross-subsidy promotes and because land and development costs are likely to be lower in these locations. Collectively, these factors translate into sprawl.298

Both states have established institutions that ostensibly examine the environmental impacts of affordable housing with great care. There is some evidence that this strategy is working, particularly in Massachusetts, but it is also clear that, in a showdown between affordable housing and the environment, housing has the edge. Low-cost units will likely be approved unless local environmental rules,299 specifically prohibit them. Although the Massachusetts Housing Appeals Committee has done a particularly noteworthy job of evaluating a wide spectrum of environmental risks, it simply does not have the mandate to ensure that this will continue. Even the laws themselves—Chapter 40B in Massachusetts and New Jersey’s Mount Laurel regime—require that close cases be decided in housing’s favor.

Oregon offers an alternative. Affordable housing in sufficient quantity to meet local needs could arise from a system of mandatory statewide planning. Whether effective statewide planning can arise from a localized housing mandate, however, remains to be seen.

Right now, both Massachusetts and New Jersey have weak statewide planning, and, with few exceptions, neither State performs any [*PG484]regional planning. This makes for a poor fit because affordable housing goals in both states are expressed on a regional basis. But there is reason for optimism. New Jersey, at least, does have a plan, and COAH is attempting to enforce it. While that effort has not been entirely successful, it does provide the structure and some authority for denying the builder’s remedy at sites where development will promote sprawl. Massachusetts effectively does no statewide planning, but HAC has articulated incentives for localized planning on a case-by-case basis. Communities with plans that provide for affordable housing have the authority to deny a comprehensive permit where a builder has violated the objectives of the plan.300

Although the opportunity to implement centrally enforced planning around urban growth boundaries may never arise in the northeast,301 other approaches are available, even in Massachusetts. First, significant improvement could be achieved if individual cities and towns would plan for affordable housing, along with more efficient growth patterns.302 Second, a revivified local process could generate consensus planning principles, albeit few and basic, that recommend themselves for adoption at the regional or state level. Third, even a bottom-up effort might accumulate sufficient momentum to spark legislative action, provided the action is narrowly focused. One attractive target in Massachusetts is its generous doctrine of vested rights. Right now, open space advocates contend that builders can take advantage of existing sprawl-friendly zoning for extensive periods merely by making a cursory gesture of their intent to develop.303 Finally, de[*PG485]spite shortcomings, it is not clear that the planning vacuum in Massachusetts effectively stymies local attempts to coordinate growth and integrate housing, economic, and environmental goals. Even imperfect efforts could channel existing animus in a more positive way.

In New Jersey, where planning is somewhat more advanced, it may be possible to broaden the mandate of the State Development and Redevelopment Plan, or at least to incorporate its principles into additional agency rules and judicial decisions.304 Also, the state might take inspiration from Oregon and adopt the “growth share” approach, which would link housing policy and environmental protection together more tightly.305

These would be small steps, but they could build on what now exists, rather than allow Oregon’s widely remarked perfection to become the enemy of good-faith improvements elsewhere. Finally, it is important to maintain perspective, because affordable units, when all is said and done, account for but a small percentage of all housing starts.306 The main burden of sprawl just might be coming from other quarters.307

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