*1 ant under these the validity circumstances attack of his wife’s prior Mexican repudiate obligations divorce and to which he end, marrying plaintiff. estopped assumed in To that he particular assert these plaintiff’s defenses to marital claims. is re- Accordingly, judgment Appellate of the Division plain- versed and the matter remanded for the reinstatement of complaint proceedings may appro- tiff’s and such further priate. and Jus-
For Justice HUGHES reversal remand—Chief CLIFFORD, PASHMAN, MOUNTAIN, SULLIVAN, tices and HANDLER—7. SCHREIBER
For affirmance —None. PLAINTIFF-APPELLANT, JERSEY, v. DENNIS STATE OF NEW BAKER, DEFENDANT-RESPONDENT. 3, 1979 Argued April July Decided 1979. *4 argued appellant the cause for Rothberg
Mr. David H. Sachar, Bernstein, (Messrs. Rothberg, Mongello, & attor- Sikora neys). argued respondent. B. Blacker the cause for
Mr. Michael Director, Bisgaier, Mr. Division of Public Interest Carl S. curiae Advocacy, argued the cause for amicus Public Advocate Ness, (Mr. Advocate, Jersey Stanley of New C. Van Public Hurd, attorney; Bisgaier Depu- Mr. and Ms. Linda R. Assistant Advocate, brief). ty Public on the Borough
A brief was submitted on behalf of amicus curiae Dilts, (Mr. attorney). Thomas H. Somerville of the court was delivered opinion PASHMAN, J. presented by appeal
The issue this is whether a munici upon biological legal criteria based relation pality may utilize types groups may to limit the that live within ships in order Specifically, validity its borders. we must determine the 17:3-l(a)(17) Zoning which of the Plainfield Ordinance seeks § preserve “family” municipality’s neigh character of the by prohibiting borhoods more than four unrelated individuals housing from unit. For the reasons to be sharing single given below, we although goal sought conclude that to be fur entirely legitimate, the means provision thered chosen relationship not bear a substantial to the effectuation of that do I, Hence, (1947) goal. regulation violates N.J.Const. Art. IV, par. and cannot par. and Art. stand. § Defendant Dennis Baker is the owner of a house located at Avenue, dwelling Plainfield. This is situated in a Sheridan separate single family zone restricted to use. On three occasions charged allowing with during the fall of 1976 defendant in violation of section family more than one to reside in his home Zoning “Family” 17:11-2 of the Plainfield is defined Ordinance. in the ordinance as: *5 dwelling single (1) occupying unit as a a non-profit or more One persons * * * (4)
housekeeping
blood,
not related by
than four
unit. More
persons
a
marriage,
not be considered
constitute
family.
[City
shall
adoption
17:3-l(a)(17)]
Zoning
§
Plainfield
Ordinance
Municipal
Plainfield
charges was held
as to all three
A trial
the home was
indicated that
presented
The evidence
Court.
Baker, their
Mr. and Mrs.
by nine individuals:
generally shared
her three children.
Mrs. Conata and
Several
daughters,
three
within the household for
apparently resided
other
also
of time.
periods
indeterminate
together
lived
in what defendant
The Bakers and Conatas
groups
two
view each other
family.”
an “extended
The
termed
family and have no desire to reside
part
large
of one
Defendant, an ordained minister of the Pres-
separate homes.
Church,
living arrangement
that the
arose out
byterian
testified
go
desire to
religious beliefs and resultant
of the individuals’
life as “brothers and sisters.” The Bakers and Conatas
through
communal prayer
shared common areas and held
together,
ate
per
amount
week
occupant
sessions. Each
contributed
fixed
expenses.
defray
household
guilty
charges
was found
of all three
and fines
Defendant
County
in the
imposed.
were
After a trial de novo
Union
upon Municipal
transcript,
Court
see R. 3:23-
Court—based
8(a)—defendant
again
found in violation of the ordinance.
County
judge
religious
concluded that defendant’s
Court
were
and that the house-
regarding
lifestyle
his
sincere
beliefs
family,
constituting
thus
hold resembled a traditional extended
non-profit housekeeping
meaning
unit” within the
“single
Nevertheless, he found both that
zoning
ordinance.
violated the
living arrangement of the Bakers and Conatas
17:3-l(a)(17)
provision
and that the
numerical restriction of §
municipality’s police powers.
of the
Ac-
was a valid exercise
imposed
penalties
Municipal
the same
as had the
cordingly, he
ordered, however,
He
that the fines for the first
Court.
suspended.
third violations
*6
Division.
appeal
Appellate
a
of
to the
Defendant filed
notice
Baker,
(App.Div.1978).
appel-
The
N.J.Super.
v.
158
536
State
*
* *
ordinance
judges
that “the Plainfield
late
concluded
may
single
who
a
occupy
the
narrowly
‘so
delimits
potential
who
occupants
numerous
family dwelling
prohibit
as to
family living
to be
style
sought
to
of
pose no threat
the
”
State,
Berger v.
71 N.J.
(quoting
Id.
from
preserved[.]’
at 541
206,
held the ordinance invalid
Consequently, they
224 (1976)).
according
occupants’
uses
to
permissible
insofar as it classified
however,
ruled,
relationships.
judges also
legal
The
biological or
housekeeping
criterion used
unit”
“single non-profit
that the
County
the
concluding
was
After
the ordinance
valid.
a
Baker
such unit
finding that the
household constituted
Court’s
evi-
on
credible
reasonably have been reached
sufficient
“could
record, considering
proofs
the
as a whole
present
dence
the
**
540,
con-
they
at
reversed defendant’s
N.J.Super.
158
fines.
victions
vacated the
and
We State’s amicus appear to (1978). permitted Public Advocate now affirm. curiae. We
I broad, is not although municipality’s zoning power, A valid, zoning regulation a must In to be without limits. order and police power of the represent a reasonable exercise both municipal legitimate to a substantial relation bear real and Moreover, public “not need regulation may exceed goal. not of the offen partake uses which do substantially affect sought problem of which cause sive character those 59 Manasquan, v. of Holding Borough ameliorated.” Kirsch Co. Ass’n, 241, See, Mayor Ltd. & (1971). g., e. v. 251 Pascack N.J. 470, (1977); Berger 74 v. Washington Tp., N.J. 483 Coun. of State, 206, (1976); Corp. v. J.D. Construction 71 N.J. 223-224 (Law 140, N.J.Super. Adj. Tp., Board of Freehold Div.1972). Under this test the numerical limitations of 17:3- § l(a)(17) must fall. quarrel legitimacy with the of Plainfield’s
We have no
designate
certain areas as
goal.
governments
Local
are free
preserve
family style
exclusively
may
residential and
act
223;
State, supra,
71 N.J. at
v.
living.
Berger
See
Collins
(1949);
Adj. Margate City,
Village
3 N.J.
Board of
Boraas,
Belle Terre v.
94 S.Ct.
Nevertheless,
power
goals
to attain these
is not
not,
municipality may
example,
A
for
zone
without limits.
so
poor
to exclude from its borders the
or other unwanted minori
See,
Madison,
g.,
Township
ties.
e.
at
Inc. v.
of
Oakwood
Madison,
(1977);
Burlington Cty.
Tp.
Regulations based traits generalized stability about the assumptions reflect necessarily comprised of unrelated desirability of households and social cases do not reflect the individuals—assumptions many which Schaefer, Court Supreme for the writing real world. Justice Illinois, that has noted operate only by together common desire to group their a bound unit, thought quality might
single housekeeping to have transient *8 not, contend, colleagues examples dissenting 1These are as our intended to suggest by country possibility of “invasions swarms of cousins.” See Rather, post they merely at 124. are set forth to demonstrate that closely municipali distinctions utilized ordinance are not related to the ty’s may Although line-drawing valid some concerns. arbitrariness be necessary aclpeve goal, legitimate to countenanced when it is not where, here, precise reaching tolerated as more methods of the desired end See, Ltd., 483; g., Berger supra, are available. e. Ass’n 74 N.J. v. Pascack at State, Co., supra, 223-224; supra, Holding 71 N.J. at Kirsch N.J. at 251. 59 * ** might neighborhood, And it of the would affect adversely stability generate group more of unrelated would be likely be considered that a parking than would an number of related traffic and equal persons. problems groups universal truth. are of these observations reflects a Family But none all units are stable well-disciplined. mobile and not internally today, family groups Plaines v. cars are not unfamiliar. Des with two or more [City Family (Sup.Ct.1966) (emphasis N.E.2d sup 34 Ill.2d 432, 437, Trottner, plied)] municipality power without that court held Accordingly, * * “penetrate deeply so zoning ordinance which would adopt a housekeeping unit.”2 composition single of a into the internal Id. at 120.
Nevertheless, the inexactitude and overinclusiveness despite them in we would be reluctant to condemn regulations, of such do, options less restrictive alternatives. Such the absence of however, exist.
The courts of this and other states have often noted that
concept underlying
the core
single family living is not biological
but, rather,
or legal relationship
single
its character as a
house
State,
keeping
Berger
unit.
supra,
109
Plains,
City
supra,
White
34
neighbors.
related
of
biologically
758;
453,
see,
306,
g.,
N.E.2d at
e.
N.Y.2d
Plainfield has neighborhoods. “family” style living of in certain residential achieved, sensibly, by the perhaps more may a be goal Such well the exclusion as as single-housekeeping requirement, unit residences, uses such as commercial incompatible residential uses, homes and other such boarding institutional non-familial unnecessarily upon freedom occupancies infringing without State, Berger v. privacy of unrelated individuals.3 See Margate City, v. City Inc. supra; Realty, Collins Gabe N.J.Super. (App.Div.1970). “family” living, preserving style to
In addition necessary prevent also defends its ordinance municipality multi-family occupan- opinion suggests today’s will allow 3The dissent ignores family post cy single the fact that at 115-116. This homes. See actually groups municipalities empowered which are to restrict residences single single-housekeeping fide units—the true criterion constitute bona State, supra, Municipal dwellings. Berger 227. 71 N.J. at residence such manner what constitutes remain free to define a reasonable officials limitations, infra, may Moreover, space-related occupancy discussed unit. groups possibility preclude of “unrestricted” size. of household used today’s Thus, only groups compatible area will benefit with a residential opinion. *10 overcrowding congestion. regulation, however, The instant tenuously is too related goals to these to justify impingement its upon makeup the internal of housekeeping entity. The Plainfield Ordinance is both and overinclusive. underinclusive It is prohibits jingle overinclusive because it housekeeping units not, may fact, which be overcrowded or cause congestion; it is underinclusive because it prohibit fails to housekeep- certain ing units—composed of related present individuals—which do . Thus, problems. such example, for five unrelated gen- retired tlemen not large eight could share a bedroom estate situated upon land, five acres of whereas a large extended family includ- aunts, ing cousins, uncles and could share' a small two bedroom apartment without violating this ordinance.
An appropriate prevent method to overcrowding conges- tion suggested by this Court Holding Kirsch Co. v. Borough Manasquan, supra. of We there stated that overcrowding dwelling of /. [w]hen use, e., of intensity units and facilities, might given zoning consideration [presents problem] quite properly housing general code which limiting would have to be provisions, application, the number of sleeping in reasonable occupants relation to available and bath- requiring
room facilities or
a minimum amount of habitable floor area per
(emphasis supplied)]
N.J. at 254
occupant.
[59
See
v. Mayor
Clifton,
Sente
and Mun. Coun. of
Ill with similar- legitimate municipal concerns can be dealt Other congestion appropriately Traffic can be remedied reason- ly. able, number of cars which evenhanded limitations Moreover, may given be maintained at a residence. area-related will, by decreasing density, restrictions tend them- occupancy behavior—which, problems. Disruptive selves to reduce traffic course, households—may properly is not limited to unrelated through general police power. be controlled the use of the As Borough Manasquan, supra: we stated in Kirsch v. *11 with obnoxious behavior can best be dealt by personal Ordinarily officially general
vigorous and enforcement of ordinances and police power persistent * * Zoning and cannot be criminal statutes *. ordinances are not intended dwelling cure most anti-social conduct in situations. [59 expected prevent N.J. at 253-254] upon legal relationships Restrictions or biological based such as impact Plainfield’s only remotely upon problems such and hence judicial cannot scrutiny. withstand
Plainfield, attempting justify regulation, upon its relies Boraas, 1, Village 1536, of Belle Terre v. 416 U.S. 94 39 S.Ct. (1974). L.Ed.2d 797 In that case Supreme the United States upheld Court an ordinance which limited to two the number of single-family unrelated individuals who could reside in a dwell ing. widely by Belle Terre has been criticized the commenta 6 tors appears part and its rationale to have been undermined in Cleveland, by City the more recent case of v. E. Moore 431 g., Doughty, Legal e. Williams and 6See, “Studies Realism: Mount Rutgers (1975); 29 L.Rev. Berman,” 76-82 Belle Terre and Laurel, Hart- “Village man, of Belle Terre v. Boraas: Belle Terre is a Nice Place to (1974); There,” Note, Visit—But ‘Families’ Live 8 Urb.L.Ann. 193 Only May “Village ‘A of Belle Terre v. Boraas: for 9 U.S.F.L.Rev. Sanctuary People,”’ (1974). U.S. (1977).7 event, S.Ct. L.Ed.2d 531 any In Belle Terre is at dispositive most of any federal constitutional question We, course, here involved. remain interpret free to our constitution and See, statutes more stringently. e. g., Madison, Madison, Oakwood at Inc. v. Tp. of supra, 72 N.J. at n.3; Burlington Cty. Laurel, So. Tp. NAACP v. of Mt. supra, 67 N.J. at generally Brennan, 174-175. See “State Constitutions and the Rights,” Protection of Individual 90 Harv.L.Rev. 489 (1977).8 We find the reasoning of Belle Terre to be both unpersuasive and inconsistent with the results reached by this Court in Holding Kirsch Borough Co. v. Manasquan, supra, State, Berger supra. Hence we do not choose to follow it. Co.,
The dissent Holding supra, contends that Kirsch was undermined Belle Terre. regard Its conclusion in this First, upon unsound. the dissent rests the premise that holding Kirsch was in fact based federal constitutional grounds. however, opinion, merely That held that substantive process issue; due regulation was offended at it did not specify whether the federal or state constitution being invoked. Inasmuch as our own requires zoning constitution ordinances comport process, Laurel, with due supra, see Mt. there is no reason to predicated believe that Kirsch was not *12 7See, g., Law-Zoning,” “Developments e. in the 91 Harv.L.Rev. 1568- (1978); City Cleveland, Emergence 1574 “Moore v. of East Ohio: The of the Right Family Zoning,” Pepperdine (1978). of Choice in L.Rev. 547 remarked, aptly they 8As Justice Brennan “state courts cannot rest when protections have afforded their citizens the full of the federal Constitution. Constitutions, too, liberties, protections State a are font of individual their extending beyond required by Supreme often those the [United States] interpretation Court’s of federal law.” Id. at 491. Constitutional decisions courts, declared, only “guideposts” federal he should be considered as in interpreting provisions they logically state constitutional “if are found to be persuasive well-reasoned, paying regard precedent policies due and the * * underlying specific guarantees constitutional Id. at 502. Further, grounds. upon both state and federal constitutional State, incompatible supra,9 clearly which is with Belle Berger v. Terre, decided Belle Terre was handed down. More was after over, reasoning, thereby endorsed Kirsch Berger specifically only aspect that it its which was under indicating was federal Terre; holding state mined Belle its constitutional remains event, unimpaired. any analysis logically In the Kirsch remains Terre, regardless today sound of Belle and we reaffirm our position. adherence to that complies its ordinance
Finally, Plainfield asserts that
State,
that
Berger
supra.
In
case
opinion
with
in
v.
this Court’s
dictum,
validly
could
“restrict
stated,
municipality
that a
we
number
who
to a reasonable
single family dwellings
unit.”
use of word “reasonable” Thus, legitimizes space-related Berger merely ed limitations. such, and, wholly as consist general application restrictions of Washington v. Township of opinion today. See ent with our Inc., Center, N.J.Super. Health Bergen Central Comm. Div.1978); Hospital Montroy, N.J. (Law Holy Name Div.1977). (Law Super. 181 zoning regulations which we hold that
Accordingly, unrelated the number of attempt residency limit based housekeeping unit single non-profit present individuals recognize that Although we constitutional muster. pass cannot municipal powers duty to construe we are under constitutional 11, municipali IV, par. (1947), Art. N.J.Const. liberally, § see Berger opinion aspect this 9The chooses to characterize dissent developed holding. Actually, fully alternative dictum. it was a *13 zoning ties cannot enact ordinances which violate process. due See, Washington Ass’n Ltd. v. & Council g., Mayor e. Pascack (1977); State, v. Tp., Berger N.J. 71 N.J. I, 1; IV, (1976); (1947), par. 223-224 N.J.Const. Art. Art. § par. 2.10
II require that Plainfield’s numerical Having concluded house invalid, whether the Baker we must determine ment is “single criterion of remaining municipal a hold fulfilled the housekeeping that the Baker-Co non-profit unit.” We conclude permanence of sufficient so as to resemble nata alliance was Thus, Court family. County extended the more traditional “single the Baker constituted a that household judge’s finding unit” the intendment of 17:3- non-profit housekeeping within § on record. l(a)(17) adequately is based the
Conclusion
municipalities may
that
not condition residence
Today we hold
upon
persons present
the
of unrelated
within the house-
number
alternatives,
such
availability
hold.
of less restrictive
Given the
perceived
to the
ills
regulations
insufficiently
are
related
social
I, par.
10Article
our
Constitution ensures the natural and unalienable
right
pursue
safety
happiness. Encompassed
of individuals to
and obtain
requirement
process
within
upon
today’s
its
is the
strictures
of due
which
analysis
addition,
is based.
In
we would be remiss if we did not
that the
note
right
privacy
protection
provi
is also included within the
offered
that
See,
Saunders,
g.,
(1977). Although
right
sion.
e.
State v.
For the Division is affirmed.
MOUNTAIN, J., dissenting. my disagree- grounds the to state write in dissent both
I the my colleagues and with reached with the decision ment to indicate as holding, but also support in of that reasons offered this case to great significance of able the clearly I am throughout the and indeed owners State and home property Although there are a generally. the citizens of State majori- view in the points of and declared number statements aspects of the decision exception, I two ty to which take opinion especially empha- be importance deserve to especial are of sized. will this case have is the result that
One these take to an this The second is What I be zoning fabric of State. as a basis of Jersey New Constitution unfortunate resort decision, of this certain people from the State taking thus enjoyed may hitherto but now they which have important rights no longer exercise. points. The most of these initially the first
Let me address deprives this is that it result of decision immediately significant “one-family in resi are located properties whose homeowners areas of the residential other restricted dence zones” possibility enjoyed against the hitherto protection they have for multi the same zone would used dwellings in that other of unrelated individ occupancy by groups family purposes or for writing, except as noted As of this as to size. uals unrestricted say Jersey in New who can with below,1 is no homeowner there enjoy the 1Homeowners whose benefits restrictive covenants properties limiting single-family are use of lands to still occupancy protected, by any house, assurance that neighbor’s his next door or that of his street, may friend down the any not at time and without warning, occupied either be by two or families or by more group of unrelated indefinite number. All of this may happen although properties Triple-A are located in a Furthermore, one-family moment, Residential zone. at this such occupancies perfectly are legal and it is not at all any clear that *15 effective clear, relief can be had at the municipal level. What is below, as will be discussed is that no effective relief at all is available at the State level—from Legislature. our More of this anon. This condition of things results from majority deci- sion handed today. down significant aspects
The of these two of this case has to second majority opinion interprets do with the manner in which the and Constitution, adopted deals with our That State Constitution. 1947, following provision: in contains the concerning of this and of law Constitution any municipal provisions government, concerning for shall be counties, formed local or corporations construed in their favor. The of counties and such municipal liberally powers granted include not those terms also those shall but corporations only express conferred, or fair or incident to the necessary implication, powers expressly essential and not inconsistent with or this Constitution or thereto, prohibited by law. Art 4, § 7, [N.J.Const., II11] law, Hitherto, provision this has in the course of our decisional terms, with its again again, and in accordance applied, been provisions interpretation a liberal of all constitutional and afford municipalities. applies It with full pertaining of all statutes zoning force to ordinances. Zoning ordinances are to receive a reasonable construction and application, under the Constitution of Art. 1947, § are to be IV, VII, par. they liberally Adjust. construed in favor of the v. Bd. of municipality. [Place River, Saddle (1964)]
42 N.J. coming covenants, virtue of these of all respect within the properties neighborhood scheme—the area to which the covenants apply. however, to dwell especially important, It is not relationship provision zoning of this constitutional to the ordi- us, opinion really nance before because the Court’s focuses—al- Zoning Enabling our though specific mention—upon without Act, any discussion of Through by-passing N.J.S.A. 40:55D-62. Constitution, majori- turning directly this statute and to the legislative in effect cure. Thus ty possibility eliminates all deprive Legisla- the direct result of is to our this decision State power municipalities ture of the to restrict home to authorize know, occupancy to families. As far as I this restriction single upon legislative exists in no other state. power is the voice of that our Constitution forget
We
never
should
rests.
ultimately
sovereignty
in whom all
people,
Constitution derives its
not from the
force,
Convention which framed
[T]he
it,
[Gangemi
(1957)]
but from
who ratified it.
25 N.J.
people
Berry,
that our
people
It
is the
of this
who have declared
State
are to
concerning municipalities
our statutes
Constitution and
I leave it to the reader to decide
receive a liberal construction.
give
due
today
whether this Court’s decision
can be said
*16
proper weight
people
the admonition of the
set forth above.
to
germane
point
out
making
In
this assessment
it is fair and
that,
above,
appears
as I have
no other court in the land
said
have
furthermore
lawgivers
so shackled the hands of its
and
years ago
was some
today
that
the rule of law laid down
Village
land.
of Belle
repudiated by
highest
the
court in the
Boraas,
(1974).
unalienable which are those of pursuing and acquiring, possessing, protecting of and and property,
liberty, Art. I, obtaining 1] [N.J.Const., par. safety happiness. affects provision how this may immediately apparent It not be is silent majority opinion the issue before us and the this law that case we know from earlier unenlightening. But process” a “due to include both provision interpreted has been in the found to those clause similar “equal protection” and an or both upon one presumably Federal Constitution. It relies. majority clauses that the implied these our discussion. point in highly significant a brings This us to achieving a foreordained majority, obviously The intent finding that result, goal sought-for could have reached the not, a us, as did before the section of the Plainfield ordinance requirements the fulfill statutory interpretation, matter of have held it could words Zoning Enabling the Act. In other in the forth manner set power “family” that the in the to define municipalities delegated to powers beyond ordinance went Enabling of the pertinent portion Legislature. The most Act says, zoning ordi- a or amend governing may adopt body [of municipality] buildings and and of relating of land nance nature and extent of the uses to the
structures
thereon.
[N.J.S.A.
40:55D-62]
adverted
applicable
Given
canons of liberal construction
above,
comprehensive
this
might
thought
it
difficult to read
itBut
grant of
Plainfield has done.
power
forbidding
what
language
certainly
would
to discover in this
be no more difficult
ordinance,
extract a
prohibition against
than to
the Plainfield
vague
proscription
from the
against
municipal legislation
such
difficulty
phrases
I,
course the
par.
quoted
Art.
above. Of
quite clearly arises from the fact that neither
Constitution
prohibi-
Enabling
sensibly
impose
nor the
Act can
be read to
*17
care the
tion. But
with some
let us move forward to examine
majority to
which follows from the choice made
the
result
than the statute.
upon
its decision
the Constitution rather
place
Normally,
the
has chosen to do is most unusual.
What
Court
arises,
where an
a court will rest its decision
issue of this sort
upon a
It has
statutory
ground.
rather than a constitutional
Had
suggested
unyielding.2
been
that this rule is absolute and
here,
very differ
this course been followed
the result would be
ent than
the decision been reached
the end now achieved. Had
Legislature,
as a
then the
statutory interpretation,
matter of
so,
the statute to
had it seen
have amended
fit
to do
could
have
municipalities should thenceforth
provide expressly that
previously
found not to have been
power
the Court had
this be
doing
foreclosed from
granted.
completely
Now it is
violation.
cause the
has found there to be a constitutional
Court
Legislature
cannot amend the Constitution.
parallel experience
A
in Illinois is instructive.
In 1966 the
Supreme
state,
City
Court of that
in the case of
of Des Plaines
Trottner,
(1966)
required
v.
to
Ill.2d
should not be reached and resolved adjudicative process disposition litigation. admits of few While the of the absolute, rules, any being unyielding an as close as this maxim comes J., Saunders, (Clifford (1977); [citing 75 N.J. authorities] [State dissenting)] *18 adopted Legislature the Illinois following year, the In as follows: reads 11-13-1(9), which Ill.Rev.Stat.19Q7, c. § following have the authorities in each powers: [T]he corporate municipality ‡‡‡‡**** (9) regulate on the basis of to and restrict the use of property classify, as one or more which be defined family relationship may
family relationship, maintaining marriage or each related to the other blood, adoption a common household. problem way which the common The difference between been handled way in which it has and the was handled Illinois Illinois, the court decision In since Jersey striking. in New is statutory interpretation, an issue of upon made to rest was readily were able to Legislature, their through people, acting enacting simply by they disagreed, which with alter a decision hand, this other Jersey, In New on the legislation. corrective not In the opportunity. of this people deprived has Court with be dissatisfaction there should unlikely event accomplished by either only correction can majority opinion, amending the Consti- byor to reverse itself inducing this Court I is what have simple certain. This Neither course is tution. Jersey resort to the New as “an unfortunate referred to above not have the Court should something It I think Constitution.” done. very in another to this presented Court problem same I refer years ago. decided some few
important zoning case
Laurel,
(1975)
67 N.J.
Cty.,
Tp.
Burl.
of Mt.
So.
N.A.A.C.P.
to rest the
was made
(Mt. Laurel). There a conscious choice
grounds.
statutory
upon
than
upon
decision
constitutional rather
holding
in the Court’s
Although
In a discussion of say my concurring opinion: about this On this to rest constitutional or point [whether opinion upon statutory *19 grounds] (Mountain) ground one Justice concurred on the that the specially, general zoning enabling decision should be based welfare act under the . and a therefore that constitutional decision was This unnecessary. would have been an invitation to the dominant suburban forces in the open Legislature, figure enabling get to out a to amend the act in order to try way majority rejected decision; around this and so the Williams, it. [3 wisely Planning American § Land 1978 Law, 6.13f, 33-34, p. Cum.Supp.] But point legislators people the whole is that the the whom they represent should have the the This is right to final word. what democracy is all about. are, foregoing points
While the in their the impact upon State, important citizens of this the most that emanate from decision, aspects majority opinion this there are other of the perhaps go which should not unnoticed. Village treatment of rather cavalier
One of these is its Boraas, by a case decided the United States supra, v. Belle Terre upon to was called in 1974. There the Court Supreme Court one-family land use to examine an ordinance that restricted being one or more was defined as dwellings. “family” The word any blood, well as adoption, as persons marriage or related as cooking together living “. . . persons two unrelated at .” 416 at S.Ct. single housekeeping unit . . . U.S. 3 I both in the would concede that there is a nobility purpose readily goes justify decision and in far to resort Mt. Laurel that opinion suggested in Mt. I have much before. “The rule down [laid Constitution. Inc. Madison, at idealistic, has an even Oakwood Laurel] quality.” Utopian (1977). that no Madison, 72 N.J. It is all too obvious Township such is to be found in the case before us. quality
1537-38, at
L.Ed.2d
800. It will be
that
seen
this ordinance is
practically
us,
identical with the one
that
except
before
Plain-
permits
field
twice as many
persons—four
unrelated
rather than
two—to
occupy dwelling. Speaking for seven members of the
Court,
Douglas
Justice
an opinion sustaining
wrote
the constitu
tionality of the ordinance
all respects.
argument
The
was
made,
here,
as it has been
made
that unrelated
were
improperly deprived of associational and other constitutional
rights.
out,
It
pointed
here,
as has been
done
whereas
only two
persons might
residence,
unrelated
occupy a one-family
any
persons,
blood,
number of
adoption,
if allied
marriage or
were free to associate together
single housekeeping
as a
unit.
It was urged that
this constituted impermissible discrimination
and violated the
rights
associational
persons.
of unrelated
opinion
Court’s
rejected
completely
argument.
It formed
basis, however,
of Justice Marshall’s dissent.4
It
Why
rejects
Belle
is not clear.
is said
majority
Terre
its
persuasive,
why
not
but we are not
or wherein
told
addressed
inadequacies lies. All other state courts that have
*20
this issue
follow it.
since Belle Terre was decided have chosen to
Denver,
250,
(1974);
Rademan v.
of
186
claims of of friends have needs but or other associates who no special together. [Developments-Zoning, wish to live 91 1578 merely 1427, Harv.L.Rev. (1978)] 77n. But not in Jersey. New 4Justice taking Brennan wrote a dissent separate position that under the
facts presented
to the Court
the case was moot and therefore
there was no
pending “case or
ground
He
controversy.”
recommended
dismissal on this
and hence did not reach the meritorious
issue in the case.
The majority argues that Plainfield’s definition of “family,”
embracing
as
only
four unrelated
while including nucle-
size,
ar families of any
is both overinclusive and underinclusive.
points
It
possibility
of ten distant
assembling
relatives
under one
jurists
roof while five or more
groups
or other similar
are forbidden to
together.
cohabit
The argument proceeds upon
oft-rejected
have,
premise
legislation
that
that could
but did
not,
person
exclude or include every
might properly
who
have
been so
classified
therefore invalid. Much the
argument
same
Supreme
was advanced before the
Court
in Belle Terre:
It is said,
that
if two
however,
unmarried
can constitute a
people
“family,”
there is no reason
three or four
not.
why
But
line
may
drawn
every
by
legislature
might
leaves some out that
well have been included. That exercise of
legislative,
judicial,
is a
discretion, however,
not a
function.
U.S. at
[416
8,
S.Ct. at
decisions,
mark where the
takes
Looked at
itself without
place.
by
regard
might
to the
behind it the line or
seems
It
necessity
point
arbitrary.
well or
as well bo a little more to one side or the
nearly
other. But when it is
seen that a line or
there must
be,
that
there is no mathematical or
point
logical
fixing
legislature
it
the decision of the
way
precisely,
must be accepted
unless we can
it is
wide of
say
reasonable mark. Louisville Gas
very
any
(dissenting
Co. v.
Coleman,
32,
U.S.
41,
423,
S.Ct.
Let more I Plain- affirmatively me indicate believe the posi- Appellant field ordinance be sustained. takes the should above, tion, composed family, stated that if a of an indefinite occupy a resi- persons, may legally “single-family” number of dence, persons then an indefinite number of unrelated should agreed majority doing have the The has and in so right. same greatest has of our deplorably denigrated one of the and finest family family. The should be entitled—as institutions—the distinctly until now it been—to stand on its own in a has preferred position. support There is in our mores there no law, group should our the justify any be none in elevation of position parity family. of unrelated to a of with a Cleveland, Brennan, concurring, Justice in v. East Moore 1932, (1977), quoting U.S. from S.Ct. L.Ed.2d 531 case, Village the brief the Terre in filed of Belle that earlier stated, expressed point perhaps has as well as it can age Whether it be the extended of a more or the nuclear family leisurely family raising training of generations the role of successive today family legal it more we than makes dare other social species important, say, any If freedom not Bill institution. any mentioned in the ... specifically Rights enjoys a in the law it is most position ‘preferred certainly family. U.S. at 97 S.Ct. at 545; at [431 L.Ed.2d Justice that of emphasis Brennan)] Similarly plurality opinion Powell in Justice the same case sharp judicial drew a line between family solicitude for the as an n institution and its attitude groups. toward unrelated It should be stated that the ordinance in East “family” Cleveland defined way such a a grandmother could not maintain a common household grandchildren with two cousins, although who were she could have done so they City had brothers. been East Cleveland relied on Belle Terre to sustain position. its Justice Powell disagreed:
125
.
overriding
.
.
factor
[0]ne
sets this case
from
apart
Belle Terre. The
ordinance there affected
unrelated
only
individuals.
It
allowed all
expressly
who were related
marriage”
“blood,
together,
by
or
adoption
to live
and in
sustaining the ordinance we were careful
to note that
it promoted “family
needs” and
values.” 416
“family
U.S. at 9
S.Ct.
39
[94
1536,
L.Ed.2d
East
797],
regulate
Cleveland,
contrast, has chosen to
housing
of its
occupancy
by
slicing
into the
deeply
itself.
family
U.S. at
97
[431
498,
at
S.Ct.
52
1935,
L.Ed.2d at 537]
Prior decisional law in this
is not especially helpful.
State
Holding
Kirsch
Borough
Co. v.
Manasquan,
(1971)
241
N.J.
dealt only
rentals,
with summer
perhaps
which
should be
thought of as a special problem.
present
Furthermore its
status
is ambivalent.
Taxpayers
In
Weymouth Tp.
Association of
Weymouth Tp.,
(1976),
Pashman,
33] This clearly so, although the majority opinion seems uncertain. State, Berger v. recently,
Most this Court decided home, group by owned N.J. 206. There the maintenance of a State, at- pre-school children was multi-handicapped for in the certain restrictive covenants being tacked as violative of located, was as well chain which the school of title of the land on zoning as in the local ordinance. being provisions in violation of that, as a We held were not violated and that the covenants provisions immune from the agency, group state home was by way on to zoning say, the local ordinance. We went dictum, setting apart one-family zoning that a ordinance zone, defining “family” being only those residential blood, marriage adoption unduly related persons restrictive; fairly legitimate that it did not take account of the suggested We also persons. needs of unrelated
rights those number limiting to a reasonable be met might this need together as a bona choose to live might who unrelated suggestion same at 225. The unit. 71 N.J. housekeeping fide *23 in Gate Collins by Judge made Conford indeed been earlier had 341, 350 City, N.J.Super. City Margate Realty, Inc. v. has City of Plainfield 1970). to me that the It seems (App.Div. suggestion. this done its best to follow ordinance the Plainfield finds that majority opinion also The the reader IV, §6, 2,¶ it does not inform although violates Art. support forth elaboration set any reasoned what this is nor fol- reads as in fact provision holding. This constitutional lows: Legislature general other laws under which enact municipalities, may restricting zoning limiting and specified ordinances
than counties, may adopt according buildings to their regulating structures, and therein, districts and and extent and the nature use, and the nature and extent of their construction, to be deemed such shall be uses of and the exercise of land, authority of the subject to repeal laws shall within the of the State. Such police power Legislature. § Art. Const., alteration 2]17 [N.J. to how majority—as does speculate—as I leave the reader confirmation this broad us offends before ordinance even reached. the issue is or in fact how zoning power legislative above, dissent respectfully forth I For all of the reasons set Appellate Division judgment of the and would reverse ordinance in question. declare valid the joins opinion. this Justice Chief HUGHES PASHMAN, CLIFFORD, For affirmance—Justices Judge HALPERN—5. and HANDLER SCHREIBER and Justice MOUN- For reversal—-Chief Justice HUGHES TAIN—2.