The Long Struggle for Affordable Housing in New Jersey Dates Back to the Civil Rights Movement

In New Jersey, municipalities are still constitutionally required to provide their “fair share” of affordable housing, but there is no longer any elected or state-level body responsible for defining what that means, or for helping to ensure the standard is followed.

Cameron Orr May 23, 2023

The struggle for affordable housing in New Jersey has its roots in the civil rights movement. This fight ultimately resulted in the state’s elected officials taking some responsibility for the local provision of affordable housing, but that power has since been returned to the courts.

In the 1960s, policymakers in the historically Black town of Mount Laurel, New Jersey began pricing out Black and Latino residents and demolishing their homes. In 1970, local civil rights activist Ethel Lawrence and other community leaders invited Mayor Bill Haines to Jacob’s Chapel, an African-American church, to discuss their plan to build 36 affordable apartments. Mayor Haines told them, “If you people can’t afford to live in our town, then you’ll just have to leave.”

The Springville Community Action Committee (SCAC) that Lawrence, Reverend Stuart Wood and other church members had formed teamed up with the local NAACP chapters of Camden and Southern Burlington Counties, and sued. The New Jersey Supreme Court (in the 1975 and 1983 Mount Laurel I and II cases) ruled in their favor, saying that each municipality has an obligation to provide its “fair share” of affordable housing, and that the issue should be taken up by the legislature. The New Jersey Senate and Assembly responded in 1985 by creating the New Jersey Fair Housing Act and establishing the governor-appointed Council on Affordable Housing (COAH). This agency was responsible for identifying how many affordable homes were needed and monitored municipalities’ participation in the program. Cities and towns with COAH-approved affordable-housing plans were also protected from developers’ lawsuits.

However, from Mount Laurel I onward, a major problem persisted. Affordable housing was only a “regional” requirement, which meant suburban towns could have their affordable housing built in nearby urban centers, contributing to racial and economic segregation.

The Jersey City Council is weighing whether to enact a law that would make free legal representation available to all tenants facing eviction proceedings.

At the same time, COAH’s better goals were continually attacked by developers and government officials acting on their behalf. In the late 1980s, a number of municipalities decided to set fees on developers to fund their affordable-housing programs. In response, developers sought to overturn local elected officials’ decisions with court action, accusing them of violating the state and U.S. constitutions. Lower level courts ruled in favor of the developers, but the New Jersey Supreme Court affirmed municipalities’ right to do this in the 1990 Holmdel Builders Ass’n v. Township of Holmdel case.

In the early 2000s, COAH’s attempts to update its rules underwent a series of legal challenges. When Gov. Chris Christie took office in 2010, the council was over 10 years late in establishing new rules. The new Republican governor intervened on behalf of real-estate interests and burned the receipts — perhaps literally. Just a few weeks into his first term, Gov. Christie began an assault on COAH, using possibly criminal means to destroy it, while leaving half of the council’s seats empty. Even in the wake of Hurricane Sandy’s devastating housing emergency, he continued undermining the agency’s goals. By the end of his first term, COAH’s role in monitoring local provision of affordable housing was eliminated, and the issue was placed back into the hands of lower-level courts and litigators.

Municipalities are still constitutionally required to provide their “fair share” of affordable housing, but there is no longer any elected or state-level body responsible for defining what that means, or for helping to ensure the standard is followed. Since “affordable housing” is meant to serve the needs of people in households making up to 80% of the “area median income” (i.e. those earning the lowest 40% of incomes in each area), it stands to reason that at least 40% of all housing should be “affordable.” But putting those standards into law would require a pro-tenant governor and a pro-tenant majority in the state legislature. Establishing an alternative to COAH, or creating a stronger version of it, would also require legislative action.

Many towns in New Jersey have continued to implement COAH-era policies, which allowed municipalities to charge developers a fee of up to 1.5% of a complicated “equalized assessed value” of each property. These fees are then put into a local affordable-housing fund.

Jersey City, however, never opted into a COAH-protected affordable housing plan, and it never collected fees on developers. While cities and towns across New Jersey had together collected well over half a billion dollars for their own affordable housing funds by June 2012 — when data was last collected — Jersey City’s contribution was still zero.

By not collecting those fees, Jersey City lost more than $115 million in revenue from 2018 to 2022 alone, as Right To Counsel activists Sarah Levine and Julia Tache pointed out in a recent Hudson County View article.

Adding to the problem, contracts signed between real-estate giant LeFrak and Mayor Gerald McCann in the early 1980s amounted, in the long term, to huge tax abatements (i.e. tax cuts) for big developers, and left a giant hole in the city’s budget.

Rodolfo Santos, founder of Jersey City Tenants United, and Eleana Little, candidate for Hudson County Executive, at a Right To Counsel rally. Eleana Little / Right To Counsel JC

Around this time, a struggle emerged against Mayor McCann’s attempts to eliminate rent control. A multi-racial movement of tenants and homeowners elected the pro-tenant Mayor Anthony Cucci and a pro-tenant city council in the 1985 elections, and greatly strengthened the rent control board. The new administration was able to negotiate with developers to create affordable housing units, but real-estate fought back, and McCann defeated Mayor Cucci in the 1989 elections. Mr. McCann later went to jail for financial crimes, but the 1990 Holmdel ruling, which affirmed Jersey City’s right to collect fees from developers, was never taken advantage of.

By not collecting those fees over three decades and providing tax cuts for real-estate speculators, Jersey City brought large numbers of people into the city, while depriving itself of the means to build the needed infrastructure for a growing population. One obvious effect is the city’s woeful lack of public transportation that results in more cars on the road, adds negative health and environmental impacts and creates an impossible parking situation, as well as a dangerous situation for pedestrians and cyclists that have to sometimes ride on the sidewalk.

Discounts for developers also meant shifting the tax burden onto homeowners, many of whom decided to move out and put their homes up for sale. These were gladly eaten up by real-estate interests to continue the process anew. Meanwhile, Jersey City tenants have been driven out by soaring rents — and even outright arson — just as Mount Laurel residents were driven from their homes in the 1960s.

Of course, the City cannot fund everything itself. It also needs help from the state and federal government.

Tenants fight back with Right To Counsel

Just as Mount Laurel residents fought back 50 years ago, tenants in Jersey City are currently organizing against rising rents and evictions. The two right to counsel ordinances they are fighting for will give all tenants in Jersey City the right to free legal representation, create a right to counsel office in City Hall and introduce fees on developers to create an affordable housing fund. Part of that fund will be used to cover the costs of tenants’ legal services.

Together, both ordinances will help preserve and create affordable housing. While tenants’ access to legal services will not directly create affordable housing, it will be an important enforcement mechanism, giving renters the power to help preserve the affordable housing that still exists.

Tenants renting a new apartment in the United States on average get slammed with a 12.2% rent increase on average, compared with a 3.5% increase nationally for tenants who were able to renew their lease. Landlords of non-rent-controlled buildings can avoid a New Jersey law against “unconscionable” rent increases by using legal or illegal means to push current tenants out and bring in new tenants with deeper pockets. Tenants with lawyers, on the other hand, can fight unfair evictions and truly “unconscionable” rent increases, which needs to be defined by law. Big landlords of rent-controlled buildings can also obtain bogus “hardship” or “capital improvement” increases more easily when tenants don’t have a lawyer.

When higher-income tenants are driven from their current apartments, it helps create demand for more higher-cost rental housing. Meanwhile, their previous unit can become even more expensive. When low- and moderate-income tenants lose their homes, it can result in previously affordable apartments becoming no longer affordable.

Rising rents drive evictions, and evictions drive rising rents. Evictions are also a leading cause of homelessness. Providing all tenants with the legal resources to stay in their homes will help keep Jersey City’s affordable units affordable and will help fight real-estate efforts to push up the overall cost of rent across the city.

Four council members have shown support for a universal Right To Counsel program with an office in City Hall and the collection of fees on big corporate developers to create an affordable housing fund, but the other five have not yet made their positions clear.

Jersey City Mayor Steven Fulop, who is now running for governor, has spoken in favor of Right To Counsel and affordable housing plans, but tenant organizers are wary of this support, as he is known to be a friend of developers.

Of the nearly $2.8 million in outside contributions that went to the Mayor Fulop-linked Coalition For Progress Super PAC in 2022, close to $1.17 million came from the real-estate industry and over $174,000 came from mainly big business law firms, including many real-estate lawyers. More than $250,000 came from private construction companies.

Given the powerful real-estate interests operating within city, state, and federal government, tenants will need to become a powerful organized force and build alliances with others — including homeowners, racial justice organizations, organized labor, and others — to make political change and win their demands.

Cameron Orr is a CPUSA member, writer and musician living in the Jersey City Heights who has been active around housing issues since 2016 with organizations and coalitions such as Metropolitan Council on Housing, Housing Justice For All, and more recently Right to Counsel JC. Other articles of his can be read at People’s World.

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