Oakwood at Madison, Inc. v. Township of Madison

MADISON, INC., OAKWOOD AT A CORPORATION OF THE JERSEY, CORPORATION, STATE OF NEW BEREN A JERSEY, CORPORATION OF THE STATE OF NEW SHEPARD, ALSTON, MAE DOROTHY LOUVENIA WIL BAYLIS, SMITH, LIAM LIZZIE BRENDA WALKER AND YORK, GERALDINE PLAINTIFFS-RESPONDENTS- CROSS-APPELLANTS, MADISON, v. THE TOWNSHIP OF DEFENDANT-APPELLANT-CROSS-RESPONDENT, AND JERSEY, THE STATE OF NEW DEFENDANT. Arguеd Reargued January 8, April 14, 1975 —March 1973— 1974— Decided—January 26, —-November 1977.

Mr. Richard F. Plechner argued the cause appellant. Mr. Ms. Lois Frederick G. and D. Mezey Thompson, Bar, member of the New York the cause for respond- argued Mezey & ents-cross-appellants (Messrs. Mezey, attorneys; Dennison, Mr. Ms. Mr. Thompson, of coun- Mezey, Ray and sel; Mr. Ms. Mr. Dennison Mezey, Thompson, and Mr. Rich- Bellman, on briefs). ard F. Miller, D. Jr. cause for amicus argued

Mr. Melville Smith, E. Warren Services State Office of Legal (Mr. curiae McCabe, counsel Mr. Steven P. Mr. Miller and attorney; and on the brief). amicus curiae S. the cause

Mr. Carl Bisgaier argued Van C. Stanley Advocate (Mr. the Public Department Kenneth Ness, Mr. Bisgaier, Mr. Advocate, attorney; Public Buchsbaum, on and of counsel E. A. Meiser and Mr. Peter the briefs). Jr., General,

Mr. M. Attorney Joseph Clayton, Deputy on New argued Jersey the cause for defendant State of Jr., March F. General George Attorney (Mr. Kugler, Slcillman, of New Mr. Jersey, Assistant Stephen attorney; Mr. Annich General, Mrs. and Virginia Long Attorney Weiner, General, Jonathan of counsel Deputy Attorneys on brief). Williams,

Mr. Gerard Mr. Norman a member Moran and for amici curiae Bar, the New the cause York argued Sierra Interest of New Club Public Research Group Moran, Moran on March Mr. Jersey attorney; 1973 (Mr. Mr. the brief). Williams on Messrs, Hardin & Pitney, attorneys, appeared Kipp, amicus curiae of Mahwah Breslin and Township (Messrs. Breslin, counsel; Mr. E. Carter attorneys; Corriston of Mr. Szuch, A. Mr. William Ms. Clyde C. T. Slattery, Bethany Kadish, Mr. Armen Shahinian and Ms. Sondra V. Laslcy on briefs).

490

OUTLINE OPINION OP I Outline of 497 Major Issues — II “Pair Share” and “Region” Preliminary Considerations 498 — III Madison Its Growth and 500 Development IV The Ordinances Zoning 503 V “Least Cost” versus “Law and n

Moderate Income” Housing, etc. 510 VI of 1973 Incapacity Ordinance to

EfEect Lower Income Housing 514 VII The “Pair Share” of the Approach Defendant 524 — VIII “Pair Share” and “Region” General Considerations 531 IX Environmental Considerations

X “Affirmative Action” for Lower

Income Housing XI The Validity Zoning Statute XII Relief Corporate Plaintiffs XIII Remedy and Remand

491 by of the court was delivered opinion today We P. D., Assigned. A. Temporarily J. Conrord, 1973 the invalidating of review the decision Eurman Judge of Township ordinance defendant amendatory zoning That 1974). Div. Madison.1 128 438 Super. (Law by plaintiffs instituted an action determination culminated ordi a zoning validity in November the 1970 challenging replace to in September nance adopted by township in had Furman one in since Judge a effect 1964.2 previous Madison, Inc. in Oakwood validated the ordinance Madison, 1971), Div. 11, 117 N. J. 21 (Law v. Tp. Super. on the by plaintiffs at the time an attack rejected but same S. A. statute, N. J. enabling zoning constitutionality et Id. 40:55-30 at 16. seq. its appeal pending stay judgment

Defendant obtained a cross-appeal filed a Division, to the plaintiffs Appellate of the validity sustaining as to that of the judgment part motion, because of importance statute. On plaintiffs’ unheard case, of the we the appeals pending certified 62 N. J. R. 2:12-2. Appellate pursuant Division (1972). argument

Oral was the court on March originally heard 1973, 5, January and additional was argument requested However, 1, 8, 1974. on October Madison Township amendment to the Conse- major 1970 ordinance. adopted argument municipality 1 Since oral was the last the name of the changed Bridge. conformity Old For convenience and with the name, opinion. Madison, record we use the former ordinance, township 1969, prior adoption ,1970 2 In all other than residential construction declared a moratorium on family dwellings pending adoption owner-occupied single litigation plan As a result of chal new master ordinance. moratorium, Superior County, lenging in Middlesex Court Twp. Corp. Township (Docket Comm. Madison No. v. Verterre Township W., 7/30/69), ordered submission L-13820-68 P. January adoption plan new zon of a new master by July ing ordinance 1970. quently, 8, on January 1974, while retaining jurisdiction, we remanded the action trial court for a trial and on ruling amended, ordinance as with the result stated above.

Oral argument on of the has present phase appeal been twice, had on the on the effect issues emphasis being placed herein of our in So. Burl. decision N.A.A. intervening Cty. Laurel, v. C.P. Mt. N. cert. Tp. J. dism. and app. 423 U. S. 808, den. 96 Ct. 46 L. Ed. 2d (1975) S. Laurel" (“Mount hereinafter). We have received and con and supplemental sidered briefs materials.

Plaintiffs herein at two Madi comprise Oakwood groups. son, Inc. and Beren Corporation (hereinafter “corporate both plaintiffs”), New were Jersey corporations, developers a tract of owning acres, vacant of some 400 developable land the disputed Oakwood-Beren tract. Six were individuals low income persons the trial acknowledged by judge “repre as a class those senting who reside outside the township have sought housing there Oakwood at unsuccessfully.” Madison, Madison, Inc. v. Tp. N. J. supra Super. (117 alia, at inter 14). Plaintiffs alleged, that the (a) exclusion ary unconstitutional; nature the ordinance rendered it that the (b) was in enabling legislation unconstitutional its failure to provide adequate standards for exercise municipal of the zoning power; (c) restrictive effect of the ordinance as applied corporate plaintiffs’ property rendered it confiscatory.

The trial court ordinance, the 1970 invalidated primarily on the grounds that massive areas vacant de velopable land for one-and residences, two-acre family single beyond the reach of of the population, and allocating 90% only “miniscule” acreage units, multi-family dwelling it ignored needs region, and the township “to and failed promote reasonably a balanced community accordance with the welfare.” general Super. 20-21. The court upheld constitutionality enabling confiscation, not reach the issue of legislation; did appar- ently the invalidation of the entire regarding ordinance as that matter moot. rendering the 1973

While ordinance transferred amendatory substan tial areas from lot smaller lot large made more zoning, available for multi-family land development provided zones, development unit planned (PUD) “cluster” in the convinced the еvidence case the court the mu-' still was not nieipality satisfying obligation its to “provide its fair share of the needs of its particu region”, in relation the larly to low-income and moderate-income pop 128 N. J. ulation. at 447. The Super. amended ordinance was therefore struck in down its Ibid. again entirety.

The main lines of the Law Division opinion striking down the 1973 be may ordinance summarized as A follows. continues, in housing crisis needs serious for those of most low and moderate income. The needs region, housing whose must be reasonably provided as municipalities such Madison, is not necessarily coextensive with Middlesex “Rather, which, it is the area from County. in of avail view and employment able of the transportation, population drawn, would be absent zon township invalidly exclusionary 128 N. J. Super. 441. ing”. Almost all of em Madison’s ployed residents work outside in township, 50% in New York county, City, in Essex County, 15% 10% the remainder counties, in Mon nearby including 7% mouth After County. an analysis of testimony concern ing the number units housing which could be expected, ordinance, under the amended to be and to be' af produced households, fordable low and moderate income the court said: 20,000 30,000 housing may total be Of the to units built Township zoning amended,

Madison under the 1970 ordinance be 17%] about at most would within the [12% reach of upper $10,000 year, households with incomes limit of moder- incomes, virtually ate within reach none of households with year $9,000 present incomes of less. This contrasts with the township approximately population, low income 12% 19% moderate income. Id. at 446. Township’s obligation pro- Madison court assessed needs as follows: of regional housing vide fair share its rigidity holds of a mathematical formula court Without provide obligation Township’s its fair share that Madison ap- region housing met unless its ordinance needs of its proportion capacity proximates housing in additional unit same population, present about as its low-income of low-income proportion 12%, as its moderate-income same population, present zon- about The amended moderate-income 19%. ing palpably be falls short and must struck ordinance under review entirety. Id. at down in its 447. quota numerical any did not absolute specify The court would units ordinance and moderate income of low annual needs but found that possible, render expected to 500 to 600 those units, were 750 “into the 1980’s Id. at income.” 442. low and moderate eco with the defendants’ argument The court dealt RP, (2 R-80 justified and environmental factors logical zones minimum) and R-40 acre lot minimum) (1 acre lot ex bearing” such had “no out that by pointing problems out land limited areas and that “ample cept specified could township areas is available” which the side these hous fair of needed its share obligation provide meet its N. J. at 447. Super. 128 ing.

It at the the basic rationale should be stated outset in the in both his opinions Furman of by Judge embraced court Mount by case is in substantially adopted Laurel, with the that our determination there qualification the constitutional that due ground process rested on state if of are denied “substantial protection segments equal residing from precluded are population” improperly zoning within the because of local municipality regulations. 67 J. at The “substantial” identified 175. thus segments low income of region and moderate people were those housing develop- unable to afford suitable economically because of their cost- municipalities region highly ing restrictions. generating zoning

495 toward eliminating General guidelines cost-gen- undue Mount were Laurel N. J. restrictions stated erating (67 : at 187) By way summary, As a we have said comes down to this. what regula- developing municipality, must, by Mount Laurel its use land

tions, realistically possible opportunity appropriate make an variety may categories people and choice for all who there, including desire to moderate live course those of low and permit multi-family housing, It must without bedroom income. restrictions, dwellings very lots, similar as well as small on small types and, general, high density zoning, low other cost unjustifiable requirements without artificial minimum to lot size, building like, panoply size and the full of these needs. meet

In the absence of legislation providing regional authorities, while are municipalities empowered zone they must nevertheless individually, (if of “de Laurel, described in Mount 67 N. J. veloping” category at their 160), by zoning regulations serve and not impede welfare general represented satisfaction of the housing lower income people throughout needs of 67 J.N. region. 190; 188— id. at 194 J., (Pashman, concurring). 3 grounds, Mount Laurel based 3 Since on State constitutional its requirements concept not affected are less restrictive federal equal protection Arlington Heights Metropoli in this area. See v. — Housing Development Corp., —, tan 555, U. S. 97 S. Ct. 50 (1977). L. 2d Ed. 450 subject of Mo^lnt Laurel been the extensive has discussion in the Ackerman, Expanding literature. Laurel See “The Mount Decision: 1; Zoning Reform”, U. Ill. Boundaries of 1976 Load Forum Payne, “Delegation Doctrine in the Reform of Local Government Exclusionary Zoning”, Rutgers Law: The Case L. Rev. 805-819, ; (1976) Williams, Planning American 859-866 Land Law (1975) 66; Rose, Mount Addendum “The Laurel Ch. Decision: Is Thinking?”, ); (1975 It Based Real on Wishful Estate L. J. 61 Mytelka Mytelka, “Exclusionary Zoning: A Consideration of Remedies,” (1975); Kushner, Hall Seton L. Rev. 3-4 “Land Use Litigation Housing: Mandating Regional and Low Income Eair Share Plans”, Clearinghouse (1975) (terming Rev. Mount Laurel “Magna housing”) ; Carta of suburban low and moderate income Rohan, “Property Planning Comprehensive and the Search for a 496 matter the Legislature in this argument

After last of enactment of this State statutes revised Law”, L. c. Land Use “Municipal and invited 1, 1976. We operative August its terms became any as to comment received from counsel supplemental have herein, particularly effect the new law on the issues nothing Mount Laurel. We find viability the continued laid in there inconsistent the doctrine the statute event, in view control, (The any down. decision would in indulging of its constitutional Without here underpinning.) law, the new certain any evaluation of comprehensive 2 pertinent. stated Section seem purposes particularly municipalities development does of individual d. To ensure neighboring development general and welfare not conflict with the whole; county municipalities, aas and the State population appropriate promote densities e. To the establishment well-being persons, to the that will contribute and concentrations regions preservation neighborhoods, and of the en- and communities ; vironment space appropriate provide variety g. sufficient locations for a To recreational, residential, agricultural, commercial and industrial spaces, public private, according open and and both to their uses requirements respective in order to meet environmental the needs of Jersey New all citizens. — Laurel”, Housing Policy from Mount View 49 St. Johns L. ; Doughty, (1975) Legal Rev. 653 Williams “Studies on Realism: Berman”, Rutgers Laurel, Terre Mount Belle 29 L. Rev. 73 “major (calling major (1975) Mount Laurel a turnaround on a current pr oblem”) ; Mallach, Housing? “Do Law Suits Build The Im Exclusionary Zoning Litigation”, plications Rutgers-Camden ; “Exclusionary (1975) Rose, Zoning Managed L. J. 653 Growth: Rutgers-Camden Issues”, (1975) ; L. J. Some Unresolved Property, Powell, 872.1[2][g] (1975); Levin, Real § Rose and ‘Developing Municipality’ Meaning “What Within the Decision?”, (1976). 4 Real L. Mount Laurel Berger, Estate J. 359 See also Ownership (2d 1975). Land 790-799 ed. Use For a — journalistic appraisal, Laurel, see “U. Journal: S. Mount N. J. Thoughts Drawn”, Yorher, (Feb. on Some Where Lines are New Note, 2, 1976). Inadequacy See “The Judicial also Remedies in Exclusionary Zoning”, (1976). Cases of 74 Mich. L. Rev. 760 the the new law time, ns, At same reminds as em- we Laurel, in Mount phasized a that out of concern for proper there housing should not and adequate need not be over- and intensive too sudden development, future suburban sprawl slums, and or sacrifice of local beauty. and open space Thus, 67 N. J. at 191. newly the articulated purposes Section 2 of the statute include: provide adequate light, open space. c. To air and j. promote open space To the conservation of and valuable natural prevent sprawl degradation and to resources urban and en- the through improper

vironment use of land.

I Outline Major Issues judgment court, the trial intervention in Mount our decision Laurel and nature of the record and briefs us before combine cast to the issues for deter- mination as follows:

1. Madison 1973 zoning Is the exclusionary, ordinance e., i. it intended, whether or not does so operate fact preclude any substantial opportunity supply amounts of new for low and moderate income households now and .needed in the prospectively municipality and forms appropriate region part? If, we concluded,

2. have the affirmative as response court sustained, trial should be foregoing question Laurel, is it courts, incumbent Mount upon pursuant to demarcate and to fix a pertinent region num- specific ber of lower-cost units as “fair share” therefor to need be regional possible by made the Madison ? ordinance

3. we If, concluded, have as foregoing should question answered the negative, what kind of an order should be made to assure compliance, Madison’s developing Mount municipality, Laurel’s mandate that its zoning “afford ordinance for at least opportunity” “the mu- regional prospective present fair share nicipality’s income moderate adequate low for “decent need” housing at 188. ”?67 N. J. II “Region”—

“Fair Share” Preliminary Considerations in Mount us, question before prime noted above, As correctly found has terms, court is whether the trial Laurel op- provide not does Madison’s ordinance that for burden regional portunity meet fair share to a that seen We have low needs. housing and moderate income boundaries specify precise the trial court did not appropriate number of applicable region nor fix an absolute per- housing merely It described provided. units to be population region tinent which the as the area from exclusionary zoning. township drawn, would absent the de- by A body adduced substantial of evidence was share fendant fair below Madison’s purporting specify to income County’s Middlesex moderate need low and unmet for us, housing before Moreover, as 1975. the record data supply briefs and abundant the literature in the field estimating a mu- concerning- techniques methods' and for pro-We nicipality’s housing need. regional fair share of a pose hereinafter, to three comment on these matters purposes: the evidence (a) explain to our that conclusion not refute concerning by fair does share adduced defendant the trial court ordinance determination the Madison noted; deficient in the con- (b) to respects elucidate whose hous- relating appropriate “region” siderations to the ing furnish action; (c) needs are to relevant guidance to in this courts, expert counsel and witnesses area in applying principles litigated of Mount Laurel generally. controversies

However, it we deem well to establish at the outset regard we mandatory developing do not as municipalities challenged whose ordinances are as exclusion ary to specific precise devise for estimating formulae their fair share of specifi- the lower income needs of generic to low reference as is intended income” 4 “Lower collectively. income, moderate necessary it as Nor we conceive eally region. do demarcated findings of that con- court to make nature in a for a trial housing goals are numerical not realis- Firstly, tested case. specific changes tically translatable into substantive in a zon- study technique by revealed ing any ordinance to us our many before us. There are too imponderables of the data change and production between a zone the actual zoned, not the production on sites as to mention specific given period units in a number of lower cost of time. Mu- niciрalities duty do not have the themselves build housing. Secondly, approach subsidize the breadth experts appropriate region to the factor of the regional housing goals criteria for allocation of to municipal “subregions” great pertinent is so and the economic and so- ciological so to preclude considerations diverse as judicial any dictation or solution acceptance one as authoritative. For the same we reasons, would mandate the formula approach any on obligatory municipality seeking to cor- deficiency. a fair share rect

We are from convinced the record and data before us by concerned, that attention those whether courts or local governing of bodies, substance ordinance challenge under and to bona efforts toward the elimina fide tion or requirements minimization cost-generating of undue respect of reasonable areas of a developing municipality represents promise adequate the best productiveness with out resort specific to formulaic estimates of unit “fair shares” by of lower cost any of the complex arid contro versial allocation coming “models” now into vogue.5

It is desirable agencies acting administrative under legislative authorization regulation assume the of the distribution problem. then, Until in the current post- period Mount Laurel judicial emphasis on approaches such just as exemplified those outlined, and in the remedial sec- deprecate regional do We course gov-

The effective substantive revision of restrictive ordinances and implement goals affirmatively ernmental desire to such are the es- prerequisites bousing sential relief. recognize, moreover, by expert We fair share studies witnesses may be of substantial evidential value to a trial court confronted litigated present with issue like the one. nmnity Only as a commutershed. employed of Madison’s 1% township. residents within the work As found the trial employed work court, force are in Middlesex 50% County, in City, New York in Essex County, 15% 10% County in in Union and Monmouth County. 9-12% 7% Madison archetypal “developing” is an municipality with- contemplation in the specifications. of Mount Laurel During at past years, 187. experi- has growth. enced Its explosive population increased over two by 561%, 7,366 decades from in 1950 48,715 in 1970. continued, This boom population has climbing to 50,000 by the time the first 55,000 by and trial the second in growth 1974. With the and municipal concomitant prob- steady lems came a rise in tax rates. in light

Even period great of this expansion, Madison still large potential has growth.6 for further Among the twenty-five municipalities in County, Middlesex Madison 1970 ranked 20th lowest in population density both housing density. acreage plentiful; Vacant is of the town ship’s 25,000 acres, 8,143 11,000 between are vacant developable. township The is sprawling municipality marked by continuity little and spotty development. area is laced by a eventually network of streams and rivers feed ing into South River to Cheescquake the north. State Park occupies portion a sizeable part land the eastern of the town.

The older development residential is concentrated to some extent in Bridge the Old and Browntown areas on Bay, Raritan boundary forms the eastern of the municipality. Lawrence Harbor and Cliffwood Beach, the two major developments located on Bay, the Raritan consist built, mainly bungalows on originally lots 50-foot 6 Our discussion of the facts is not to be taken as laudation growth per anticipated growth se. The fact and extent circum are segments popula stances material the need for all growth attracting widespread tion. The control of attention acceptable vital to the maintenance an See. Federal environment. (1974) pp. Environmental Williams, Law 1420-1426. See also 3 Planning (1975), 73, “Timing Develop American Land Law Ch. ment”, p. seq.; Laurel, 191; et Mount 67 N. J. at id. at 213 (Pashman, J., concurring).

502 year- into cottages and since converted

3.920’s as summer and developments single family round residences. Newer except apartment peppered over the complexes township, are largely is township which third of the the southwestern less than family are on lots undeveloped. single homes Most any the trial appear prior an It does not to first acre. had constructed housing developments one-or two-acre been in Com- for some two-acre built the 1920’s. except homes some generally following mercial land are scattered, uses usage of major highway slight. routes. Industrial 1970 to township fell off from within Construction nearby municipalities Comparing Madison with four 1973. (with large undeveloped of characteristics generally similar year an Madison issued period, said three areas) dwelling building permits per year only unit average of 53 in in Brunswick, Monroe, 368 in East 89 against Sayreville Although Madison and 212 in Brunswick. South land, county’s residentially zoned vacant contains 20% per- building issued of all the from 3960 and to 15% building percentage county from 3970 1972 its mits, starts fell 6%. growth was township

From 1950 1970 the in family on by single homes built characterized construction 15,000 square lots feet or and of a number of multi- less garden Virtually family apartment developments. all apartment however, township, units in the were constructed 3,700 April and 1963, by they comprised after 27.4% In 33,499 housing township. total of units single family in the were valued dwellings township 56% that, $25,000 at Figures or less. from the 1970 census show category, quintiles (20%) terms of of income statewide 12% township’s $6,627, below households had incomes 19% $19,236, $6,627 $13,088 and between and between $9,936, 24% existing were land uses $19,236. above As 18% paid predominantly realty were all taxes residential: 68% con- family homeowners, single by apartments 16% users, and in- farms dominiums the rest commercial dustry. pattern confronting Madison land use

Thus overall planners in 1970 was substantial Township and officials one of industrial little growth, with residential but scattered hurried was a ordinance development. The 1970 commercial rise accompanying and the growth population slow effort to desig population confine new largely to tax rate and 14. Super. N.J. nated areas. See

IV Zoning The Ordinances A. The 1970 Ordinance provisions of the salient present purposes For opin adequately summarized the first 1970 ordinance are patent Super. N.J. 16-17. The ion the trial court. 117 prevent was to construction intent of the ordinance and effect particularly apartments, number of homes of a substantial two- for one- or land area was zoned at low cost. Most of the — beyond the reach only uses not single family acre homes responsive to little population but also general of the 90% Ibid,. goes saying if It any existing market. without later clearly principles violative of ordinance was properly con Judge Furman enunciated in Mount Laurel. taking into considera zoning”, it pure demned as “fiscal failing promote region” tion “[h]ousing needs of the entire “reasonably plan and well ordered a balanced at 18. municipality.” Super. N.J.

B. The 1973 Ordinance re land use extensively The revised the 1973 ordinance of land zoned prior strictions of the ordinance. The amount industrial) was de (commercial, nonresidential office and total. by creased 760 acres from 16.70% 19.80% — “open A new — RP or Recreation-Preservation space” zone environ was the areas deemed encompassed created. This Park, mentally township: Cheesequake by sensitive State area, Fly Bridge Bog, sands Burnt the meadowlands Old containing under adjacent Deep (the latter three Run ground Raritan beachfront. areas), water and the resources (also open space RP RR an area devoted and the zone condition) were preservation per to substantial natural in a until two-acre lots ac developed mitted to be as R-80 on quired by municipality. trial, has was not at Madison

Although the fact stressed placed to industrial 4,000 more than acres in zones restricted only uses have despite office the fact that some acres By comparison, ever been criticized devoted to that use. we although Mount zoning 4,100 Laurel for acres industrial only 162-163, so J. acres had ever been used. 184. facial considerably

The 1973 ordinance increased the potential prior enlarged ordinance. It acreage by total poten- available therefor 800 acres 16,000 tial housing capacity, existing inclusive of housing, 46,000 persons. figures, units or Madi- These supplied Township son Housing may they Study, misleading, developed acreage assume all will be zoned residential is or density its maximum permissible whereas some of already developed, permissi- either below non-rcsidential or ble density, or is undevelopable. there;

Under the 1973 single-family are five ordinance, zones, accounting for of the total vacant residential 72% area.7 most zone, R-80, The restrictive with a minimum size lot of two was acres, 9,134 3,040 reduced from acres. The (one R-40 zone acre minimum size) lot was increased 5,557 from to 7,511 acres. Together, two however, these zones account for of the acreage total town- within the 42% ship, developable of its acreage, vacant of the 58% 70% acreage total zoned and single-family, vacant de- 80% velopable single family acreage.8 zone, 1,977 The R-20 total figures acreage zone, 7 Trial on the amount of in each both total developable, and However, vacant were often in conflict. unless other stated, acreage, wise the statistics cited herein for total total units population and township’s planning total are those submitted developable acreage figures firm. The vacant are those defendant’s expert and, Lanning, exception witness Dennis with the of the AF stipulated zone, parties. were space 8 The minimum floor limitations in and the R-40 R-80 zones eliminated, space per were and minimum floor limitations room were respect established all residential With zones. to the R--40 and zones, however, changes provision R-80 these have no effect on of low housing. cost 1,285 square or requires 20,000 vacant developable acres, foot,minimum lot size. may and be com- (R-20, R-80)

These three zones R-40 pared exclusionary in Mount the zones considered R-3, Laurel. There than was zoned township more half the lots; in- requiring single family homes on half acre ease, stant for half acre township over is zoned 50% lots larger, Considering and for one-or lots. two-acre 42% only vacant the total the three zones developable acreage, for is 65%, over comprising R-80.9 R-40 and 58% zones, requiring 15,000 R-15 zone10 and R-l 10,000 square account another respectively, foot lots 5% of the land. R-l zone are more than the Both restrictive (9,375 square Laurel. involved in Mount foot, lots) 75' wide Calling “very developing some small lot” 8, 187, 67 N. at n. Justice Hall noted J. municipality, 20,000 square 9,375 minimum feet “can- size lots density not be zoning.” called to low small lots amounts Township at 183. Yet almost Madison 70% zoned such (including or lower densities the RP and RR zones).

Only family single develop- R-7 zone allows residential ment lots on than found in Laurel smaller those Mount square foot zoning. 7,500 constitute low It allows density only it two-family dwellings. lots However accounts for acreage developable total the vacant 5.8% 2% acreage township. in the impugn large zoning per have no lot se. If 9 We intent a de adequately provides veloping municipality by zoning for lower income may large zone otherwise for lots to extent property legitimate grievance owners of so zoned have no other therewith. Berger, Ownership Use, (2d 1975). C Land and ed. 756 f. existing high density R-15 is a zone on the The new outskirts development and contains a little over 500 acres. The ordinance major had a residential area similar in which R-15 there were 3,000 developable compared more and than vacant acres to 168 acres although restored, under the 1973 Thus ordinance. the R-15 been has original to a is reduced small fraction of its size. was enlarged zone multi-family

The AF or apartment ordi- prior The bedroom ratio of 150 acres. prescribed bedroom, was deleted bedroom) two nance one (80% 20% construc- floor area ratio limiting and replaced by (FAR) 10,000 Although tion to a maximum of feet acre. square per units in any size com- any ordinance allows presumably build- FAR, bination, to the maximum up impact incentive which moti- area ratio combined with ing profit that, to the only vates is such developers according proofs, one will be small units and con- (efficiencies bedrooms) structed.11 the 676 acres AF of the total (2.7% township

Of zoned at 193 acres are vacant only developable most acreage) indi- total). however, The true township (2.3% figure, Furman, is more by Judge likely approximate cated total).12 The AF zone is limited township acres (or 1.5% of six more parcels to the or acres. development that the AF zone could at least 800 hous- agreed hold parties but defendant maintains the maximum units, capacity ing justifies following entirety, herein con the record 11 Taken 10,000 square figure, Using foot it would be clusions. possible allowable per acre, which, average at an rental to build 16 efficiencies per yield per month, income acre of a total rental would $180 alternatively per one- accommodate twelve month. An acre can $2880 which, ratio, apartments on at rentals an 80-20 two-bedroom monthly respectively, yields per month rental $240 $200 built, only per If units were income acre of three-bedroom $2496. monthly per possible, which, rent of $280 7 to 8 units would per Obviously, $2,240 per month, gross only month. acre $1960 profitable develop equal marketability units, given it is more of all justified accept Consequently Judge find Furman’s efficiencies. we plaintiffs’ testimony FAR under restricted ance of provision, witness’ per acre, density and without a maximum efficiencies apartments predominate. Super. N. J. at 443. one bedroom will income, opinion, figures unless All sale or rental set forth indicated, when otherwise reflect economic conditions as of 1974 case was tried. figures township gave two vacant de 12 The tax assessor acreage velopable Plaintiffs contend and 125 acres. in the AF —112 figure closer to 67 acres.

507 1,700. However, is as against township planner Abeles’s 15,600 20,700 estimate to total additional units of all the ordinance, kinds under possible potential AP units to only constitute thereof.13 5.1% 8.2% Madison relies on provisions the 1973 Township heavily ordinance for PUDs unit and clus- developments) (planned to low mod- satisfy its obligation respect tering illu- evidence, is income On the that reliance erate housing. sory. PUD, zone, modality, is a planning an modern overlay S. A. to N. J. the 1973 ordinance pursuant

introduced by L. Laurel, 166; N. J. 67 at Mount seq. et See 40:55—54 PUD zoned for are 29.1b. Three areas 2k, c. Sees. — water and unserviced by sites on remote two of are depending upon vary, requirements sewer utilities. PUD PUD, A I Class tract.14 land developer’s amount of in the 3.5 density acres, has a maximum 150 and between PUD, I in a Class constructed units acre. Of all the units per units,15 single-family must be detached minimum 30% multi-family.16 density medium be may the remainder has acres, a maximum and 500 PUD, II A between Class acre; minimum units per of 4.25 density 17.5% be may a maximum be units must single-family, 12.5% figures favor adduced which were more on other at trial 13 Based capacity Judge township, Furman found total additional able to Super. 20,000 30,000 units. under the ordinance range range, percentage Using capacity is 446. 4% 5.7%. enlarged by up neighboring may from tracts 14 PUD 15% hand, approval (non-PUD) if the On the other tracts if obtained. sewage facilities, by water, inadequately or traffic site is serviced density may be maximum reduced. allowable 15,000 square average feet. an size 15 With lot single density apartments, townhouses, (garden attached 16 Medium dwelling per stories, family) build means maximum of two units per 10,000 gross square development ing, and feet acre. Class high density,17 and the remainder medium density. III favored, with an PUDs are the most (over acres) allowable de 5.0, minimum density single-family 12.5% tached maximum al and The densities high density. 17.5% in the PUD lowed zones are lower than those originally 20% un Moreover, is proposed by planners. municipal likely will ever be as highest density utilized (5.0) there are within the PUD zones no 500-acre owned parcels by a entity, and accumulation of the number single necessary is, evidence, acres to the credible neither according “possi ble nor probable.”18

Eor PUD is main- every project developer required tain at least of the area as project undeveloped gross 12.5% open and as at least space developed open space; 7.5% 5% of a I Class and II or III must non- of Class tract 10% residential must development; least all the classes 3% be commercial and of Class II special development. 2% There is the additional that the requirement build developer a school to accommodate .5 children large enough per dwell- unit ing and dedicate the land Streets township. utility hookups must also be provided There developer. is a which, lengthy three-stage approval process, according to the estimate of the may take as township planner, long a year but plaintiffs’ expert as at 18 months to pegs two years. render it the PUD proofs patent requirements

have the potential the costs of greatly increasing units that zone. The school requirement alone adds a cost of $2.2 million of all (or the central improvement costs 66% in a PUD project) budget involved to the project of a Class IT PUD. density 17 High height means maximum of 7 stories or 75 feet 35,000 gross square per feet acre. density regulations, 18 In its the PUD in the instant case is more

restrictive than the PUD involved in Mount Laurel where allowable high per densities as were 7 units acre. variation, The cluster provisions PUD (a including commercial or R-80 the R-40 uses) apply any lands zones not the cluster Under alternatively PUD. designated provisions, a densi- to build at increased allowed developer ties if he preserves land as space, of his proportion open public If purpose space space. donated public purpose area is gross space, devoted project open 20% allowable are R-40 and R-80 densities from normal increased densities of 1 unit and unit acre to y2 per 1-1/3 5/6 units acre, per If an respectively. additional 20% land is devoted to increase рublic a further purpose space, in density to unit and 1.0 units acre is allowed. per 1-2/3 Furthermore, if zone) land an R-40 public purpose (in is dedicated to the build township, developer may 20% of all his A units attached each. of four units buildings cluster must be maximum development a minimum of 25 and of 150 acres.

The credible indicate that the clustering proofs provisions are on to have a the cost of hous- unlikely impact significant as ing the low and limits on numbers of attached densities make units of scale and there- significant unlikely, economies fore, cluster according plaintiffs’ experts, development not occur all. under may at Yet even the cluster provisions costs would be to most lower income families. prohibitive an to the R-40 townhouse According township planner, would a $29,000; cost minimum of plaintiffs’ expert places $52,000. Moreover, townhouse the sin- average figure detached units which of an gle family constitute R-40 80% cluster would to plaintiffs’ $64,000. cost according expert The allowable densities are still too low to create significant cost Mount Laurel savings. By a comparison, similar had cluster of 2.25 provision density allowing units acre per dedication of of the total to the upon acreage munici- 15% reservation of pality public and use. 25% and The distribution of vacant developable acreage (and the various zones total under acreage) among the ordinance low middle density, shows that and income residential high uses are Only favored. a maximum of strongly 2.37% vacant town’s residential zoned for developable acreage is and multi-family apartments the correct (AF), figure may as zoned low as An additional is 1.02% 0.84%. 2% R-7 for lot is small attached double houses. Though 9.9% three of two of the for PUD location development, zoned Using PUD makes their development unlikely. tracts highly future estimates of the planner’s potential township AF ordinance, the R-7 and under capacity building units. of all housing zones a maximum account 16% account and zones space R-40 contrast, R-80, open By acreage residential of the vacant developable for over 71% R-20 and If the R-15 units. "housing and over 41% figure counted, acreage the large-lot single-family zones are to almost the unit figure increases to 50%. 82% Y “Low “Least Cost” versus Housing Moderate Income” case well as particular A in this consideration key the well- problem, generally, factor the entire integral record, private fact, by corroborated amply known economy will not in the current prospective enterprise kind incentive of some or external without subsidization popu low income new affordable construct inc those of moderate lation proportion large J.N. Laurel. 67 fact in Mount We recognized ome.19 — Policy Legal Kleven, “Inclusionary and Issues Ordinances 19 Developers Housing”, Requiring 21 U. C. to Build Low Private Cost Rose, 1432, 1434, 1451, 1456, (1974) ; A. “The L. L. Rev. 1466 Thinking?”, 4 Real Mount Is It Based on Laurel Decision: Wishful ; Zoning 61, (1975) Mallach, “Exclusionary and Estate 68 L. J. Rutgers-Camden Managed Issues”, 6 Growth: Some Unresolved Housing (1975). generally, 653, HUD, L. J. m Seventies See consump costs, (1974), housing housing for a of detailed discussion impact groups, subsidy programs. tion income and the 170, 8; 188, n. 21. n. amount and kind of The govern mental available subsidies for has been housing always frag federal mentary, and sources have recently been restricted.20 What can legally required municipalities by way initiation of and of zon public housing programs provision ing incentives for will production of lower income housing be discussed But it will be ex that sources apparent infra. traneous to the unaided cannot private building industry be depended upon produce any substantial proportion January 1973, imposition 20 In President Nixon announced the spending principal housing a moratorium on under subsidized programs pending a reassessment of all federal in the efforts development housing policies. Among pro area and of new those grams suspended homeownership pro were the Section 235 assistance gram 1968, cooperative housing pro established in the Section 236 gram, supplement program (Sections 221(d)(3), the rent 236 and 231), public housing program originating the low rent Programs. Farmers Home Administration Sections 502 HUD, Housing Report See in the A Seventies: the National Hous ing Policy (1974) Review for a discussion and evaluation of these past programs. However, hope programs extensively there is these will be signed revitalized. Housing Community When President Ford Development suspended programs Act of a number of the were replaced. homeownership subsidy program reinstated, § was 1715z, provide 12 U. S. C. § will monies to moderate income purchase dwelling for Housing families units. A Section 8 Payment Program, provides Assistance 1437f, 42 U. S. C. § payments assistance occupy rent on behalf of lower income families newly ing constructed, substantially existing housing. rehabilitated multi-family housing program A elderly, (42 Section 202 note), specific plan U. S. C. § 1437 was also instituted. A 25,000 Jersey the subsidization of units in New under the Section 8 program recently was Jersey. announced HUD officials New Ledger, April 25, Neioarh Star 1976. financing Limited State sources exist also for the of low and mod housing. year During 1976, approximately erate income $126 million were raised from the sale bonds for loans to moderate in developers Housing Agency come under Finance Law of 1967. 55:14j-1 seq. N. J. S. A. et Additional monies are available under Department Community Act, Affairs Demonstration Grant seq. N. J. S. Mortgage A. Agency 52:27D-59 et and the Finance seq. N. J. Law. S. A. :1B-4 et in most of lower needed and affordable housing

come population. defendant implies

In view of foregoing, Laurel current Mount in the impracticable is mandate Thus futile. it is and that to enforce economy litigation do brief: “We in a flatly supplemental asserts defendant income hous- low moderate substantial not believe that make However, it on to by zoning.” goes can created be ing clue to us to provide which appears an observation in private recourse if fact alternative the only acceptable needed housing construct the economically cannot enterprise states: families. It for lower income help by providing large Development amounts of Planned can Unit range. housing in moderate income some which is additional filtering whereby is also to create effect of new construction The group housing into new created families in the moderate income move existing making housing available for lower income the PUD zone subsidization, cannot afford new. Without is families who creating undoubtedly and certain the most reasonable method hous- ing opportunities income families. low the builders of in a de To the extent that like Madison cannot through publicly veloping municipality appropriately legislated (as assisted means incentives fair which, infra) municipality’s share provide see lower it is incumbent need for income housing, the regional adjust its so body zoning regulations on the governing and feasible the “least cost” possible housing, to render as minimum- standards of health and safety, consistent undertake, will industry amounts suf private fair the deficit share. satisfy hypothesized ficient to in a amicus supplemental matter was brief of put As the Public Advocate: * * * future, absolutely now, and in the foreseeable essential amount of units at the lowest cost build a substantial safety. now with health and Builders must and consistent feasible inexpensively possible given opportunity as in order to build and, low, especially, moder- moderate-subsidized to accommodate population. -Thus, sense, disparities ate-conventional in one future housing relevant; the increases in and cost median income are not is, building that be we should at the lowest cost feasible now. This sentiment also has been com- by léading expressed mentator who thus to in- responded the the argument that ability lower persons income to afford hous- unsubsidized njinimal rendered ing impact ordinances: exclusionary matter, may As a otherwise; particu- factual the situation often be larly undeveloped where the ordinance is enacted an suburb at- tempting tide, availability to housing stem an urban of low cost zoning requirements may very a decade hence much a function of today. Little Islands: Sager, “Tight Exclusionary Zoning, Equal Protection L. and the J. Indigent”, Stanford (1969). than for less cost

Nothing zoning will, least in the housing21 circumstances, indicated the mandate of Mount satisfy Laurel. While with that compliance direction may pro- vide newly constructed for all in lower income housing mentioned, it will categories “fil- nevertheless through down” referred tering process to defendant tend aug- ment supply the total available in such manner housing concept housing 21 The of least cost is not be understood con as templating readily construction which could into slums. deteriorate emphasized necessity consistency housing We have for of such safety requirements. recently with official health and The enacted Act, (N. Uniform State Construction Code L. c. 217 A. S. seq.) among purposes encourage 52:27D-119 et states its “to innova * * *” *(cid:127) * * economy and tion in construction and “to eliminate regulations unnecessarily construction tend to increase construc * * yet requirements tion costs be “consistent with reasonable health, safety, occupants buildings and welfare of or users of and structures”. 2. Sec. envisage provisions permit We which will construction of housing, amounts, in reasonable at the least cost consistent with sueh many standards. Observation in areas of the State confirms that low housing becoming cost can be maintained without a slum. See also Laurel, Mount J.N. at 191. will additional and indirectly provide housing better insufficiently and inadequately region’s housed Laurel,

lower also Mount 67 N. J. population. income See J., at 205 (Pashman, concurring).22 our from of the facts survey It be apparent will the 1973 ordinance under hereinafter discussion fair directly for Madison’s provide fails to only review not low moderate needs income' share of the region’s such a share in terms of satisfy also but is not geared failure described. just sense “least cost” Insuf be both quantitative qualitative. will be seen to zoned such housing, are permit ficient areas of units production are such as prevent restrictions zoning with health safety requirements. at least cost consistent VI Ordinance to the 1973 Incapacity \of Lower Income Housing Adequate Affect have, hereinafter, planners As we shall indicate Madison’s study formulated a litigation, purporting for of purposes People: Lansing, Morgan, and Poor New 22 See Clifton Homes study Study (a (1969) A Moves of the construction Chains of of 1,000 metropolitan effects, in and its new units 17 areas of over Grigsby, Housing especially groups) ; Markets and income on lowest ; Policy (1963) Winnick, “A & Reformulation 84-130 Fisher Public Concept,” 47-58; Filtering Journal Social Issues Mal 1951 the Housing? Implications Exclusionary lach, “Do Build The Lawsuits Rutgers-Camden Zoning (1975) (em Litigation”, L. J. occur). filtering process may phasizing a lifetime to take “trickling theory “filtering or down” has also The down” been housing. support middle of subsidies for income advocated HUD, See Housing (1974). in the Seventies 172-173 “filtering theory support for this down” was adduced at the Added by Abeles, planner, acknowledged township trial who that Peter the newly upper moderate middle income families to con- movement of housing housing would leave their former available for structed comprise families the income This can lower in movement scale. “moving up”. chain, chain of families shorter the the sooner The presumably are met and needs of lowest income families the an unmet need to demonstrate in Madison for low and income share of a housing, moderate its larger Middlesex therefor, need units County some regional housing 1975.23 Assuming, present legitimacy as of purposes, — in a estimate a matter later sec that discussion — convincing tion of this is opinion evidence of an op ordinance does not hold the promise satisfy to meet time that need same portunity need in the foreseeable prospective period continuing This, effect, Judge 1975. was the substance following earlier From his conclus Furman’s holding, quoted herein. no ions,24 record, amply appears supported for persons is under the new feasible ordinance $9,000); income of the (under the bottom third population (3500/20,000) that at most (3500/30,000) 17% 12% earning all new are units attainable persons feasible future $10,00025 year; so of the that 83% 88% lowest would be of the units zoned out of reach 40% population. failures anatomy apparent. of these single-family minimum lot of the analysis In our IVB, supra, prima dispro zones in multi-family fade vis-ovis that residences land zoned for cost high portion The shortness made available them. the facilities better recently- inexpensiveness obviously depends most the the on chain al., supra, pp. 5, Lansing housing. 65. et at constructed prospective regard need for the to a share is without 23 This future thereafter. foreseeable developable 24 Judge finding that of vacant resi Furman’s 80% R-7 R-80 and is zoned and R-10 is zoned R-40 and dential land 4% only. single supra family acreage zones on in the See is based 505). (p. upper figure trial limit of was used at moderate 25 This families, Jersey New 1972 median income in based on the income $7,000. $11,600. on at below Based 1974 statis Low was set income family area, of four a low earns below the Newark income tics of $8,150 family $8,150 income earns between and a moderate $13,050. for lower zoned cost residences and units was multi-family adduced, canvassed. here there fully According proofs is little no for the R-80 and R-40 zon present market Freehold, N. J. as such. Schere v. ing Township Cf. N. Super. J. 69, den. 62 cert. den. (App. certif. Div.), 931, S. 93 S. Ct. 35 L. Ed. (1972). 2d 593 U. While R-7 may zone amount of moder permit marginal ate income new home in that is housing, zone ownership pre for the cluded low income While the latter con population. dition may V, be economically (see unavoidable supra), provided Madison has for no home at all on ownership lots”, as “very small Mount mandated Laurel. 67 J.N. 187. Clearly no effort was made to “least cost” permit —homes family in single not reasonable num certainly bers. have further

We seen that the multi-family zoning regm lations are not only substantially deficient of de- areas velopable therefor, vacant land made available but also de- fective in their susceptibility to concentra- entrepreneurial tion one-and two-bedroom configurations. Laurel

Mount that a requires municipality must “an variety housing.” allow for choice of appropriate to all of hous at 174. This extends obligation types moderate and sized units. large multi-family and includes ing Lmrel, MiOunt In bedroom limitations were considered “so to the welfare as not to fur contrary clearly general require J.N. at 183. bed express ther discussion.” 67 Although 1970 Madison were' ex room restrictions ordinance maximum bulk and density cised regulations (the multi-family AR and PUD zones sole sites in the when economics of combined building, units),26 bedroom, on an dictate one effectively development 80% mix, such a combination two bedroom was within 20% an township planners. This contemplation 26 Except zone, AR small zone restricted to senior citizens housing. inevitable result and economics, zoning for a municipality can through power and zoning should act affirmatively encourage supply reasonable multi-bedroom units at affordable least some lower income population. Such action should include a combination of bulk and density restrictions, utilization of bonuses,27 minimum bed density room and provisions of the EAR in the expansion ratio AE zone to and units. encourage permit larger

Although validity of zoning provision for density bonuses in the sense stated note supra (as — from distinguished unit for rental concessions bonuses e., i. “rent has skewing”), case, not been in this we argued no see objection to it in bonuses are principle. Comparable expressly permitted by the statute in relation and to PUDs N. J. clustering. S. A. 40:55-57(b) While (2) (3). is no there express statutory sanction for a density bonus provision outside the PUD context, this type regulation is directly tied to physical use property within thus the recognized ambit of There the zoning power. was unanimity opinion among experts the trial herein such a device is vital in the armament weapon of affirmative for zoning of families in all adequate housing income categories. Recognizing objectives that the of Mount Laurel are essential to the effectuation of the wel general fare, and are within broad legislative delegation of both municipalities the general police Scott, Ward v. power, see N. J. ; 117 (1953) 16 N. J. 16 Inganamort Lee, (1954), al., et al. v. Bor. Fort et 62 N. J. 521 we (1973), hold that for provision density bonuses the sense indicated is within the zon- municipal density 27 Tke of, bonus indicated in this context is the bonus for example, single-bedroom efficiency (in an additional addition generally permitted) every those densities three-or four-bedroom Compare density unit constructed. this to bonuses as incentives construction infra, of subsidized or lower income discussed accompanying 28 and n. text.

518 is and, in such as here presented, situations that ing power, a in of builders necessary implement encouragement of lower income. multi-family to for those provide Laurel, Mount 67 J. 170, 8. n. at Cf. as a reserved position to more constrained take We are or for “rent skewing”, of validity zoning provisions ac either sale or rental density greater allowance of by for concessions special in exchange commodations number of of a limited or price of rental sale developer a recommended widely this is also units. Although of private handling encouraging for the problem technique we discern serious of lower income housing,28 construction a such local zoning power with of problems the exercise Board authorization. See express legislative manner without Inc., Va. Enterprises v. De 214 Supervisors Gnoff generic referring imposition skewing” a to the 28 “Rent term greater proportion land, on one other a group construction or costs development rental of units in a in order to lower eventual price skewing group Rent can or another of units therein. sale ways: requiring encouraged municipality a a in two priced dwellings mandatory percentage moderately .of bе constructed ordinance) allowing (this MPMPD is often to as an or referred build, example, developer enabling density him for one bonus every conventional unit for low or moderate income units con two — Kleven, Legal “Inclusionary Policy structed. See Ordinances Developers Housing”, Requiring Issues Private to Build Low Cost (1974). C. L. A. Rev. 1432 U. suggested satisfying for the low have been Various alternatives constructing requirement: federally subsidized and moderate income subsidy pro- housing, renting rent low families under a income selling renting gram, constructing or below máximums or units designee, ordinance, conveying county land to the or its fixed in the redevelopment authority selling leasing or to a or or units buy. Kleven, supra, authority giving rent See first refusal at 139-147. density Rose, generally, “The Manda- or MPMPD’s see On bonuses tory Percentage Moderately Dwelling (MPMPD) Priced Ordinance Zoning”, Technique Inclusionary Estate Latest 3 Real Is the (1974) ; Rose, Mount Laurel Decision: Is It Based L. J. “The ; (1975) Brooks, Thinking?”, L. 4 Real Estate on Wishful 68-9 Housing: Response, Report Income Lower The Planner’s ASPO No. Planning Officials, July-August 1972). (Am. Socy. E. 198 S. 2d 600 Ct. Annot. 62 A. L. R. 3d (Sup. 1973); We will not here resolve the issue in the absence (1975). However, on we argument the matter. are adequate area; to be understood local initiative in discouraging moreover, deserves and atten question, study legislative tion. the re- out,

It useful in connection seems to point our judg- which will be vision the ordinance required calls herein, providing ment sound planning least contemplated cushion over the number of reasonable theoretically pos- and believed necessary cost units deemed testimony Plaintiff adduced a revision. sible under particular neces- formulaic was over any quota a reasonable margin that likelihood of achievement to any in order sary produce land owners of Many The reasons are evident. quota. use it for not choose to may for cost housing zoned least may cost housing And least developers that purpose. at therefor, or all of the zoned land available select Thus over- of need. within the anticipated period least not problem.29 for desired tends to category solve zoning de to the do not contribute provisions The PUD analyzed were of Mount Laurel. The provisions sideratum possibility significance, that cost low is the there 29 Of further needing by persons low cost actually utilized will not be units built persons higher by wish housing, income be inhabited instead but will study township’s housing According statis ing to economize. income, yet tics, low or moderate its households are 62.4% 31% categorized housing low and moderate income as stock can be of its support figures housing. that since not the inference seem to These economically dwellings inexpensive inhabited households will be all municipality accommodations, requiring should overzone to such Mallaeh, “Exclusionary requirements of do. See those who meet Rutgers- Issues,” Zoning Managed Some Unresolved Growth: (1975). 660, L. J. Camden zoning Finally, connection, ordinance is obvious that a in this experience may periodically if shows the allocations be revised impracticable. particular type Note are excessive or for a revision, supra (p. 496) zoning statutory for see calls the new years plan every general least six of a master reexamination at 1975, regulations. 291, development L. c. 76. Sec. 520. assume, We that PUD IVB, present purposes, supra. case, valid. It not been is has attacked L. N. J. A. 40:55-54 seq.; S. et legislation,

the relevant 291, k, b, c. 29.1 as in the case of all legis Secs. y Laurel, 67 Mount lation, valid. presumptivel Cf. In of Mount 166-167, event, corollary n. 5. it is any from .reach Laurel that when exactions municipal developers influence, an exclusionary such exert proportions context, in a other offend con any they whether PUD or of Mount Laurel and be remedied. precept must stitutional their penetrat and Gilhool in Heyman out pointed As re subdivision upholding of the rationale ing study ex raise the spectre “But such exactions quirements: of suburban will to the cost add so they clusion: arguably lower in an exclude even larger portion as to presently relegated than is population and nonwhite come suburban costs.” cities by life in the central the higher Community Costs Constitutionality Imposing “The Exactions”, Subdivision Through New Suburban Residents conclude, how L. J. authors 73 Yale (1964). “will be ever, impact of such exclusionary that the exactions because slight legislative judicial pressures strikingly ceil of reasonable establishment will require tend Land, 786, 787 and Use Ownership Berger, Ibid. ings.” Cf. 1975). ed. (2d exactions subdivision found and Gilhool

Heyman Id. reasonable. lot to he per $325 from to $37.50 ranging for schools million contrast, expenditure a $2.2 In at 1156. of capacity maximum with a PUD II 300 acre in a Class which does $127530 of a unit exaction 1,725 yields per units and expert $4340 of costs $1380 allocated 30 Plaintiffs’ witness figure unit, type (depending upon lowest II units PUD Class family unit) highest single as the representing and the a a mid-rise $3,383,200 project. improvement total Of the costs of central directly improvements, $2,229,500 attributable such cost of 66% yields per.- requirement. exaction unit This a to the school (cid:127) schools, alone, and $911 $2864. of between to be even at the high not seem reasonable levels of price 1974.31 must be omitted This in revision requirement ordinance. de for the the PUD

The requirement provision water dif r-oads, facilities veloper sewage presents re ferent statutorily municipal situation. Such authorized have generally of subdivision quirements approval plats Brazer been held to be valid exercises police power. of the Mountainside, v. Never N. Borough (1970). theless, noted, as of the already police power application contrary cannot had in manner through zoning Laurel, Mount welfare. J. at 175. general have statutory previously power Other limitations on Bd. Tp. Planning Divan Builders v. been recognized. Cf. considered 66 N. J. There this court Wayne, (1975). the developer to subdivision approval prerequisite facility drainage an off-site the cost contribute toward to other properties the cost any part without allocating in found improvemеnt, benefitted specially Builders, Planning Inc. v. Longridge Similarly, valid. con the court J. 348 (1968), 52 N. Tp., Princeton Bd. of that plaintiff approval subdivision a condition demned in the imposition resulting of way, an right off-site pave lands would other when upon' plaintiff, cost entire were inadequate road there improved benefit from of costs. allocation for the procedures standards and in $600,000 costs $300,000 and In this light, PUD the removed utilities to roads and in bringing volved to the 361- miles, compared to two up sites distance (a Longridge, involved improvement distance foot Mount Laurel PUDs in the exaction demanded 31 The educational developer Laurel A Mount here involved. not as onerous was educating required pay school chil the additional the costs of was children in the PUD if number school in a the total dren PUD of. Madison, developer per multi-family unit; must exceeded .3 township. actually necessary them to schools deed build all bear examination. To extent costs supra) the that these do not prohibit development, they nonetheless add suffi- final ciently to costs as to have an im- exclusionary tend to Further va- considerations pact. the highlight questionable of these lidity requirements. the (9% a area PUD

Only limited has been denoted residential and developable acreage), vacant township’s 2/3 not a a substantial in remote areas. This case of it is whole, with zoned reasonably of land category being Quite op- a minor burdened. the only portion excessively The well have located these PUDS could posite. municipality motivated more accessible areas town had it been to render for lower families more available. income de- However, record were clearly shows that the sites and force PUD developers in order to chosen liberately these developing the burden of carry customers to their “de- testified The township planner remote areas. the incentive to two would be cision was made that PUDs * * * system pro- around the water bring and complete rationally a main that would serve system vide 1/3 echoed in the minutes of motivation is This kind township.” it was council where township board planning the locations chosen the developers because of noted that to build trans-Madison portions would bo required Hill Road. Union improve as well as to widen highway would ben- directly PUD expenditures by developers Such added of other property advantaged efit the owners roads yet required contribute paved facilities cost. amount proportionate line water and sewer potential impact the conclusion of the Middlesex is shown requirements ordinance, Board, in the PUD County reviewing Planning remote would not be de the two PUD areas probably totality all next ten years. within the Under the veloped circumstances, must be concluded that the stated facie, exclusion made prima respect case of has been out facility to the road and burden shifts requirements, ordinance. those provisions to justify municipality to the Laurel, As 67 N. at 181. supra, Mount Cf . burden, municipality not met its has municipality fol one or more on remand to do will be directed con (if revision ordinance in the course lowing meet its PUD provisions partly tinues position : eliminate (1) cost housing) to zone least its obligation ex not to them or them render these revise requirements other donation clusionary; (2) require proportionate holders; other PUD tracts (3) relocate these or property nearer to utility hookups. in the

A third cost-generating potentially requirement re- which allegedly is the provisions approval process, PUD potential sults in has the high carrying charges The delay effectively barring project. approval process the town- which, is a to procedure, according three-stage within a but year, be witness, may completed ship’s to take months testify would eighteen plaintiffs’ experts two years. add will

Admittedly, protracted approval process to may to the cost and hence tend any project greatly The render lower income users. development prohibitive evidence to the cost of the Madison PUD impact provi contradictory. noted, sions was As were they adopted pur N. J. A. 40:55-54 suant to PUD S. enabling legislation, The 67. multi statute undertakes replace existing expeditious farious “an method of procedures processing * * * for a to avoid the plan planned development unit uncertainty” inherent delay procedures. the other J.N. S. A. 40:55-59. a two- proceeds lay out It then which the Madison ordinance ‍‌‌​‌​​‌​​‌‌‌​‌‌​​​​‌​​​‌‌‌‌‌​‌‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌‍follows stage approval process with one ordinance adds a third “informal exception. which must be preliminary application” stage completed prior an for tentative This filing application approval. to the it, “informal” adds stage days. Without approximately 150 days.32 Consequently its face takes the entire on process may be com- testimony that procedure the township’s on record. nine months supportable within pleted stage, for the “informal preliminary application” Except latter, unduly cost-gen- being is valid. The the procedure should statute, erating, contemplated eliminated. in IY B discussion above

We need add no more to the of the cluster for fair share purposes the inadequacy of the ordinance. provisions

In 1973 Ordinance is shown summation of this the point, amount for a not to the substantial provide opportunity lower in- of new be to the could available housing arises from come This failure segments the population. zoned both or the non-existence areas (a) inadequacy on or for very multi-family housing; for homes small lots the undue inherent (b) features cost-generating the or rent- ordinance which expense purchasing raise new majority units above reach of the ing great of the lower income population.

YII The “Fair Share” Approach

the Defendant II, We made observation preliminary supra, that we would neither make nor a although require finding approval stage requires public hearing 32 The tentative а within days filing application grant of the of the and a or denial of tenta approval days application tive within 60 an thereafter. Once for approval filed, plan substantially final is unless the different from receiving approval, that tentative a final determination made must.be days. recognized, however, preparation within 45 It must be planning required development application pursuant in greatly day period. to the ordinance can add However, to this 150 permit we deem. evidence adduced at trial to be- insufficient us application requirements hold invalid as exclusionary as a matter law. fact as to number lower given income units bousing made the Madison possible Ordinance, we Zoning nevertheless, would, enunciated, there purposes 'the dis- cuss evidence herein Madison’s fair .concerning share of need for regional such housing. By way of further pre- we liminary, adhere to broad Mount Laurel principle that each developing must or- municipality by its zoning dinance provide for a fair opportunity share of the lower income needs of its We region. intend that our herein shall judgment subserve notwith- that principle that we standing do propose to, nor require trial court shall demarcate specific per- boundaries tinent fix a region specific unit fair goal defendants’ share of such housing needs.

Defendant undertook trial establish what would constitute a fair share of the need for low and regional moderate income housing for ordinance to Madison’s render possible. It relied two upon studies, allocation one made 1972 on behalf of the Middlesex County Planning Board aby planner named Kim (“Kim the study”); other made on behalf of the Madison Township Board Planning in during litigation below, by its adviser planning Abeles and his firm (“Abeles study”). The Abeles in study, turn, partly relied on an estimate of lower Madison’s unmet income needs housing as of in 1970, made by Middlesex County Board Planning (“County study”), up- dated Abeles in by 1974. Both the Kim and the Abeles took studies Middlesex County as- the relevant mak- region, ing allocations of “fair shares” lower income for housing each of the municipalities the county. The allocations of the two for studies Madison close, were relatively Kim study at arriving about 1600 lower income units, and the Abeles study, 1800 units, about both as of Neither, 1975. however, a ventured prognostication as to Madison’s con- fair tinuing share of the region’s needs on an annual for the other basis foreseeable future 1975.33 periodic beyond however, In Abeles the latter foretold that Madison’s regard, unit until 1975 would (total) be housing growth from 1975 to 1980 at 600-800 and annual rate of units income down between lower This was broken 800-1000. and other categories. Davidoff, the foregoing, plaintiffs’ with

By comparison unmet need in Madison estimated an expert, planning a need 3,000 units, continuing and lower 1975 of income annually of 1000-1200 units into 1980’s thereafter should be lower income.34 which 500-600 (total) of for need county an unmet county indicated study The units. 23,600 units as of housing income lower study stated: Significantly, deficit, public private will resources and meet increases “To municipalities required. resources county these be For and its development freeing up residential land more would include density particular socio-economic location commensurate * * *” added). required (emphasis of units function the de- what Kim was to estimate study plan in the income housing for low and moderate (need) mand pro- with the compare county would 1975 and units that date. The pertinent of such spective supply with less households used was those category lower income Kim estimated of 1970. $12,000 annual income as than 1970) 766,946 (583,000 county population description municipality’s above, Mount Laurel 33 As seen present prospective regional “of need fair share is that * *(cid:127) added). preliminary (emphasis The recent N. J. at 188 Regional plan Division of State allocation State properly places emphasis Planning (see infra) considerable note 37 prospective future. the foreseeable on needs 34 Judge above, finding, Madison’s as noted was that Furman’s annually, 500- would be for new units need into the 1980’s 750-1000 Super. income units. 128 of those to be low or moderate at 442. number of employed 390,700 as persons (341,000 in The 1970). estimates were based on expected movements from jobs large urban people to the suburbs. centers In general there be an would “expansion” from the New York to metropolitian the outer region boundaries Mid- dlesex County and to south and west thereof.

Kim a estimated demand for lower income housing 136,374 1975 of households or to (111,301 1970) units which he added a factor for rate, normal vacancy 6.5% or a total 1975 of 134,589. demand Kim

The estimate of approach anticipated housing was balance deficiency prospective in the employment county with Tri- housing, following the of the approach Regional Planning study State Commission. His disclosed 115,791 units, lower housing supply income which, demand, 18,798 subtracted from left a 1975 deficit of lower income units.

The Kim allocation deficit (fair share) among on a municipalities county was based complex mathematical formula factors: (a) reflecting following housing location in relation (b) housing to work place; e., location in costs, relation to construction i. land housing unit; per costs other (c) “constraints”, g., e. subregion’s capacity absorb more of the housing. The application formula to Madison to allocate it a “fair share” of was or about 8.4%, 1600 units. avowed as hous- study goal “increasing

The Abeles for all The “should groups.” income new supply ing in a mixture of costs types be provided out- township.” job dispersion various locations in the work Middlesex Madison’s resident force County side with the work force resident in the compared county as percentages whole is indicated the town- 50% county. Correlatively, Madison has ship 36% the county only of the population but 0.8% 8% jobs. n averred that to a study important

The Abeles fair share- relevant is the consideration regional plan “housing area”. This is defined as area in market “the geographic are units in for the who housing competition people which The study conceded that “Madison seeking housing”. are relatively is a small a market area which part Township all of Central New but encompass virtually Jersey,” could hous- met stated that its would be by assuming purposes Middlesex County.35 area confined market ing 18,000 house- study projected growth Abeles The from’ 1970-1975 and another County holds in Middlesex will take 15,000 growth 1970 and 1980. This place between an vacant in ample supply primarily municipalities very is county in the supply housing The existing land. rates low limited, abnormally vacancy indicated 1970; Sixty in Madison). in county in (1% 1.5% commutation.” limit for “commonly acceptable minutes is mobility for considerable network allows The highway in Madison. demand housing creates substantial “housing is identifiable with market area” 35 To the extent predominance great sense, “region”, Laurel in the Mount pertinent proofs Madison includes is that in this record the area Jersey, and some of New is seven northeastern counties least the Metropolitan Region, is New York which to as the times referred (Note generally of Madison’s inclusive of those counties. that 15% employed City.) Indeed, another in New York work force is resident growth, study, projecting future Madison’s of the Abeles section part County region, is part which itself “As Middlesex said: Township larger metropolitan region, Madison of unalterably York New' by regional population because of its forecasts affected County relationship housing employment changes. Middlesex regional respect wider context estimates are influenced allocations, transport systems, employment use, housing loca land and other factors.” tions Housing preliminary Allocation Plan draft “A Statewide 1976) by Jersey” (Nov. State Division State for New places County region Planning eight-county Regional Middlesex an Bergen, Essex, Hudson, Morris, counties are of Passaic, the other Union, pp. 10-11. note Somerset See infra. Unlike the Kim the Abeles study, study did not approach from a needs demand and concept supply from but rather that of the number of relationship, obsolete in existence. Obsolescence units was defined as (a) conditions; undesirable physical (b) of occu- overcrowding unit; and (e) excessive of income pants being paid share as The rent. total thus determined was found to concur awith 1974 revision of generally estimate by of an unmet need as of 1975 for lower income county study in revision county. The increased the housing original 33,600 39,351 estimate of units.

The need was allocated “fair mu- county as shares” to in accordance a re- with formula nicipalities generally by that devised Coun- sembling Metropolitan Washington cil This involves (COG). of Governments need fac- housing To study tors factors. those the Abeles housing supply added certain modifiers. The need factors were generally aforementioned related those to obsolescence. The supply factors vacant residential land as zoned and va- comprise units. were housing cant The (1) per capita modifiers resources; ratio of financing (3) existing low income a moderate housing; (3) in- multi-family housing dex based on growth units from 1960- multi-family e., 1970; index, and (4) housing density i. the ratio of to total land area. housing formula 39,351 to the resulting county of the

Application Madison a “fair share” 6.1%, needed ascribed units units. noted, income As already 1800 lower or about no as to a fair share study prognostication made Abeles need to 1975. subsequent continuing of the motivation the Abeles study apparent. is post-litem, The the township planning April 33, board was approved It of the second before the end trial and days two over of the 1973 adoption after months ordinance. in favor largely weighted “need” of indig analysis e., i. need, persons already of those the town enous aspirants from compared potential as ship, Of the 1784 units municipality. outside the which the Abeles share, as Madison’s fair will study attributes units 390 the need of the indigenous only need and represent .36 region (Middlesex) limita-

In over apparent several and above the respects, tion formula presented to the region county, First, one. study Abeles to be appears self-serving factor accessibility COG formula contained an original omitted, one on ostensibly as of the modifiers which Abeles all employment substantial ground proportion 45 minutes within opportunity County Middlesex lies However, time from therein. commuting any municipality heavy nearer to unwarrantably favors Madison. As it is such Perth Woodbridge centers employment Amboy than more places relatively are like Monroe and Cranbury, be people likely Madison, would to want to live in and cor- Madison’s fair would respondingly comparative share if accessibility taken into account. larger were a index and den- multi-family housing inclusion of The features of the Abeles self-serving index are two additional sity formula, in did not the COG appear These study. factors in in substantial credit Madison’s and their results use While the concentration factor defensibly favor. housing to those which “have recognition subregions affords some of rental low contributed to the for already supply families,” income nevertheless takes and moderate Abeles for both Madison’s over the credits increase duplicative past multi-family in units and its years ten existing housing factors, As a result of the these Madi- density. interplay 11,142 son, developable acres, with vacant and with up ends allocation to towns of similar compared amounts 6.1% acres, residential Monroe (12,067 acres), of vacant policy emphasis the criticism of the 36 See under formula COG housing replacement indigenous housing, for substandard on to the “ regional satisfaction, NCDH, subordination need ‘Fair Share’ Housing, 3, pp. (Fall 1972). in Trends Evolves” Vol. No. 1-2 Abeles which, under the acres), Brunswick (10,778 South formula, fair share allocations receive 12.6% 16.1% fair share closely corresponding Towns with respectively. North Brunswick Brunswick allocations, (7.5%), East residential have vacant and Woodbridge (5.0%), (6.0%), 986, and 230 4,722, respectively. acres of

VIII “Fair and “Region” Share” — General Considerations vаlue of the Kim and probative Abeles fair share studies should be appraised against background of substantial body of that has experience been developed bodies in governmental recent planning years devising fair share plans voluntary housing planning purposes from All distinguished of them litigation. involve real- istic market areas larger and functionally ap- more in Mount Laurel terms, propriate, than small Middlesex County Before region. discussing those specific some plans, preliminary observations as to the of “fair concepts share” and “region” appropriate seem by way background.

Of primary significance is the difference between situation of an administrative planning agency functioning under authorizing legislation and that of a court dealing an attack by on litigation or- adequacy dinance of an isolated municipality. dealing The former is with a comprehensive, predetermined and can render region or delegate the of allocations making with relative fairness to all of the constituent municipalities or other subregions within jurisdiction.37 its Moreover, ex- has presumably preliminary comprehensive housing plan 37 A but allocation for the just by published has been Division of entire State State State Planning. Housing Regional and “A Allocation Statewide Plan for Jersey”, op. supra, undertaking, oit. New note 35. This which is subject public hearings review, and further was directed Gov- April 2, Byrne’s 35, 1976. That No. dated Order ernor Executive Laurel, acknowledged impetus of our in Mount order decision Regional Planning of Division and it directed that the State State and municipalities goals guide adjusting prepare housing in “to State provide municipal regulations in a reasonable order to their land-use variety development appropriate opportunity of and choice for an Jersey.” County housing to of the residents of New of meet the needs planning permitted boards to be in studies for were enlisted regions, groups counties or of counties. The which could of consist language Jersey” states the of of track- order ing “law the State New concept share-regional Laurel. fair set in Mount forth allocating goals regional take In the Division directed to into was housing (1) region; (2) need in the the extent account: extent of employment growth decline; (3) capacity to fiscal absorb the goal; availability housing appropriate housing (4) sites for the goal; (5) may necessary appropriate.” “other factors as and resulting study presented is The in four sections: State Division (1) present 1970; (2) housing housing prospective needs: needs: 1970-1990; allocation; (3) regions housing (4) for and substate housing methodology. study The allocation culminates tables setting housing forth a “fair share” number of units for low and present prospective housing moderate income meet households to and municipality every allocated to needs the State housing (1) dilapi- Present estimated needs are the criteria units; (2) necessary (3) units, and dated overcrowded units vacant p. as of 1970. 13. upon growth Prospective housing are based needs estimates pp. housing from 1970 to 1990. 13-15. units regions sharing housing fixing (1) needs; were: criteria for The interdependence; (3) availability; (4) (2) data socio-economic pp. resulting Executive 35. 7-8. There are intent of Order No. eight (including regions: northeastern from the counties Middle- one sex) Burlington; ; Camden, one one for Gloucester each State, pp. ten the other counties 10-11. municipalities developed separately of fair was Allocation shares to prospective present housing housing The needs needs. method housing allocating present percentage is to used for needs take the region present housing region’s housing needs to the total percentage municipality’s apply and then each stock stock, p. prospective allocating 13. method used for average indexes, being: apply (1) of four an needs was vacant

n developable land; employment growth; municipal (2) (3) fiscal (cid:127)capability (in growth ratables) ; (4) of non-residential terms of per personal capita, p. income líG-15. municipality’s fair sum of Each share thus the the two fair aforesaid, p. n shares arrived 15. By 1976, Executive No. dated Order December Governor Byrne postponement hearings ordered and final has review of the study preliminary until after November 1977.

533 of correlative disadvantages suited to the task. The pertise are obvious.38 dispute a an individual adjudicating court fair a the fixing The formulation plan at- for lower income housing share of the need regional developing municipality, although tributable to particular Laurel, 189- 162, Mount 67 N. J. at clearly envisaged and economic, controversial sociological involves highly Where of innate difficulty complexity. policy questions are called for to be responses they apt are predictive specu- conjectural.39 lative or These observations are supported literature40 but only by published by proofs amici. briefs us comprehensive supplied by parties nine-county housing projection See also the allocation formula and published Valley Regional Planning in 1973 the Delaware Com- (DVRPC). agency funding mission housing This monitors all federal Pennsylvania Jersey (Mer- in its five and four New counties cer, Burlington, Gloucester). regional Camden and It also does planning for The DVRPC determined total that area. need year region through in among 2000 and allocated the need units assigned counties. Each the counties was then nine municipal making pursuant guide- sub-allocations task lines, to DVRPC Jersey has been done the four New now counties named. litigation joining 38 We not here confronted with all the mu are county. Laurel, nicipalities region in a See Mount 67 N. J. at J., League (Pashman, concurring) ; Urban 216-217 New Greater cf. Brunswick, Mayor Borough et al. v. The and Council Carteret, Super. 1976). al., (Ch. N. et J. 11 Div. specifically warned that because has 39 One commentator calculations, conjectural utilizatiоn of the court as such nature of determining municipality’s may fair share result in the forum for litigants. Rose, “The Mount Laurel between the “statistical warfare” Thinking?”, Real L. on Estate Is It Based Wishful Decision: (1975). 61, 67 methodologies 40 Tke recent literature on “fair share” is consider leading analysis plans theoretical of fair share is found able. Housing: Response, Brooks, Income The Planner’s Lower ASPO Officials, 1972). (Am. Socy. Planning July-August Report No. Brooks, Mount In addition to and the commentaries on Laurel cited supra, representative sampling in note 3 of fair share literature Housing Kelly, Market Evaluation includes: “Will the Model Be were touched Some of above problems catalogued Laurel, e. J. at 189— in Mount g., “region”, upon 190; contemplation, of construction incidence subsidized in 21; 170, 8, 188, id. n. of fox “fair at n. sources reliance 190; id. at share” of needed guidance, quantity 188, id. at n. reasonably proper under expectable zoning, we 21. We take this occasion make what adum explicit to — in Mount Laurel brated have intimated above and seeing the of governmental-sociological-economic enterprise and re provision throughout to the allocation appropriate. of and all of suitable gions categories adequate much and population more a appropriately legislative a function to judicial administrative function rather than in 67 disposition be exercised isolated cases.41 Cf. N. J. 189, 22, n. 190. Exclusionary Zoning?” Estate L. J. 3 Real 373 The Solution to Open Housing Listokin, Will It (1975); Distribution: “Fair-Share Development?” Apartment 2 L. J. Real Estate 739 Suburbs to Housing Listokin, ; An (1974) Distribution: Idea “Fair Share Jersey (T. Norman, Trends in New 353 Time Has Come?” Whose ; ‘Regional 1974) Lindbloom, “Defining

ed., Need’: A ‘Fair Share’ of ; (1975) Laurel”, Application J. L. 633 of Mount Planner’s Moskowitz, “Regional History Housing A Allocation Plans: Case (1975) ; Valley Regional Plan,” 7 J. Urban Law 292 the Delaware Housing (NCDH), Against in Discrimination National Committee “ Housing, Spread”, 16, Begins Trends in vol. ‘Fair Idea Share’ to “ 1972) ”, ; 2, pp. (July NCD, ‘Fair Share Evolves’ Trends no. 2-3 1972) 3, (Fall ; Holmgren Erber, Housing, pp. & no. 1-2 vol. Challenge 1973). (April Formulas”, 4 HUD “Fair Share Planning: Prior, Housing also, An Allocation An- See Erber & Planning Exchange Bibliography, notated Council of Librarians Bibliography (March 1974). No. 547 “Regionalism I-Iaar, pioneering M. work in his 41 Professor Charles Planning”, U. Rev. and Realism in Land Use Pa. L. 530- (1957), noted: adversary process specialization of the The limitations and judicial competence deciding courts evoke serious doubts as to * ’h * proper regional allocation resources Unless courts adversary adept sys claimed, are far more skillful than or the job analysis, regionalism tem lends to such is not itself requires planning engineering techniques, there is scientific patent legislation further as who should be need for state to government the other branches of are Fortunately, giving ap- matter until other their attention.42 But unless regional disputes. ultimate resolver For fact remains that presently adequately agency no issue. The constituted can meet this staff, ability prepare a rational court lacks the the time or the eminently plan. admin suited for the seems This kind of decision agencies however, governmental If, process. the other istrative default, certainty decision as the need come as well final decision, particular may important the merits he as [Emphasis supplied]. types addressing Although to all was himself Professor Haar prob- particularly regional planning, relevant to the his remarks are. Rose, dealing specifically fair allocations. Jerome lem of share (cid:127) prophetically matter, observed that: with this delicate and difficult task to have undertaken the The courts seem community legislatures maintaining been balance that have development accept. because is an unfortunate This reluctant problem the kinds is one that is best resolved the nature upon compromise political negotiation a democratic legislative process legislative process defaulted based. The has is legislature predicted, to if fails meet and the as Governor Cahill responsibility, but for the courts its there will be no alternative step in. to Community: Rose, Trends in Recent “The the Balanced Courts (1973). Jersey Zoning Law,” 265, 274 See AIP Journal New 1973 Mytelka Mytelka, Zoning: “Exclusionary A of & Consideration also Remedies”, Wrong 5, (1975) ; Note, 1, “A Seton Hall Rev. 7 L. 13 Remedy: Exclusionary Zoning”, Approaches a 6 Judicial to Without Rutgers-Camden 727, (1975). L. J. “Delegation Payne, Reform of Local Govern- Doctrine the See Rutgers Exclusionary Zoning”, L. Rev. of Law: The Case ment point only essentially made as in (1976), the same is where proposed text, highly solution of the for idea is but a novel the Note, “judicialization” “The Inade- problem of it. See also without Exclusionary Zoning”, 71 quacy in Cases of Remedies of Judicial (1976). 760, Mich. L. Rev. 773-779 Greenberg 24, 1975, a bill introduced Senator March State 42 On Housing Plan, Comprehensive Bill entitled, Senate Balanced planning providing 3100, for the allocation of a framework new committee, Regrettably, housing regional died in thus this bill needs. remedy exclusionary path past legislative following to efforts the Mallach, supra efforts, zoning. see note these For discussion Rutgers-Camden L. J. at 677-683. goals However, strong impetus allocation to statewide provided by provision was Gov- income of low moderate April 2, 1976, Byrne’s dated men- Order No. Executive ernor is propriate governmental machinery effectively brought bear choice, have no when an courts ordinance is chal- on Mount Laurel lenged but deal with vital grounds, welfare matter as public effectively as is consistent of the judicial limitations process. evi-

We address defendant’s implicated by the question, studies, dential of a concept “region” the appropriate ade- of a the housing the context litigation challenging Defendant purports of a ordinance. quacy particular zoning a single justify its fair share allocation on the basis Abeles Kim both the county However, as a region. and supply need for studies, in estimating anticipatorily recog- Middlesex County, apparently as of 1975 in emanat- jobs nized the growth population influence Jersey New from broader of northeastern ing region Thus, while it New York and the metropolitan region. hous- relevant regional whether functionally questionable Kim and in the Abeles need was realized ing adequately a need studies, they envisaged it does effect appear boundaries. beyond county emanating alloca- The technical of the basis fair-share details as pertaining tions among municipalities, of regional goals and theoretical complexity do to an area of considerable they con- court reviewing as diversity, important are not Laurel Mount objectives cerned with effectuating shared goal consideration that gross regional reflect fairly to enough constituent municipalities large which the market area of full needs the housing a part. forms subject municipality followed, supra, study there dis- and which tioned in note the cussed. along Community Department in had de- of Affairs been well The housing veloping Order for when Executive No. a allocation the State 35 was announced. separate above, fair have been As n. share allocations noted Burlington, promulgated Mercer, and Counties in Camden Gloucester auspices under the the DVKPC. of In broad we principle, Judge believe Furman was correct in the conceiving appropriate region Madison as "the Township which, area from in view of em available ployment and transportation, the population township drawn, would be absent invalidly exclusionary zoning”.

N. J. at 441. is Super. This essentially like the mar housing ket area concept in espoused in report Abeles as sound principle, although not in directly fair employed Abeles share study.

The of a se as was concept county per region appropriate to not be "realistic” Hall thought writing Justice Mount Laurel. He said at 189-190): there J. (67 composition applicable “region” necessarily vary will probably from situation to will situation and no hard fast rule every serve to furnish answer case. Confinement to or within county appears realistic, a certain not be restriction but within practical (This boundaries state seems advisable. say ignore developing municipality can a demand part people its on within boundaries who commute state.) work in another Justice Hall defined the there as “the region applicable outer area, the South Jersey ring metropolitan area Camden, we define as those portions Burlington Gloucester Counties within semicircle radius having 20 miles or so from 67 N. at city.” the heart Camden J. 162, 190. What was material determination was of Mount to the proximity Laurel urbanized Camden highly area, residential influx new development its due to the cities, residents from central nearby existing projected employment patterns, network” Mount "highway linking all Laurel with of the Camden area and parts the contrast of its vacant with the situation acreage land (65%) supply those central See 67 N. nearby cities. 161-162.

Eor of our problem, we purposes distinguish present situation if with which we would confronted the munici- whose ordinance was under had pality attack been the sub- of an official fair ject study share of a group as under auspices

counties or conducted such municipalities or of group of a county DVPRC or the boards planning (see No. 35 counties under Executive Order functioning regard “region” note We conceivably might supra,). so fair allocations constructed, and share dependent ac- at, judicial as thereby prima arrived meriting facie us do not Kim and “studies” before ceptance. The Abeles them stature, have that or and we have accorded authority analyzed merits, deserve on their as they such as only weight above.43 sufficiently in

For regions enough examples large to form functional hous economically tegrated legitimately areas, market we turn to some of the fair ing pioneering fully preliminary do accord status state 43 We not such housing plan State allocation State Division of wide Regional Planning subject only to further is tentative and supra. public hearings and review. See notes 37 plans proposed fair To date share have been or im number plemented by plans vary, governmental regional or bodies. The de upon body implement pending type or selected formulate encompassed, type plan, geographical areas being (e. g., income). Listokin, allocated subsidized low or total See Housing Open It “Pair Share Apartment Distribution: Will Suburbs Development?”, (1974). 2 Real Estate L. J. The plans implemented actually noted of been most those which have in following: Valley Regional (Dayton, area) Miami clude Ohio Region’s Housing Planning Commission, Valley The Miami Plan (1973) (updating ; Metropolitan plan) allocation its Washington (D. area) Governments, Fair Hous O. Council Share ing ; County (California) (1972) Planning Formula San Bernardino Valley Department, Distribution Model Government Subsidized County ; (1972) Metropolitan Bernardino Portion San Council of (Minneapolis-St. Housing: Paul); Plan, Twin Area Cities Program Policy, Valley Regional Plan, (1973) ; supra Delaware see note 37. plans utility they is that intended all these are almost housing. low cost or subsidization of subserve By actual construction type pres- litigation, contrast, plan a Mount Laurel as the municipality capable ent, the affected of direct utilization the court. plans, Prior, twenty-five Erber and a list additional see Por Bibliography Planning: (Council Housing Annotated An Allocation Bibliography 1974). Planning Exchange #547, Librarians allocation, share under plans executed official or quasi-official The Miami Plan auspices. Yalley Ohio) Regional (Dayton, Commission five ning includes counties and municipalities far Metro as as 60 miles from the of Dayton. center The covers politan GOG Washington (see supra p. 529) counties local including governmental jurisdictions, California, District Columbia, Bernardino County, San although a The Metro 20,000 miles. county, occupies square politan Paul) Council of the Twin Cities (Minneapolis-St. covers counties, with a almost 300 including jurisdictions, total DVRPC, of 1.9 as population already million. The shown, nine and New Jer comprises counties in Pennsylvania The sey. their re present of the is that significance plans cited a sub gions are of such is size that it difficult to conceive stantial demand for from one any therein coming outside locality even absent ex jurisdictional region, clusionary is “to The essence of the zoning. plans cited provide families in those and mod economic categories [low a choice of location.” 16 Trends on No. 2 Housing, erate] 2p. (1972).

We thus to proceed formulation of our as to the position concept of in the context of an ad hoc region application Mount Laurel ordinance, to a principles single litigated in II, mind our in having supra, determination that it would not generally be serviceable to employ approach formulaic determination of a fair particular share. We municipality’s that, conclude there is no general, specific geographical area is which the authoritative necessarily as to region any single Different municipality litigation. quite experts may differ in their reasonably of the concepts pertinent region. See Lindbloom, 'Fair Need’”, Share’ of “Defining 'Regional L. J. 633-644 But in (July 1975). evaluating any expert testimony rationale, terms of the Mount Laurel should be to the to which the weight given degree expert gives consideration to from the areas lower income popu- lation of the would municipality substantially be drawn ab- sent of the exclusionary zoning. (Evidence historical sources indicia,

of a rele- other municipality's population, among ven! thereto.) This is broadly comparable concept has been area, relevant to which there market prior reference herein. ato for residence most factors which draw candidates persons include not only, employed

municipality thereto proximity those reasonable employment, seeking mentioned jobs, jobs availability transportation but experts,44 most of the Eurman stressed Judge “region” determining received have criteria relevant 44 The share, note 45 see used measure fair same attention as those plans infra, dis under fact most of the fair share because jurisdiction accepted geographic of within the area have the cussion Moreover, region. agency appropriate planning urban the as pertains regional to sub boundaries often of literature on derivation ject g., supply, allocation, housing water e. environ other than matter emerge However, suggestions ment, transportation, from fair do etc. determining appropriate criteria for discussions as to the share region. Rose, journey “Ex work. mentioned is that of The most Issues”, Managed clusionary Zoning Unresolved Growth: Some and Pack, ; Lustig (1975) Rutgers-Camden 689, “A L. J. 717-720 6 Jobs”, Upon Zoning the Location for Based Residential Standard James, Burchell, (1974) ; “Ex Listokin and AIP 1974 clusionary Journal 338 Regional Remedy”, Zoning: 7 Urban of the- Pitfalls job transporta existing implicates Lawyer 262, (1975). This supra. Burchell, al., patterns. et tion housing Housing Authority (FHA) defined has Federal The entity geographic region non-farm within which market as HUD, competition, dwelling FHA Economic units are in mutual Analysis Division, Housing Techniques Market FHA Market Analysis 12, prospective of actual business and hence the location transportation important. availability of facilities are and the centers Id. region suggested should relevant be has that Rubinowitz taking place, development be and movement are or will area in which places already families have exercised the middle income where option and moderate desirable low and which would be to move Zoning: “Exclusionary housing groups A if were income Wrong available. Remedy”, Mich. J. L. 654-5 of a Search Reform (1973). Community Department November Affairs its rejected journey supra) report (see to work as note status Jersey, regions in New northern delineation sole criterion suggesting large enough regions or within “which are demarcation to and proximity convenience schools and other shopping, amenities. Retired who represent substantial people, part of the lower to at- moderate income population, might tracted from a distance than greater employed people. we

Einally, submit general techniques observations of “fair share” allocation to within an as- municipalities sumedly valid There much region. greater diversity is among in this experts than in regard relation to determining pertinent Moreover, as regions. herein, harm already noted to the objective securing lower adequate opportunity income is likely less from models housing allocation imperfect than from undue restriction The es- pertinent region. sential from thing the true standpoint regional need be quantified. adequately

The trial court specified that for Madison to meet its fair share of the housing needs its region ordinance must “in approximate additional unit housing capacity same proportion low-income as its low- present income about population, the same 12%, and proportion of moderate-income as its moderate-income population, about The 1973 ordinance was held short” “palpably 19%”. of these requirements. 128 N. Super. at 447.

Mount Laurel devised no formula for “fair estimating share”, but the matter left was for the municipality apply the expertise of the adviser, “municipal planning county planning boards and the state planning agency.” 67 J. at 190.

The number and variety considerations which have been deemed relevant in the formulation of fair share is plans such as to underscore our earlier observation that the entire may burden a be shared.” Plaintiffs’ Paul witness Davidoff suggested determining region: (1) three factors the relevant the (communications, trade, employment) volume of transactions between component region; (2) sections the demand exerted for hous- ing region; (3) satisfactory within the and area within which a housing may solution need found. he

542 a functionally legislative is and problem essentially involved administrative, not one.45 judicial and frequently share have been 45 The most mentioned fair criteria pur headings. grouped list for informational under four We them necessarily poses implying approval. our without objective equal “Equal distribution share” criteria have as their g., housing, establishing percentage of low and e. a minimum community. housing moderate to contained within each income units be housing regions “Need” allocate where there criteria greatest need, perpetuating have been criticized as slums. but units to “Distribution” criteria allocate low and moderate income greater lacking areas income the same order achieve and mix. racial containing “Suitability” most areas suitable select criteria Kelly, capacity. physical fiscal “Will the and sites based on Exclusionary Housing Be the Solution Evaluation Model Market (975) ; Brooks, Income Zoning?”, Lower Estate L. J. 3 Real 373 40; op. supra, Listokin, Response, Housing: cit. n. The Planner’s Open Housing Will Suburbs to It Distribution: “Fair-Share Apartment 739, (1974). Development?”, L. 2 Real Estate J. 746 emerging important single from fair share criterion The most developable land, as “access to of vacant literature is amount exclusionary Rubinowitz, zoning.” “Ex- issue land is basic Remedy”, clusionary Zoning: Wrong Mich. J. L. A 6 in Search of employment (1973). criteria include 661 Other basic Reform capita equalized (including per income, opportunity, fiscal measures degree classrooms) per pupil, of underutilization assessed valuation density. generally, Brooks, population existing See Listokin, Housing supra; supra; Kelly, Market Evaluation “Will the Exclusionary Zoning?”, 3 Real Estate Model the Solution supra (1975) ; Rubinowitz, supra; note authorities cited 39. L. J. 373 potential many emphasized fair share It has been supra, Rubinowitz, factors, Mich. L. same measure the criteria keep the 660-661, be made to formula should the effort Reform factors duplication warfare” which simple the “statistical to avoid over-sophisticated Rose, may formulae. from result otherwise Cf. Thinking?”, It Based on Wishful Decision: Is Laurel “The Mount (1975). L. J. Real Estate adopted Planning Regional Valley a formula Board The Delaware upon (based only equally weighing relative wealth criteria: three county compared in the taxable real estate market of all value give county (would total) ; equalization region each criteria to the projected employment groups) ; proportion of income same Housing Moskowitz, “Regional Allocation Plans: opportunities. See Valley Regional Plan”, History Urban Delaware A Case Lawyer (1975). The formula trial by the court would not neces- specified be sarily utilizable mu- properly in other contexts. Some nicipalities very have such low might very high existing pro- portions of lower-income families in their make- population as up to render such a formula unfair. If exist- patently ing municipal proportions at least correspond roughly of the proportions the formula would appropriate region appear prima fair. The evidence herein is that the stated facie municipal proportions those county approximate Middlesex. areWe without data as to the comparative pro- portions of a such area larger as would include the more urban counties in the northeast New Jersey region.

Harking back to our statement in II we why pro- as in posed this opinion to discuss of fair share concepts we region nor notwithstanding not, we would would require the trial court to or fix a specify pertinent region a fair share quota Madison, for we summarize the housing observations in YII and VIII as follows:

1. Based VI, our in IV upon analysis and findings the 1973 ordinance is in Madison’s clearly deficient meeting to share in lower obligation providing opportunity cost needed or not housing whether region, spe- fair cific share estimates submitted defendant are accep- table. Those are, event, estimates at least in any defective 1975. including prospective beyond need

3. The objective of a court before ordinance is on Mount challenged Laurel determine grounds whether it realistically permits the opportunity provide fair and reasonable share of the region’s need for the lower income population.

3. The to in region referred 3 is that area which general constitutes, more or less, the market area of which subject municipality is part, and from which the pro- spective population municipality would substantially drawn, be the absence exclusionary zoning.

4. Fair share allocation studies submitted in evidence such may given weight they appear to merit in the is re- But not of statements 2 3 above. the court

light and to matter, adopt in determination of the itself quired, in or question fair share quotas municipality in to make reference thereto. findings

IX Environmental Considerations vacant above, acreage amount of As a considerable noted or important Madison streams comprises borders certain and coun Depositions and areas. aquifer storage discharge re and plaintiffs, ter-depositions were taken defendant of varying upon development effect spectively, bearing Sands, Bridge on areas Burnt Old Ply kinds such Bog, Raritan beachfront, Bay behind Raritan the salt marshes Bay River. Defendant and the four streams into South flowing that at the to establish certain offered the trial depositions flood, so to R-80, areas R-40 and RP were sensitive zoned they that should water contamination related problems and low very from all or be restricted kept development The trial declined consider density. residential judge land, on considerable other this evidence ground considerations, from and amenable free such ecological was available within the density township higher development, fair own with which it could meet its share its obligation needs. at 447. Super. and region’s on Plaintiffs’ testified answer experts depositions was or to the not ecological problems posed prohibition se but careful development per of the regulation density land, controls construc- adequate respect use sufficient tion, treatment, water control open and sewerage, structure and other services. per space were ad- considerations also environmental Ecological large in Mount Laurel to justify by the municipality vanced We out there township. pointed lot throughout were to be always and problems such factors that while Williams, American in zoning (see consideration given Land Law Planning 66.12, (1975) “the pp. 34-35), § danger must substantial impact real very (the construction every building improvement every — has some plot environmental not a make impact) simply measures or weight support preclude exclusionary housing ** 67 N. J. growth at 187.

Notwithstanding we foregoing, conclude trial court erred not in evidence receiving con giving sideration to the environmental depositions mentioned. It an answer to say there is other land ample capable of for lower being deployed income housing. The municipality option has the of areas for such zoning anywhere housing within its borders consistent with all relevant considerations as to There suitability. are lower scattering of proponents income as well housing widely throughout municipality as adherents of in limited such areas. segregating housing have the latitude Since the fathers should widest municipal of of in in that it is the interests both judgment regard, have and the that municipality plaintiffs parties to court, from proofs, benefit of findings by areas, which of the sensitive exactly allegedly environmentally if are in of any, housing development fact not susceptible which all; which, low only density development; at den in free of environmental constraints any respect are or sity type housing. di- be of this opinion, remedial shall, portion in the

We areas add substantial ordinance to amendment recting for single- housing multi-family for zoned districts neces- will be lots. It therefore small very homes on family to be apprised, of defendant body governing for the sary noted, just respects in the court findings from the be en- defendant claimed the areas part what resorted need not be for zoning such unsuited vironmentally purpose. for that discretion, the depositions permit in its may, court hear- remand, such any on but hearing amplified be directed be here to made shall findings and the added ings be expedited. we however, find no basis point,

In concluding that, view of the en any for determining the record va not have sufficient defendant does vironmental proofs, from con ecological land free developable disabling cant create the opportunity enable it to siderations to housing.46 need for cost its fair share least region’s X Action” Lower “Affirmative Income Housing ju amici for a Plaintiffs and supporting press dicial mandate developing municipalities required to act for creation of additional lower income affirmatively restrictions ways in more than by eliminating zoning have Of the militating against objective. devices end, mandatory been to this tax concessions and suggested sponsorship membership public housing projects must be Tax summarily rejected. concessions would unques tionably constitu require enabling legislation perhaps tional amendment. we have While described the sponsorship a moral mu public projects as obligation Laurel, in certain Mount nicipality specified circumstances, N. J. at we have no lawful 192, basis for such imposing action as however, It obligatory. goes without saying, in every no zoning developing municipality must erect bar or to creation and impediment administration also public housing projects districts. See appropriate id. 211-212 (Pashman, J., .concurring).

We have hereinabove indicated that provision by zoning for to density keyed bonuses or bulk concessions quantitative generally Ackerman, Expand 46 See “The Mount Laurel Decision: ing Zoning Reform,” 1, Boundaries Ill. 1976 U. Law Forum (1976). 43-71 is g., the builder added both valid and (e. bedrooms) where to achieve least- mandatory necessary sufficient suitable cost but that we are to housing, -prepared presently validity zoning bonuses to rental pass upon keyed or sale concessions. price

Various additional suggestions encouraging pro- liferation of lower cost on initiative are municipal set forth in the brief of Public amicus The supplemental to Advocate but not deemed comment here as require are warrant revised Madison mandatory imposition any none Laurel, Mount 67 N. J. 209-213 ordinance. See also (Pash- man, J., concurring).

XI Validity Zoning Statute Plaintiffs’ from original the trial court’s cross-appeal first determination assailed that court’s de portion cision upholding constitutionality enabling the zoning N. J. act, S. A. 40:55-30 et seq., and their brief second to this court Plain incorporates the supporting arguments. tiffs’ novel contention is that the general zoning purposes stated in J. S. A. 40:55-32, when although adequate 1928, enacted in fail to today detailed standards provide guide in their municipalities exercise of the zoning power, wit, fail they to direct that a must be municipality racially and economically rather than “inclusionary” exclusionary.

The stated was argument formulated before we decided Mount Laurel and is basically mooted our there,, holding in effect, that statute to be construed con- form with state due process and equal protection so as compel zoning developing municipalities to affirma- combat exclusion of tively the lower population income needing housing.47 addition, January 14, 47 In it should be noted on 1976 a new

zoning statute, supersede L. e. was enacted to the one consideration, August 1, under and took effect Under 1976. lack intrinsic event, Avefind the contention to any

In for the sets out as standard expressly merit. The statute health, morals promotion zoning power exercise well other subordinate criteria. welfare as general and the as noted, a . J. S. A. 40 :55-32. As ordinance N Laurel, Mount invalid, welfare is to the contrary general 175, 67 N. J. wеlfare” re supra, and the term “general Ibid. consideration of needs. regional housing quires Scott, Ward v. 11 N. J. 117 a similar- where (1952), Cf. N. J. attack rvas made on S. A. 40:55-39(d), providing variances, of use that spe for the issuance on the grounds did power. cific standards not accompany delegation of N. that this section the standard Pinding incorporated 40:55-32, valid, S. A. noted hence was Justice Jacobs “the not vest unbridled Legislature may although in the administrative but must firr arbitrary poAver agency * * * nish a reasonably standard adequate guide [none have of modern increas exigencies government theless] dictated the use de rather than ingly general minutely tailed standards regulatory enactments under police Id. at 123-4. Provision for local and hous power.” regional needs, N. J. although under expressly enumerated ing 40:55-32, S. A. required promotion general Laurel, Mount welfare. supra. and con statutory Avithout saying

It goes construction, of zoning by judicial stitutional prohibition, as well exclude, exclusion race as encompasses economic circumstances. is valid. statute

The

XII Corporate Belief for Plaintiffs contend 1973 ordinance that-the corporate plaintiffs in- of lower exclusionary is invalid not only generally, as statute, housing needs, development regional and low cost are needs specified among zoning:. 2(a), L. § the concerns c. CU, (e), (g), (m). come but housing, as specifically to their own tract land because of zoning restrictions which are confiscatory. They therefore ask that court order specifically the township their place an property in appropriate multi-family — PUD zone to in effect, be created them a grant permit to build the kind of moderate-to-middle income they in have mind.48

Plaintiffs’ testified re expert witnesses strictions their land upon about (originally encompassing 400 acres, but later reduced Acres” “Green taking about 200 in acres the R-40 were such that zone) even using device the to be clustering residences would produced have for $63,000, to sell about for which there was no fea sible market in the number producible on the property. Plaintiffs’ witness Chester conceded that if 30 or only units were marketable, involved they might be but not hundreds ren contemplated by plaintiffs’ We cannot project. der an assured determination that the confiscatory is zoning against on corporate plaintiffs such Plaintiffs are proofs. for their holdings entitled feasible not'necessarily zoning an if as are utilizable divided entirety they reasonably in Nor are entitled to separate ownerships. they zoning most permitting profitable development property. Cl Farm Middle Adjustment, ose v. Bd. Cobble town 10 N. J. Tp., Yet (1952). appears even if divided into smaller it would be diffi ownerships cult to market for residential uses under property stand, restrictions as in mind his zoning they having lot torical absence of in 'area. any large development Freehold, Schere v. Township N. J. Su supra (119 Cf. per. 433). A consideration to the interests pertinent jus situation, however, tice fact that corporate purported proof, 48 Plaintiffs offered and contend that if their land appropriately they develop were proposed zoned could of their 20% housing for families of moderate income. of this public- have borne the stress plaintiffs expense years albeit for six litgation, private purposes, interest extended ap- trials on this prevailed and have two vic- won but peal, danger having pyrrhic stand yet only A if ordinance, mere invalidation of the followed tory. more or lower income multi-family well corporate plain- elsewhere in the could leave township, their There is respectable tiffs unable to execute project. of view liti- such circumstances successful point the plaintiffs like should be awarded corporate specific gant A Con- Mytelka Mytelka, relief. “Exclusionary Zoning: Hall L. Rev. 26-29 Remedies”, sideration of 7 Seton 1, Rubinowitz, A “Exclusionary (1975); Zoning: Wrong 6 625, of Mich. J. L. Remedy”, Search 668 (1973); Ref. — Hartman, Invalidation “Beyond The Judicial Power Zone”, 159, Mallach, 9 Urban L. An. 162-168 (1975); cf. “Do Build The Ex- Lawsuits of Housing?: Implications clusionary Zoning Litigation”, Rutqers-Camden 653, 6 J.L. 677 675, (1975). In Appeal for action.

There such judicial precedent is also Girsh, 1970), A. 395 Ct. 237, (Sup. 437 Pa. 263 2d of an the in of adjudication builder succeeded obtaining of an validity apartment development. ordinance precluding district to create an municipality apartment The rezoned The then land. plaintiff’s plaintiff but did include an of a but town permit, issuance compel sought for a When park. nounced the would be condemned property condemnation, Supreme Court enjoin sued to plaintiff MP-12, aof Order No. 271 permit. (Au ordered issuance An. cit L. 29, Urban 1972). Hartman, op. supra, gust 161 — 162. at The same court took similar action in Town Farms, Inc., Williston v. Chesterdale 462 Pa. ship of A. See Franklin Vil 1975). 2d Ct. also v. (Sup. Park, Franklin 167 N. 19 Ill. 2d E. 2d lage Ct. (Sup. 1960). action, moreover, an incentive judicial

Such creates socially beneficial but such costly litigation institution Laurel, Mount as this and and serves the utilitarian pur- on with pose getting provision needed some portion least the moderate income elements We have the population. hereinabove referred to the indirect benefits to low income families from the ample provi- of new moderate sion income middle Point V. housing. considerations have foregoing persuaded us of in this appropriateness case to the directing issuance corporate subject to the plaintiffs, infra, conditions stated of a for the on their permit development property of the housing project they proposed township prior to action, during pendency pursuant which, plans they will originally represented, guarantee alloca tion at least low or of the units to moderate income 20% families.49 This direction will be executed under en forcement and supervision of the trial in such manner judge as to assure compliance with code, reasonable building water, site-plan, sewerage and other and con requirements siderations of health and safety. Williston Township Cf. Farms, v. Inc., Chesterdale supra A. (341 2d at 468-469).

An condition of express moreover, this holding, is that court, the trial after consideration of en- ecological vironmental referred to proofs IX, in supra, determine that land is plaintiff’s environmentally suited to the degree density type development plaintiffs Sub- propose. to ject these it is our conditions purpose to assure the is- of a suance to building permit corporate within plaintiffs future.50 very early specified 49 The applicable income standards are to accord with data completion buildings. as of the date of the Housing Jersey” The “Statewide study, Allocation Plan for New op. supra, ranges cit. n. sets 1970 for low income households as up $5,568/year to $5,569-$8,567/ moderate income household as year. As of 1976 estimate for low and moderate income house “up approximately holds is $13,000”. p. stated as 492. precedent 50 This determination is not taken as for an right permit part any builder-plaintiff automatic to a on the who XIII and Remand Remedy in the We entered herewith modify judgment Law Mount as to the hold, Division to in Laurel as we did involved, ordinance there that the 1973 ordinance zoning loto, invalid, not 'in in the but “to the extent and only par Laurel, ticulars N. set forth in this Mount J. opinion”. at 191. Eor the ordinance is reasons elaborated above the presumptively to the welfare contrary beyond general in scope mentioned. power zoning particulars Laurel, Mount N. J. at 185. The has not municipality borne its burden of consequent valid reasons for establishing the deficiencies of the Id. ordinance. at 185. It is obvious revision of the residential of the ordinance provisions for in is called order to provide the opportunity amount of least-cost in the will com which township with the ply- directions contained in this opinion.

In Mount Laurel we elected not to direct impose judicial “in supervision with the view of compliance judgment the advanced view law laid zoning applied down-by N. J. at 193. The-present case is opinion”. [the] Further, different. The basic law is now by settled. the de- fendant -was advised the trial court as to its correctly responsibilities respect needs Octo- regional housing ber over five It years ago. Super. 11. came forth with an amended ordinance has been found to fall short of obligation. its Considerations upon bearing interest, public justice and efficient plaintiffs judicial ad- ministration another preclude generalized remand another effort unsupervised defendant to produce satisfactory ordinance. focus of the judicial effort after six years of must now be theorizing transferred from over zon- litigation having a ordinance declared unconstitutional. is successful ordinarily rare, generally relief will and will in Such rest the court, light in discretion of the to be exercised the all attendant circumstances. to assurance of the for mg production of zoning opportunity cost least See Mytelka and housing. Mytelka, “Exclusionary Remedies”, A Zoning: Consideration of Hall L. Rev. Seton 1, 18, 33 (1975).

The trial court on shall in remand execute directions IX and XII above render its thereon with findings the reasonable to the of this dispatch age appropriate litiga- tion. It defendant, within become obligation shall days thereafter, unless trial more time is allowed by court, to submit to the trial court for revised its approval ordinance. zone,

The revision shall in the manner in specified to create the for opinion, a fair and reasonable opportunity share of the least cost needs of region, Madison’s concept to be understood forth “region” as set generally in II VIII hereinabove. While no formulaic determina- or fair tion such reason- specification numerical able share is do if required, we it preclude municipal shall, advisors deem useful. The revision planning minima: allocate substantial (a) areas single-family lots; dwellings on small very enlarge the substantially (b) lots; areas on moderate dwellings substantially sized (c) the AE enlarge district create other enlarged multi-family zones; RP, reduce the R-80 R-40 zones to the (d) extent necessary subject effect to the di- foregoing, IX, rections AE supra; (e) restrictions in the modify zones and PUD areas discussed hereinabove discourage bedrooms; construction of more than two apartments the PUD (f) modify eliminate undue cost- regulations requirements above; and generating specified (g) generally eliminate and reduce undue in the restrictions cost-generating zones to the allocated achievement lower income accordance with the principles of least cost set forth Vin hereinabove. discretion,

The trial court shall have in the event of undue delay with this or of compliance opinion finding revision court defendant any zoning submitted fails

554 with, to comply this opinion, to an impartial appoint or planning expert experts. Such expert be directed may to file a or to report testify, as court deem may appropri ate, as to a recommedation for the achievement defendant of compliance with this opinion with further directions any by the court pursuant Laurel, thereto. See Mount 67 J.N. at 216 (Pashman, J., Pascack concurring); Assoc. v. Mayor, Coun. Tp. Washington, 131 N. J. Super. 195 Div. (Law 1974); Mytelka and Mytelka, “Exclusionary A Zoning: Remedies”, Consideration of 7 Seton Hall L. J. 31 Hartman, (1975); “Beyond Invalidation: The Judicial Power to Zone”, 9 Urban L. An. 171-173 (1975); Rubinowitz, A “Exclusionary Zoning: Wrong Search of a Remedy”, 6 Mich. L. 625, 656-657 (1973). Ref. Judgment modified, and affirmed modified; no costs.

Pashman, J., concurring dissenting.

OUTLINE OF CONCURRING AND DISSENTING

OPINION I Limited Agreement with Majority 555 II The Need Affirmative Relief 556 III The 576 Nature Affirmative Judicial Relief Remedial 577

(A) Objectives (B) Procedural 582 Approach (C) Calculation of “Pair Share” Municipal 588 Regional Housing Needs (D) 595 Imposition of Remedial Devices Award Relief

(1) Specific to Corporate

Plaintiffs 596 Interference with (2) Enjoin Construction of Low and Moderate Income Housing Establish “Set-Aside” or “Override” (3)

Procedures to Pacilitate Construction of Low and Moderate Income Housing (4) Declare that Regional Housing Needs

Constitute a “Special Reason” Use Granting Variances Order (5) in the Specific Changes

Zoning Ordinance (6) Enjoin Municipal Other Approval

Eorms of 610 Development (7) Order to Provide Municipality

Density Bonuses Incen- and Other tives for Lower Income Building 611 Housing (8) Order Municipality Impose

Subdivision Conditions and Other Inclusionary Devices Order (9) the Municipal Government to

Establish a Local Housing Authority 615 IV Conclusion

I LIMITED AGREEMENT WITH MAJORITY I concur in the Madison majority holding Contrary ordinance is invalid. to the consti Township zoning Mt. tutional of Southern NAACP v. precepts Burlington Cty. Laurel cert. Tp., 67 N. J. 151 dismissed and (1975), appeal den. 423 46 L. Ed. (here U. S. S. Ct. 2d 28 (1975) Laure inafter "Mt. “make l”), the instant ordinance fails ‍‌‌​‌​​‌​​‌‌‌​‌‌​​​​‌​​​‌‌‌‌‌​‌‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌‍to variety for an realistically possible appropriate opportunity and choice of for all de who categories people there,” sire to live low and moderate persons particularly income. In his for the opinion Court, Conford details Judge in which the ways Madison ordinance falls Township short of obligation its under Mt. Laurel. The has township developable

failed to zone amounts of vacant adequate small very homes on land for multi-family housing features lots, and has cost-generating undue imposed units above raise the rental of new or purchase price Consequently, levels families. affordable lower income foster has failed to that the majority township concludes I am new, least-cost housing. promote construction in substantial accord with these findings.

I also bear- with the agree majority “[considerations ing upon interest, and efficient public justice plaintiffs judicial relief require immediate, administration” specific and judicial of all remedial supervision Unquestion- efforts. ably, is time that we to steer our toward begin energies faith good implementation principles. established I differ however, with the the nature majority, scope judicial remedies made for the trial available court the remedial during In cases of this stages litigation. nature, I conceive that powerful judicial may antidotes be- come to eradicate necessary the evils of exclusionary zoning. For reason, this I would less than the proceed ma- gingerly I jority; would farther and faster in go outlining trial full arsenal of judge judicial available weaponry for this I purpose. will first analyze the need for stronger,

more effective relief in judicial exclusionary cases zoning and then enumerate the various remedial weapons which are or should be available to the trial remand. judge upon

II TEE NEED FOR AFFIRMATIVE RELIEF The evils of practice exclusionary which widespread inflicts the State are now well-documented and zoning upon here. only need be summarized devices, use such as minimum house

Exclusionary land minimum lot size and requirements, require- size frontage ments, restrictions, for nonresidential or overzoning bedroom uses, and the of density low residential outright prohibition of mobile homes forms multifamily and other housing, lower low cost construction housing, preclude effectively and moderate cost units and foreclose thereby housing for low and moderate income to reside opportunity families Laurel, within Mt. 170- at community. supra, 173; id. 197-303; J., The nefari- (Pashman, concurring). ob- ous effects land use are pattern development vious.

First, contributes to the current hous exclusionary zoning ing shortage, only by foreclosing legislatively oppor tunities for construction of low cost housing, and moderate but also cost” construction of “least housing preventing create low vacancies in units affordable might income families. As exclusionary zoning Mallach,, shortage see generally, “Do Law Suits Build Housing?: Liti Implications Exclusionary Zoning gation,” Burgers-Camden L. J. n. 34 (1975); & Sagalyn Sternlieb, Cost: Zoning The Im Housing pact Land-Use Controls on Price Housing Dep’t (1973); Community Affairs, The Housing Jersey Crisis New (1970). also

Exclusionary to undermine tends rather than promote efficient use land sometimes sub- development by serving -parochial interests of more efficient derogation regional plans and utilization land. development Laurel, Mt. supra, 67 N. J. at 171. It raises the unfortunate of not spectre only from excluding community whom local “strangers” residents consider be “unde sirable,” but also (or even former or excluding expelling) current residents who can no afford the longer costs high in the persons Such community. might include elderly incomes, residents upon fixed dependent mar newly ried sons and daughters suburbanite parents, young families with or persons children currently in sub residing See, g., e. standard Pascack Ass’n & Ltd. v. housing. Mayor Council Washington 195, N. J. Tp., 131 301 Super. (Law Div. certif. 69 N. J. 1974), 73 granted, (1975).

558 from fact

Another result” stems “incongruous similarly impossible use often malee it exclusionary land practices for lower reside paid employees industrial municipal Laurel, supra, work. Mt. they where community Rubinowitz, also Low-Income L. 172. See 215, Aloi Suburban 235-236 & Housing: Strategies (1974); Goldberg, Exclusionary “Racial and Economic Zoning: End?”, 9, 12-13; Urban L. Ann. Beginning Exclusionary Equal Little Islands: Sager, “Tight Zoning, Protection, and L. Rev. 21 Stan. Indigent,” (1969). directly also contribute

Exclusionary land use practices deterioration of our cities. In to the relentless rapid and of retail decades, number busi large recent industry in suburban city nesses have moved out of the and relocated Meanwhile, lower in centers industrial parks. shopping to remain in the This employees come have been forced cities. — in turn two an increase phenomenon causes developments low who unemployment income workers cannot among afford to reach the new sources suitable employment base, critical erosion of urban tax its corresponding erosion of the essential ability provide governmental city’s education, services, such as fire health protection, police, Laurel, welfare, 173; Clawson, Mt. 67 N. M. J. at supra, An Land in the United Suburban Conversion States: Eco Thus, nomic Process in a very and Governmental (1971). real exclusionary direct and fuels the way, financial crisis now most of our cities. It also major contributes facing to the creation urban slums and unrest the social See Nat’l Comm’n on Civil they inevitably Advisory breed. Disorders, Report (1968). use a wall land builds

Finally, exclusionary regulation which only over the well-to-do can escape. around cities Laurel, 171; N. J. at & supra, Mytelka Mytelka, Mt. Remedies,” 7 A Consideration of “Exclusionary Zoning: (1975). L. Rev. segregation Hall Residential Seton result, sacred ideals our violating inevitable

559 pluralist society in our expressed State and Eederal Con stitutions. these travel, are the to Among right the right to live wherever one chooses and basic right equal to Laurel, opportunity to seek the amenities of life. Mt. supra, N. Kleven, 67 J. at 221 J., (Pashman, concurring); supra, C. 21 U. L. A. L. Rev. 1508; at Sager, supra, Stan. 1507 — L. Rev. 791. at Laurel, In Mt. this Court began to deal the sinister side of municipal land use After de- controls. discussing evils, tail pervasiveness and ex- impact detrimental clusionary zoning practices, we concluded that such practices are inconsistent with the welfare general and violate both act, et N. J. S. A. 40 -.55-30 and enabling seq.1 constitutional due State of substantive requirements laws, J. Const. process protection (1947), equal Laurel, I, 185; Art. 1. Mt. N. J. id. supra, 175, ¶ J., result, at 195 we (Pashman, concurring). As imposed each an “affirma- upon developing community obligation to tively provide, by its land use plan regulations, for an reasonable opportunity appropriate choice variety course, low cost housing, including, and moderate to meet the all housing, needs, desires and resources of cate- who desire live gories people may to within boun- its Laurel, supra, daries.” Mi. J.N. at 179. found Having the Mount Laurel Township violative of zoning ordinances we set aside those principle, portions ordinance deemed be exclusionary allowed the township within which days adopt amendments correct the de- Laurel, Mt. supra, ficiencies. 67 N. J. at 191. The majority August 1, 1976, superseded by “Municipal 1 On this statute was Law,” 291, 1976, seq. Land L. Use o. N. J. A. S. 50:55D-1 et Noth ing suggests principles there set forth Mt. Laurel need reconsidered, especially light underpinning of the constitutional fact, expressly incorporates of that decision. In the new law itself principle municipal zoning regulations must not be blind general neighboring the needs and communities, welfare of county See, g., 2(d). and the State as a whole. L. e. § e.

declined, however, to directly provide judicial supervision of municipal compliance decision, with the and noted simply that: particularly appropriate time, ad- It in view at this of the zoning applied to this vanced view of law as laid down judicial opinion, to deal with the matter of the further extent of * * * power power. any in the field or to such The munici- exercise

pality judicial opportunity should first have full to itself act without supervision. spirit suggested, We trust will so in the do we have by appropriate zoning both ordinance amendments whatever encouraging action additional regional fair the fulfillment of its share of the may need for low and moderate income be indicated necessary and advisable. [67 N. J. at 192] voluntary that reliance upon municipal concern Expressing be abuses ineffective and that prove action might already deeply widespread condemned the Court were I “far- attitudes, local this Court ingrained urged go announced ther and faster” in implementing principles I this that once call Court increase its day. again upon ills to combat the of exclusionary zoning. efforts Laurel, di indicated several reasons justifying Mt. I In These judicial and effective involvement. rect, immediate no There can today. be pertinent remain equally factors municipal power is still zoning abuse doubt ex which have an devices Zoning and pervasive. widespread vast majority suburban clusionary impact govern Laurel, supra, land. Mt. developable vacant Jersey’s New id. 181-184; J., 197-203 concur N. J. at at (Pashman, 193-195; & Williams ; Sternlieb, supra, & at Sagalyn ring) Land Use Controls: Case “Exclusionary Norman, Rev. 476 Syracuse L. Jersey,” (1971); New North-eastern Re Div. Affairs, N. State Community J. Dep’t of The Residential Land Land Use gional Planning, Regulation: indi Clawson, at 261-280. Recent supra, Supply (1972), change there has been no substantial cations show that Mallach, use unlawful land development. pattern L. supra, Rutgers-Camden J. at 653.2 Mere invalidation of exclusionary ordinances and even veiled threat of Laurel, further Mt. judicial action at (see 67 N. J. supra, 192) have not apparently succeeded in volun stimulating tary with the compliance of Mt. Laurel. principles

Eor one local thing, attitudes continue to against militate efforts to bring land use municipal into regulations conform ity with the letter and of Mt. Laurel. spirit As we noted Laurel, in Mt. exclusionary stems in from part — — belief partially discredited by recent studies3 opening the suburbs to low and moderate income families will increase demands on financed locally ser government vices without producing corresponding increase local revenues. It is feared that higher will property taxes See, e. inevitable result. g., & Mun. Cty. Gov’t Study Comm’n, supra xi, note 83-88. This concern prompts Kushner, Litigation also 2 See “Land Use and Low Income Hous ing Mandating Regional Plans,” Zoning Digest : Fair Share 27 No. 282, (1975) (judicial produced “any at 13 action thus far has not improvement quantity housing observable in either the of low income quality configurations”) ; Delogu, of its locational “On the Remedies,” Zoning Digest 282, (1975). Choice of 27 No. at The 6 Bergen Record, April 1976, 7, C-2, (“very hap col. at little has pened” Laurel) ; Times, August 1, 1976, Mt. since Thei New York 8, (N. (“State ed.) agree 1at § officials and builders alike change brought by about Mount Laurel thus far has been negligible.”) ; Bergen Record, 19, 1976, (“the message The Jan. at 1 ignored”) ; News, August 19, [of Laurel] Mt. has been Paterson 1976, (“But 8, ruling at col. in the Mount Laurel case has disappointment. flop .”) ; out a turned a decision’s . .. Ledger, July 14, 1976, 36, (“The The Newark Star at col. 3 clear actually production . mandate Laurel .. has Mt. led very few, any, priced units”) ; if News, moderate Paterson 1975, 17, appeals (“The October col. 4 at five court decisions... impact Supreme ruling diminished the Court [Mt. Laurel] .”) — ; Bisgaier, Implementing .. “Some Notes on Mt. Laurel An Admittedly View,” (1976). Biased N. J. L. J. 3 See, g., Cty. Study Comm’n, Housing e. N. J. & Mun. Gov’t & Impact Multifamily Development (1974) & Social Suburbs: Riscal Development Housing (1973). Sternlieb, and Costs G. costs for the benefits but avoid to strive

local officials commercial and development, by encouraging of suburban construction of uses while barring industrial families. Ilid. nonaffluent is also

Exclusionary zoning large motivated extent and rаcial fears and social prejudices.4 long-standing exclusionary land generally perceive regu use Suburbanites cherished middle values class way preserving lation amenities of their insular and the communities. fear They low and moderate income will people to their bring influx urban ills and social corresponding communities Eleven, 86. also Ordi “Inclusionary Id. at See conflict. — Private Issues in Policy Legal Requiring nances Low A. to Build 21 U. C. L. Cost Developers Housing,” & L. Rev. 1464-1465 n. 107 (1974); Mytelka Rev. re 7 Seton Hall L. 14. The Mytelka,, supra, at public Laurel, Mt. to the which derives from spirit sistance these attitudes, locally action effectively stymie any would Hence, con elected officials. it interests which parochial tinue land the expense to dominate planning, use broader statewide and needs. regional Laurel, since Mt. have come factors, light

Other need both close urgent judicial illustrate the further to direct formulation of guidelines for the supervision Mt. Laurel a narrow urged have Critics remedial efforts. to other communities and its applicability reading authorizes, relief which judical and nature extent lower uneven results in the equivocal thereby producing Mayor Ass’n & Coun Pascack Ltd. v. Compare, g., e. courts. 131 N. J. 195 Tp., Super. Washington supra, cil of reports through study, example, for local referendum 4 One reject all suburb of Detroit chose to of an “all-white” residents renewal, comply urban than with an federal funds for rather further Note, minority Wrong provide residents. “A to order Remedy: Approaches Exclusionary Zoning,” Judicial Without to citing Muller, (1975), Rutgers- n. 12 Camden L. J. 730 G. 6 Exclusionary Zoning (1972). 32-33

56B Urban League Greater New Brunswick v. Mayor & Coun Carteret, cil 142 N. J. 11 Div. Super. (Ch. 1976) Segal Construotion Co. v. Wenonah Bd. Zoning Adjust ment, 134 N. J. Super. Div. (App. 1975), Nigito Closter, v. Borough 1976). 142 N. J. Super. 1 Div. (App. also Rose, See “From the Courts: The Trickle Before Laurel,” Deluge from Mount ; 5 Real Estates L. J. (1976) Record, The Bergen “Mt. Laurel A Vision Zoning Ruling: Ignored,” 19, 1976, Jan. at A-4, col. 5. failure clarify

The to formulate ambiguities guide- lines effective review serves to judicial strip the prin- in Mt. Laurel ciples laid down of all Town practical effect. who officials believe that will courts equivocate enforcing municipal to meet have obligations regional housing needs no reason act voluntarily satisfying mandate of Laurel, Mt. such where action local especially strong faces these opposition. circumstances, Under judicial timidity merely encourages municipal officials to to local yield preju- dices and await the of law suits low filing income per- sons and frustrated In developers. order to furnish real incentive faith on good efforts part municipal gov- ernment, our legal pronouncements must guarantee pro- spective litigants effective relief for the vindication en- forcement of their constitutional rights.

Yet, even when law filed, suits are dilatory tactics by can still municipality frustrate implement efforts of Mt. Laurel. For principles example, recalcitrant commu delay nities can legal proceedings by simply dur rezoning litigation, in what ing engaging one article calls shuffle.” “zoning amendment & Mytelka Mytelka, supra, Seton Hall L. Rev. at 29-30. an instant case illustration provides of the problem. action in instituted November 1970.

Plaintiffs After defendant’s trial court invalidated zoning ordinance, Madison, Inc. v. Madison Tp., Oakwood N. J. Super. 1971), Div. (Law cross-appeals were taken and this unheard appeals pending Court certified in the Appel- 564 62 N. J. while 1973,

late Division. 185 In October (1972). Court, the matter a second before this awaiting hearing was now Madison revised ordinance Township adopted a result, under review. obtain rulings As we remanded to 1974, on the as amended. In trial court April ordinance scheme, the Madison invalidated again Township zoning Madison, Oakwood at v. Tp., Inc. Madison 128 N. J. Super. and, now, Div. 438 more than after (Law 1974) years six filed, the action was this initially again case before Court.

While I do not the motivations or question impugn of case, intentions municipality particular demonstrates that of rezoning during litigation course can as a be used of forestalling compliance ju means fact, dicial decrees. In several jurisdictions have responded to this consider after danger refusing amendatory litigant where has received favorable thoughts determina tion in a suit nature exclusionary zon challenging Skokie, First Nat’l Bank v. Village ordinance. 35 ing Ill. App. 545, 448, 3d 342 N. E. 451 2d Ct. (App. 1975); Park, v. Fiore Ill. City Highland 24, 93 235 App. 2d E. 23, 26-28 2d Ct. cert. (App. 1968), den. 393 U. S. Ct. 21 1084, 867, S. L. Ed. 2d 776 First Nat’l (1969); Skokie, Bank v. Village 326, 85 Ill. 2d 229 N. E. App. 378, 381-384 2d Ct. (App. 1967); Casey v. Warwick Tp. Bd., A. Zoning Hearing 464, 2d 467-468 (Pa. Sup. Walsh, Bd. 1974); Ct. Willistown Supervisors Tp. v. Pa. Cmwlth. A. ; 2d 572 (Cmwlth. Ct. 1975) Co., Hill Dev. Inc. v. Camp Zoning Bd. Adjustment, 13 Pa. Cmwlth. 319 A. 2d 197 (Cmwlth 1974); Ct. Sauer v. Richland 8 Pa. Cmwlth. Tp., 464, 303 A. 2d 269 (Cmwlth. 1973). Ct. judicial direct as- supervision to order hesitancy Mt. Laurel may enforcement principles

sure adequate another, result. In the distressing absence equally lead to a final of in- adjudication following supervision such will be able to construct draftspeople validity, imaginative devices, “fresh imtrammeled precedent” to by circumvent holding trial court exclusionary and preserve the character of the 7 community. & Mytelka Mytelka, supra, Seton Hall L. Rev. at 19. the instant case furnishes Again, an illustration of the problem.

In 1971, October trial court struck down Madison Township’s zoning ordinance as impermissibly exclusionary and violative of the Madison, welfare. general Oakwood at Inc. v. Madison Tp., supra, 117 N. J. at Super. 21. On 1, 1973, October oral following argument in this but case prior to a second hearing before this Court, Madison Town ship substantially amended its earlier ordinance. The osten sible purpose rectify revision was to some of deficiencies the original Though ordinance. making new ordinance more complex sophisticated, township draftspeople failed to alter character. illegal exclusionary its instance, For first the trial criticized judge’s opinion much too of its vacant and township developable land for minimum and not large devoting enough size lots multifamily acreage to zones construction permitting and lower cost on small Id. at 19-21. dwellings houses lots. As re result, reduced the size its most township zone, R-80, which strictive minimum lot size requires time, two at same acres. But it increased the size the R-40 zone of one minimum lot sizes requires RP, acre. de Additiоnally, zone, it created a new which is an zone R-80 until velopable by condemned the town effectively salutary offset the effect ship. changes These zone. while Furthermore, of the R-80 the size reducing now larger as amended devotes somewhat ordinance zones, multifamily districts and these density area to higher and, a small fraction of the township cover only zones still so de much of the land zoned not even fact, vacant AF or Thus, multifamily apartment while the velopable. and now encompasses acres enlarged by zone was de- acres are vacant and most these acres, only See velopable.5 generally analysis Conforms of this Judge 505-507.6 aspect ordinance, revised ante at deficiencies, In Madison order offset these apparent with respect claims to its Township have satisfied obligation to lower establishment income permitting PUDs residential clusters unit (planned developments) and pursuant to “The Unit Development ‘Municipal Planned Act’,” “Mu N. J. A. S. 40:55-54- et seq. (superseded 28-46, nicipal Law,” Land Use L. c. effective §§ August 1, clusters While PUDs and 1976). residential cost ordinarily increase the for low and moderate potential Laurel, 166; see housing (Mt. supra, generally J. at & Bosselman, Babcock Land Use Zoning: Regu Exclusionary lation and in the Housing 69-76 here the 1970’s (1973)), has township this two of bjr foreclosed possibility locating the three PUD sites in remote areas of unser township the viced by essential Furthermore, utilities. other restrictions on PUD and residential cluster also foreclose low and mod erate income density maximum PUD levels housing: (1) are even more restrictive than those contained in the Mount Laurel ordinance; Township an additional cost- (2) points out, Judge Judge Furman stated that true 5 As Conford the plaintiffs argued figure probably closer to 120 acres and was accompanying may Ante at 506 and text. be as low as 67 acres. draftsmanship. examples provides For of shrewd other 6 This case imposition judge opinion, instance, the trial criticized in his first requirements space and R—10 zones. the R-80 floor of minimum Super. Madison, Tp., supra, 117 J. v. Madison Inc. N. at Oakwood pro Although these eliminated the amended ordinance at 20-21. visions, per provision minimum which establishes it added new applicable space all residential zones. to limitations room floor propriety questioned judge opinion, also the trial initial In his develop- multifamily restrictions, limiting bedroom AF zone apartments. Al- bedroom two bedroom one ments to 20% 80% restrictions, longer these though no contains revised ordinance regulation construc- which confines area ratio a floor includes it now per acre, square effec- 10,000 and which feet a maximum tion to tively multifamily developments and one bedroom efficiencies to limits apartments. Ante 505-506. at has been added generating stage approval process in addition to other such as requirements, cost-generating construction of a school to accom mandatory building reasons, modate a specified number of For students. these I agree with the majority’s assessment the township’s reliance 506. upon provisions these Ante at I misplaced. also concur in trial the town court’s conclusion regarding effort to ship its redraft ordinance: “The advances zoning towards token, moderate-income are housing opportunities towards low-income nil.” at Oakwood housing opportunities Madison, Inc. v. Madison 128 N. Tp., supra, Super. J.

446.

A similar situation was in Pascack Ass’n Ltd. presented v. & Council Mayor Washington Tp., supra, There, 195. Super. was ordinance zoning municipal struck down, partly because “it failed make any provision 197. In Id. at multi-family rental-type housing.” response to holding, township an amend this adopted ment its ordinance dis creating multifamily trict. Nonetheless, Id. at 198. so, fell doing township short palpably court’s mandate with complying respect first, re multifamily the area housing: actually zoned for use was limited both in size and in quite and, suitability second, for multifamily the ordinance imposed unreasonably restrictions lot concerning demanding size, unit areas, minimum density, floor required and the bathrooms, number of bedrooms pre together multifamily cluded residential use consistent eco nomic needs of local residents. Id. 199-200, at 207.

Numerous devices other exist for circum- techniques venting judicial decisions which to eradicate im- attempt permissible, land use For exclusionary regulations. example, cases, in three landmark Pennsylvania plaintiff-developer was an exclusionary successful device having invalidated but was still unable to build his project. Appeal proposed Inc., Builders, 466, Kit-Mar 439 Pa. 268 A. 2d 765 (Sup. Ct. acre

1970) to three minimum lot size (two requirement in- 568 Girsh, Pa. 263 A. 237, 395 437 2d

validated); Appeal of on buildings ban apartment Ct. facto (Sup. 1970) (de Co. Easttown Nat’l Land & Inv. v. Bd. Tp. invalidated); A. Pa. 504, 1965) 215 2d 597 Ct. Adjustment, (Sup. 419 As lot struck requirement down). acre minimum (four size one explains: commentator Supreme Pennsyl of the landmark decisions of the Court of None victory . resulted in a for the builder the sense that vania . . able, litigation, develop as a to construct was builder result apartments. Joseph proposed his he build. built ment Girsh never Supreme Court, In . . decision re Girsh . Town After the ship of the properties than that owned classified several other Girsh apartment development. present prop for erty owners Girsh Township attempting are still to convince the courts apartments permitted should be on the involved in the tract fact, possibly property, In a Girsh the Girsh case. result

persistence developers, demonstrated would-be now been has public park condemned as .... ap negotiating . are for subdivision . still Kit-Mar Builders . Supreme proval [7], Finally, Court invalidated . . even after . Land and Investment Co. the four-acre involved National Adjustment Township v. Town Kasttoton Board .... Easttown ship impose zoning. National Land threatened to three-acre then lots, finally case abandoned its effort to build on one-acre the- lots.[8] was at minimum settled two-acre in Fiore Similar tactics were employed by municipality Park, E. v. Ill. 221 Highland App. 62, 2d City of 76 2d finally developer 7 Although did obtain subdivision in Kit-Mar years May 1972, approval, more than twо did occur until Krasnowiecki, Pennsylvania Supreme case. decided the Court after the “Zoning Litigation Pennsylvania Procedures,” the New (1973). 1029, & n. U. Pa. L. Rev. 1082-1083 quoting Appellants, 8 Rubinowitz, supra, Brief for at 210-211 from County Bucks, Cty. Rep. 45-47, v. Bucks L. Commonwealth appeal 1972), (Ct. Pa. 27 P. docketed Commonwealth Ct. C. “Exclusionary Zoning: wrong Rubinowitz, See A T. D. 1972. also 625, ; Remedy,” (1973) in Hartman, 6 Mich. J. L. 638-639 Search of Reform Zone,” “Beyond Invalidation: The Judicial Power Krasnowiecki, supra (1975), Ann. note Urban L. 161-162 120 U. Pa. L. Rev. at 1080-1084.

569 sought 323 Ct. There the 1966). (App. plaintiff-developer final Prior to a to build in a zone. apartments single family to office case, in the rezoned the property the judgment city that both this classi and research use. The trial court held fication and the use were too restrictive original single-family affirmed, and hence On the court invalid. appeal, appellate but set aside the determination with respect original Fiore v. classification because the was then moot. question Park, E. 330-331. The City Highland supra, 221 N. 2d at of then rezoned back to the and city classification single-family court down. again by trial struck it irritated Obviously faith, affirmed, bad court municipality’s appellate stating: light meaning language, opinion In the of intent and mandate, understanding it, report

and and the as indicated in the City plaintiffs’ Commission, rezoning of the Plan the act property single-family to the same classification it had in complete disregard for, attempt indicated a constituted an and thwart, opinion and mandate of this have court. We utmost respect deep regard philosophy principle for the embodied in the separation powers govern- of the of the three branches our However, City appellant zoning litigation, ment. which is an parlay separation powers cannot into an authoriza- doctrine delegated legislative powers tion to exercise its after the case adversely decided it and direc- remanded to the trial court tions, thereby opinion and void frustrate mandate reviewing court to which it submitted its for decision. case Park, City Highland [Fiore v. supra, 27-28.] 2d 235 E. see, For other of municipal examples delay subterfuge, Gautreaux v. F. Housing Authority, 342 827 Chicago Supp. D. Ill. F. cert. aff’d 480 210 Cir. (N. 1972), 1973), 2d (7 den. S. L. 895, 896, 414 U. 94 S. Ct. 39 Ed. 98 2d officials aimed at court (1974) (inaction city subverting order for the construction and placement public housing); Brown, F. Crow v. F. 2d (5 1972), aff’g Cir. Supp. (N. 1971) (refusal D. Ga. local officials to grant to be developers building permits apartments occupied Lawton, tenants); v. by low income black Dailey City of 266 F. Supp. 425 2d 1037 Cir. 296 F. (10 1970), aff’g D. Okla. construc (W. 1969) (denial building permits Ass’n tion of Park Homes low-income Kennedy housing); Lackawanna, v. aff’d F. D. N. Y. 1970), 318 669 Supp. (W. 1010, 91 436 F. 108 401 U. 2d Cir. cert. den. S. 1970), (2 a mora 1256, S. Ct. 28 L. Ed. 2d 546 (1971) (imposition Tp. Zoning torium on new Warwick v. subdivisions); Casey Bd., zoning A. Hearing 328 2d 467-468 supra, (amending D Constr. Co. v. & Holland ordinance G during litigation); 227 989, Cal. 91 Cal. City Marysville, Rptr. 12 3d App. of an to frustrate construction (Ct. App. 1970) (rezoning apartment families). lower income building a re Thus, judicial in the absence of effective supervision, to variety techniques calcitrant can community employ exclusionary practices. forestall to eliminate zoning efforts Van See of this one court’s expressed recognition problem Deal, Div. Ness 101 Super. 83, (Ch. v. 139 J. Borough of 14-17. Bosselman, supra, & at 1975). generally See Babcock can play “bad-faith municipality these Using techniques, My elsewhere.” until a and games developer gives up goes L. Rev. 24. For Seton Hall at telka & 7 Mytelka, supra, that sole reliance reason, upon most commentators agree effect of its zon exclusionary to correct the municipality that, words of one scheme is insufficient9 and ing authority, judicial zoning anything . . if is to result . review local action beyond farce, prepared go courts mere

more than a must be grant relief. invalidation definite [Casey Tp. Hearing Bd., Zoning supra, v. Warwick supra 469, quoting Krasnowiecki, 7, A. 2d at note 328 Pa. L. 1082.] 120 U. Rev. at My 8, 161; Hartman, supra 9 See, g., L. Ann. at note 9 Urban e. Now?”, telka, N. J. L. J. Where to 98 Mount Laurel Case: “The 205; Rubinowitz, supra 8, ; supra, (1975) Rubinowitz, note at 626; Note, A “The Mount Laurel Case: 6 Mich. L. at J. Reform Note, 442, (1975) ; Remedies,” L. Rev. U. PiU. Question Rutgers-Camden 729, supra L. 754. note other designed action branches Obviously, government to address the problem exclusionary preferable I judicial case-by-case intervention on basis.10 strongly However, welcome in its ab- urge warmly such action. sence, courts must be effective relief prepared provide in cases before them. relief, Without such properly Mt. Laurel will be shorn principles of all value mean- of constitutional will re- ing, infringement rights main unredressed. seeking rights In vindicate constitutional of low- and families, responsibility .

moderate-income . . the courts’ is take to steps power provide all within their to real for remedies those de- prived rights. of constitutional [Rubinowitz, supra, 26, 224; emphasis supplied] (119 Super. 10 As in Mt. Laurel N. noted both the trial court J. (67 177) 22; 214; (Pashman, J. n. id. at and this at 189 at Court N. preferable J., concurring)), legislative or administrative action is to litigation. First, legislation impact ju can have a much broader than intervention, ordinarily providing dicial limited to is relief on ease-by-case legislative Second, basis. bodies is are not confined to the brought may them, ap sues before but undertake a broad multi-face.ted proach problem. Third, legislature may upon to the the draw a much range expertise. Leg Finally, broader of informational sources and agencies delegates authority and islature to whom it often are equipped politically better handle to sensitive issues. Nevertheless process fails where this and where and constitutional infirmities problems persist, social the courts must will intervene when upon Laurel, supra, 192; called to do so. Mt. 67 J. at id. at 215 (concurring opinion). See ante also at I 535-536. As noted in Laurel, judicial necessary Mt. if intervention in does become eases nature, clearly capable handling pre of this courts are of issues resolving questions, sented to them. assist To them in difficult courts may participation Department Community invite the Af governmental agencies curiae, appoint or fairs other amici independent experts join necessary parties. Id. 67 N. J. at 216. generаlly Chayes, Judge Litiga See tion,” “The in Public Law Role (1976). 89 Harv. L. Rev. 1281 already direction, been taken in this Mt. While some- efforts have Laurel, supra, 22; 535; supra, Mallach, ante 67 N. at 189 n. at Rutgers-Camden 677-686, provide 6 L. J. few of these measures at mandatory municipal participation yet for unclear how is as they will effective be. 572 Mt. Laurel would

Judicial enforcement of our decision in in similar role have taken consistent with the other courts or- in a remedial Recently, situations. a case which upheld der and Urban Housing U. S. compelling Department Development comprehensive plan implement facilities construction and deeoncentration of public housing area, Supreme in States the United Chicago metropolitan relief such provide Court courts power reaffirmed discrimination cases: prior . . in the event of a constitu . Our decisions counsel “all to formulate tional reasonable methods be available violation remedy,” v. an Carolina State Board Education effective North 586, Swann, 43, 1284, 1286, L. 28 2d [91 U. S. S. Ct. 402 46 Ed. 589], every should be made a federal court and that effort possible degree employ greatest methods “to those achieve [relief], taking practicalities into the situation.” account Comm’rs, 33, [91 Davis v. Board School U. 37 S. Ct. 402 S. 1289, 1292, 577, 581]. observed 28 L. 2d As the Court Ed. Charlotte-Mecklenburg Swann v. Board Education: “Once scope right shown, been of a district and a violation have broad, powers remedy past wrongs equitable court’s equitable flexibility inherent breadth are remedies.” [1], 1276, 554, [91 566]. at Ed. 2d U. S. at 15 28 L. S. Ct. Gautreaux, 284, 297, [Hills U. S. v. 792, (1976) L. 96 S. Ct. Ed. 2d Housing Chicago aff’g v. sub. Gautreaux nom. (7 Authority, 1974)] 503 E. 2d 930 Cir. Shaw, F. Cir. 437 2d 1286 See Hawkins v. Town (5 also 1972); Kennedy 2d Cir. en banc 461 F. 1171 (5 aff’d 1971), Lackawanna, 108; 436 Park Ass’n F. 2d supra, Homes v. F. Agency, 395 2d Norwalk Core v. Norwalk Redevelopment Bd. Prince Edward v. School 1968), 920 Cir. (2 Griffin Cf. 1226, 218, 233-234, 1234-1235, 84 Ct. 12 377 U. S. S. Cty., Alabama, Newman v. 503 256, L. Ed. 266-267 2d (1964); cert. U. S. 1320, F. Cir. den. 421 1974), 2d 1332-1333 (5 v. 948, Ct. Robinson 1680, 95 S. 44 L. 2d 102 Ed. (1975); Cahill, id., 155, N. J. 133, N. 70 174 69 J. 152 (1975); have J., When dissenting). constitutional (Pashman, rights agencies been and the responsible violated governmental 573 have to violation, duty failed correct the courts have a to provide effective relief whatever reasonable by steps taking are Swann v. Charlotte-Meck necessary right wrong. Educ., Bd. lenburg 15-16, 1267, 402 U. S. 1, 91 S. 28 Ct. Bd., L. Ed. 554, 2d 566 Green v. 391 (1971); Cty. School U. 430, S. 1689, 1694, 437-438 n. S. Ct. Ed. 4,& 88 20 L. 2d States, 723 716, 145, Louisiana (1968); 380 U. S. v. United 154, 85 S. 817, Ct. L. 13 Ed. 2d 715 Robinson (1965); Cahill, id., v. N. 152-153; 69 J. supra, N. J. at 156 J., (Pashman, Jackman v. concurring dissenting); Bodine, 43 N. J. 453 (1964), N. J. supplemented Co., (1969); v. Cooper Sun Nutley 36 N. Publishing J. Press,

196-197 (1961); Asbury Park Inc. v. Woolley, N. Bank, J. 1 v. (1960); King South Nat’l Jersey 161, 177 (1974) (dictum).

Yet before techniques various al- suggesting for providing relief, ternative judicial it is necessary prob- address the lems Mr. raised Justice I Mountain. am aware of the difficult task which the in Court faces to fashion attempting relief. adequate These are in problems my raised Brother’s concurring opinion and have dissenting properly engaged the attention of courts almost since the our beginnings Republic. difficult Though problems Ml. enforcing Laurel decision may Court, be the uniquely this province other tribunals have also been faced with the problem of relief adequate fashioning various protect enjoyment of Indeed, the existence rights. adequate relief remedy violation of a known must not be right merely considered to the ancillary merits of the case; fact, instant is it central issue in any controversy.

It is of the difficulty because our precisely enforcing I decision in Mt. Laurel urged have Court to utilize a others creative hand remedies which shaping will have our adequately address the problems engaged attention. This Court’s must com- role limited faces; plexities problems which though simplicity desirable, it must not be at the cost purchased sacrificing in the attained remedying has Judiciary which the

the place en- I enthusiastically Accordingly, society. of our injustices of prin- these expression eloquent Chayes’ Professor dorse : ciples legitimacy view, judicial only my action achieves such In deep to, by stirring, responding for the and durable demand indeed difficulty seeing in justice society. I some hou> in our confess by erecting accomplished the the barriers traditional is to be of exclusionary aside, example, conception on Hon- to turn attacks ugliest remaining police violence, ing two the manifestations practice, words, racism in American In if in Kfe. of official acknowledged impor- always legal has American tradition legitimacy accountability results tance of substantive praise Marbury judicial action. v. Madi- could not Otherwise it statesmanship judicial condemning Lochner son as creative while Perhaps important power. the most con- v. New York as abuse of exposed inevitably position judiciary sequence in our contemporary regulatory state is that ivill us it force confront responsiveness explicitly qualities wisdom, viability,

more — — justice judicial needs decisions. human Judge in [“The Role Public Law Litigation,” 1281, 1316; Harv. Rev. L. omitted, emphasis added.] footnotes which short tribunal a known Any stops redressing one of constitutional has wrong, particularly dimension, been as to value of the misguided it seem- right I do not Mr. upholds. read Justice Mountain’s ingly opin- way ion in any disparage meaning important rights in Laurel. which we Mt. he contrary, discussed On the the “rule of law clearly states that and statement of prin- Mt. Laurel it announced are ciple” unexceptionable, yet arise, is in their that difficulties implementation (at J., Mountain Yet to concurring the extent dissenting). Brother’s my opinion applauds person’s right of the due laws and equal protection process, is equally to those its rights insensitive failure to provide appro- ensure priate remedies to their continued enjoyment. nature judicial inherent in the power problems Marshall, Chief and discussed Justice realized were Madison, Marbury v. 1 Cranch (5 landmark case U. 137, 2 L. Ed. 60 S.) There the (1803). United States Court faced for the first time Supreme the difficult task of a decision to hold enforcing unconstitutional an ofAct Con and act gress, thereby as the final arbiter of the law. Chief Justice Marshall did not find the Court’s task insurmount Instead, able. he noted the of its decision to importance our constitutional form of government: very liberty certainly right [t]he essence of civil the consists in every protection laws, the the individual to claim whenever injury. he receives an Id. 163. Chief Justice Yet Marshall’s stаtement would have a reflected view the wholly inadequate meaning and of our if liberty duty today he had added the im- portant that qualification first duties of the gov- “[o]ne ernment is to afford that Id. To the protection.” extent Mr. Justice Mountain is to leave the willing protection important guarantees constitutional on dependent legislative action, he our State incorporates into Constitution an un- in which certainty enforcement renders uncertain the equally enjoyment these rights. course,

Of to the extent that Mr. Justice Mountain urges to action legislative remedy persistent of ex- wrongs I Ms clusionary zoning, commend effort and join his has opinion.11 This Court cited the repeatedly need for concurring dissenting opinion might logically 11 The as read calling the Court to declare unconstitutional en abling statute, thereby requiring Legislature fashion “work able” which scheme could then Court enforce. The fact powers Mr. Mountain Justice has chosen criticize our enforcement present statutory opposed scheme, under to our constitu analysis Laurel, supports Mt. tional open this conclusion and leaves possibility. Payne’s article, I note that Professor “Dele gation Doctrine in the Reform of Local Government Law: Exclusionary Zoning,” Rutgers Case of (1976), L. Rev. 803 approvingly concurring which is dissenting opin cited ion, approach problems calls for an such alternative to the of ex clusionary zoning. Payne suggests Professor an alternative to the to zoning regional approach planning

comprehensive power may accomplish which the Legislature inde- Judiciary Though acts it has within its grasp.12 is, an in- constitutionally, Legislature pendent I am not government, opposed branch dependent facing which would lessen the burden solution legislative not avoid Nevertheless, I realize that must we this Court. the violation which duty remedy our constitutional cannot in this case. We unanimously agrees exists Court at Ac- fundamental liberties are stake. aloof when remain which job relief in this case be- effective complishing Court alone. to this longs

Ill JUDICIAL RELIEF THE OF AFFIRMATIVE NATURE Laurel, Mt. “flexible the trial court to In I called for be circum- remedies to fit imaginative” molding case. I further and go step propose stances each now I judicial imagination. will fuel the hope which guidelines characteristics, have all differing Because communities wholly for one town bemay remedial which is suitable order approach “is Mount inconsistent with Court’s current Laurel backtracking from break the . . . without commitment cycle Laurel, regional neglect needs made Mount presenting Supreme should, properly in a case Court Enabling Jersey Zoning issue, the New Act unconsti- declare tutional, theory improperly delegates on a that to local de- demonstrably regional cision-making are matters that concern. Rutgers Rev. at [20 820] L. agree promise Though approach I an offers such an attractive headway meeting problems, be I will made in current problems approach might bring ignore other which that cannot Cf., Cahill, (1976) (Moun N. Robinson about. v. J., dissenting). tain g., Laurel, (“Authoriza e. Mt. 12 See J. at n. — regional zoning implementation planning —, tion for or regulation having land least a substantial im uses external pact by beyond agency municipality, some the local would seem legislative logical step.”). to be and desirable as the next lu- be reason, For it would for another. this inappropriate a standard remedial order to define dicrous for this Court use failed to which have all municipalities applicable an make possible appropriate use their land regulations Nevertheless, to the contrary of housing. and choice variety should can and this Court I believe that firmly majority, judicial furthered such which must be goals specify which, and devices procedures and then outline relief attain circumstances, can be employed on local depending those goals. Remedial

A. Objectives are identifiable. objectives readily basic goals Five continued court must prohibit Most the trial important, exclusionary purposes. power illegal, use of the zoning opera- Ordinarily, may accomplished by enjoining municipality ordering tion devices exclusionary deficiencies. ordinance to correct these to amend its zoning fore- alter an scheme and exclusionary Thus the court can Laurel, Mt. denial of plaintiffs’ rights. close prospective sets J. at the majority opinion 67 N. 191. Insofar as supra, Madi- of the exclusionary unlawfully provisions aside the township and orders the Township zoning son ordinance I therein, opinion. in that join correct the to deficiencies Ante at 552-553. all enjoin pro- the trial court must only

Second: Not its remedial but through zoning power, of the abuse spective to dis- remedy past relief effective it must provide order Laurel, we held that Thus, in Mt. well. crimination its power to exercise pursuant chooses a municipality where it assumes act, automatically pre- enabling the zoning to to needs: regional housing with respect obligation sumptive must, by every municipality its land such that conclude We realistically possible ap- presumptively an regulations, make use presump- housing. specifically, variety More propriate and choice people opportunity classes tively the cannot foreclose it regu- housing in its and income mentioned for low and moderate affirmatively opportunity, at least to the that must lations afford present prospec- municipality’s and share the extent fair regional need tive therefor. emphasis 174; supplied.] [67 N. J. at failed that a has municipality court has determined When must that to community it order obligation, meet must make means the town its This duty.13 fulfill who available to reasonably persons opportunities doing from there, live have been precluded desire to but if the Obviously, rights regulations. so town’s land use by the or Laurel have real any meaning Mt. afforded are measured fulfillment must be value, of the obligation and low sufficiently production dispersed terms of actual must Judicial relief moderate income therefore housing.14 objective by proof 13 Tkis essential remains unaffected municipality’s obligation failure meet its under Laurel de Mt. from rather than from a conscious effort to dis rives inadvertence people. g., Laurel, against See, criminate certain classes of e. Mt. supra, 10; (Pashman J., N. J. at n. id. con at 196 n. curring) . 14 Naturally municipality affirmatively encourages oyer already moderate construction crowded, blighted low and income an community deteriorated section of in order preserve exclusionary character of the remainder satisfy municipality obligation does not its under Mt. Laurel. production only municipality Therefore, not must foster lowof housing, and housing but it moderate income must also assure that placed alleviates, aggravates, so that rather than cur rent concentrations of low teresting moderate income residents. It is in Housing Community Development to note that provides objectives primary Act of 1974 that one of its is to reduce groups geo- the isolation graphical income within communities [promote] diversity areas and an increase vitality neighborhoods through spatial deconcentration of housing opportunities persons of lower income. 5301(c)(6).] [42 § U. S. A. C. generally, Housing Bee Rose “Fair Share Allocation Plans: Which Pacify Formula the Contentious Will Suburbs?” L. Ann. Urban (1976). ar- toward One goal. be well-reasoned geared achieving ticle states:

ing Laurel, L. ticularly Where Rev. at built without where it municipality overriding judicial 26.] delay. has done so in ^[15] has [Mytelka Mytelka, supra, engaged consideration the face of & exclusionary should precedents be practices, par 7 Seton Hall like Mount get hous Third: While principally designed to eliminate exclu sionary zoning construction low mo encourage derate cost remedial housing, decrees must not insensi be tive to local Therefore, other concerns. legitimate judicial decrees also must strive to the amenities which preserve have made the an attractive defendant-municipality place in which to live. This reflects the goal fact that providing an variety and choice appropriate fun housing, though damental, is not only objective use land planning. objectives Other include preservation environment, regulation pace community growth develop ment and protection health, public safety and wel J.N. fare. S. A. 40:55-32, superseded by Land Municipal Laurel, L. Act, 1975, Use c. 291, In Mi. 2. we stressed § of these importance additional functions of zoning. Laurel, Mt. 67 N. J. supra, 190-191; id. at 212-213 (Pashman, J., concurring). Belle Village Terre v. Cf. Boraas, 1, 416 U. S. 94 S. Ct. 1536, 39 L. Ed. 2d Co., Euclid v. Ambler (1974); Realty 272 U. S.

S. Ct. 71 L. Ed. 303 A (1926). to advance failure this third objective could lead invariably to a condition which has been described as follows: footnote, quotes 15 In a article from another source as fol

lows: exclusionary zoning In cases the measure of whether rem- edy working production should actual of low-and moderate- housing. income [Rubinowitz, supra, at 211.] courts, Exclusionary successfully zoning in the can attacked be regulations torn If use are win too land but the excluded can well. ordinances, regard efficacy to of the without substitute down plain originally community which attracted the desirable residential place soaring taxes, rapidly into a of dis tiffs can deteriorate public inadequate schools, utilities, appearing amenities, and and — growth. chaotic, ugly [Mytelka short, a of & services Mytelka, supra, scene 1-2.] Rev. Seton Hall L. at trial court must balance carefully To avoid such result goal of lower cost residences objective building Laurel, noted in Mt. local As we amenities. preserving through achieved careful can be objectives both these and local cooperation: planning municipalities why developing no reason like Mount There is opinion opportunity Laurel, required by this to afford the for categories types needs meet of various all to attractive, may people, communities not and remain viable become adequate living providing good and their services all residents democracy atmosphere free which a institutions kind sections, They have industrial commercial sections demand. can every cost multi- kind of from low and sections very expensive family an more than acre with lots homes. cooperation planning governmental prevent Proper over- can development, against and too sudden insure future subur- intensive preservation open space sprawl ban and slums and assure the developing municipalities beauty. do and local We intend speculators developers land be voracious shall overwhelmed powers intelligently they they have and in if use they public holdings today, interest. Under our can broad they previously communities for all than have been. better [67 190-191] N. J. at Sedler, “Conditional, generally Experimental See and Sub- Rutgers L. Relief,” Rev. 639 (1962). stitutional far as the relief should practical, granted Fourth: So local in land prerogative use principle plan respect Laurel, in Mi. still As was recognized largely ning. Laurel, Mt. government.16 supra, a function of local fact, 16 Though recognizing also this we stressed the critical need upon decision-making pro- eventually local reduce reliance and to instance, it is in the at least first Therefore, at 189. re- local government function and responsibility formulate plans ordinance and to amend its zoning vise and Id. under Mt. Laurel. obligation meet its affirmative initial stages usually require For reason courts 191. the municipality. be undertaken of remedial action to land and control of course, judgment for local respect Of in- justify judicial acquiescence use does decisions mu- of on the evasion the difference, subterfuge part or never Therefore, for local control should respect nicipality. IAs stated remedial action. objectives override the other of Laurel, land contrоl that local use Mt. mere fact in “[t]he . from . . the court preclude are involved does not issues remedy powers full of ‍‌‌​‌​​‌​​‌‌‌​‌‌​​​​‌​​​‌‌‌‌‌​‌‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌‍panoply equitable exercising J., concurring). 215 (Pashman, situation.” must be trial court relief Fifth: The ordered not mean that This, course, of does judicially manageable. flexible, innovative, long-range or require not be may short, appro- In involvement. judicial novel of forms be must each remedial device of sufficiency priateness of the advancement of relation to terms its measured in and objectives.17 these five goals cooperation intergovernmental greater degree and use of

vide for supra, Laurel, development Mt. regional schemes. and statewide J., concurring). 22; (Pashman, id. Until N. J. at 189 n. at 210 Judiciary though, changes enacted, continue will such are impact weigh their land ensure that localities consider and Id. regulations regional and statewide needs. at 177. use on have J., concurring). (Pashman, But ante at 571 cf. comparable interesting writer theorized that 17 It is to note that one objectives federal of federal courts in set underlie the decrees voting rights desegregation and school cases: principles fashioning appropriate relief in the vindi- Several rights can distilled from these cation of federal constitutional be First, remedy must it must maximize the be effective: cases. desegregation. sought, Second, actual such as actual relief must all tech- court be consider use available flexible practicali- niques. A choice remedies must take into account ties Flor can the existence administrative inconvenience of relief. Third, particular must bar the use courts relief. form of B. Procedural Approach In validity cases of municipal challenging legislation, enjoin equitable remedy opera- traditional has been tion As noted and enforcement of the provisions. offending Part in the con- II, inadequate this is remedy wholly supra, text for vindi- It no exclusionary provision makes zoning. will draftspeople skillful wrongs; cating past redressing devices, exclusionary new able to it by devising circumvent and, results; to achieve desired litigation requiring prolonged operation an finally, unqualified injunction against func- nonexclusionary ordinance subvert the may legitimate, the entire com- tion of use to the detriment land planning, of most Therefore, stage I that the remedial conceive munity. relief affirmative require both cases will exclusionary zoning course. matter of almost as a judicial close supervision, approach implementing The need a deliberate Laurel, Mt. relief relief As I effective noted apparent. steadfastly achieved if the trial court only proceeds can be four these following steps: identify [ing] region; (1) the relevant housing determining] (2) present and needs of future region; allocating] among municipalities

(3) in various these needs region; and (4) shaping] remedial suitable order. J.N. 215-216] [67 at In order to effectuate each these steps, procedural guidelines follow be the trial might utilized court. supervise pro- eases time these until such been has full relief Supplemental orders, encompassing vided. additional or different approaches original order, may necessary accomplish he from purpose. supra 8, 6 Mich. [Rubinowitz, L. note J. at 637] Reform supra, Mytelka Mytelka, also 18-20; See 7 Seton L. Hall Rev. & Rose, “Exclusionary Zoning Managed and Growth: Some Unresolved Rutgers-Camden Issues,” (1975). L. J. 689 6 Upon entering judgment against municipality, trial should, court at the practical point, join earliest all municipalities located the de region surrounding Laurel, fendant N. Mt. J. at 216 community. (Pashman, J., If on concurring). necessary, this the court’s may own motion. R. 4:30. 4:28-1, Not only this necessary order to allocate equitably needs among municipal housing ities in a but region, it is essential if decisions conflicting are to be communities avoided cases in the same involving region. J., at 216 (Pashman, concurring).

The trial court then order the should towns affected (if it has not done already undertake a so) study identifying local regional study needs. This would analyze, alia, inter the number of substandard and overcrowded units within town the number of surrounding region, but people there, unable reside and the employed number likely to there people migrate absent exclusionary zoning. The court would then ask the to submit a recom municipality mendation as to what number of new low and moderate income residential units period what would (over time) constitute its fair regional share of the need. See Part III (C) recommendation, of this Upon receipt infra. the court fix would "fair specify municipality’s share” of that need.

However, if each prior to "fair assessing municipality’s share” the trial finds court that statistical data inde assistance, be of pendent testimony may would the trial court own appoint its to aid in its planning experts Peterson, judgment. See Matter Walter S. 300, 253 U. Ct. 543, 40 S. L. Ed. (1920) (finding a court the inherent un possesses power appoint persons connected the court to aid in the performance spe Laurel, cific duties case); a 67 N. J. Mt. at 216 arising J., v. Handleman Marwen (Pashman, Stores concurring); N. J. Corp., 53 404 Pascack v. (1969); Washington Ass’n Polulich v. G. Tp., J. Schmidt Tool Die & supra; Stamping Co., 46 Super. (Cty. Ct. Scott 1957); v. Spanjer Inc.,

Bros., Wig F. Cir. See 1962). generally, 2d (2 more, Botter, “The 1940); Evidence at 270 ed. (3 § Ex Kraft, Using in M. Court Appointed Expert” Impartial Or, at court in Civil Cases 73. perts 1977) (PLI that mu if it might finds expert an appoint independent Such consultants recommendations are nicipal inadequate. defendant; they are to of the expense be at the appointed defendant, parties, other should be allowed to consult a file court; they report and the trial should ultimately, the best and testify provide would any This proceedings. Mt. Laurel ob way of a to meet designed ensuring dialogue should with all parties discussions ligations. Additionally, have the the expert’s valuable effect certain making to local concerns. recommendations are sensitive legitimate of the “fair share” municipality’s After quantifying needs, wоuld order income the court region’s lower to submit a remedial plan designed town formulate and satisfaction enable, to attain affirmatively encourage include, its need. The should plan portion regional to the municipal other amendments things, proposed among necessary deemed ordinance and affirmative programs Mt. Laurel. under satisfy the municipality’s obligation a might Such involve establishment programs additional a mobile home authority, park local creation of district, conditions sub- inclusionary upon imposition division, zone or developments, provision PUD and cluster other See Part density bonuses and devices. inclusionary III would be trial then submitted (D) plan infra. days. a number of specified court within approval all could comment parties After at which hearing upon approve the trial court would either proposed plan, or, and order immediate plan implementation upon finding deficient, order the modify plan municipality Such revisions submitted the court do so. would After the remedial approval subsequent hearing. plan formulated, has court approved incorporated by been jurisdiction into the court would retain judicial decree 585 this supervise plan. During order implementation re- of progress could submission require court process, and the plan from ports implementing those charged enforcing orders could, when issue necessary, supplemental so, done yet If it has or remedial modifying the decree. to assist consultants could independent appointed planning and par- with implementation, additionally, suggestions be encouraged. suit should by all to the ticipation parties inadvertence Finally, faith, if bad there evidence of as- could on the court neglect part municipality, im- sume plan direct control over certain aspects remedial than those pose stronger measures provided the initial See decree. Part III (D) infra. has already It

Ample precedent approach. exists for this in cases challeng been several of our trial courts by utilized ordinances. of local zoning character ing exclusionary Laurel, 178-180; Pascack Mt. 119 N. J. supra, Super. Tp., Ltd. & Washington supra. Ass’n v. Council Mayor New Bruns 195; 131 N. J. Urban Greater Super. League of Carteret, v. at 35-39. Super. wick 142 N. J. supra, Borough of It federal by also the relief commonly mirrors provided See, e. g., courts in cases. school and housing desegregation Educ., v. Bd. 402 supra, Swann Charlotte-Mecklenberg 1267, U. S. 91 S. Ed. 2d fail Ct. 554. (Defendant’s L. Dis meet fixed ure to a school deadline desegregation Court, con independent trict an triggered appointment ultimately sultant incorporated whose recommendations were into a Southern court); desegregation plan adopted v. Alameda Union Spanish Organization Speaking (SASSO) remand, F. 357 F. Supp. 2d 291 Cir. on City, (9 1970), city gave D. Court 1970) Cal. (District (N. to “take steps necessary within which nine months . . . the law to under the accommodate reasonably feasible residents,” and also low income needs [housing] [its] periodic concerning city reports ordered submit v. Crow accomplish objective); it had taken steps Brown, F. at 395-396 officials supra, (county Supp.

a local were housing authority ordered to appoint a joint committee to prepare county wide for the plan development and placement of to im low rent projects public housing plement after recommendations of the committee joint first to the reporting Housing Gautreaux v. court); Chicago Authority, 296 F. Ill. supra, sup 907 D. Supp. 1969), (N. plemented 304 F. 736 D. District Supp. Ill. (N. 1969) (the Court ordered the “to parties pro submit plans designed hibit the future use and to effects of remedy past [the housing unconstitutional site selection and ten authority’s] ant assignment procedures”; review of these following plans, the Court issued a detailed order for the immediate providing deconcentration of public facilities in the housing Chicago Metropolitan area and further au compelling housing thority to revise its tenant submit such assignment policy, revisions to the Court for and undertake certain approval Shaw, studies); Hawkins v. Town 437 F. supra, 2d at 1286. Cir.), aff’d en banc (5 461 F. 2d 1171 at 1174 Cir. (5 1972) required (town to submit a for plan the court’s ap proval detailing proposed cures for the of dis “long history reveals.”). crimination which the record Brown v. Bd. Cf. Educ., 349 U. S. 294, 299-300, 75 S. 753, Ct. 99 L. Ed. 1083, 1105-1106 v. (1955); Wright City 407 Emporia, U. S. 451, 454-458, 92 2196, S. Ct. 51, 33 L. Ed. 2d 57-59 (1972); Mahaley v. Cuyahago Metropolitan Au Housing 355 thority, 1257, F. Supp. D. (N. Ohio rev’d 1973), on other grounds, 500 F. 2d Cir. (6 cert. den. 1974), 419 U. 1108, S. S. 781, 95 Ct. 42 L. Ed. 2d (1975).18 (West Supp. 1972), quoted also Cal. 18 See Gov’t Code § 65302 Kleven, supra, 7, requiring L. 21 U. C. A. L. Rev. at n. all mu nicipalities develop housing plans adequate provision which make segments community for the needs of all economic 5304(a) (4) requiring applicants 42 U. A. S. C. § all for federal Housing Community Development assistance under Act of study 1974 to first and assess the needs of lower income persons residing community in the and then formulate and submit an appropriate “housing plan.” assistance First, This in several approach respects. attractive initial a remedial placing responsibility formulating ob the hands of officials furthers the plan municipal into maximum jective local assuring respect prerogatives. Sims, 1362, v. Reynolds 533, 586, 377 U. 84 S. Ct. S. Cf. Bodine, 12 L. Ed. 2d Jackman v. 541 (1964); 43 N. J. supra, faith 473-474. Good compliance the letter and obviate of the initial court decree will spirit the need for additional judicial guar and thus interference antee retention control and municipal responsibility over matters. the need to

Second, preserve approach recognizes must above, local if the municipality amenities. As noted families, is best income accommodate low and moderate fashion. Intel orderly in a planned this be done bonuses, restrictions, landscape use of density PUD ligent types of different of dispersal requirements with the can achieve community compliance the throughout Mt. Laurel and still adequately under municipality’s obligation which make the town an attractive protect place amenities to Phased which control over zoning, technique permits live. and location of new affords аnother pace development means Nevertheless, these ends.19 this achieving technique Plan must used with caution. See Golden v. Ramapo be Bd., ning 359, 138, 30 N. Y. 2d 334 N. Y. S. 2d 285 N. E. 1003, 2d 291 409 U. S. 1972), appeal dismissed (Ct. App. 93 Ct. 34 Ed. 2d 294 Constr. 436, Industry S. L. (1972); Petaluma, Ass’n Cty. Sonoma v. 375 F. 574 D. Supp. (N. 522 F. 897 cert. Cal. rev’d 2d Cir. den. 1974), (9 1975), 1148, 424 96 Ct. 47 934, U. S. S. L. Ed. 2d 342 (1976); yet upon validity phased 19 While this has not ruled Court zoning, appears why technique there be no reason to could not employed long planned, phasing be so as it is well is too provision early housing. drawn out there lower income Laurel, supra, 20; (Pashman, J., Mt. 67 N. at 189 id. at 213 n. concurring) ; Mytelka Mytelka, supra, see also & Seton Hall L. 7 16, Rev. at 22-23. 588 All L. 66. C. A. Rev. at 1453 n.

Kleven, 21 U. L. supra, en be valid, should efforts, if otherwise proper such court. by the couraged review judicial most important, by requiring

Third and as- all this approach remedial programs, approval protected will be rights adequately sures that plaintiffs’ will comply and that the municipality’s proposed plans Laurel. Mt. both the trial court order and the dictates Moreover, jurisdiction implemen- by retaining supervise order, remedial trial will forestall tation court tactics or bad faith dilatory compliance possibility II one on See Part As municipality. supra. part correctly commentator notes: satisfy adoption plan remedial] The [a mere is not sufficient duty. necessary steps court’s It must take the see plan reality. becomes a [Rubinowitz, supra 8, Reform, 669.] note 6 Mich. J. L. at do I seeks to suggested, have remedial approach jurisdiction, require peri to retain courts

this by permitting and, necessary, sup if issue time limits odic set reports, which arise during problems orders to address plemental more than area, “In this of the order. implementation & Mytelka can crucial.” most, supervision continual v. Rev. 32. Green L. at Seton Hall Mytelka, supra, Cf. Bd., 1694, 439, at 88 S. Ct. at 391 U. S. supra, School Cty. States, 724; Louisiana supra, L. v. United Ed. 2d at 716; 823, Kelley L. Ed. at Ct. 2d S. 85 S. at U. Altheimer, Kennedy 1967); 2d Cir. (8 v. 378 F. Lackawanna, 318 F. supra, Supp. Park Ass’n v. Homes Weiss, 836, 838 v. 217 So. 698; 2d City at Miami Bench of v. Warwick Hear Tp. Zoning Casey (Fla. 1969); Ct. Sup. Bd., A. 2d at 470. ing supra, “Fair Share” Municipal Calculation

C. of Needs. Housing Regional order or- a remedial noted, formulating As the task of the municipality’s with a quantification dinarily begins Laurel, “fair share” needs. In Mt. regional housing we observed that proliferation recent ac widespread of fair share allocation nu ceptance plans engendered has formulae merous this determina techniques making Laurel, Mt. supra, 189-190; tion. id. at 215- J., 216 (Pashman, Obviously, no concurring). approach one or formulaic device is mandated and judicially courts should carefully all reasonable weigh submitted to them proposals by witnesses local expert How authorities. planning ever, some quantifiable approximation of the municipality’s “fair as an aid in necessary share” is remedial formulating their id. See at 190. Eor this plans evaluating adequacy. I am reason, majority’s that, baffled pronouncement is while Madison to create the Township obligated oppor for a fair tunity and reasonable share needs of its “no formulaic determination or numerical region, of such a fair specification and reasonable is share required.” Ante at 553. Because court approach gives the trial no reliable way local measuring compliance Court’s remedial order, I fail to see how it will encourage implementation of an effective remedial The need for plan. at least some degree of in this was specificity regard aptly stated in a recent article on the zon subject exclusionary ing: determining explicit an ordi- whether tests . The absence .. problem. exclusionary unlawfully exacerbates On re- is

nance concept mand, of “fair share” allo- Madison court discussed given region. a moderate income within low and cation of requires concept both distribution an evaluation of the income This larger metropolitan population municipality’s and that of the part. precise manipulation township is area of which pro- gathered of land and the use to be formulation the statistics visions, however, not addressed the court thus the town- was implement ship how the “fair with no clear idea of best was left township concept. require To to revise its ordinance share” imputes good yet imprecise standards measure meet reasonable may township exist. It difficult to believe that a faith systematically frame, all has excluded but the affluent would actively encourage administer, will the an ordinance that much less entry of others. Rutgers-C [Mallach, supra, amden L. J. emphasis supplied] 664; omitted, at footnotes of a formula foolproof .precision, adoption While absolute some reasonable approx- nor necessary possible, is neither es- fair is share municipality’s obligation imation of the efforts. evaluation of remedial for a proper sential a is local ordinance Ordinarily challenge of the mu initial determination an exclusionary requires during “fair needs share” of nicipality’s regional as in However, cases, in some such of the trial. the course case, the of the exclusionary impact challenged the instant need to the is so that there is no patent quantify ordinance Laurel entering under Mt. prior municipal obligation Tp., Oakwood at Madison v. Madison in case. the judgment Thus, 128 N. J. where no such deter Super. 447. supra, made, will to fix and mination has been trial court have the the during stage remedial specify municipal obligation case. Laurel, in noted Mt. proximate quantification As identifica- (1) the municipal obligation generally requires tion relevant determination region; (2) (3) region needs present prospective municipalities allocation of these needs various among the Laurel, 67 N. supra, (Pashman, Mt. at 215 region. J., concurring). from

While the trial court should solicit recommendations from the parties particularly municipality’s plan- ul- delineation of the authority, appropriate region ning Mt. for the As timately recognized court. we question Laurel, will neces- of the relevant composition “region” from case to case and no “hard and fast rule” sarily vary can answer instance.20 provide appropriate every example, case, 20 For in both Mt. Laurel and instant the court rejected properly suggestion municipality’s appropriate Laurel, Mt. 67 J. supra, N. at 189. Among the geographic units experts have are: the suggested a mul county, unit, ticounty the Standard Area Metropolitan Statistical utilized Federal by the Office in of Management Budget and the United an or calculating Census, States “urbanized” nonrural subregion relevant Standard Metropolitan Statistical Area (such as that utilized in Gautreaux v. Chi cago Housing Authority, supra, 304 F. Supp. 737-738); at an area coextensive jurisdiction of a the regional plan exists; if ning authority, one the area within which most work; of the community journey residents the and “hous market” ing area the employed by U. S. Department Housing Urban Development discussed the S. U. Gautreaux, in v. Supreme Court Hills supra, 425 S.U. 298-301, 96 Ct. 1546-47, at S. 47 at L. Ed. at 2d 804-05.

In which of these alternate determining definitions a region is appropriate case, in particular court should the consider and weigh the factors: low following where (1) and moderate cost housing is currently (2) being sought, where is development likely to in take foreseeable place the future, where the (3) current municipality’s and prospective residents work are likely to work, (4) whether there exists a regional planning agency, whether the location (5) “region” community county was within which lies. Mt. the the Laurel, supra, 189-190; v. Madison 67 N. J. at Oakwood at Madison Tp., supra, 441; Super. J. ante 128 N. at at 537-544. Central proximity Laurel to this determination in Mt. was the of Mount Township high concentrations of lower Laurel income families adjacent County. matter, In Camden the instant that fact 50% Township employed current residents of Madison are outside county township densely has close ties the more populated metropolitan region, weighed York areas New heavily undermining County defendant’s contention that Middlesex appropriate region. hand, was the On other is conceivable county highly in cases where the contains urbanized core and municipality employed most of the residents are within the county, appropriate region county. could be coextensive with the See, .g., Tp., e Middle Associates v. Union Holmdel Dkt. No. L-1149- (Law 1975) (unreported), P. 72 Div. W. discussed a recent Hose, supra, L. article Professor 5 Real Estate J. at 73. facilities and makes transportation prospective employment whether likely, (6) suggested “region”

commutation sufficiently and diverse to solu large permit feasible 540; tion See ante at housing problem. generally to the Laurel, N. J., Mt. J. at 215 n. 16 con supra, (Pashman, 8, 6 J. ; Rubinowitz, supra note Mich. L. curring) Reform 219-220; 652-655; Rubinowitz, Rose, note supra supra at at 717-720; J. & 17, 6 L. Davidoff David Rutgers-Camden Land off, Suburbs: Toward Use “Opening Inclusionary Syracuse L. Controls,” (1971); Rev. Bisgaier, supra 2-3; L. Lindbloom, J. at Cols. “De note Need’: A ‘Regional Ap ‘Pair Share’ Planner’s fining L. Laurel,” 98 N. J. J. 633 Mount (1975). plication actually the trial court identify order I would the defendant includes municipality. region that, no hand, concludes generally, other on the majority, area will be authorita- necessarily the specific geographical in this the trial court should look and that case region, tive area of which Madison Township market housing to the future the town- which the population and from a part of exclusionary zoning. in the absence drawn would be ship 543-544. Unless the trial court 537, 538, ante at See with some region degree spe- appropriate determines arrive at esti- any meaningful unable to will be cificity, it needs “fair or defendant’s housing region’s mate of the formulation majority’s approx- Although share.” relevant to the factors which case is this region imate standard neces- listed, it fails to definitive provide have I region. identify appropriate sary to identified, court has been region relevant Once the region. need for the housing determine must then from the local should be solicited information this Again, consultants, other in the parties board, its planning by the necessary, impartial experts appointed if and, case need context, the regional present In the court. units number of new housing as “the defined may be income low and moderate each necessary provide be would 593 decent, in the with' family standard unit region Rubinowitz, financial family.” within the means of 8, 6 Mich. J. supra note L. at 656. also M. See Reform Brooks, Lower Income The Planner’s Housing; Response 14 Officials (Am. Soc’y Planning 1972); supra Bisgaier, L. 2, 99 N. J. note J. at 738. the trial fix the num-

Finally, court must and specify of low moderate ber cost units which shall dwelling constitute the fair share of the hous- municipality’s regional above, need. be ing As noted need not approximation nor one mathematically precise rely exclusively any upon However, formula particular spe- must technique. cific benchmark enough provide workable guide formulation measurement remedial efforts. discussion

Ample pertinent factors both exists the literature21 and al- operative fair currently share Response; 661; Rubinowitz, N. large. Though attractively L. Ann. 3 town’s low and moderate income town, Be the Solution to gation been verse given serious deconcentration the gested will Rose, supra, 66.13(o) is subvert (1975) ; Rose, supra ^[21] See, In Some wholly inappropriate. J. L. municipality. fail Cols. response proportion or on a should be based on an substantial the experts e to J. (1975 Supp.) ; Bisgaier, 3-5. .g., Brooks, supra, Rubinowitz, goal 633; Kelly, the court allocate low and moderate income (1976) ; satisfy consideration proportionate Real Estate L. to this of suggest of to While supra, degree housing opportunities the preserving Exclusionary the note goal supra “Will shortcoming, Williams, that allocation of the amount of such this criterion of — 17, easy of share 65-84, 219-220; exclusion, Lower note local amenities exclusive equal curing past Rutgers-Camden to population 69; Zoning?” Housing of American Land 8, supra share of new Income apply, some Rose, supra units serves apрlication emphasis Mich. J. L. — note units Market Evaluation Model discrimination, where there equal commentators to Housing: by ignoring Real to Lindbloom, region’s housing that currently on further therefore to the ratio of the 99 N. J. L. J. at note dwelling of these formulae Estate Planning this factor could of Reform The Planner's 14, the has units the the amount located in supra, have and hence L. should 12 Urban units region 709-717; L. at 658- already goal Lato § J. 373 J. at obli- sug- per in- be at of include, are factors but not neces- These

location programs.22 vacant, the de- to: the of percentage region’s limited sarily this whether within municipality; land the velopable lying prox- of its terms land is suitable for low housing cost ser- and other utilities, facilities imity transportation vices; it accessible to available prospective whether is fiscally municipality and environ- of is vacant land housing. mentally for low and moderate cost suitable commentators, Rose, a “take such as Professor advocate Some approach.which units allocate care of their own” would new subregions greatest for such hous- to those is the need where there Rose, supra Rose, 78; ing. supra, note Real L. J. Estate at politically approach (1976). at- Ann. Urban L. this While municipality’s tractive, upon will fall short of sole reliance it obligation probably Mt. Laurel would under since allocate highly largest urbanized areas number units most high perpetuate of low and mod- would therefore concentration erate income families in those areas. catalogued study suggests all of these criteria can into One municipal satisfy categories: following its own need to three upon housing, cost based the number for low and moderate demand community; units within the and overcrowded of substandard percentage popula disperse regional urban need to certain its areas; among outlying local need consider and the tion suburban ability community’s units low and mod to absorb additional approach, regional housing. allocation cost Under erate upon a combination be based of the first need could then subject Brooks, factors, set of of course to the last two criteria. Response Housing: 20-21, supra; The Planner’s Lower Income Rubinowitz, supra also note 6 Mich. J. L. See 37-88. Reform at 661. 22 See, Valley (Dayton, Ohio) Regional g., Planning e. Miami Housing Valley Comm’n, Region (July 1970) ; the Miami Plan for C.) Metropolitan Washington (D. Gov’ts, Council Fair Hous Share 1972) ; Metropolitan ing (Jan. Council Formula the Twin Cities Program Housing: Plan, (Minneapolis-St. Paul, Minn.), Policy Area Planning (1 Cty. Dep’t 973) ; San Bernardino Gov’t Subsidized Housing Valley Model Distribution Portion San Bernardino Sacramento, Cty., 1972) ; Calif., Regional Planning (Jan. Area Calif. Comm’n, Approach An Low Distribution and Moderate- Housing, Report (Aug. 1972) ; A Income Technical and Erber & Housing Planning: Prior, Bibliography Allocation An Annotated (Council Exchange Planning Bibliography #547, Librarians 1974). employment opportunities; the town’s population density relative to that in the region whether large; or not the town’s proportion of lower income families exceeds that in region as whole and extent to which the munici pality has violated Mt. Laurel heretofore precepts by low excluding Naturally, moderate income persons. the relevance and weight accorded each factors of these will from vary case to case. For a small example, region where location of jobs concentrated, are still em relatively in a not be ployment opportunities may large as critical employment. suburbanization of See region substantial Rubinowitz, 8, 6 Mich. J. at 666 n. supra note L. Reform 133. has Similarly, already in cases where exclusionary zoning entrenched, well an become allocation which overem plan satisfaction local or phasizes needs immediate availability will reward those towns job opportunities have been exclusionary most and hence subvert would fundamental objective indiscretions. redressing past See note 21 In will supra. the final be task analysis, it of the trial court to decide which of the factors above should weighed be most submitted heavily figures evaluating municipality case, the other in the parties finally “fair share” fixing figure. Remedial Devices

D. Imposition of an if the fails to submit Obviously, municipality adequate in a timely manner, remedial or plan having if done so it a court will re faithfully plan, fails execute that measures, remedial either to issue stronger upon ap quired own one of motion. parties upon its In plication or recalcitrance, addressing problem municipal neglect a court the services and assistance- of an may utilize in Laurel, consultant. See Mt. supra, dependent planning J., J.N. at 217 Pascack Ass’n (Pashman, concurring); & Mayor Ltd. v. Council Washington Tp., supra, 131 N. J. at 201. Swann v. Super. Charlotte-Mecklenburg Cf. Educ., 1272, Ct. 28 supra, 8, Bd. 402 U. at 91 S. at S. Hartman, 562;

L. 9 Urban L. supra 8, 2d at note Ann. Ed. Moskowitz, in 173; “How to Experts Effectively Use at L. 3 Real Estate J. Proceedings,” Land Regulation sug In a to solicit addition, court should continue (1975). from in the case.- Ulti parties and comments the gestions to adopt the the court responsibility it is mately, though, will (so far reasonably practical) provide measures as objectives effective relief for and plaintiffs satisfy listed a affirmative supra. in. Part III is list of (A) Following which can vol by be either the defendant imposed, remedies or, if in by the town defaults its untarily responsibility, is Nor not court. The list intended to be exhaustive. should Rather, be measure the list is every adopted every case. of what available to the devices be simply suggestive might to the remedial framing court order. municipality Plaintiffs Relief to Corporate Specific Award (1) ordinance, to challenges municipal zoning Frequently, ease, or (either initiated are singly in the instant as such low moderate income plaintiffs) with in cooperation resi- which seeks to build a developer land aby corporate Often, the local contrary ordinance. to development dential mu- will contend that corporate plaintiff here, the unreasonable, con- arbitrary scheme nicipal its I agree property.23 with respect fiscatory variety ip procedural contexts. Often it issue can arise 23 This raised, plaintiff’s appeal from an administrative denial of on will use, pursuant special exception application to tbe a desired 40:55-39(b), (d), procedures N. S. A. J. which have variance Municipal Law, 1975, by 291, superseded Land L. c. Use been Laurel, supra, Mt. 57, See 67 N. J. A. 40 :55D-70. S. § attempt Sometimes, developer will circumvent 12. 181 n. exclusionary attacking provision process di administrative developer occasions, rectly, will raise the in a issue On other requisite compel intransigent officials local to issue the build suit project. health, permits ing, sewer, or subdivision for its water In sought corporate plain though, case, relief the ultimate each — permission build the kind of residential de tiff is the same velopment desired. Madison, Inc. ease Oakwood at that majority instant contention, Beren have not sustained Corporation In particu on that basis. and relief should he granted not they lar, have failed to demonstrate these plaintiffs it is return on thfeir if property will be denied a reasonable landown It is well established to its use. put assigned their utilization of profitable ers are entitled to the most & 63 N. J. Arrow Manor v. West Orange, land. Bow Bd. Tp. Farm Middletown Close v. Cobble (1973); N. J. Adjustment, (1952). available to

Nevertheless, corporate relief he specific may the function of on it not another While litigants ground. ordinances, building permits courts to rewrite issue zoning over zoning or otherwise interfere with control municipal & West 63 Orange, supra, matters Arrow Manor v. (Bow of mu- J. at where there has an 343), adjudication been the court nicipal may (and, abuse zoning power, necessary provide some to the extent to cases, intervene must) context, granting specific effective relief. In the present 23 supra) note relief corporate plaintiff (see sought by functions. will serve several important zon an noted, exclusionary even after First, as previously shrewd, invalidated, intransigent a com has been ing provision a in such manner as rezone may plaintiff’s property munity Towns also may require lengthy use. to frustrate the proposed plain withhold from the corporate or procedures approval one with a As court to necessary proceed project. tiff permits municipality noted, “effectively such actions grant has meaning from obtaining a to power any challenger prevent ful attack on a ordinance.” relief after a successful Bd., A. 2d Zoning Hearing supra, v. Warwick Casey Tp. relief, a the corporate specific at 468. By affording plaintiff harass form of effectively this prevent remedial order will for will the need further, litigation ment and obviate Line Co. Pipe involved. See Sinclair to the respect property Park, N. E. Ill. infra, v. Richton 2d Village of in- will an Moreover, important at 411. it furnish 2d 406 interest. public to in the centive suits developers bring own has “unless the immediate As our Court recognized, to can to there be no incentive litigant hope gain, [will] which, in the or challenge existing practices prior holdings Traver, v. interest, Goldberg to be public ought reviewed." N. J. 347 (1968). funda advances the

Second, directly remedial device low actual construction objective mental promoting land the corporate housing. By allowing moderate income further delay with his without proceed project owner of accomplishing one of fastest ways offers and surest L. 7 Seton Hall & Mytelka supra, this objective. Mytelka, Rev. at 26. under permit of a variance

Finally, building issuance also the interests protect these circumstances serves corporate because it assures that the municipality plain- one tiff will undertake the use no other. As proposed notos: court [invalidating zoning provision] induced [A] . . . decree which was depicted highly proposed use in favorable evidence

light property use, he would owner to that restrict property purpose. might entirely for an thereafter use the different appropriate opinion, diffi- In avoid it is the court these our by framing before culties its decree with reference record may guarantee [T]he . . awarded the owner will . relief proceed litigation with allowed that use without further proceed he not will different use. Park, Pipe Village v. Richton [Sinclair Line Co. of infra, 411.] N. at 167 E. 2d considerations, In of these numerous have light courts awarded specific relief to litigants successful corporate Brown, of this F. supra, cases nature. Crow v. 332 at Supp. Lawton, 395; Dailey 269; v. F. City supra, 296 Supp. at of Bd., v. Casey Tp. Hearing Warwick A. 2d supra, 328 Zoning Girsh, 395; 469; at Will Appeal Tp. 263 A. 2d supra, of of Farms, Inc., 453, v. iston Chesterdale 7 Pa. Cmwlth. 300 107, A. Dev. Camp 2d 121-122 Ct. Hill (Comwlth. 1973); Co., Inc. v. Bd. A. Zoning 319 at Adjustment, 2d supra, of

599 Park, v. Fiore 201; City Highland E. supra, 221 N. 2d of Park, at 330: Franklin v. Franklin Village 19 Ill. 2d of 381, 167 N. E. 2d 195 v. 1960); Kavanewsky Ct. (Sup. Bd. Conn. 397, 279 A. Zoning Appeals, 567, 160 571 2d of Ass’n, Pascack Ltd. v. & Council Mayor Ct. 1971); (Sup. of N. Washington Tp., supra, Super. at Bru 207-208; 131 netti & v. Council Madison Mayor N. J. Tp., 130 Super. of Line Sinclair Co. v. Vil 164, 169 Div. Pipe 1974). (Law Cf. Park, Richton Ill. lage N. E. 370, 19 2d 406, 167 2d 411 of Skokie, First Nat’l Bank v. Ct. Village of (Sup. 1960); 342 N. E. supra, v. Duggan 451; 2d at County Cook, 17 Ill. App. 253, 3d 307 2d 782 E. Ct. (App. of 60 Ill. modified on other 107, 324 N. E. 1974), grounds, 2d 2d 406 Ct. (Sup. 1975).24 if

Naturally, successful were to corporate receive litigants a building permit or other a matter relief specific judicial rejected jurisdictions precedents 24 Admittedly, these some have that, upon a find rule to the traditional even adhere and continue to compel municipal may invalidity, ing authorities courts of Supervisors See, g., particular Bd. Fair e. fashion. in a zone of of (Sup. 434, 48, Allman, Cty. 2d 211 S. E. Ct. Va. v. fax 1975), 940, 300, Ed. 2d 272 S. S. Ct. L. den. 423 U. cert. Randall, 506, ; City E. 2d (1976) 215 Va. 211 S. Richmond v. Weiss, supra, City (Sup. 1975); 56, Beach v. Miami Ct. 61 n. 3 ostensibly However, courts, though even these 2d at 837. 217 So. adhering rule, begun have to afford indirect relief to the traditional Supervisors Cty. plaintiffs. corporate v. In Bd. to Allman, of Fairfax example, Supreme Virginia ordered the Court refusing supervisors couty re its action to “reconsider board property, do and further stated that failure to so zone” defendant’s judicial subsequent Id. 211 S. E. 2d intervention. would lead to Weiss, City Similarly, Beach v. court Miami at 55-56. essentially invalidating classification lower that after held any enjoin more classification restrictive courts could enforcement requested plaintiff. any event, In because than that way planning process in which and the effective realities realities, precedents I find device deals with these remedial compelling. generally, Mytelka support technique See of this to be Hartman, supra supra, 26-29; Mytelka, Seton Hall L. Rev. at & 162-166; Krasnowiechi, supra L. Ann. note note 9 Urban at 1059-1065, Pa. L. Rev. 120 U. 1070-1083. 600 be right, community wholly against the would unprotected

“what in unregulated essence the development would be Ass’n, Ltd. v. the Pascack plaintiffs property.” their & Super. N. J. supra, Council 131 Mayor Washington Tp., at the that Therefore, required 207. have most courts requirements other municipal all corporate plaintiff satisfy codes, health regulations utility, building (such before controls) environmental reviews and subdivision See, Tp. v. Warwick permit g., Casey will issue.25 e. building City v. Bd., 469; Dailey A. 328 2d Zoning Hearing supra, Co., Lawton, Hill Dev. 269; F. at Camp 296 Supp. supra, 201; A. at 2d Adjustment, supra, Inc. v. Bd. Zoning Div. 433, 437 v. N. J. Super. (App. Schere Freehold Tp., U. S. den. 410 cert. certif. den. J. 69 1972), (1972), However, it 1374, (1973). 93 S. Ct. 35 L. Ed. 2d use these may should be that emphasized municipalities develop to frustrate requirements procedures additional occurs, the tri'al efforts. Where this ment remedial impede an independent court either appoint should intervene and or issue an the planning developer’s plans to review expert the should plan to show why order requiring municipality and bad clearly arbitrary not be In the event of approved. town, could faith tactics on the court part simply See, to necessary permits. order issue the municipality Brown, 395; e. F. & Mytelka Crow v. g., supra, Supp. at 31; Rubinowitz, 7 Seton Hall L. Rev. at supra, Mytelka, note 6 Mich. J. L. at 643-647. Under these supra Reform specific majority agree regard, relief that with I 25 In “automatic,” discretion but rather should rest should not be relief, Obviously, prior granting such court. Ante 551. proposed use is suit whether determine would have to the court aspects area, remedial order other with able consistent objectives. agree I generally remedial cannot furtherance ordinarily however, majority, relief will “such salutary contrary, of this form due features On the rare.” ordinarily granted long relief, so as the will be I envision proposed found be “suitable." use is circumstances, with requiring developer comply State e. safety g., standards State Uniform Con- building (see, Act, L. c. A. struction Code N. J. S. 52:27D-119 et interests'. be sufficient to valid local seq.) might protect with of Low

(2) Enjoin Interference Construction and Moderate Income Housing Frequently, which wishes to construct corporate litigant a residential development will initiate a suit challenging municipal ordinance even zoning designed before has or project acquired case, land. Under such a a trial court be unable to would a successful grant .litigant type relief I specific have described.

Therefore, even after an ordinance has been exclusionary aside, set an municipality may be able to frustrate unyielding construction of plans impede developer’s housing for low and moderate income people. The multiplicity subdivision, local controls and health (e..g., building codes) and the presence reviewing agencies g., (e. plan- numerous boards, site ning and environmental review plan commissions and building, health, water and sewer authorities) increase potential administrative Unwarranted delay. in turn, delays, can cause problems for the in- developers by their costs to the creasing their point projects become financially unfeasible. in

To avoid these cases where relief is problems specific municipal could unwarranted yet' practical, enjoin courts to con plaintiff interference with efforts by corporate Brown, v. instance, For in Crow needed housing. struct ease, the U. S. a federal discrimination supra, en an order District Court included its remedial decree “from interfering any way all officials county joining build completion” apartment the construction and several Id. for low and moderate income residents. earmarked ings F. 395. Where court necessary appropriate, Supp. issue of may government further and an order enjoining go ex to take affirmative actions. An ficials from certain failing Kennedy remedial device example appears cellent Lackawanna, Park Homes Ass’n v. another supra, There, ordered, inter alia: case. the court discrimination shall take whatever action That . . defendants 2. . immediate^ adequate sewage necessary provide service to the K.P.H.A. litigant] corporate subdivision. [the City’s enjoined using any munici- 4. defendants be from That prevent pal powers regarding interfere with land use or Kennedy of Park construction Subdivision. necessary steps affirmatively whatever are 5. That defendants take begin Kennedy construction. allow the Park Subdivision to Supp. 697.] [318 at F. Procedures or “Override” “Set-Aside” Establish (3) of and Moderate Low to Facilitate Construction Income Housing or “override” “set-aside”

Establishment of a so-called unnecessary another means procedure preventing provides lowof construction delays administrative stimulating util- This technique moderately housing. may priced cost and moderate whether low developers ized or the suit. litigants are involved as actually housing in the Zoning This is embodied Massachusetts procedure Law, 1969, c. Mass. ch. 774, L. Gen. 40B Laws, Appeal §§ mod This of low and 20-23.26 act allows certain developers use income local land bypass regulations erate housing in- such or make it prohibit economically Mahoney Winchester, Appeals 228, v. Bd. 366 26 See Mass. 1974), appeal 606, (Sup. E. Jud. Ct. dismissed 316 N. 2d 608-609 822, Ap 903, (1975) ; 2d Ct. 42 L. Ed. Bd. U. S. 95 S. peals Housing Appeals Comm., 339, Hanover v. 363 Mass. 1973) constitutionality (Sup. upholding E. 2d 393 Jud. Ct. Rutgers-Camden Note, supra law. See also L. note 743-746; Rubinowitz, supra at note 6 Mich. J. L. at Reform 644-645. law, cor- feasible. Under the any public agency, nonprofit or dividend poration organization27 limited proposes to build low or moderаte income subsidized may sub- bousing mit to the local board of “a appeals application single in lieu of as to build such housing separate applications Laws, local boards.” Mass. Gen. applicable eh. [other] 4-0B, 21. The board of then notifies all other local appeals § boards and agencies schedules a on the hearing applica- tion. If the is application developer receives approved, comprehensive permit lieu of all other required permits Ibid. approvals. This procedure prevents unnecessary de- lays faith, and bad dilatory tactics.

If, however, the local board denies an appeals applica tion for a comprehensive permit, the developer appeal may to the state Appeals Committee, Housing a division of the Massachusetts Department Affairs. Id. Community 22. § For purposes of such appeals, statute establishes a quota of low and moderate income as the legislative deter mination of what is “consistent with local needs.” Id. at 20. § Where the Housing Appeals Committee concludes that a local decision denying developer’s application unreasonable or is inconsistent with “local needs” act), (as by defined the the state agency is empowered to the vacate decision of the local board and direct the board to issue a comprehensive to permit the applicant. Id. at In 23. this the way, statute § provides for state review of local decisions and per mits the state to override decisions which are un myopic, reasonable or in with conflict broader state and regional an goals. For analogous A statutory procedure, see LI Model Land Dev. Code 7—501 to Draft, 7—503 (Proposed Official §§ 1975). organization public agency A “limited dividend” is not but is

eligible federal or state subsidies. While the Massa application housing, chusetts law limited in its to subsidized there why may principles applied by is no reason its not be a trial court housing. to all forms of and low moderate income

While the Massachusetts law is a product legislative initiative, its to trial courts principles are available equally above, for the remedial judicial relief. As framing noted fix decrees ordinarily defendant-municipal- specify “fair This ity’s desig- need. share” regional is, es- nation to “quotas” many respects, comparable Laws, Gen. Mass. tablished the Massachusetts legislation. court could 40B, Ch. the trial Under this approach, 20. § number of low required until such time as provide that, constructed, have units been moderate income housing the court- is consistent with developer project whose proposed court, to or its ordered could plan apply allocation aside all designee, regulations for an order local setting its This proce- which interfere with unreasonably project. dure low and would be available all' developers to mod- liti- erately were priced, housing they whether regardless (cid:127) plan. the law suit which remedial gants produced One variation of this would the developer allow approach to to the trial court for a “set-aside” or “override” apply only order to after had made a faith effort comply good all obtain regulations necessary approvals. local Thus, relief, before would have the trial court granting the necessary had made determine -whether applicant would effort,” faith “good' developer’s project whether plan in.fact remedial objectives have-furthered the had withheld unreasonably whether the municipality (cid:127) (cid:127) approval the project. would of this' second, approach A variation pptent more directly designated a-single, developer apply permit or, uncooperative, if municipal proved board board “com- experts to a panel planning court appointed one under the similar to the available permit” prehensive he reviewed law. A could application Massachusetts denied imposed procedural the trial court originally 221-222; Ru- Rubinowitz, supra, at See remedy. generally 662-665; 8, 6 J. L. at binowitz, Mich. note supra Reform 741-744; L. 4, 6 J. at Rote, Rutgers-Camden note supra 605 Mallach, 6 supra, 670; L. J. & Rutgers-Camden at Mytelka 7 Seton Hall L. Rev. Mytelka, supra, at 7-12.

Imposition of either re- of these a devices part medial order will of low facilitate construction and mod- erate Moreover, cost housing. its abbreviation through the approval process, in- will an approach provide centive to developers to undertake toward projects geared meeting needs lower housing ineome families. Declare that Heeds

(4) Constitute Regional Housing Reason” for “Special Use Variances Granting related, A technique fostering but different procedurally of low development moderately priced and would housing be to have trial utilize a developer’s court application for a use variance as of its plan. remedial part

N. J. S. A. Municipal 40:55-39(d), superseded Law, 291, L. 1975, Land Use c. requires 5728 the issuance § of a use variance where the show applicant can that “special reasons” exist for variance, it “can granting and granted without detriment public good substantial will intent and substantially impair purpose the zone Kohl v. Mayor ordinance.” plan Lawn, Council Fair N. Kunzler 50 J. 276 (1967); v. N. Hoffman, J. Wickatunk Village, (1966); Marlboro, Inc. v. N. Tp. Super. Div. (Ch. Anderson, 1972). generally Zoning See American Law of ch. 14 (1968); not clear whether Although regional needs lower income people currently are regarded as a reason” variance, “special use granting compare, Brunetti v. & g., Mayor e. Council Madison Tp., supra, Closter, 130 N. J. Super. 164 with v. Nigito Borough of suggested may similar 28 It has been results be attained “special declaring excep income low moderate to be 40:55-39(b). Mytelka Mytelka, tion” use under J. S. A. & supra, Hall L. 7 Seton Rev. 11. 606 be- currently issue is pending N. this Super. 142 J.

supra, fore this Court. re- that filling find

However, if this Court should even within reason” “speciаl needs is a gional housing not not a would such generally, holding the statute meaning as from this part a trial utilizing procedure court prevent that remedial in a given by finding regional its order case a for needs a “special granting constitute reason” housing for use Such an order a variance. developer’s application soon as for such housing could be vacated as the critical need town and the shows that has its obliga- subsides satisfied under Mt. Laurel. tion identifies Essentially, approach . low and moderate income a or as housing “preferred” “favored” use within region which defendant- municipality lies. De for In exists this approach.

Substantial precedent v. No. J. Englewood Housing Simone Greater 56 N. Corp. chal 428 of the (1970), taxpayer-residents City Englewood of a use which allowed variance validity special lenged a a mul semipublie to nonprofit housing agency construct residential In tifamily project. particular, plaintiffs argued that offered the variance did grounds justify to reasons” under Jus qualify “special legislation. as existing Hall, Court, for upheld tice speaking unequivocally variance in appropriate present languáge context: hold, light public specifically law as matter of in the We policy public here, semi-public land, or, and the law of the provide sanitary safe, to accommodations decent hous ing, replace living to relieve and substandard or furnish conditions minority segments underprivileged population ghetto special adequate outside areas is reason re meet quirement 40:55-39(4) ground A. J. a use variance. N. S. 442.] N. J. at [56

Accord, Tp., v. & Council Madison Mayor supra, Brunetti moderate-income, J.N. at 167-168 (need Super. held be a reason” in “special sup- multifamily housing & Pascack Ass’n Mayor v. Council variance); port Washington 131 N. J. at 197 Tp., supra, Super. (same). fman, Kunzler N. v. J. 277 (private hos (1966) Hof Cf. for the Wickatunk emotionally disturbed); Village, pital Inc. v. Marlboro Tp., Super. (Ch. Div. 1972) for treatment mobile home plant park). Contra (sewage Closter, v. N. J. 1 Nigito Borough supra, 142 Super. Co., Jenpet Realty income (moderate garden apartments); Inc., Ardlin, v. N. 79, Inc. 112 84-85 Div. Super. (App. also apartment See 1970) (small-garden type complex).29 ar unreported cases reviewed Professor Rose in his ticle, from Laurel,” “The Trickle Before Mount Deluge Real 5 L. J. supra, 69, Estate and the Newark Star-Ledger, 14, 1976, 1-3, cols. which notes that July developers on the “in are use variance their increasingly relying long- battles to low and running build moderate-income housing in the State’s suburban communities.”

A similar was Bristow approach v. Wood employed haven, 35 Mich. 192 N. App. 205, W. 2d (Ct. App. . There the held 1971) court total municipality’s ban on trailer was invalid with parks plaintiff’s respect trial court, it held property. Affirming recognized bearing real, uses land Certain come have to be as a substantial, relationship public health, and beneficial to the safety, preferred and welfare so as to be afforded a or status. To favored appears concept presumed restrict such uses to conflict with the validity prohibiting legitimate of an ordinance such otherwise an Therefore, proponent situations, . use . . in such limited of a 29 Litigants oppose approach argued who this have that if the need income, multifamily housing “special moderate held to a be justifying variance, zoning of a reason” scheme issuance use then entire municipality Nonetheless, of the will break down. as the pointed Mayor court out in Brunetti v. Tp., & Council Madison necessarily applications not this is true since a variance will still subject negative proposed be to the criteria that use must be public good without substantial detriment to the and must sub stantially impair purpose zoning the intent and ordinance. Id., Sniper, at 168. N. J. prohibited may prima preferred protected or but establish a use facie upon municipality thereby casting going the burden for- case prohibition recognized justify as use heretofore its a

ward public beneficial welfare. emphasis 324, 325; supplied.] [192 W. 2d at v. Heights, 391 Mich. Kropf Sterling While re N. W. Court (1974), Michigan Supreme 2d statement in Bristow that certain uses should jected the favored, it stated: preferred municipality totally face, a excludes from On its an ordinance recognized by laws of State a use the Constitution or other strong legitimate it discrimina- also carries with taint unlawful equal protection a denial of the law as to the excluded tion and use. [215 185] N. W. 2d at court’s statement lower Accordingly, accepted a 'consti- a local ordinance of "total- prohibition — will amount establishment use to tutionally’ recognized on mu- burden the heavy placing case prima ‍‌‌​‌​​‌​​‌‌‌​‌‌​​​​‌​​​‌‌‌‌‌​‌‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌‍fade 2d N. W. local legislation.” the justify to nicipality [215 at 185]. remedy may be drawn from for

Another this analogy Model De Land Law Institute’s proposed the American Model respect While the Code continues to Code. velopment matters, use it does provide in most land local prerogatives substantially impli in certain areas supervision for state area concerns welfare. One such the or regional state cating issues likely which ''to present are use developments land “develop and so-called significance” or regional of state include, inter uses benefit” which of regional ments alia> for per agencies “housing by governmental sponsored ALI Model Land Dev. income.” moderate of low and sons ap Where Draft, 1975). Official 7-301 (Proposed Code § land a local are filed with developments such plications local Model Code states that the agency, development consideration to benefit “shall not restrict its agency detriment within the jurisdiction, but shall all consider relevant and material evidence offered to show the impact of the on development areas.” Id. at 7-402. surrounding § It also an allows unsuccessful to applicant appeal Land State Adjudicatory Board which is empowered override local decisions cases. Id. 7- appropriate at §§ 501 to 7-504. Mirroring concepts “spеciál reason” use” “preferred discussed above, the of the drafters Model Code justify special treatment afforded these uses by noting they provide “typically to an benefits area beyond of a boundaries single local government.” Id. 7-301, Comment. Note, See generally supra note § 64, Rutgers-Camden L. J. at 746-754. in the

(5) Specific Changes Zoning Order Ordinance of a the invalidation a trial Pollowing zoning regulation, allows to correct ordinarily municipality court deficiencies ordinance within a amending specified its period In court way, permits of time. this the town to retain this However, control over stage rezoning process. revised ordinance an where the continues charac- exclusionary fails comport ter otherwise of Mt. principles Laurel, trial court should begin specify ways which must be modified. ordinance case, instant has majority

In the directed the trial undertake task the town to ordering adopt court to minima: a revised ordinance shall (a) single-family dwellings very areas for allocate substantial on substantially enlarge lots; (b) dwellings tbe areas small on lots; substantially enlarge (c) moderate sized the AF district or enlarged multi-family zones; (d) HP, create other reduce the R-80 necessary foregoing .; zones to the to effect B.-40 extent and . . (e) modify AF restrictions zones and PUD . . areas . discourage apartments the construction which more than two modify regulations (f) bedrooms; the PUD to eliminate the undue requirements specified cost-generating above; (g) generally and cost-generating- and reduce undue eliminate restrictions in zones housing the achievement of lower allocated to income . [Ante . . at 553] with detailed instructions

I in substantial accord these am them to under the facts fully justified believe have also add Court only might case. I would that the and moderate “overzone” for low municipality directed to either create ante at cost [see 518-520] a per- mobile homes as zone or allow home park mobile in other residential districts. use missible obvious, note, risk of stating I at the In this regard, most feasible homes one provide mobile furnishing housing available means of readily most income and moderate to low elderly, affordable is one or two children. young couples families and to impor is particularly source This additional con preclude conditions when, now, largely economic tant generally See housing. forms of low cost of other struction Prob in America: Housing & Montgomery, Mandelker R. D. Rubinowitz, supra Perspectives (1973); lems and 14; Bris L. 3 & 630 n. Mich. J. at n. 8, 6 note Reform Woodhaven, N. W. 2d 327- City supra, tow v. Home Parks Mobile Homes and Mobile 328; Sheperd’s, (1975). &3-8 passim Other of De- Forms Approval Enjoin Municipal

(6) velopment — moratorium device of a imposition

This remedial other within development municipality on building steps as the has taken municipality pro until such time — fair share need regional housing vide for its rem most extreme and most effective possibly one of the While it should be used this rem sparingly, available. edies an ideal form of relief in judicial cer provide edy might already Modified versions this device cases. have tain commentators and some employed by suggested been Lackawanna, Park Homes v. Kennedy In courts. Ass’n S. U. District Court included in example, supra, order decree its an enjoined building permits issuing any That from defendants for construction the second and third wards which will contribute sewage municipal sanitary system Kennedy additional to the until (a housing project)

Park Subdivision low and moderate income has granted permission tap system by ap- been into the sewer propriate authority. Supp.

[318 F. 698.] at 8, 6 Mich. J. L. See note Rubinowitz, supra 6-61; at Reform 211-212. Rubinowitz, at supra appears

Another example technique the Amer- ican Law Model Land proposed Institute’s Development of that code expressly Code. Section 7-305 provides any no local land use shall agency approve proposed de- will more create than new velopment jobs, agency unless the also finds that (1) adequate reasonably prospective accessible employees jurisdiction is available within or without government local .... If under appropriate circumstances, these or like pro- could be visions incorporated the trial into final court its decree. Order

(7) to Provide Bonuses Municipality Density Other Incentives Lower Income Building

Housing As in Mt. Laurel noted again the majority today, it is unlikely that substantial amounts low and moderate built, income will be absent some form of govern mental contribution, incentive, concession or because of the high cost of construction and current economic conditions. Laurel, Mt. supra, 67 N. J. at 170 21; n. and 188 n. id. at 207-208 (Pashman, J., ante concurring); at 510-512. Kleven, See also supra, U. C. L. A. L. Rev. at 1452- Mallach, 1453; supra, Rutgers-Camden 660-663, L. 686-687. the object Because of this litigation is not only continued prevent infringement of plaintiffs’ but rights

(cid:127)612 must municipality employ redress past wrongs, also to attainable) (and reasonably necessary whatever are tactics gov some form of If appears these ends. to achieve incentive” is required concession "contribution, ernmental or hous low and moderate income stimulate production must be explored. avenues these ing, See, e. g., bonus.” "density such incentive is the One variation, one N. J. A. Under 40:55-57(b) (2) (3). S. build a number specified permitted is developer density maximum otherwise conventional units above the num for certain zone, including in in return allowed in housing project, low or units its moderately priced ber of build an additional be allowed to might or the developer above the maximum bedroom or efficiency apartment, single return spe in for the construction density, allowable units. The former device number of multibedroom cified in of low and moderate production serves to promote the latter critical directly addresses the come while housing, families. In of lower income general, needs construction of a bonus is to density “encourage purpose in by optional providing of moderately priced in land costs for such in order reduce density creases Md., County, Code ch. 25A — 1 Montgomery . . . housing.” 21 U. C. L. A. at 1444 Eleven, supra, in (1973) quoted been these alreadj' has some indication that n. 35. There needed successfully stimulate production devices can economic of adverse conditions. presence housing, despite Therefore, 1476-1490. where such conditions prevail, Id. at be should comparable incorporated and other incentives these remedial order. trial court’s into Subdivision Municipality Impose Order (8) Inclusionary and Other Oonditions Devices mod- of low and production method fostering Another to condition approval large priced housing erately on agreements subdivisions developments residential affordable lower income certain units percentage will people provided. Such schemes have been already implemented several In parts Montgomery country. County, Maryland, with 50 example, developments more residential units are moderately to include required units priced at least total dwelling comprising 15% number of units in an elusionary project. Similarly, ordinance enacted the Los Council in 1974 Angeles City now requires developers of con multifamily apartments, dominiums or cooperatives with five or more units to include at least low and a income total of low and mod 6% 15% income erate units each For a detailed account project. and other Eleven, these schemes, inclusionary zoning see 21 U. C. L. A. supra, L. Rev. at 1438-1448 & passim. See Rubinowitz, also supra 53-63, 222; Rose, “From the Legis latures: The Mandatory of Percentage Priced Moderately Dwelling Ordinance (MPMPD) Is the Latest Technique Inclusionary Zoning,” Real L. Estate J. 167 (1974).

The and terms conditions these con- programs vary siderably. Some rely on exclusively subsidized for sat- isfaction of their mandatory percentage requirements. Where this is case, the requirement should be set aside if the can developer prove that a faith good effort failed to has uncover necessary government subsidies. Even where the scheme requires provision of privately financed (with units in lieu of price ceilings subsidized it often dwellings), pro- for vides a waiver of this requirement where it would work a hardship upon or developer him a deprive fair and reasonable return on his investment.

In order to facilitate production of low mandatory priced by dwellings reducing the cost of these units, in- many clusionary schemes also provide density bonuses and conditional waivers of other land use cost-generating regu- lations. In addition, inclusionary are gen- schemes erally enforced by simply withholding or approval enjoining construction of until development compliance with the mandatory percentage provision has been assured. Finally, also contain

many provisions guarantee such programs will, be fact, .purchased units or. moderately priced See, e. g., Kle low moderate income families. rented and L. L. Rev. U. C. A. n. 40 and 1448 supra, ven, n. 51. ob- devices are remedial salutary effects these moderately construction only they

vious. Not do promote the problem address they directly but priced housing, deconcentra- through creation suburban slums avoiding Id. at 1448-1460. of low and income housing. tion moderate and addition, construction they quality In foster higher units, low income because better maintenance of workmanship be good maintenance should [t]he incentive developer’s conven- greater units are tied if the subsidized ... adversely marketability units, would be whose sales and rental tional by poor of the subsidized units. maintenance construction affected at 1461-1462. Id. im- an represent reasons, inelusionary provisions these Eor rem- judicial the arsenal useful addition to portant edies.30 remedy noted, though, might entails because this be 30 It public private de degree with both interference considerable velopers, through legislative implemented initiative it would best Nevertheless, only imposed by as a last resort. a court and should be clearly carefully warranted drafted the scheme is where circumstances, principle. objection I see to it no majority regard, reservations the I not have the same In this do majority validity concerning remedial device. The of this has Enterprises, Inc., 235, Supervisors Va. 214 v.

cites Bd. of DeGroff 1973). Supreme (Sup. case, In E. 2d that Court 198 S. 600 Ct. Virginia inclusionary County Virginia zon a Fairfax invalidated authority ing grounds granted ordinance on it exceeded the that enabling an tak act and it constituted unconstitutional just ing compensation. respect Id. S. 2d without 198 E. 602. With at zoning ground, to the first I find that the court’s construction of the excessively Moreover, power be dis to narrow. the court failed to exclusionary tinguish inclusionary impact between ground above, provisions. As to the second cited careful draftsman ship objections assuring any should able avoid to constitutional

615 Order the (9) Government to Municipal Establish a

Local Authority Housing Laurel, In Mt. I stressed that have a clear municipalities to obligation solicit and state encourage and federal housing and, assistance have instances, duty some even may provide low local public income itself through Id., J., N. 211 semipublic programs. 67 J. at (Pashman, will authority Establishment of a local housing concurring). tasks. undertake these undoubtedly help municipality 1974, Act 42 Community Development Housing Law, U. S. A. Authority C. 1401 et Local seq.; Housing §§ Therefore, J. S. A. pre- 55:14A-1 et event that seq. liminary remedial be unsuccessful programs prove fair meeting share municipality’s regional needs, the trial court should consider defendant ordering a local establish housing authority. would be with seek

Initially, charged body actively ing federal and state assistance. Affirmative solicitation quite in the of low because important context income housing under most initiative rests housing subsidy programs local authorities and The U. S. private sponsors. Department Urban administers most Housing Development, which federal on programs, must often the submission rely ap plications to it before may authorize local funding projects. Inaction lack local cooperation by officials Kleven, will effectively dеfeat such programs. generally See 21 C. L. supra, U. A. L. Rev. 10; at n. 1 & n. 1433 1437 Rubinowitz, supra 8, note Mich. 627-630; 6 J. L. at Reform Note, 4, note 6 supra L. Rutgers-Camden J. at nn. 42- Gautreaux, 44; Hills v. S. U. at 96 S. Ct. supra, 47 L. Ed. 2d at 806-807 & n. 19. developers guaranteed fair are and reasonable return on their generally supra, Kleven, investment. See C. L. A. U. L. Rev. at 1490-1528; Note, “Required Housing in Low-Income Residential De velopments Community Challenges Imposed : Constitutional to a Quota,” (1974). L. Rev. Ariz. 616 these and the circum inadequate,

Where even efforts prove municipal stances so justify, court should then order local, low to undertake the housing authority construction See, e. N. J. S. A. 55 :14A-7 g., (b). income housing projects. remedy. resorted to this Several have already federal courts Hamtramck, D. 16 Mich. (E. Garrett v. 335 F. Supp. City of D. (E. 357 F. 927-928 1971), Supp. supplemented Mich. F. 2d 1236 Cir. 1973), (6 rev’d other 503 on grounds 1975) on F. D. Mich. remand 394 1974), Supp. (E. (court at least 430 units construction of ordered low and to black moderate income accommodate residents after were they whom relocate city failed renewal). displaced urban through highway programs Cf. v. Chicago Gautreaux F. Authority, Supp. Housing supra, 830-831; at Organiza Southern Alameda Spanish Speaking tion 1199; v. Union 357 F. at (SASSO) City, supra, Supp. Brown, Crow v. F. As 395-396. one supra, Supp. commentary stated: succeed, housing,’ do not but if other remedies do build ‘Courts governmental agencies to do so. could order

courts 31-32; [Mytelka supra, Mytelka, L. Rev. at cita- Seton Hall & omitted.] tions IV

CONCLUSION case, be recalled it should the instant Returning to Even began. this litigation six since years have elapsed Laurel, defining the Mt. set forth though principles needs, regional obligation provide municipality’s, has been ordinance settled, Township’s are well Madison now Low and its obligation. shown to fall far short meeting from the excluded continue groups moderate income unre- remain constitutional rights township, plaintiffs’ and unvindicated. dressed trial court

Therefore, I the case would remand comprehensive of a imposition expeditious formulation and fix and first should remand, the court remedial order. On of the region’s “fair share” Madison specify Township’s be might requirement lower income needs. This met or one to be an absolute framed terms either quota need not While the court over a number of specified years. particular one any relying upon its conclusion support by careful weighing on a formula, it must base its decision the factors set forth this opinion. requirement, “fair share” of its notification

Upon to submit which within days have 90 municipality shall includes which plan remedial trial court proposed ordinance and to its zoning both amendments suggested is far as pos- (so affirmative achieve designed programs Guide- fair satisfaction of its share sible) timely obligation. ordinance to the local lines amendments concerning proposed here. are set forth above and need not be repeated sub- A on the thus plan shall be held hearing proposed form If in its original mitted. the court adopted (either into be incorporated shall or with modifications), plan or- shall be a final immediate implementation decree and for purposes retain jurisdiction dered. The court shall plan. of this supervising implementation court inadequate, found to If, however, is the plan enter formulate shall, parties, in consultation independent The court may appoint remedial its own plan. Supra, process. in this to assist experts zoning planning zoning to the local In to the amendments at 583. addition include above, properly a plan might ordinance noted such a set- creation authority, of a local housing establishment moderate low and for proposed or override procedure aside bonuses, density provision developments, income housing device deemed any other quotas of subdivision imposition under the circumstances. appropriate out- I have which measures specific

The immediate segrega- class thwart ever to if we are lined are needed re- faith Mere good long neglected. we have too tion which their obligations meet will rezone to that municipalities liance has not worked Madison as well as past. Township, other communities, suburban have demon already clearly strated their reluctance to provide critically Now, needed. less than two after our in Mt. years decision Laurel, communities have their indicated hostility any formal to meet their In plan designed obligation. affirmative the absence of action either members of municipal govern ing courts, bodies or lower must this Court assume the task measures which will exclusionary ensure an end to devising zoning.31

Yet, the Court’s own hesitation in effective reme- ordering dies for exclusionary suggests a lack of commitment to the intent and spirit principles unanimously which we announced in Mt. Laurel. the members of this Although Court all have indicated their staunch of our support decision case, in that adherence to these in im- lies principles plementation of remedial will plan which correct the de- ficiencies result exclusionary This cannot be ac- zoning. in this complished case without the trial court to: ordering the relevant (1) identify region; future determine the needs (2) present of the region; duty zoning any remedy exclusionary 31 The Court’s is not changed by Supreme way the United States Court’s recent decision Arlington Heights Metropolitan Housing Development Corp., v.

- -, 555, (1977). S. L. U. 97 S. Ct. 50 2d 450 Ed. opinion makes clear the Court’s decision there constitutionality plans exclusionary is not concerned with the zone generally governmental but is limited to consideration action racially disproportionate impact. gen which has a ante See at 562. See erally Washington Davis, v. U. S. 96 S. Ct. L. Ed. Supreme (1976); Brest, Court, Term, 2d 597 “The Forward: Principle,” In Defense of the Antidiscrimination 90 Harv. L. Rev. By contrast, analysis (1976). in Mt. Laurel is not limited to equal protection principles requirement also concerns but municipal regulations general conform to the welfare. 67 J.N. important, principles at 174-179. More is not limited to the em predicated expan bodied in the Federal Constitution but on more grounds. sive state constitutionаl 67 N. J. at 174-175. various municipalities allocate these needs among (3) in the region; order. a suitable remedial shape

(4) ex- declaring itself with has Because Court satisfied upon gener- and relying unconstitutional clusionary zoning considerations, I alized notions of “fair share” and regional are taking steps am fearful that short of it has stopped Madison requiring decision today’s needed to implement decisions needs. Unlike meet Township regional unconstitutional, en- devices exclusionary declaring specific multi- to provide forcement of affirmative an obligation judicial vigi- requires an family housing ongoing process measures. lance corrective coupled strong af- of fashioning task Only by taking upon ourselves the firmative relief will we make suburbs judicial exclusionary Only society. to the needs of our democratic responsive evils of such direct and forceful action will the through and the thwarted segregated society economic bigotry barriers of breached. exclusionary zoning permanently in part). part dissenting J. (concurring

Schreiber, for and remedy imple are We now to fashion upon called v. Mt. N.A.A.C.P. Tp. ment our in So. Burl. Cty. decision Laurel, Mt. to as 67 N. J. hereinafter referred 151 (1975), define Laurel. identify At the outset it be well would condemned in Mt. Laurel. wrong ordinance Township’s zoning the Mt. Laurel invalidated income housing. moderate low and which excluded effectively of the exclu- that adoption conceded frankly The Township the de- by was motivated of the ordinance sionary provisions residents, for in- interests of its the fiscal protect sire to income low and moderate numbers of substantial habitation tax which the local rate increase would probably families residents. all the upon municipality’s then thrust would be Jersey’s state affairs is New cause of this The underlying nature, structure, local in which generates essentially tax real assessments. revenues from estate most its fi- the In Mt. Laurel Justice Hall described graphically nancial behind pattern exclusionary zoning: slightest course reason for this the doubt that the There cannot be property keep . and on . . to down local taxes of conduct has been regard policy con- for non-fiscal carried out without was respect people, its or without either within siderations . boundaries. .. regulation derives from policy a fiscal end for use of land This imposed structure, real estate Jersey’s on local has which tax New county government of the municipal and of the cost most municipality’s secondary children. primary and education so, basically, largest, expense fewer the is much The latter and com- children, industrial tax rate. Sizeable the lower school sought eagerly on which lots and homes ratables are mercial they enough, through large required minimum are situate are areas, in order value substantial floor to have minimum lot sizes and Large families produce greater costs. to meet school tax revenues cheaper large buy houses and must live afford to cannot who wanted, definitely drastic so find we accommodations are rental of, multi-family complete prohibition for, or or restrictions bedroom income. lesser for those of other feasible adopted regulation pattern same been has of land use This developing municipality. municipality developing purpose after parochial every solely interest in its own selfish one acts Almost keep people out around itself to those in effect builds wall despite adding favorably base, location tax to the or entities not housing. municipality There kinds or the demand varied intermunicipal planning area land use no or has been regulation, effective 170-171]. lid. Mt. Laurel that a municipality’s The ratio decidendi of is moderate excludes low and effectively ordinance which zoning from within its borders and income families living financial on the impact has been adverse escape enacted con- to the welfare and community contrary general I, Art. New Constitu- par. Jersey invalid. sequently with that reasonably quarrel proposition. tion.1 No one can adoption had not been motivated 1 If ordinance proper purposes, reasons, could be contended that but for fiscal upheld. Compare Arlington validity should be of the ordinance - -, Housing Development Corp., Heights Metropolitan v. U. S. Supreme (1977), where the Court Ct. 50 L. Ed. 2d 450 S. effective to alleviate the evil which remedy an Obviously, causes, root Mt. Laurel is one which strikes its has exposed and srtch as with new commercial revitalization of the cities ratables industrial substantial which would add enterprises tax to the tax New base, Jersey’s local or reformation of structure, wrote, or both, that, as Justice Iiall municipali so ties would “zone for the welfare of people primarily living not for the benefit of Id. at 188 the local tax rate.” (foot note Most omitted). would concede readily legisla ture and not the courts is the to exercise such body proper relief. The Public Act of N. 1975, School Education S. A. et funded, 18A:7A-1 A. J. S. 54A:1-1 seq., et seq., will have some rate, effect on the tax but most local costs, educational public expenses police fire de partments, municipal aid to the poor, expenditures other local related services are still borne local taxes with urban areas having costs in these disproportionately greater Cahill, See Robinson respects. v. 67 N. J. 369-370 (1975) (Pashman, J., concurring part denied, cert. dissenting), 423 U. S. 913, L. Ed. Ct. 2d 141 No (1975). S. party these has proceedings advocated that the judicial remedy be directed toward elimination of the causes. Instead efforts, Laurel, of Mt. following lead have been directed toward the amelioration or elimination of the result, namely modification of the exclusionary provisions of the zoning ordinance.

The judicial remedial guideline Mt. suggested Laurel was that a must bear municipality its “fair share” of low and moderate income in the “region”. Problems in herent in the “fair share” formula “region” have been expressed majority as well as Justice Mountain and need not be repeated. Clearly legislature or an ad ministrative with the agency necessary expertise would un racially discriminatory held that failure establish a motive in re- fusing to rezone for low and moderate income tenants did in- validate ordinance under the Fourteenth Amendment. 622 than the courts be a far

questionably superior position all information and data and reach legitimate receive relevant of “fair and “region”.2 results share” using concepts is not limited to Furthermore, should not and Court The to con solutions within that framework. opportunity struct low or moderate income housing predicated upon or county, projected population growth (municipal regional environmental, area), geological, geographical, ecological Mt. or on other rational bases may satisfy conditions Laurel mandate.3 in Mt. Laurel broad effect language

There is land use regu must its “developing” municipality provide for an variety reasonable opportunity appropriate lations the all may for who housing categories people and choice 67 N. live within boundaries. J. 179. I do desire to its not welfare calls accept generalization. general of all for but within types, necessarily adequate Fanale v. Hasbrouck Heights, any municipality. particular Environmental, N. J. 320 ecological, (1958). geological, regional may or other factors demographic, geographical, of certain types be it two-acre justify housing, exclusion A. i, See N. 40:55D-2 k. It multifamily. c, j, S. noted that welfare general “public should be includes health, morals and welfare safety, by means adequate air, and the avoidance of land and overcrowding light Regional Planning, and A 2 See Division State Statewide Hous Jersey ing (preliminary draft, 1976), Plan New Allocation attempted that court decisions have deal “fair commented with issues, and related but not on uniform basis. Id. shares” at 2. The among study low and moderate allocated income needs using municipal municipalities, capability, factors such as fiscal em developable personal ployment growth, land and vacant Id. income. at 13-15. 3 Judge opinion majority in the Conford Justice Pashman in opinion concurring dissenting recognize flexibility his the need determining “region” share”, then, “fair but even “fair — “region” principle may unduly municipality share” circumscribe a satisfy requirement zoning in its efforts to the constitutional that a general ordinance be consonant welfare. concentration of the undue buildings population; these other considerations related to among the essential common the basic of civilized good, principle society.” San-Lan Builders, Baxendale, Inc. v. 28 N. J. (1958). See Boraas, also Belle Village Terre v. 416 U. S. S. Ct. L. 1536, 39 Ed. 2d (1974). Madison Township’s ordinance, amended, fa- cially exclusionary to the extent delineated the majority It was the opinion. burden to the ex- Township’s justify clusionary provisions of amended a rea- its ordinance on sonable basis such projected as population regional growth, requirements, geological, geographical, environmental ecological considerations. This it has not done. Accordingly, I would remand to permit municipality present evi- dence to justify the extent to which its now ordinance per- mits construction low and moderate income meet the criteria set forth herein or to revise its ordinance in accordance with the minimum in requirements projected Part XIII of-the I majority opinion. also with Part agree XII with relief respect to for the corporate this plaintiffs at time under unusual circumstances of case. Lastly, this I with agree the majority that the trial court erred in not in receiving evidence the environmental depositions. On the remand these should be admitted and additional relevant in evidence connection with that subject matter, if offered by any parties, should be considered.

I concur in remand consistent with the provisions herein. stated J., concurring dissenting. As lawyers,

Mountain, judges, scholars and concerned citizens have quickly come to realize, the decision of the Court in Mount Laurel1 has raised problems defy answer. Some of easy these problems are Burlington 1 The correct name of the case is County Southern Twp. Laurel, N.A.A.C.P. v. Mount J. 151 (1975), cert. denied 423 U. S. Ct. 96 S. L. (1975). Ed. 2d It is commonly simply here and elsewhere referred to as Mount Laurel. upon and commented below. It is the thesis identified individu- this that the solutions these problems, opinion in will be far more speedily ally aggregate, courts. devised than effectively Legislature Laurel Mount a limitation on power. announced the zoning Henceforth, in a municipality,”2 “developing power community so from must not be exercised as to exclude there; must any may who wish to reside land use regulation com- thereby not be so structured that entrance into the will be economic reach of munity beyond any persons, in those the low-and moderate-income As notably groups. lawof and statement of seems principle unexcep- rule are tionable.3 It in its that difficulties implementation immediately encountered. Mount in Laurel laid each opinion upon developing an zon- the State its

municipality obligation exercise as way such its “fair share” ing power provide needs of the lower-and per- moderate-income within the within which sons resident the mu- “region” It now me, was found to lie. seems to it has nicipality many others, come to seem to that neither “fair share” nor can be determined even “region” approximate accuracy case and that neither any given concept provides really aid in resolution of workable tool to this difficult prob- instance, majority lem. For adopts trial court’s of as area “region” which, definition “the from being view available employment of transportation, the pop- drawn, would be township ulation of absent invalidly 537. As soon as one exclusionary zoning” p. seeks to apply is seen that this definition it it rests circular upon reason- phrase municipality” 2 “Developing that is a has now taken on a entirely meaning. precise, Levin, special, See Rose and What if not Municipality” Meaning “Developing Within the Is a Mount of Decision?, (1976). Law Estate Jour. 359 4 Real Laurel idealistic, Utopian quality. For I has an even this 3 The rule would apology. no make A a ing. predicate exclusionary a is zoning finding less than fair municipality is its contributing par- share of ticular needs region. of its So before we can know whether we exclusionary is first must find the region whose it is allegedly needs an making inadequate contribution. But by the definition a foregoing determination a of region implicates zon- prior finding exclusionary Where is one to ing. begin?4

Actually, light the rule announced the majority, it seems no longer necessary define either “region” “fair share.” The opinion very clearly states that a review- henceforth tribunal not a ing need specify particular region fix nor a fair share 498-499, 524, quota. (Pp. 543). a would seem not implicit It also need municipality so. In ma- place do fair share-regional approach, the now a jority postulates attention sub- directing rule to the stance and to bona zoning ordinances efforts fide those use responsible the administration of land plans 499, 500, n. regulation. (Pp. 5). is undoubtedly This very great yet it carries its improvement; par- own ticular weaknesses. this Implicit likelihood of rule ad hoc determinations rather than uniform application a well understood governing principle. Eurthermore, somewhat I fear re- naively, places what is undue perhaps effort, liance faith upon that, the fact good despite if reasons, not laudable such any understandable effort has far thus been its almost conspicuous by total absence. Never- theless, there is better to probably nothing ju- offer as devised alternative. dicially

Quite from uncertain apart efficacy newly rule, there number formulated are a of reasons courts why from area, should abstain ultimate seeking solutions in this should rather urge legislative, but or legislative-adminis- say might “region” prove 4 This is not to that “fair share” entirely concepts part useful and workable of a well-considered regional legislatively-developed zoning. program of are not place equipped In the first courts approach. trative validity a a beyond If court declaration goes for the task. aof or with to the land use respect legislation invalidity body, fairly it invites the certain pros particular municipal re itself to task of undertake the pect being required time, nor Of course it has neither- the the competence zoning. It to enter such an must upon undertaking. the resources for it. experts to do work planning therefore appoint v. Pascack Association Ltd. a course followed in Such was 131 N. J. Twp., Super. and Council Mayor Washington 69 N. 73 (1975). certif. 1974), granted Div. (Law no A weakness inherent is that approach principal aid the exist at the time to guidelines present authoritative trial and the he has judge planning appointed, experts law adhere. Therefore to which the would require they a so will informed land use devised reflect rather the plan a expert judicial application chosen than judgment facts. Eull realization of particular settled principle this is further diminish com likely probability munity acceptance. of the difficulties a court faces in

Many embarking upon such a venture been in an instruc- extremely have discussed law review note: tive determinations,, they required be such will make If courts are appellate only generalities guided by court decisions found * * * court-appointed experts, There ad hoc determinations determining what tracts should zoned for are no clear standards certainly housing needs, consider a court number must for but existing drainage capacity and the cost of of factors. These include patterns sewerage systems, present any required traffic and the new satisfy relatively high- existing capacity needs of roads landscape considerations, developments, ecological density future capacity existing services, public for the location and demands municipal schools, departments, most fire and other services. The previously capitalize on is to investments difficult task court Although community. as to not essential decision made accomplished housing, new this task must be the location of undermine sound financial struc- some if court is not to success municipality.

ture municipality to The court that rezones a accommodate low-and housing must consider whether it retain moderate-income also will jurisdiction pleas hear variances from it has man- to for the scheme developer instance, might, pharmacy A for a wish to build dated. designated high-density, in an the court has for area that multi-unit dwellings. upon request, If a court itself decides will there be principle super- that little left courts should not as function Moreover, will bodies. the court be burdened administra- totally developed. land has tive duties until that rezoned is it judicial desirability remedy a The cannot be assessed without considering, potential example, permanent for undesirable municipality any is alteration that inherent in decision to re unwisely busing zone. A court that concludes it has to ordered de system segregate easily a withdrawing school can correct its error altering reappor its order. If a or court finds that a court-ordered ill-advised, modify scheme tionment was can it the districts or allow legislature modify areas, to In them. both these unwise de judiciary pertaining complex potentially crees of the to or inflamma tory usually can permanent situations be altered with a minimum of rezones, however, buildings may harm. aWhen court be erected and plans development previously may under consideration be abandoned. Thus, reapportion unlike political courts that to secure an effective process employ busing temporary desеgregate as measure to society develops integrated equal schools until facilities, school community that may court rezones makes a decision for the that subject [Note, Inadequacy not be effective revision. Ju Exclusionary Zoning, in dicial Remedies Cases 74 Mich. L. Rev. 760, 774-77, 1976] On the other hand a created legislatively body, whether of an administrative nature or otherwise, would have equipment study resources in problem depth, take objective account of interests, avail itself competing of expert advice and achieve hopefully not only results — the public interest but also acceptable to the public results reached by applying legislatively determined stan- particular dards to factual contexts.

A second, and at least important why reason equally courts rezone, should lies in so fact doing inevitably must make they policy decisions that have tra- of a ditionally prerogative been the democratically selected branch of Judicial like all zon- government. rezoning, other a choice ing, among often implicates competing, mutually rightfully challenge a court may uses. While exclusive find at the time same may parochialism, municipality’s a legiti- an intrusion upon activism constitutes its own land supply to how limited debate political mate 779. Id. regulated. municipality a developing John Professor have like concern. others Many expressed drawn attention instance, recently has Payne, M. of to problems ultimate answers undesirability seeking judicially of exclusionary through application zoning in Re- Doctrine Payne, Delegation remedies. fashioned Exclusionary Law: The Case Local Government form of directly Rem. L. Zoning, Rutgers (1976). Speaking final to seek Jersey current of New courts tendency to the is says, imbalance he perceived, where zoning remedies judicial expansive grave problems role raises constitutional This ability going to inherent court encroach to the limitations on the a prerogatives, legislative upon the structural executive since litigation being by be addressed can seldom current issues ju- cooperation legislative without either and executive or remedied essentially legislative scope. Assuming (all is action that dicial reasonably things being equal) that law reform decisions other ought framed are here to in terms that as under discussion be ordinary process possible, minimally as intrusive of democratic seriously appears the trend of recent decisions unneces- that it sarily [I'd. 804-05] violates that norm of non-intrusiveness. at further that action part out such on the points He may only judicial skill courts exceed the boundaries also tolerance.” Id. at but those 805. Such “political too to core of activity closely “cuts our so- political Id. at 817. ciety.” a No one that function. zoning legislative questions — — judiciary

Wlien the whatever reason undertakes field, immediately move in this it places to issue its I such suggest that intrusion be power legitimacy. may resented, and more hence to be especially likely denied subject where matter is as controversial and acceptance, as inflammatory many questions are of zoning. potentially How much better were tbe Legislature steps that .take would this problem obviate altogether!

A chief obstacle rational, a and ade achieving useful answer our quate problem in the fact inheres — — zoning with power today rests least potentially is at different entities. in the State Any municipality liberty land use adopt plan regu ordinance lation, and mu presumably most have done Of these so. — nicipalities goodly surely number must albeit qualify — reluctantly are Their land use “developing.” plans therefore But to meet of Mt. Laurel. required the test it must be obvious which we housing needs are can concerned better met some municipalities within the than in region others. Prom rational purely view, point makes little sense to re apportion the gional obligation, willy-nilly, some number among entities, diverse off from political set one boun another dary lines where placed they are historical accident. As Professor Payne observes, necessary premise [I]t becomes ask to whether central of Mount Laurel, community proportional responsibility that each has a component region’s makeup, each of the socio-economic makes sense. competent planner, professional

Would as a of matter total discre- tion, community region, ever recommend each that in a matter no large small, how or no matter how blessed with without certain features, past present makeup, natural no matter what its and its (or approximate) should be an exact even microcosm of the whole. perfect motivation, perfectly equi- Even in a of world social and of public resources, table distribution of it seems self-evident planning require growth, rational would corridors of concentration appropriate locales, preservation of various sorts pro- natural amenities on the basis merit absolute rather than portional [Payne, supra, share and so 812-13] forth. Any comprehensive our should zoning problems review take account of a or regional state-wide allocation of zon- as a power possibly preferable alternative ing present The of the home tradition in arrangements. rule strength New other forces Jersey securely as well as rather built-in any

will immediate certainly provoke opposition almost considered, And proposal. yet carefully such should be re- the almost certain of constitutional despite necessity vision that would be entailed.

In Mount Laurel said, we “Courts do not build nor do N. J. at municipalities.” majority 193. Today do duty themselves have the repeats, “Municipalities to build or subsidize I take to be 499. This housing.” p. doctrine, not, submit, settled I be altered any which should This comment is way except by provoked by legislation. have arisen on аll sides demand- plethora suggestions that various kinds of immediate affirmative ing far-reaching and — require action would action that if undertaken kinds but cer- exercise some unspecified municipal power, tainly not the zoning power. of the any problems is no real likelihood

There in- judicial will to unaided yield which I have adverted is, hand, very hope other legitimate There on the genuity. — cen- that our use problems difficulties land exclusionary injustice around the today tered as are they — can be ameliorated to that but no means limited zoning, legislative careful eventually imaginative solved by hear all the expertise, can recruit action. The Legislature State re- web, view each strand tangled sides be, if whole, develop or as need experiment gionally of all its citizens. to the needs responsive use program land are incapable. I am satisfied this is a feat of which the courts Courts cannot must be decided. case meantime this In the to the trial be remanded should that the case I pass. agree of re- terms proposed court, strongly I disagree but to the municipality. unfair seem me They mand. rule henceforth to a new announced today has majority or not a municipality as to whether the determination govern no has had The defendant zoning. exclusionary guilty It should as so propounded. the issue address opportunity include right which should opportunity, have that as well. testimony further but argument not only present detail, Without into I wish going simply register my dis- agreement in Point XIII of everything appearing majority opinion.

I concur, accordingly, majority conclusion that the remanded, cause be but only the terms herein- upon above set forth.

Cliítobd, J. (concurring). Sometimes judges decide cases with their crossed. I fingers confess that my vote with the majority opinion is east with a discomforting feeling this judicial effort to meet Laurel1, Mount imperative from which I would retreat, is neither satis- entirely factory nor wholly successful. Were it not for this lingering unease, sense of I would not to burden the presume discus- sion further, which I do somewhat in view reluctantly barrels ink already this lavished case. upon

I Some of shortcomings Court’s response are laid bare in problems presented Justice Mountain’s con- curring opinion. While I am dissenting inclined to with much agree of his gentle probing vulnerable I areas, tend to look upon whatever infirmity may inhere in our as the position not of flawed result analysis but rather an but inescapable unfortunate by-product of the judicial function called being to solve upon the extraor- — dinarily complex problems underlying litigation prob- solution, whose lems it may be plausibly should argued, be undertaken elsewhere. This is touched concept in a upon trenchant editorial entitled for a “Help Stepchild” appear- New Law ing Jersey Journal on December 23, 1976 L. N. J. (98 1132): Cty. Twp. Laurel, 1 So. Burl. 151, N.A.A.C.P. v. Mt. N. J. app. den., dism. cert. U. S. 96 S. Ct. 46 L. Ed. 2d (1975). asking inquire much of our courts too should whether we are

We being doorstep today. the of now laid at Are there not controversies govern- which, reality, ought to be resolved other in our courts judicial attempt for an cannot mental We blame activism branches? ju- justice. Do enter the to eliminate deficiencies in controversies part system cope, default, inability on the of or to dicial because a upon Recently, have been called to of the other branches? courts formerly inappropriate, because render in considered assistance areas “political” they have and dealt are in nature. now tackled Courts major Jersey problems housing, zoning, education and New * * * * * * Legislature [T]he branches taxation. and the Executive government consciously judiciary have, otherwise, left it to discharge provinces. properly burdens more within their opin- in majority recognized thought This same is ante at 534. ion, explicit adumbrated in make what occasion to we We take this — governmental- Laurel and have intimated above that

Mount seeing provision sociological-economic enterprise to the and alloca- regions adequate throughout appropriate and suitable tion appropriately categories population much more is for all judicial legislative func- rather administrative function than and disposition of isolated in cases. tion to exercised in case that Indeed, every point, this makes opinion at all but of some- any spirit legislature twitting between is with this latter entreaty It thing persuasion. I cacoethes scribendi and add these impulse yield to brief comments. between what should come to difference

Recognizing what be dealt with other institu- should the courts abstract; exercise in but strik- enough tions is difficult maintaining balance in then it seems practice ing that of our management much elude our as those powers views branches of government. spectrum co-ordinate my demonstrates colleagues disagreement expressed by part fundamental underlies at least to- problem on this has Court, past. as it division others day’s have, time, from I contributed share my Doubtless time strike There may unseemly disarray. some as what found, however, to be recollection that solace is some have confounded judges is so vexatious as to subject learned than I. experienced more more I seek to emphasize Let me narrow the focus. What on the basic to yet agreement this: has achieve society do; as is are to of what it our courts expected question may litiga a we be accepting result this uncertainty commentator, are which, to one according tional burdens the tribunals and the institutional the beyond capacity This, Judge from former “cranial the judges. capacity” article, H. in Rifkind, Simon who out his points penetrating Courts?,” Judges’ Too Our We Much of Asking “Are the April, Rifkind at 43 (1976) (Address Judge on the Causes of Dissatis Popular “National Conference (hereinafter of Justice”) faction the Administration has been solicited that the i(Rifkind”), judiciary increasingly society, of our sort of its to becomе problem-solver handyman. all-around today jaeks-of-all-trades, public perceives

The American courts as may to us: Shall available furnish the to whatever trouble answer power plants, so, we build nuclear and if where? Shall the Con- lay-off pro- fly corde to shores? How do we tailor dismissal our progress grams during undoing depression, all of the without during prosperity All anti-discrimination statutes? these achieved judicial grist are now the continuous of the mills. Thus, surprising recently is a filed it not that lawsuit was learn seeking prevent in District York the Southern of New United stamp honoring issuing from States Postal Service a commemorative — grounds Alexander Bell else invented Graham on the that someone telephone. supra, [Rifkind, 44.] at courts, of the is that essay The thrust Rifkind being resort, institutions of last be to do nothing should required other, well, less can do as irreplaceable which institutions and should be that which cannot done preserved doing be elsewhere. institutions, government Other other branches and outside government, they must be evaluated to whether can determine greater responsibility.

assume The role of the courts be should special doing expertise, restricted to commands their that which seeing jobs sup- they do are that the other that institutions posed There do. will continue to dissatisfaction with ad- justice promote long ministration as we the notion only place justice courts are the is administered. [Id. 50.]

In his theme on the Judge Rifkind dwells developing distinction traditional function of “dis- judicial between the with its on the ad- pute-resolving,” reliance well-placed versary process, and for which the “problem-solving,” ad- is He versary system conspicuously cautions ill-adapted. * ** [p] roblem-solving chancy requiring, a in a business de- only mocracy, perception wisdom and inventiveness a keen but political implications. Moreover, upon imposes duty of the problem-solver significant to hear all who those have interest problem. Very frequently problem-solver tends to become a champion of a cause and not neutral decider. His reward comes popular acclaim, Despite from not from law review commendation. problem-solver dispute resolver, this chasm which divides from the growing tendency there is a to confuse the two. campuses, benignly upon On the voices are heard which look those jurisprudence problem- areas of our wherein courts have become projected Indeed, solvers. It is as the wave of the new words future. judicial have been coined to describe the new role. Courts have be mini-legislatures. Judges preside proceedings come in now at which alignment parties there is no clear of but all at which who have so- significant may say, they called interest have their indeed should directly by judgment by since the decree will affect them and not precedent. Judges, being human, enlarged are not to averse their expanded responsibility. exhilarating role and It is to administer victims, relief to a universe of if some are unknown and un knowable, largesse deserving by application then to distribute to the cy-pres doctrine in the fashion of Haroun Al-Rashid.2 represent generous 2 I last take this to a somewhat more character particular type judge by of a than ization the one furnished Mr. Rehnquist, undoubtedly hypo Justice would who find room for this judicial jurists thetical Haroun Al-Rashid in a confrere class of consisting of * * * people opportunity weight attracted to their throw people around, do, get to tell other what their in names news- papers. opportunity opinions to write innovative on constitu- questions published Reporter tional would which in the West thing judges bi-party and, decide in controversies It is one may pronounce principles doing, have an effect so on the solu- problem, underlying sometimes favorable and sometimes tion of is for the to be It another courts burdened with unfavorable. responsibility problems. the solution [Id. 46-47.] observed, Mountain into gravitation As Justice has effectively of causes better and more judicial machinery judiciary’s “power dealt with elsewhere surely jeopardizes Mountain, and dissent- J., concurring legitimacy.” See Cahill, ante at Robinson v. 70 N. J. 628; ing, cf. Mountain,

163-64 The concern J.). (dissenting opinion he It has suf- shared others. reached expresses by many ar- ficient feature or “cover” magnitude to recent prompt in a national ticle news which refers magazine, life influence law and on American mounting lawyers * * * history; great U. one of the unnoticed revolutions S. part ever-increasing eagerness, willingness, on the of elected even private settle matters that were to let courts officials citizens — executives, parents, by legislatures, teachers or chance. once settled [Newsweek, 10, 1977, at Jan.

42.] Law Cramton of Cornell School is quoted Dean Roger how, the “critical question” article as posing the same can be nonelected officials “government republic, In Id. at 42—43. democracy.” with representative squared well on re- run very bring this phenomenon may the long or ugly unfortunate being simply which instead of sults calamitous, in the dam- short sense nothing become pale judge’s disadvantages system of a other life would make the recognized type you it, insignificance. this In case haven’t into him, person from an of the in far has an zealot is element judge. ideal Judges’ (Ad- Robe,” [Rehnquist, “The Cult Rehnquist Di- Administration at dress of Justice Judicial Judiciary).] in Dinner Honor vision’s 1976 Annual courts alone but whole Amer- aging fabric of the ican system government. We would do well heed Judge Arlin M. Adams’ sober warning: — — Democracy judicial system democracy and the in our will not, my view, may in succumb to assassination. But succumb to disruptive an arrogation erosion of confidence from the and unwise legislative power by institutions not suited to its exercise. [Adams, restraint, “Judicial medicine,” the best (1976).] Judicature

II There is an additional point here, worth perhaps making and that that many instances the law is becoming “excessively complex, excessively sophisticated, mys- unduly terious.” Rifkind, supra 50. аuthor specifically refers to the taxes, field of sensibly acknowledging “[a]fter 50 years of I practice, would no more the audacity have my formulate own tax return than I would engage open heart Id. surgery.”

It may the same excessive complexities and com- pounded anfraetuosities are their zon- finding way into our law. ing-planning And I elsewhere. have no answer ready to how as that dilemma may be avoided as long, again, the courts are looked to for ultimate solution of the kinds of problems presented case. An solution attempted too often seems to defy its articulation in a judicial opin- ion unfettered by obfuscation. distracting Reality thus be- camouflaged. comes

While I do not for a moment labor under any misappre- hension that the general public seeks out our pronouncements to savor the delights fine English prose, the fact remains — that our opinions in this field have to be read and un- — derstood bench bar, lower particularly by court who must judges case; decide the next by attorneys representing municipal bodies, builders, developers, pub- lic interest groups; by scholars legal professionals field; some probably by non-lawyer conscientious bodies, boards, members of planning boards governing readers adjustment. Those are not likely contemplate our much less outpourings complete serenity, current are great susceptible our determinations rejoicing.3 Unless of concise and clear can expression interpretation, they act as a or When it hardly aid art. guide predictive fails in that the law has lost regard, one its indispensable all it, characteristics. As Edwin Newman “We are puts safer when is our It chances language specific. improves what is A Civil knowing Newman, on.” E. going Tongue (1976).

Ill In earlier I referring to the termed it majority opinion an Ante “effort.” at 631. My has purpose been develop (albeit by more on from leaning heavily the works excerpts of others than on any original thinking) proposition that it is judicial the nature which enterprise precludes — any this case from opinion more than an being —effort in the sense of solution. In furnishing lasting I no sense do intend either by that label of the any ruminations offered herein to demean re- Judge Conford’s markable on accomplishment behalf of the Court, gratui- to sermonize my on tously colleagues this bench or elsewhere 3 Perhaps study we would fare ‍‌‌​‌​​‌​​‌‌‌​‌‌​​​​‌​​​‌‌‌‌‌​‌‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌‍better were those who must our opinions quality recently English, endowed with attributed my heritage may permit repeat. own Lever, me to Harold Duchy Lancaster, reported Chancellor of the is in the York New having appraisal: Times as offered this policy immediately disagreeable, English When a believe it produce enduring must ultimate If benefit. is couched in language they understand, they product cannot believe it to be the learning. conjunction unpleasant of much A and the in- comprehensible Englishmen. is therefore irresistable Times, [N. Y. Dec. A2, (late Jersey ed.).] col. 1 wholesale abdication recommend or to system, the court I have used oc- Rather, proper responsibilities. our a major, be considered attention to what must draw

casion to of our society. foundation touching the problem growing long grows complex, as life So modem ever demands on more will That law increase. much is inevitable. And if Americans want prevent system government being changed their from ain funda- .to they ways manner, prevent every find mental will have to in which to passed being judge every problem being from buck from lawyer. sophisticated turned over to a U. S. has most created the — — legal process and the fairest in the world. But burdens aré becoming intolerable. [Newsweek, supra 47.] Because the majority opinion seems to me to represent the best accommodation judicial of the present controversy Mount Laurel’s essential I principles, vote with it. Fúr and remandment Jus- affirmance modified —Chief tice Hughes, and Clifeobd Justices and Judge Sullivan Confokd — 4.

Concurring part dissenting part —Justices Mountain, and Schreiber — 3. Pashman notes of 5 See infra. by quasi-official governmental agencies or “fair official share” studies Indeed, such those discussed he or commissions as will hereinafter. underlying emphasized, problem the basic social is far better addressed litigation. any case, setting action In administrative than of housing goals only phase of numerical is an incidental the solution. 500 will, move the opinion, hoped, tion of this it is suffice to housing- in the objective toward “available State of of various developing municipalities number goodly for a who categories people income desire of low and moderate J., Laurel, to live and now therein cannot.” Mount at 188, n. 21. Ill — Development Madison Its Growth and square Madison Township approximately consists of miles, 25,000 acres, Middlesex southeast corner of County, of land. developable which almost is vacant 40% Its location cen gap metropolitan within the between the ters of New Philadelphia strategic York and one: is “Atlantic within region” bridged urban gap expected is to be the next 25 years, population increase a concomitant (cov Regional Planning Tri-State Association 75%. ering York, Jersey counties in New New Connecticut and including Middlesex) predicts will be that Middlesex one of greatest four counties to rates experience the growth in the tri-state area from 1970 to 2000. highly Parts the township lie within 20 miles the. Easy urbanized areas of access Elizabeth and Newark. to and major from the municipality provided by is several highways Parkway traverse it. The Garden State State Highways portion and 35 cut across the eastern Jersey the township, south connecting- Madison to both shore area and metropolitan area. Newark-New York Route, Highway State through the center U. S. run roads, the township, major county and there are three 527, 516 and 520. The Railroad York-Long- New Branch runs through the eastern portion municipality, and although there are no township commuter stations itself nearby there are in accessibility communities. The township readily illustrated status the com-

Case Details

Case Name: Oakwood at Madison, Inc. v. Township of Madison

Court Name: Supreme Court of New Jersey

Date Published: Jan 26, 1977

Citation: 371 A.2d 1192

Court Abbreviation: N.J.