Oakwood at Madison, Inc. v. Township of Madison

72 N.J. 481 (1977)

371 A.2d 1192

OAKWOOD AT MADISON, INC., A CORPORATION OF THE STATE OF NEW JERSEY, BEREN CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, DOROTHY MAE SHEPARD, LOUVENIA ALSTON, WILLIAM BAYLIS, BRENDA SMITH, LIZZIE WALKER AND GERALDINE YORK, PLAINTIFFS-RESPONDENTS-CROSS-APPELLANTS,

v.

THE TOWNSHIP OF MADISON, DEFENDANT-APPELLANT-CROSS-RESPONDENT, AND THE STATE OF NEW JERSEY, DEFENDANT.

The Supreme Court of New Jersey.

Argued March 5, 1973.

Reargued January 8, 1974.

April 14, 1975.

November 18, 1975.

Decided January 26, 1977.

*488 Mr. Richard F. Plechner argued the cause for appellant.

Mr. Frederick C. Mezey and Ms. Lois D. Thompson, a member of the New York Bar, argued the cause for respondents-cross-appellants ( Messrs. Mezey & Mezey, attorneys; Mr. Mezey, Ms. Thompson, and Mr. Ray Dennison, of counsel; Mr. Mezey, Ms. Thompson, Mr. Dennison and Mr. Richard F. Bellman, on the briefs).

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

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

Mr. Joseph M. Clayton, Jr., Deputy Attorney General, argued the cause for defendant State of New Jersey on March 5, 1973 ( Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, and Mrs. Virginia Long Annich and Mr. Jonathan Weiner, Deputy Attorneys General, of counsel and on the brief).

Mr. Gerard Moran and Mr. Norman Williams, a member of the New York Bar, argued the cause for amici curiae Sierra Club and Public Interest Research Group of New Jersey on March 5, 1973 ( Mr. Moran, attorney; Mr. Moran and Mr. Williams on the brief).

Messrs, Pitney, Hardin & Kipp, attorneys, appeared for amicus curiae Township of Mahwah ( Messrs. Breslin and Breslin, attorneys; Mr. E. Carter Corriston of counsel; Mr. Clyde A. Szuch, Mr. William C. Slattery, Ms. Bethany T. Kadish, Mr. Armen Shahinian and Ms. Sondra V. Lasky on the briefs).

*490 OUTLINE OF OPINION

I Outline of Major Issues 497

II "Fair Share" and "Region" —

Preliminary Considerations 498

III Madison — Its Growth and Development 500

IV The Zoning Ordinances 503

V "Least Cost" versus "Law and

Moderate Income" Housing, etc. 510

VI Incapacity of 1973 Ordinance to

Effect Lower Income Housing 514

VII The "Fair Share" Approach of the Defendant 524

VIII "Fair Share" and "Region" —

General Considerations 531

IX Environmental Considerations 544

X "Affirmative Action" for Lower

Income Housing 546

XI The Validity of the Zoning Statute 547

XII Relief for Corporate Plaintiffs 548

XIII Remedy and Remand 552

*491 The opinion of the court was delivered by CONFORD, P.J.A.D., Temporarily Assigned.

We today review the decision of Judge Furman invalidating the 1973 amendatory zoning ordinance of defendant Township of Madison. [1] 128 N.J. Super. 438 (Law Div. 1974). That determination culminated an action instituted by plaintiffs in November 1970 challenging the validity of a zoning ordinance adopted by the township in September 1970 to replace a previous one in effect since 1964. [2] Judge Furman had invalidated the 1970 ordinance in Oakwood at Madison, Inc. v. Tp. of Madison, 117 N.J. Super. 11, 21 (Law Div. 1971), but at the same time rejected an attack by plaintiffs on the constitutionality of the enabling zoning statute, N.J.S.A. 40:55-30 et seq. Id. at 16 .

Defendant obtained a stay of judgment pending its appeal to the Appellate Division, and plaintiffs filed a cross-appeal as to that part of the judgment sustaining the validity of the statute. On plaintiffs' motion, and because of the importance of the case, we certified the appeals pending unheard in the Appellate Division pursuant to R. 2:12-2. 62 N.J. 185 (1972).

Oral argument was originally heard by the court on March 5, 1973, and additional argument was requested for January 8, 1974. However, on October 1, 1973 Madison Township adopted a major amendment to the 1970 ordinance. Consequently, *492 on January 8, 1974, while retaining jurisdiction, we remanded the action to the trial court for a trial and ruling on the ordinance as amended, with the result stated above.

Oral argument on the present phase of the appeal has been had twice, emphasis being placed on the effect on the issues herein of our intervening decision in So. Burl. Cty. N.A.A.C.P. v. Tp. of Mt. Laurel, 67 N.J. 151 , app. dism. and cert. den. 423 U.S. 808 , 96 S.Ct. 18 , 46 L.Ed.2d 2028 (1975) ( "Mount Laurel" hereinafter). We have received and considered supplemental briefs and materials.

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

The trial court invalidated the 1970 ordinance, primarily on the grounds that in zoning massive areas of vacant developable land for one-and two-acre single family residences, beyond the reach of 90% of the population, and in allocating only "miniscule" acreage for multi-family dwelling units, it ignored the housing needs of the township and the region, and failed "to promote reasonably a balanced community in accordance with the general welfare." 117 N.J. Super. at 20-21 . The court upheld the constitutionality of the enabling legislation; it did not reach the issue of confiscation, apparently *493 regarding the invalidation of the entire ordinance as rendering that matter moot.

While the 1973 amendatory ordinance transferred substantial areas from large lot to smaller lot zoning, made more land available for multi-family development and provided for planned unit development (PUD) and "cluster" zones, the evidence in the case convinced the court that the municipality still was not satisfying its obligation to "provide its fair share of the housing needs of its region", particularly in relation to the low-income and moderate-income population. 128 N.J. Super. at 447 . The amended ordinance was therefore again struck down in its entirety. Ibid.

The main lines of the Law Division opinion striking down the 1973 ordinance may be summarized as follows. A crisis in housing needs continues, most serious for those of low and moderate income. The region, whose housing needs must reasonably be provided for by such municipalities as Madison, is not necessarily coextensive with Middlesex County. "Rather, it is the area from which, in view of available employment and transportation, the population of the township would be drawn, absent invalidly exclusionary zoning". 128 N.J. Super. at 441 . Almost all of Madison's employed residents work outside the township, 50% in the county, 15% in New York City, 10% in Essex County, and the remainder in nearby counties, including 7% in Monmouth County. After an analysis of the testimony concerning the number of housing units which could be expected, under the amended ordinance, to be produced and to be affordable by low and moderate income households, the court said:

Of the total 20,000 to 30,000 housing units which may be built in Madison Township under the 1970 zoning ordinance as amended, about 3500 [12% to 17%] at most would be within the reach of households with incomes of $10,000 a year, the upper limit of moderate incomes, and virtually none within the reach of households with incomes of $9,000 a year or less. This contrasts with the present township population, approximately 12% low income and 19% moderate income. Id. at 446 .

*494 The court assessed Madison Township's obligation to provide its fair share of regional housing needs as follows:

Without the rigidity of a mathematical formula this court holds that Madison Township's obligation to provide its fair share of the housing needs of its region is not met unless its zoning ordinance approximates in additional housing unit capacity the same proportion of low-income housing as its present low-income population, about 12%, and the same proportion of moderate-income housing as its present moderate-income population, about 19%. The amended zoning ordinance under review falls palpably short and must be struck down in its entirety. Id. at 447 .

The court did not specify any absolute numerical quota of low and moderate income units the ordinance would be expected to render possible, but found that annual needs "into the 1980's were 750 to 1000 units, 500 to 600 of those low and moderate income." Id. at 442 .

The court dealt with the defendants' argument that ecological and environmental factors justified the RP, R-80 (2 acre lot minimum) and R-40 (1 acre lot minimum) zones by pointing out that such problems had "no bearing" except in specified limited areas and that "ample land outside these areas is available" with which the township could meet its obligation to provide its fair share of needed housing. 128 N.J. Super. at 447 .

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

*495 General guidelines toward eliminating undue cost-generating restrictions were stated in Mount Laurel (67 N.J. at 187):

By way of summary, what we have said comes down to this. As a developing municipality, Mount Laurel must, by its land use regulations, make realistically possible the opportunity for an appropriate variety and choice of housing for all categories of people who may desire to live there, of course including those of low and moderate income. It must permit multi-family housing, without bedroom or similar restrictions, as well as small dwellings on very small lots, low cost housing of other types and, in general, high density zoning, without artificial and unjustifiable minimum requirements as to lot size, building size and the like, to meet the full panoply of these needs.

In the absence of legislation providing for regional zoning authorities, while municipalities are empowered to zone individually, they must nevertheless (if of the "developing" category described in Mount Laurel, 67 N.J. at 160), by their zoning regulations serve and not impede the general welfare represented by satisfaction of the housing needs of lower income people throughout the region. 67 N.J. at 188-190; [3] id. at 194 (Pashman, J., concurring).

*496 After the last argument in this matter the Legislature revised the zoning statutes of this State by enactment of the "Municipal Land Use Law", L. 1975, c. 291, which by its terms became operative August 1, 1976. We invited and have received from counsel supplemental comment as to any effect of the new law on the issues herein, particularly as to the continued viability of Mount Laurel. We find nothing in the statute inconsistent with the doctrine there laid down. (The decision would control, in any event, in view of its constitutional underpinning.) Without here indulging in any comprehensive evaluation of the new law, certain of the purposes stated in Section 2 seem particularly pertinent.

d. To ensure that the development of individual municipalities does not conflict with the development and general welfare of neighboring municipalities, the county and the State as a whole;

e. To promote the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, communities and regions and preservation of the environment;

g. To provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open spaces, both public and private, according to their respective environmental requirements in order to meet the needs of all New Jersey citizens.

*497 At the same time, the new law reminds us, as we emphasized in Mount Laurel, that out of a proper concern for adequate housing there should not and need not be over-intensive and too sudden development, future suburban sprawl and slums, or sacrifice of open space and local beauty. 67 N.J. at 191. Thus, the newly articulated purposes of Section 2 of the statute include:

c. To provide adequate light, air and open space.

j. To promote the conservation of open space and valuable natural resources and to prevent urban sprawl and degradation of the environment through improper use of land.

I

Outline of Major Issues

The judgment of the trial court, the intervention of our decision in Mount Laurel and the nature of the record and briefs before us combine to cast the issues for determination as follows:

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

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

3. If, as we have concluded, the foregoing question should be answered in the negative, what kind of an order should be made to assure Madison's compliance, as a developing municipality, with Mount Laurel's mandate that its zoning ordinance "afford the opportunity" for at least "the municipality's *498 fair share of the present and prospective regional need" for "decent and adequate low and moderate income housing"? 67 N.J. at 188.

II

"Fair Share" and "Region" — Preliminary Considerations

As noted above, the prime question before us, in Mount Laurel terms, is whether the trial court has correctly found that Madison's zoning ordinance does not provide the opportunity to meet a fair share of the regional burden for low and moderate income housing needs. We have seen that the trial court did not specify the precise boundaries of the applicable region nor fix an absolute number of appropriate housing units to be provided. It merely described the pertinent region as the area from which the population of the township would be drawn, absent exclusionary zoning.

A substantial body of evidence was adduced by the defendant below purporting to specify Madison's fair share of Middlesex County's unmet need for low and moderate income housing as of 1975. Moreover, the record before us, the briefs and the literature in the field supply abundant data concerning methods and techniques for estimating a municipality's fair share of a regional housing need. We propose to comment on these matters hereinafter, for three purposes: (a) to explain our conclusion that the evidence concerning fair share adduced by defendant does not refute the trial court determination that the Madison ordinance is deficient in the respects noted; (b) to elucidate the considerations relating to the appropriate "region" whose housing needs are relevant to this action; and (c) to furnish guidance to courts, counsel and expert witnesses in this area in applying the principles of Mount Laurel to litigated controversies generally.

However, we deem it well to establish at the outset that we do not regard it as mandatory for developing municipalities whose ordinances are challenged as exclusionary to devise specific formulae for estimating their precise fair share of the lower income [4] housing needs of a specifically *499 demarcated region. Nor do we conceive it as necessary for a trial court to make findings of that nature in a contested case. Firstly, numerical housing goals are not realistically translatable into specific substantive changes in a zoning ordinance by any technique revealed to us by our study of the data before us. There are too many imponderables between a zone change and the actual production of housing on sites as zoned, not to mention the production of a specific number of lower cost units in a given period of time. Municipalities do not themselves have the duty to build or subsidize housing. Secondly, the breadth of approach by the experts to the factor of the appropriate region and to the criteria for allocation of regional housing goals to municipal "subregions" is so great and the pertinent economic and sociological considerations so diverse as to preclude judicial dictation or acceptance of any one solution as authoritative. For the same reasons, we would not mandate the formula approach as obligatory on any municipality seeking to correct a fair share deficiency.

We are convinced from the record and data before us that attention by those concerned, whether courts or local governing bodies, to the substance of a zoning ordinance under challenge and to bona fide efforts toward the elimination or minimization of undue cost-generating requirements in respect of reasonable areas of a developing municipality represents the best promise for adequate productiveness without resort to formulaic estimates of specific unit "fair shares" of lower cost housing by any of the complex and controversial allocation "models" now coming into vogue. [5]

It is desirable that administrative agencies acting under legislative authorization assume the regulation of the housing distribution problem. Until then, in the current post- Mount Laurel period judicial emphasis on approaches such as those just outlined, and exemplified in the remedial section *500 of this opinion, will, it is hoped, suffice to move the State toward the objective of "available housing in the developing municipalities for a goodly number of the various categories of people of low and moderate income who desire to live therein and now cannot." Mount Laurel, 67 N.J., at 188, n. 21.

III

Madison — Its Growth and Development

Madison Township consists of approximately 42 square miles, or 25,000 acres, in the southeast corner of Middlesex County, of which almost 40% is vacant developable land. Its location within the gap between the metropolitan centers of New York and Philadelphia is a strategic one: this "Atlantic urban region" gap is expected to be bridged within the next 25 years, with a concomitant population increase of 75%. The Tri-State Regional Planning Association (covering counties in New York, New Jersey and Connecticut and including Middlesex) predicts that Middlesex will be one of four counties to experience the greatest rates of growth in the tri-state area from 1970 to 2000.

Parts of the township lie within 20 miles of the highly urbanized areas of Elizabeth and Newark. Easy access to and from the municipality is provided by several major highways which traverse it. The Garden State Parkway and State Highways 34 and 35 cut across the eastern portion of the township, connecting Madison to both the south Jersey shore area and the Newark-New York metropolitan area. State Highway 18 and U.S. Route 9 run through the center of the township, and there are three major county roads, 527, 516 and 520. The New York-Long Branch Railroad runs through the eastern portion of the municipality, and although there are no commuter stations in the township itself there are in nearby communities. The accessibility of the township is readily illustrated by the status of the community *501 as a commutershed. Only 1% of Madison's employed residents work within the township. As found by the trial court, 50% of the work force are employed in Middlesex County, 15% in New York City, 10% in Essex County, 9-12% in Union County and 7% in Monmouth County.

Madison is an archetypal "developing" municipality within the contemplation of the Mount Laurel specifications. 67 N.J. at 173, 187. During the past 25 years, it has experienced explosive growth. Its population increased over two decades by 561%, from 7,366 in 1950 to 48,715 in 1970. This boom has continued, with the population climbing to 50,000 by the time of the first trial and 55,000 by the second in 1974. With the growth and concomitant municipal problems came a steady rise in tax rates.

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

The older residential development is concentrated to some extent in the Old Bridge and Browntown areas and on the Raritan Bay, which forms the eastern boundary of the municipality. Lawrence Harbor and Cliffwood Beach, the two major developments located on the Raritan Bay, consist mainly of bungalows on 50-foot lots originally built in the *502 1920's as summer cottages and since converted into year-round residences. Newer single family developments and apartment complexes are peppered over the township, except for the southwestern third of the township which is largely undeveloped. Most single family homes are on lots less than an acre. It does not appear that prior to the first trial any one-or two-acre housing developments had been constructed except for some two-acre homes built in the 1920's. Commercial land uses are scattered, generally following some of the major highway routes. Industrial usage is slight.

Construction within the township fell off from 1970 to 1973. Comparing Madison with four nearby municipalities of generally similar characteristics (with large undeveloped areas) for the said three year period, Madison issued an average of only 53 dwelling unit building permits per year as against 368 in East Brunswick, 309 in Monroe, 89 in Sayreville and 212 in South Brunswick. Although Madison contains 20% of the county's vacant residentially zoned land, and from 1960 to 1970 issued 15% of all the building permits, from 1970 to 1972 its percentage of county building starts fell to 6%.

From 1950 to 1970 the housing growth in the township was characterized by construction of single family homes built on lots of 15,000 square feet or less and of a number of multi-family garden apartment developments. Virtually all the apartment units in the township, however, were constructed after 1963, and by April 1969 they comprised 3,700 or 27.4% of the total of 13,499 housing units in the township. In 1970, 56% of the single family dwellings in the township were valued at $25,000 or less. Figures from the 1970 census show that, in terms of statewide quintiles (20%) of income category, 12% of the township's households had incomes below $6,627, 19% between $6,627 and $9,936, 24% between $13,088 and $19,236, and 18% above $19,236. As of 1970, existing land uses were predominantly residential: 68% of all realty taxes were paid by single family homeowners, 16% by apartments and condominiums and the rest by commercial users, farms and industry.

Thus the overall pattern of land use confronting Madison Township planners and officials in 1970 was one of substantial *503 but scattered residential growth, with little industrial and commercial development. The 1970 ordinance was a hurried effort to slow population growth and the accompanying rise in the tax rate and largely to confine new population to designated areas. See 117 N.J. Super. at 14 .

IV

The Zoning Ordinances

A. The 1970 Ordinance

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

B. The 1973 Ordinance

The 1973 ordinance extensively revised the land use restrictions of the prior ordinance. The amount of land zoned nonresidential (commercial, office and industrial) was decreased by 760 acres from 19.80% to 16.70% of the total. A new "open space" zone — RP or Recreation-Preservation — was created. This encompassed the areas deemed environmentally sensitive by the township: Cheesequake State Park, the Old Bridge sands area, Burnt Fly Bog, the meadowlands adjacent to Deep Run (the latter three containing underground water resources areas), and the Raritan beachfront. The RP and the RR zone (also an open space area devoted to substantial preservation in a natural condition) were permitted to be developed as R-80 on two-acre lots until acquired by the municipality.

*504 Although the fact was not stressed at trial, Madison has placed more than 4,000 acres in zones restricted to industrial and office uses despite the fact that only some 600 acres have ever been devoted to that use. By comparison, we criticized Mount Laurel for zoning 4,100 acres industrial although only 100 acres had ever been so used. 67 N.J. at 162-163, 184.

The 1973 ordinance considerably increased the facial housing potential of the prior ordinance. It enlarged the total acreage available therefor by 800 acres and the potential housing capacity, inclusive of existing housing, by 16,000 units or 46,000 persons. These figures, supplied by the Madison Township Housing Study, may be misleading, as they assume all acreage zoned residential is or will be developed to its maximum permissible density whereas some of it is already developed, either non-residential or below permissible density, or is undevelopable.

Under the 1973 ordinance, there are five single-family zones, accounting for 72% of the total vacant residential area. [7] The most restrictive zone, the R-80, with a minimum lot size of two acres, was reduced from 9,134 to 3,040 acres. The R-40 zone (one acre minimum lot size) was increased from 5,557 to 7,511 acres. Together, however, these two zones account for 42% of the total acreage within the township, 58% of its vacant developable acreage, 70% of the total acreage zoned single-family, and 80% of vacant developable single family acreage. [8] The R-20 zone, 1,977 total *505 or 1,285 vacant developable acres, requires a 20,000 square foot minimum lot size.

These three zones (R-20, R-40 and R-80) may be compared with the zones considered exclusionary in Mount Laurel. There more than half the township was zoned R-3, requiring single family homes on half acre lots; in the instant case, over 50% of the township is zoned for half acre lots or larger, and 42% for one-or two-acre lots. Considering only vacant developable acreage, the total for the three zones is over 65%, 58% comprising R-40 and R-80. [9]

The R-15 zone [10] and R-10 zones, requiring 15,000 and 10,000 square foot lots respectively, account for another 5% of the land. Both are more restrictive than the R-1 zone (9,375 square foot, 75' wide lots) involved in Mount Laurel. Calling for some "very small lot" zoning in a developing municipality, 67 N.J. at 170, n. 8, 187, Justice Hall noted that minimum size lots of 9,375 to 20,000 square feet "cannot be called small lots and amounts to low density zoning." 67 N.J. at 183. Yet almost 70% of Madison Township is zoned at such or lower densities (including the RP and RR zones).

Only the R-7 zone allows residential single family development on lots smaller than those found in Mount Laurel to constitute low density zoning. It allows 7,500 square foot lots and two-family dwellings. However it accounts for only 5.8% of the total acreage and 2% of the vacant developable acreage in the township.

*506 The AF or multi-family apartment zone was enlarged by 150 acres. The prescribed bedroom ratio of the prior ordinance (80% one bedroom, 20% two bedroom) was deleted and replaced by a floor area ratio (FAR) limiting construction to a maximum of 10,000 square feet per acre. Although the ordinance presumably allows any size units in any combination, up to the maximum FAR, the impact of the building area ratio combined with the profit incentive which motivates developers is such that, according to the proofs, only small units (efficiencies and one bedrooms) will be constructed. [11]

Of the 676 acres zoned AF (2.7% of the total township acreage) at most only 193 acres are vacant and developable (2.3% of township total). The true figure, however, as indicated by Judge Furman, is more likely to approximate 120 acres (or 1.5% of township total). [12] The AF zone is limited to the development of parcels of six or more acres. The parties agreed that the AF zone could hold at least 800 housing units, but defendant maintains the maximum capacity *507 is 1,700. However, as against township planner Abeles's estimate of 15,600 to 20,700 total additional units of all kinds possible under the ordinance, the potential AF units constitute only 5.1% to 8.2% thereof. [13]

Madison Township relies heavily on provisions in the 1973 ordinance for PUDs (planned unit developments) and clustering to satisfy its obligation with respect to low and moderate income housing. On the evidence, that reliance is illusory.

The PUD, an overlay zone, is a modern planning modality, introduced by the 1973 ordinance pursuant to N.J.S.A. 40:55-54 et seq. See Mount Laurel, 67 N.J. at 166; L. 1975, c. 291, Secs. 2k, 29.1b. Three areas are zoned for PUD — two of which are on remote sites unserviced by water and sewer utilities. PUD requirements vary, depending upon the amount of land in the developer's tract. [14] A Class I PUD, between 150 and 300 acres, has a maximum density of 3.5 units per acre. Of all the units constructed in a Class I PUD, a minimum of 30% must be detached single-family units, [15] and the remainder may be medium density multi-family. [16] A Class II PUD, between 300 and 500 acres, has a maximum density of 4.25 units per acre; a minimum of 17.5% of the units must be single-family, a maximum of 12.5% may be *508 high density, [17] and the remainder medium density. Class III PUDs (over 500 acres) are the most favored, with an allowable density of 5.0, 12.5% minimum single-family detached and maximum 17.5% high density. The densities allowed in the PUD zones are 20% lower than those originally proposed by the municipal planners. Moreover, it is unlikely that the highest density (5.0) will ever be utilized as there are within the PUD zones no 500-acre parcels owned by a single entity, and accumulation of the necessary number of acres is, according to the credible evidence, neither "possible nor probable." [18]

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

The proofs render it patent that the PUD requirements have the potential for greatly increasing the costs of housing units in that zone. The school requirement alone adds a cost of $2.2 million (or 66% of all the central improvement costs involved in a PUD project) to the project budget of a Class II PUD.

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

The credible proofs indicate that the clustering provisions are unlikely to have a significant impact on the cost of housing as the low densities and limits on numbers of attached units make significant economies of scale unlikely, and therefore, according to plaintiffs' experts, cluster development may not occur at all. Yet even under the cluster provisions costs would be prohibitive to most lower income families. According to the township planner, an R-40 townhouse would cost a minimum of $29,000; plaintiffs' expert places the average townhouse figure at $52,000. Moreover, the single family detached units which constitute 80% of an R-40 cluster would according to plaintiffs' expert cost $64,000. The allowable densities are still too low to create significant cost savings. By comparison, Mount Laurel had a similar cluster provision allowing a density of 2.25 units per acre upon dedication of 15% of the total acreage to the municipality and reservation of 25% for public use.

The distribution of vacant and developable acreage (and total acreage) among the various zones under the ordinance shows that low density, middle and high income residential *510 uses are strongly favored. Only a maximum of 2.37% of the town's vacant developable residential acreage is zoned for multi-family apartments (AF), and the correct figure may be as low as 1.02% or 0.84%. An additional 2% is zoned R-7 for small lot attached double houses. Though 9.9% is zoned for PUD development, the location of two of the three PUD tracts makes their development highly unlikely. Using the township planner's estimates of the potential future building capacity under the 1973 ordinance, the R-7 and AF zones account for a maximum of 16% of all housing units. By contrast, the R-80, R-40 and open space zones account for over 71% of the vacant developable residential acreage and over 41% of the housing units. If the R-15 and R-20 zones are counted, the large-lot single-family acreage figure increases to 82% and the unit figure to almost 50%.

V

"Least Cost" versus "Low and Moderate Income" Housing

A key consideration in this particular case as well as a factor integral to the entire problem, generally, is the well-known fact, amply corroborated by this record, that private enterprise will not in the current and prospective economy without subsidization or external incentive of some kind construct new housing affordable by the low income population and by a large proportion of those of moderate income. [19] We recognized this fact in Mount Laurel. 67 N.J. *511 at 170, n. 8; 188, n. 21. The amount and kind of governmental subsidies available for housing has always been fragmentary, and federal sources have recently been restricted. [20] What can legally be required of municipalities by way of initiation of public housing programs and provision of zoning incentives for production of lower income housing will be discussed infra. But it will be apparent that sources extraneous to the unaided private building industry cannot be depended upon to produce any substantial proportion of *512 the housing needed and affordable by most of the lower income population.

In view of the foregoing, defendant implies that the mandate of Mount Laurel is impracticable in the current economy and that litigation to enforce it is futile. Thus defendant flatly asserts in a supplemental brief: "We do not believe that substantial low and moderate income housing can be created by zoning." However, it goes on to make an observation which appears to us to provide the clue to the only acceptable alternative recourse if in fact private enterprise cannot economically construct the housing needed for lower income families. It states:

Planned Unit Development can help by providing large amounts of additional housing some of which is in the moderate income range. The effect of new construction is also to create filtering whereby families in the moderate income group move into new housing created in the PUD zone making available existing housing for lower income families who cannot afford the new. Without subsidization, this is undoubtedly the most reasonable and certain method of creating housing opportunities for low income families.

To the extent that the builders of housing in a developing municipality like Madison cannot through publicly assisted means or appropriately legislated incentives (as to which, see infra ) provide the municipality's fair share of the regional need for lower income housing, it is incumbent on the governing body to adjust its zoning regulations so as to render possible and feasible the "least cost" housing, consistent with minimum standards of health and safety, which private industry will undertake, and in amounts sufficient to satisfy the deficit in the hypothesized fair share. As the matter was put in a supplemental amicus brief of The Public Advocate:

* * * for now, and in the foreseeable future, it is absolutely essential to build a substantial amount of housing units at the lowest cost feasible and consistent with health and safety. Builders now must be given the opportunity to build as inexpensively as possible in order to accommodate the low, moderate-subsidized and, especially, moderate-conventional *513 population. Thus, in one sense, future disparities in the increases in housing cost and median income are not relevant; that is, we should be building at the lowest cost feasible now.

This sentiment has also been expressed by a leading commentator who responded thus to the argument that the inability of lower income persons to afford unsubsidized housing rendered minimal the impact of exclusionary ordinances:

As a factual matter, the situation may often be otherwise; particularly where the ordinance is enacted by an undeveloped suburb attempting to stem an urban tide, the availability of low cost housing a decade hence may be very much a function of zoning requirements today.

Sager, "Tight Little Islands: Exclusionary Zoning, Equal Protection and the Indigent", 21 Stanford L.J. 767, 792 (1969).

Nothing less than zoning for least cost housing [21] will, in the indicated circumstances, satisfy the mandate of Mount Laurel. While compliance with that direction may not provide newly constructed housing for all in the lower income categories mentioned, it will nevertheless through the "filtering down" process referred to by defendant tend to augment the total supply of available housing in such manner *514 as will indirectly provide additional and better housing for the insufficiently and inadequately housed of the region's lower income population. See also Mount Laurel, 67 N.J. at 205 (Pashman, J., concurring). [22]

It will be apparent from our survey of the facts and the discussion hereinafter that the 1973 ordinance under review not only fails to provide directly for Madison's fair share of the region's low and moderate income housing needs but also is not geared to satisfy such a share in terms of "least cost" housing in the sense just described. The failure will be seen to be both quantitative and qualitative. Insufficient areas are zoned to permit such housing, and the zoning restrictions are such as to prevent production of units at least cost consistent with health and safety requirements.

VI

Incapacity of the 1973 Ordinance to Effect Adequate Lower Income Housing

As we shall indicate hereinafter, Madison's planners have, for purposes of this litigation, formulated a study purporting *515 to demonstrate an unmet need in Madison for low and moderate income housing, as its share of a larger Middlesex County regional need therefor, of some 1800 housing units as of 1975. [23] Assuming, for present purposes, the legitimacy of that estimate — a matter for discussion in a later section of this opinion — the evidence is convincing that the 1973 zoning ordinance does not hold the promise of an opportunity to meet that need and at the same time satisfy the prospective continuing need in the foreseeable period following 1975. This, in effect, was the substance of Judge Furman's holding, quoted earlier herein. From his conclusions, [24] amply supported by the record, it appears that no new housing is feasible under the ordinance for persons in the bottom income third of the population (under $9,000); that at most 12% (3500/30,000) to 17% (3500/20,000) of all new housing units are attainable by persons earning $10,000 [25] a year; so that 83% to 88% of the feasible future units would be zoned out of the reach of the lowest 40% of the population.

The anatomy of these failures is apparent.

In our analysis of the minimum lot single-family and multi-family zones in IVB, supra, the prima facie disproportion of land zoned for high cost residences vis-a-vis that *516 zoned for lower cost residences and multi-family units was fully canvassed. According to the proofs here adduced, there is little or no present market for the R-80 and R-40 zoning as such. Cf. Schere v. Township of Freehold, 119 N.J. Super. 433 (App. Div.), certif. den. 62 N.J. 69 , cert. den. 410 U.S. 931 , 93 S.Ct. 1374 , 35 L.Ed. 2d 593 (1972). While the R-7 zone may permit a marginal amount of moderate income housing, new home ownership in that zone is precluded for the low income population. While the latter condition may be economically unavoidable (see V, supra ), Madison has provided for no home ownership at all on "very small lots", as mandated by Mount Laurel. 67 N.J. at 187. Clearly no effort was made to permit "least cost" single family homes — and certainly not in reasonable numbers.

We have further seen that the multi-family zoning regulations are not only substantially deficient in areas of developable vacant land made available therefor, but also defective in their susceptibility to entrepreneurial concentration in one-and two-bedroom configurations.

Mount Laurel requires that a municipality must allow for "an appropriate variety and choice of housing." 67 N.J. at 174. This obligation extends to all types of housing and includes moderate and large sized multi-family units. In Mount Laurel, bedroom limitations were considered "so clearly contrary to the general welfare as not to require further discussion." 67 N.J. at 183. Although the express bedroom restrictions of the 1970 Madison ordinance were excised in 1973, the maximum bulk and density regulations in the AF and PUD zones (the sole sites of multi-family units), [26] when combined with the economics of building, effectively dictate devolopment on an 80% one bedroom, 20% two bedroom mix, and such a combination was within the contemplation of the township planners. This is not an *517 inevitable result of zoning and economics, for a municipality through the zoning power can and should affirmatively act to encourage a reasonable supply of multi-bedroom units affordable by at least some of the lower income population. Such action should include a combination of bulk and density restrictions, utilization of density bonuses, [27] minimum bedroom provisions and expansion of the FAR ratio in the AF zone to encourage and permit larger units.

Although the validity of a zoning provision for density bonuses in the sense stated in note 27, supra (as distinguished from unit bonuses for rental concessions — i.e., "rent skewing"), has not been argued in this case, we see no objection to it in principle. Comparable bonuses are expressly permitted by the statute in relation to PUDs and clustering. N.J.S.A. 40:55-57(b)(2) and (3). While there is no express statutory sanction for a density bonus provision outside the PUD context, this type of regulation is directly tied to the physical use of the property and is thus within the recognized ambit of the zoning power. There was unanimity of opinion among the experts at the trial herein that such a device is a vital weapon in the armament of affirmative zoning for adequate housing of families in all income categories. Recognizing that the objectives of Mount Laurel are essential to the effectuation of the general welfare, and are within the broad legislative delegation to municipalities of both the zoning and the general police power, see Ward v. Scott, 11 N.J. 117 (1953); 16 N.J. 16 (1954), and Inganamort et al. v. Bor. of Fort Lee, et al., 62 N.J. 521 (1973), we hold that provision for density bonuses in the sense indicated is within the municipal zoning *518 power, and, in situations such as that here presented, is a necessary implement in the encouragement of builders to provide multi-family housing for those of lower income. Cf. Mount Laurel, 67 N.J. at 170, n. 8.

We are constrained to take a more reserved position as to the validity of zoning provisions for "rent skewing", or the allowance of greater density in either sale or rental accommodations in exchange for special concessions by the developer of rental or sale price of a limited number of units. Although this is also a widely recommended zoning technique for handling the problem of encouraging private construction of lower income housing, [28] we discern serious problems with the exercise of local zoning power in such a manner without express legislative authorization. See Board of Supervisors v. De Groff Enterprises Inc., 214 Va. 235 , *519 198 S.E. 2d 600 (Sup. Ct. 1973); Annot. 62 A.L.R. 3d 880 (1975). We will not here resolve the issue in the absence of adequate argument on the matter. However, we are not to be understood as discouraging local initiative in this area; the question, moreover, deserves legislative study and attention.

It seems useful to point out, in connection with the revision of the ordinance which will be required by our judgment herein, that sound planning calls for providing for a reasonable cushion over the number of contemplated least cost units deemed necessary and believed theoretically possible under a particular revision. Plaintiff adduced testimony that a reasonable margin over any formulaic quota was necessary in order to produce any likelihood of achievement of the quota. The reasons are evident. Many owners of land zoned for least cost housing may not choose to use it for that purpose. And developers of least cost housing may not select all of the zoned land available therefor, or at least not within the anticipated period of need. Thus overzoning for the category desired tends to solve the problem. [29]

The PUD provisions do not contribute to the desideratum of Mount Laurel. The provisions were analyzed *520 in IVB, supra. We assume, for present purposes, that PUD zoning is valid. It has not been attacked in this case, and the relevant legislation, N.J.S.A. 40:55-54 et seq.; L. 1975, c. 291, Secs. 2 k, 29.1 b, as in the case of all legislation, is presumptively valid. Cf. Mount Laurel, 67 N.J. at 166-167, n. 5. In any event, it is a corollary of Mount Laurel that when municipal exactions from developers reach such proportions as to exert an exclusionary influence, whether in a PUD or any other context, they offend the constitutional precept of Mount Laurel and must be remedied.

As pointed out by Heyman and Gilhool in their penetrating study of the rationale for upholding subdivision requirements: "But such exactions raise the spectre of exclusion: arguably they will add so to the cost of suburban housing as to exclude an even larger portion of lower income and nonwhite population than is presently relegated to life in the central cities by the higher suburban costs." "The Constitutionality of Imposing Community Costs of New Suburban Residents Through Subdivision Exactions", 73 Yale L.J. 1119 , 1155 (1964). The authors conclude, however, that the exclusionary impact of such exactions "will be strikingly slight because legislative and judicial pressures will tend to require the establishment of reasonable ceilings." Ibid. Cf. Berger, Land Ownership and Use 786, 787 (2d ed. 1975).

Heyman and Gilhool found subdivision exactions ranging from $37.50 to $325 per lot to be reasonable. Id. at 1156. In contrast, a $2.2 million expenditure for schools in a Class II 300 acre PUD with a maximum capacity of 1,725 units yields a per unit exaction of $1275 [30] which does *521 not seem to be reasonable even at the high price levels of 1974. [31] This requirement must be omitted in the revision of the ordinance.

The requirement for the provision by the PUD developer of roads, water and sewage facilities presents a different situation. Such statutorily authorized municipal requirements for approval of subdivision plats have generally been held to be valid exercises of the police power. Brazer v. Borough of Mountainside, 55 N.J. 456 (1970). Nevertheless, as already noted, application of the police power through zoning cannot be had in a manner contrary to the general welfare. Mount Laurel, 67 N.J. at 175.

Other limitations on this statutory power have previously been recognized. Cf. Divan Builders v. Planning Bd. Tp. of Wayne, 66 N.J. 582 (1975). There this court considered a prerequisite to subdivision approval that the developer contribute toward the cost of an off-site drainage facility without allocating any part of the cost to other properties specially benefitted by the improvement, and found it invalid. Similarly, in Longridge Builders, Inc. v. Planning Bd. of Princeton Tp., 52 N.J. 348 (1968), the court condemned a condition to subdivision approval that plaintiff pave an off-site right of way, resulting in the imposition of the entire cost upon plaintiff, when other lands would benefit from the improved road and there were inadequate standards and procedures for the allocation of costs.

In this light, the $300,000 and $600,000 costs involved in bringing roads and utilities to the removed PUD sites (a distance of up to two miles, compared to the 361-foot distance of the improvement involved in Longridge, *522 supra ) bear examination. To the extent that these costs do not prohibit development, they nonetheless add sufficiently to final costs as to tend to have an exclusionary impact. Further considerations highlight the questionable validity of these requirements.

Only a limited area has been denoted PUD (9% of the township's vacant developable residential acreage), and 2/3 of it is in remote areas. This is not a case of a substantial category of land being reasonably zoned as a whole, with only a minor portion excessively burdened. Quite the opposite. The municipality could well have located these PUDS in more accessible areas of the town had it been motivated to render housing for lower income families more available. However, the record clearly shows that the sites were deliberately chosen in order to force the PUD developers and their customers to carry the burden of developing these remote areas. The township planner testified that the "decision was made that two PUDs would be the incentive to complete and bring around the water system * * * to provide a main system that would rationally serve 1/3 of the township." This kind of motivation is echoed in the minutes of the planning board and township council where it was noted that because of the locations chosen the developers would be required to build portions of the trans-Madison highway as well as to widen and improve Union Hill Road. Such expenditures by PUD developers would directly benefit the owners of other property advantaged by the added facilities and paved roads yet not required to contribute a proportionate amount of the cost.

The potential impact of the water and sewer line requirements is shown by the conclusion of the Middlesex County Planning Board, in reviewing the PUD ordinance, that the two remote PUD areas would probably not be developed at all within the next ten years. Under the totality of the stated circumstances, it must be concluded that a prima facie case of exclusion has been made out with respect to the road and facility requirements, and the burden shifts *523 to the municipality to justify those provisions of the ordinance. Cf. Mount Laurel, supra, 67 N.J. at 181. As the municipality has not met its burden, the municipality will be directed on remand to do one or more of the following in the course of revision of the ordinance (if it continues in its position that the PUD provisions partly meet its obligation to zone for least cost housing): (1) eliminate these requirements or revise them to render them not exclusionary; (2) require proportionate donation by other property holders; or (3) relocate these or other PUD tracts nearer to utility hookups.

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

Admittedly, a protracted approval process will add greatly to the cost of any project and hence may tend to render development prohibitive to lower income users. The evidence as to the cost impact of the Madison PUD provisions was contradictory. As noted, they were adopted pursuant to the PUD enabling legislation, N.J.S.A. 40:55-54 to 67. The statute undertakes to replace existing multifarious procedures with "an expeditious method of processing a plan for a planned unit development * * * to avoid the delay and uncertainty" inherent in the other procedures. N.J.S.A. 40:55-59. It then proceeds to lay out a two-stage approval process which the Madison ordinance follows with one exception. The ordinance adds a third "informal preliminary application" stage which must be completed prior to the filing of an application for tentative approval. This "informal" stage adds approximately 40 days. Without it, *524 the entire process on its face takes 150 days. [32] Consequently the township's testimony that the procedure may be completed within nine months is supportable on the record. Except for the "informal preliminary application" stage, the procedure is valid. The latter, being unduly cost-generating, and not contemplated by the statute, should be eliminated.

We need add no more to the discussion above in IV B of the inadequacy for fair share purposes of the cluster provisions of the ordinance.

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

VII

The "Fair Share" Approach of the Defendant

We made the preliminary observation in II, supra, that although we would neither make nor require a finding of *525 fact as to a given number of lower income housing units to be made possible by the Madison Zoning Ordinance, we would, for the purposes there enunciated, nevertheless discuss the evidence herein concerning Madison's fair share of a regional need for such housing. By way of further preliminary, we adhere to the broad principle of Mount Laurel that each developing municipality must by its zoning ordinance provide the opportunity for a fair share of the lower income housing needs of its region. We intend that our judgment herein shall subserve that principle notwithstanding that we do not propose to, nor require that the trial court shall demarcate specific boundaries for a pertinent region or fix a specific unit goal as defendants' fair share of such housing needs.

Defendant undertook at the trial to establish what would constitute a fair share of the regional need for low and moderate income housing for Madison's zoning ordinance to render possible. It relied upon two allocation studies, one made in 1972 on behalf of the Middlesex County Planning Board by a planner named Kim ("Kim study"); the other made on behalf of the Madison Township Planning Board in 1974, during the litigation below, by its planning adviser Abeles and his firm ("Abeles study"). The Abeles study, in turn, partly relied on an estimate of Madison's unmet lower income housing needs as of 1975, made in 1970, by the Middlesex County Planning Board ("County study"), updated by Abeles in 1974. Both the Kim and the Abeles studies took Middlesex County as the relevant region, making allocations of "fair shares" of lower income housing for each of the 25 municipalities in the county. The allocations of the two studies for Madison were relatively close, the Kim study arriving at about 1600 lower income units, and the Abeles study, about 1800 units, both as of 1975. Neither, however, ventured a prognostication as to Madison's continuing fair share of the region's needs on an annual or *526 other periodic basis for the foreseeable future beyond 1975. [33] In the latter regard, however, Abeles foretold that Madison's housing suit growth (total) until 1975 would be at the annual rate of 600-800 units and from 1975 to 1980 at 800-1000. This was not broken down between lower income and other categories.

By comparison with the foregoing, Davidoff, plaintiffs' planning expert, estimated an unmet need in Madison as of 1975 of 3,000 lower income units, and a continuing need thereafter into the 1980's of 1000-1200 units annually (total) of which 500-600 should be lower income. [34]

The county study indicated an unmet county need for lower income housing units as of 1975 of 23,600 units. Significantly, the study stated:

"To meet this deficit, increases in public and private resources will be required. For the county and its municipalities these resources would include the freeing up of more land for residential development of a particular density and location commensurate with socio-economic function of units required * * *" (emphasis added).

The plan of the Kim study was to estimate what the demand (need) for low and moderate income housing in the county would be by 1975 and to compare it with the prospective supply of such units by that date. The pertinent lower income category used was those households with less than $12,000 annual income as of 1970. Kim estimated a 1975 county population of 766,946 (583,000 in 1970) and *527 the number of persons employed as 290,700 (241,000 in 1970). The estimates were based on expected movements of people and jobs from large urban centers to the suburbs. In general there would be an "expansion" from the New York metropolitan region to the outer boundaries of Middlesex County and to the south and west thereof.

Kim estimated a demand for lower income housing in 1975 of 126,374 households or units (111,301 in 1970) to which he added a factor of 6.5% for normal vacancy rate, or a total 1975 demand of 134,589.

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

The Kim allocation (fair share) of the deficit among the 25 municipalities of the county was based on a complex mathematical formula reflecting the following factors: (a) housing location in relation to work place; (b) housing location in relation to housing construction costs, i.e., land costs per unit; (c) other "constraints", e.g., the subregion's capacity to absorb more housing. The application of the formula to Madison was to allocate to it a "fair share" of 8.4%, or about 1600 units.

The Abeles study avowed as a goal "increasing the housing supply for all income groups." The new housing "should be provided in a mixture of housing types and costs at various locations in the township." The job dispersion outside Middlesex County of Madison's resident work force as compared with the work force resident in the county as a whole is indicated by the percentages of 50% for the township and 36% for the county. Correlatively, Madison has 8% of the population of the county but only 0.8% of the jobs.

*528 The Abeles study averred that important to a fair share-regional plan is the consideration of the relevant "housing market area". This is defined as "the geographic area in which housing units are in competition for the people who are seeking housing". The study conceded that "Madison Township is a relatively small part of a market area which could encompass virtually all of Central New Jersey," but stated that its purposes would be met by assuming a housing market area confined to Middlesex County. [35]

The Abeles study projected a growth of 12,000 households in Middlesex County from 1970-1975 and another 15,000 between 1970 and 1980. This growth will take place primarily in municipalities with an ample supply of vacant land. The existing supply of housing in the county is very limited, as indicated by the abnormally low vacancy rates (1% in the county in 1970; 1.5% in Madison). Sixty minutes is a "commonly acceptable limit for commutation." The highway network allows for considerable mobility and creates substantial housing demand in Madison.

*529 Unlike the Kim study, the Abeles study did not approach the concept of housing needs from a demand and supply relationship, but rather from that of the number of obsolete housing units in existence. Obsolescence was defined as (1) undesirable physical conditions; (b) overcrowding of occupants of unit; and (c) excessive share of income being paid as rent. The total thus determined was found to concur generally with a 1974 revision of the 1970 estimate by the county study of an unmet need as of 1975 for lower income housing in the county. The revision increased the original estimate of 23,600 to 29,251 units.

The county need was allocated as "fair share" to municipalities in accordance with a formula generally resembling that devised by the Metropolitan Washington Council of Governments (COG). This involves housing need factors and housing supply factors. To those the Abeles study added certain modifiers. The need factors were generally those aforementioned related to obsolescence. The supply factors comprise vacant residential land as zoned and vacant housing units. The modifiers were (1) per capita financing resources; (2) the existing ratio of low and moderate income housing; (3) a multi-family housing index based on growth in multi-family units from 1960-1970; and (4) a housing density index, i.e., the ratio of housing to total land area.

Application of the resulting formula to the 29,251 county units needed ascribed to Madison a "fair share" of 6.1%, or about 1800 lower income units. As already noted, the Abeles study made no prognostication as to a fair share of the continuing housing need subsequent to 1975.

The post-litem motivation of the Abeles study is apparent. It was approved by the township planning board April 23, 1974, two days before the end of the second trial and over 18 months after adoption of the 1973 ordinance. The analysis of "need" is largely weighted in favor of indigenous need, i.e., of those persons already in the township, as compared with potential aspirants for housing from *530 outside the municipality. Of the 1784 units which the Abeles study attributes as Madison's fair share, 1394 units will represent the indigenous need and only 390 the need of the region (Middlesex). [36]

In several respects, over and above the apparent limitation of the region to the county, the formula presented by the Abeles study appears to be a self-serving one. First, the original COG formula contained an accessibility factor as one of the modifiers which Abeles omitted, ostensibly on the ground that a substantial proportion of all employment opportunity in Middlesex County lies within 45 minutes commuting time from any municipality therein. However, this unwarrantably favors Madison. As it is nearer to heavy employment centers such as Perth Amboy and Woodbridge than are places like Monroe and Cranbury, relatively more people would be likely to want to live in Madison, and correspondingly Madison's comparative faire share would be larger if accessibility were taken into account.

The inclusion of a multi-family index and a housing density index are two additional self-serving features of the Abeles study. These factors did not appear in COG formula, and their use results in a substantial credit in Madison's favor. While the housing concentration factor defensibly affords some recognition to those subregions which "have already contributed to the supply of rental housing for low and moderate income families," Abeles nevertheless takes duplicative credits for both Madison's increase over the past two years in multi-family units and for its existing housing density. At a result of the interplay of these factors, Madison, with 11,142 vacant and developable acres, ends up with a 6.1% allocation compared to towns of similar amounts of vacant residential acres, Monroe (12,067 acres), and *531 South Brunswick (10,778 acres), which, under the Abeles formula, receive fair share allocations of 16.1% and 12.6% respectively. Towns with closely corresponding fair share allocations, East Brunswick (7.5%), North Brunswick (6.0%), and Woodbridge (5.0%), have vacant residential acres of 4,722, 986, and 230 respectively.

VIII

"Fair Share" and "Region" — General Considerations

The probative value of the Kim and Abeles fair share studies should be appraised against the background of the substantial body of experience that has been developed by governmental planning bodies in recent years in devising fair share plans for voluntary housing planning purposes as distinguished from litigation. All of them involve realistic housing market areas larger and functionally more appropriate, in Mount Laurel terms, than the small Middlesex County region. Before discussing those specific plans, some preliminary observations as to the concepts of "fair share" and "region" seem appropriate by way of background.

Of primary significance is the difference between the situation of an administrative planning agency functioning under authorizing legislation and that of a court dealing with an attack by litigation on the adequacy of the zoning ordinance of an isolated municipality. The former is dealing with a comprehensive, predetermined region and can render or delegate the making of allocations with relative fairness to all of the constituent municipalities or other subregions within its jurisdiction. [37] Moreover, it presumably has expertise *532 *533 suited to the task. The correlative disadvantages of a court adjudicating an individual dispute are obvious. [38]

The formulation of a plan for fixing of the fair share of the regional need for lower income housing attributable to a particular developing municipality, although clearly envisaged in Mount Laurel, 67 N.J. at 162, 189-190, involves highly controversial economic, sociological and policy questions of innate difficulty and complexity. Where predictive responses are called for they are apt to be speculative or conjectural. [39] These observations are supported not only by the published literature [40] but by the proofs and comprehensive briefs supplied us by the parties and amici.

*534 Some of the problems catalogued above were touched upon in Mount Laurel, e.g., "region", 67 N.J. at 162, 189-190; incidence of subsidized construction in contemplation, id. at 170, n. 8, 188, n. 21; sources of reliance for "fair share" guidance, id. at 190; quantity of needed housing reasonably expectable under proper zoning, id. at 188, n. 21. We take this occasion to make explicit what we adumbrated in Mount Laurel and have intimated above — that the governmental-sociological-economic enterprise of seeing to the provision and allocation throughout appropriate regions of adequate and suitable housing for all categories of the population is much more appropriately a legislative and administrative function rather than a judicial function to be exercised in the disposition of isolated cases. [41] Cf. 67 N.J. at 189, n. 22, 190.

*535 Fortunately, the other branches of government are giving the matter their attention. [42] But unless and until other appropriate *536 governmental machinery is effective brought to bear the courts have no choice, when an ordinance is challenged on Mount Laurel grounds, but to deal with this vital public welfare matter as effective as is consistent with the limitations of the judicial process.

We address the question, implicated by defendant's evidential studies, of the appropriate concept of a "region" in the context of a litigation challenging the housing adequacy of a particular zoning ordinance. Defendant purports to justify its fair share allocation on the basis of a single county as a region. However, both the Kim and the Abeles studies, in estimating anticipatorily the need for and supply of housing as of 1975 in Middlesex County, apparently recognized the influence of growth of population and jobs emanating from the broader region of northeastern New Jersey and the New York metropolitan region. Thus, while it is questionable whether the functionally relevant regional housing need was adequately realized in the Kim and Abeles studies, it does appear that in effect they envisaged a need emanating beyond the county boundaries.

The technical details of the basis for fair-share allocations of regional goals among municipalities, pertaining as they do to an area of considerable complexity and theoretical diversity, are not as important to a reviewing court concerned with effectuating Mount Laurel objectives as the consideration that the gross regional goal shared by the constituent municipalities be large enough fairly to reflect the full needs of the housing market area of which the subject municipality forms a part.

*537 In broad principle, we believe Judge Furman was correct in conceiving the appropriate region for Madison Township as "the area from which, in view of available employment and transportation, the population of the township would be drawn, absent invalidly exclusionary zoning". 128 N.J. Super. at 441 . This is essentially like the housing market area concept espoused in the Abeles report as sound in principle, although not directly employed in the Abeles fair share study.

The concept of county per se as the appropriate region was thought not to be "realistic" by Justice Hall in writing Mount Laurel. He there said (67 N.J. at 189-190):

The composition of the applicable "region" will necessarily vary from situation to situation and probably no hard and fast rule will serve to furnish the answer in every case. Confinement to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable. (This is not to say that a developing municipality can ignore a demand for housing within its boundaries on the part of people who commute to work in another state.)

Justice Hall defined the region applicable there as "the outer ring of the South Jersey metropolitan area, which area we define as those portions of Camden, Burlington and Gloucester Counties within a semicircle having a radius of 20 miles or so from the heart of Camden city." 67 N.J. at 162, 190. What was material to that determination was the proximity of Mount Laurel to the highly urbanized Camden area, its residential development due to the influx of new residents from nearby central cities, existing and projected employment patterns, the "highway network" linking Mount Laurel with all parts of the Camden area and the contrast of its vacant acreage (65%) with the land supply situation in those nearby central cities. See 67 N.J. at 161-162.

For purposes of our present problem, we distinguish the situation with which we would be confronted if the municipality whose ordinance was under attack had been the subject of an official fair share housing study of a group of *538 counties or municipalities conducted under such auspices as the DVPRC or the planning boards of a county or group of counties functioning under Executive Order No. 35 (see note 42, supra ). We conceivably might regard a "region" so constructed, and the dependent fair share allocations thereby arrived at, as meriting prima facie judicial acceptance. The Kim and Abeles "studies" before us do not have that authority or stature, and we have accorded them only such weight as they deserve on their merits, as analyzed above. [43]

For examples of regions large enough and sufficiently integrated economically to form legitimately functional housing market areas, we turn to some of the pioneering fair *539 share allocation plans executed under official or quasi-official auspices. The Miami Valley (Dayton, Ohio) Regional Planning Commission includes five counties and 31 municipalities as far as 60 miles from the center of Dayton. The Metropolitan Washington GOG (see supra p. 529) covers 15 counties and local governmental jurisdictions, including the District of Columbia, San Bernardino County, California, although a county, occupies 20,000 square miles. The Metropolitan Council of the Twin Cities (Minneapolis-St. Paul) covers 7 counties, including almost 300 jurisdictions, with a total population of 1.9 million. The DVRPC, as already shown, comprises nine counties in Pennsylvania and New Jersey. The present significance of the cited plans is that their regions are of such size that it is difficult to conceive of a substantial demand for housing therein coming from any one locality outside the jurisdictional region, even absent exclusionary zoning. The essence of the cited plans is "to provide families in those economic categories [low and moderate] a choice of location." 16 Trends on Housing, No. 2 p. 2 (1972).

We thus proceed to formulation of our position as to the concept of region in the context of an ad hoc application of Mount Laurel principles to a single litigated ordinance, having in mind our determination in II, supra, that it would not generally be serviceable to employ a formulaic approach to determination of a particular municipality's fair share. We conclude that, in general, there is no specific geographical area which is necessarily the authoritative region as to any single municipality in litigation. Different experts may quite reasonably differ in their concepts of the pertinent region. See Lindbloom, "Defining `Fair Share' of `Regional Need'", 98 N.J.L.J. 633 -634 (July 24, 1975). But in evaluating any expert testimony in terms of the Mount Laurel rationale, weight should be given to the degree to which the expert gives consideration to the areas from which the lower income population of the municipality would substantially be drawn absent exclusionary zoning. (Evidence of the historical sources *540 of a municipality's population, among other indicia, is relevent thereto.) This is broadly comparable to the concept of the relevant housing market area, to which there has been prior reference herein.

The factors which draw most candidates for residence to a municipality include not only, for employed persons and those seeking employment, reasonable proximity thereto of jobs and availability of transportation to jobs, as mentioned by Judge Furman and stressed by most of the experts, [44] but *541 proximity to and convenience of shopping, schools and other amenities. Retired people, who represent a substantial part of the lower to moderate income population, might be attracted from a greater distance than employed people.

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

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

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

The number and variety of considerations which have been deemed relevant in the formulation of fair share plans is such as to underscore our earlier observation that the entire *542 problem involved is essentially and functionally a legislative and administrative, not a judicial one. [45]

*543 The formula specified by the trial court would not necessarily be properly utilizable in other contexts. Some municipalities might have such very high or very low existing proportions of lower-income families in their population makeup as to render such a formula patently unfair. If the existing municipal proportions correspond at least roughly with the proportions of the appropriate region the formula would appear prima facie fair. The evidence herein is that the stated municipal proportions approximate those of the county of Middlesex. We are without data as to comparative proportions of such a larger area as would include the more urban counties in the northeast New Jersey region.

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

1. Based upon our analysis and findings in IV and VI, the 1973 ordinance is clearly deficient in meeting Madison's obligation to share in providing the opportunity for lower cost housing needed in the region, whether or not the specific fair share estimates submitted by defendant are acceptable. These estimates are, in any event, defective at least in not including prospective need beyond 1975.

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

3. The region referred to in 2 is that general area which constitutes, more or less, the housing market area of which the subject municipality is a part, and from which the prospective population of the municipality would substantially be drawn. In the absence of exclusionary zoning.

4. Fair share allocation studies submitted in evidence may be given such weight as they appear to merit in the *544 light of statements 2 and 3 above. But the court is not required, in the determination of the matter, itself to adopt fair share housing quotas for the municipality in question or to make findings in reference thereto.

IX

Environmental Considerations

As noted above, a considerable amount of vacant acreage in Madison borders certain streams or comprises important aquifer storage and discharge areas. Depositions and counter-depositions were taken by defendant and plaintiffs, respectively, bearing upon the effect of development of varying kinds on such areas as Burnt Fly Bog, the Old Bridge Sands, Raritan Bay beachfront, the salt marshes behind Raritan Bay and the four streams flowing into South River. Defendant offered the depositions at the trial to establish that certain areas zoned R-80, R-40 and RP were so sensitive to flood, water contamination and related problems that they should be kept from development at all or restricted to very low residential density. The trial judge declined to consider this evidence on the ground that considerable other land, free from such ecological considerations, and amenable to higher density development, was available within the township with which it could meet its fair share obligation for its own and the region's housing needs. 128 N.J. Super. at 447 .

Plaintiffs' experts testified on depositions that the answer to the ecological problems posed was not prohibition or regulation of the density of development per se but careful use of the land, with adequate controls in respect of construction, sewerage, water control and treatment, sufficient open space per structure and other services.

Ecological and environmental considerations were also advanced by the municipality in Mount Laurel to justify large lot zoning throughout the township. We pointed out there that while such factors and problems were always to be given consideration in zoning (see 3 Williams, American *545 Land Planning Law (1975) § 66.12, pp. 30, 31-35), "the danger and impact must be substantial and very real (the construction of every building or the improvement of every plot has some environmental impact) — not simply a make-weight to support exclusionary housing measures or preclude growth * * *". 67 N.J. at 187.

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

We shall, in the remedial portion of this opinion, be directing amendment of the ordinance to add substantial areas to districts zoned for multi-family housing and for single-family homes on very small lots. It therefore will be necessary for the governing body of defendant to be apprised, from the findings of the court in the respects just noted, what part of the areas claimed by defendant to be environmentally unsuited for such zoning need not be resorted to for that purpose.

The court may, in its discretion, permit the depositions to be amplified at a hearing on remand, but any such hearings *546 and the added findings here directed to be made shall be expedited.

In concluding this point, however, we find no basis in the record for determining that, in any view of the environment proofs, defendant does not have sufficient vacant developable land free from disabling ecological considerations to enable it to create the zoning opportunity for its fair share of the region's need for least cost housing. [46]

X

"Affirmative Action" for Lower Income Housing

Plaintiffs and supporting amici press for a judicial mandate that developing municipalities be required affirmatively to act for creation of additional lower income housing in more ways than by eliminating zoning restrictions militating against that objectives. Of the devices which have been suggested to this end, tax concessions and mandatory sponsorship of or membership in public housing projects must be summarily rejected. Tax concessions would unquestionably require enabling legislation and perhaps constitutional amendment. While we have described the sponsorship of public housing projects as a moral obligation of the municipality in certain specified circumstances, Mount Laurel, 67 N.J. at 192, we have no lawful basis for imposing such action as obligatory. It goes without saying, however, that the zoning in every developing municipality must erect no bar or impediment to the creation and administration of public housing projects in appropriate districts. See also id. at 211-212 (Pashman, J., concurring).

We have hereinabove indicated that provision by zoning for density bonuses keyed to quantitative or bulk concessions *547 by the builder ( e.g., added bedrooms) is both valid and mandatory where necessary to achieve sufficient suitable least-cost housing, but that we are not prepared presently to pass upon the validity of zoning for bonuses keyed to rental or sale price concessions.

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

XI

The Validity of the Zoning Statute

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

The stated argument was formulated before we decided Mount Laurel and is basically mooted by our holding there, in effect, that the zoning statute is to be construed to conform with state due process and equal protection so as to compel zoning in developing municipalities to affirmatively combat exclusion of the lower income population needing housing. [47]

*548 In any event, we find the contention to lack intrinsic merit. The statute expressly sets out as a standard for the exercise of the zoning power the promotion of health, morals and the general welfare as well as other subordinate criteria. N.J.S.A. 40:55-32. As noted, a zoning ordinance contrary to the general welfare is invalid, Mount Laurel, supra, 67 N.J. at 175 , and the term "general welfare" requires the consideration of regional housing needs. Ibid. Cf. Ward v. Scott, 11 N.J. 117 (1952), where a similar attack was made on N.J.S.A. 40:55-39 (d), providing for the issuance of use variances, on the grounds that specific standards did not accompany the delegation of power. Finding that this section incorporated the standard of N.J.S.A. 40:55-32, and hence was valid, Justice Jacobs noted that although "the legislature may not vest unbridled or arbitrary power in the administrative agency but must furnish a reasonably adequate standard to guide it * * * [nonetheless] the exigencies of modern government have increasingly dictated the use of general rather than minutely detailed standards in regulatory enactments under the police power." Id. at 123-4 . Provision for local and regional housing needs, although not expressly enumerated under N.J.S.A. 40:55-32, is required in the promotion of the general welfare. Mount Laurel, supra.

It goes without saying that the statutory and constitutional prohibition, by judicial construction, of zoning to exclude, encompass exclusion by race as well as by economic circumstances.

The statute is valid.

XII

Relief for Corporate Plaintiffs

The corporate plaintiffs contend that the 1973 ordinance is invalid not only generally, as exclusionary of lower income *549 housing, but specifically as to their own tract of land because of zoning restrictions which are confiscatory. They therefore ask that the court specifically order the township to place their property in an appropriate multi-family or PUD zone to be created — in effect, to grant them a permit to build the kind of moderate-to-middle income housing they have in mind. [48]

Plaintiffs' expert witnesses testified that the restrictions upon their land (originally encompassing about 400 acres, but later reduced by a "Green Acres" taking to about 200 acres in the R-40 zone) were such that even using the clustering device the residences to be produced would have to sell for about $63,000, for which there was no feasible market in the number producible on the property. Plaintiffs' witness Chester conceded that if only 30 or 40 units were involved they might be marketable, but not the hundreds contemplated by plaintiffs' project. We cannot render an assured determination that the zoning is confiscatory against corporate plaintiffs on such proofs. Plaintiffs are not necessarily entitled to zoning feasible for their holdings as an entirety if they are reasonably utilizable as divided in separate ownerships. Nor as they entitled to zoning permitting the most profitable development of the property. Cobble Close Farm v. Bd. of Adjustment, Middletown Tp., 10 N.J. 442, 452 (1952). Yet it appears that even if divided into smaller ownerships it would be difficult to market the property for residential uses under the zoning restrictions as they stand, having in mind the historical absence of any large lot development in the area. Cf. Schere v. Township of Freehold, supra ( 119 N.J. Super. 433 ).

A consideration pertinent to the interests of justice in this situation, however, is the fact that corporate *550 plaintiffs have borne the stress and expense of this public-interest litigation, albeit for private purposes, for six years and have prevailed in two trials and on this extended appeal, yet stand in danger of having won but a pyrrhic victory. A mere invalidation of the ordinance, if followed only by more zoning for multi-family or lower income housing elsewhere in the township, could well leave corporate plaintiffs unable to execute their project. There is a respectable point of view that in such circumstances a successful litigant like the corporate plaintiffs should be awarded specific relief. Mytelka and Mytelka, "Exclusionary Zoning: A Consideration of Remedies". 7 Seton Hall L. Rev. 1 , 26-29 (1975); Rubinowitz, "Exclusionary Zoning: A Wrong in Search of a Remedy", 6 Mich. J.L. Ref. 625, 668 (1973); Hartman, "Beyond Invalidation — The Judicial Power to Zone", 9 Urban L. An. 159, 162-168 (1975); cf. Mallach, "Do Lawsuits Build Housing?: The Implications of Exclusionary Zoning Litigation". 6 Rutgers-Camden L.J. 653, 675, 677 (1975).

There is also judicial precedent for such action. In Appeal of Girsh, 437 Pa. 263 A. 2d 395 (Sup. Ct. 1970), a builder succeeded in obtaining an adjudication of the invalidity of an ordinance precluding apartment development. The municipality rezoned to create an apartment district but did not include plaintiff's land. The plaintiff then sought to compel issuance of a permit, but the town announced the property would be condemned for a park. When plaintiff sued to enjoin condemnation, the Supreme Court ordered issuance of a permit. Order No. MP-12, 271 (August 29, 1972). Hartman, op. cit supra, 9 Urban L. An. at 161-162. The same court took similar action in Township of Williston v. Chesterdale Farms, Inc., 462 Pa. 445 , 341 A. 2d 466 (Sup. Ct. 1975). See also Franklin v. Village of Franklin Park, 19 Ill, 2d 381, 167 N.E. 2d 195 (Sup. Ct. 1960).

Such judicial action, moreover, creates an incentive for the institution of socially beneficial but costly litigation such *551 as this and Mount Laurel , and serves the utilitarian purpose of getting on with the provision of needed housing for at least some portion of the moderate income elements of the population. We have hereinabove referred to the indirect housing benefits to low income families from the ample provision of new moderate and middle income housing. Point V.

The foregoing considerations have persuaded us of the appropriateness in this case of directing the issuance to the corporate plaintiffs, subject to the conditions stated infra, of a permit for the development on their property of the housing project they proposed to the township prior to or during the pendency of the action, pursuant to plans which, as they originally represented, will guarantee the allocation of at least 20% of the units of low or moderate income families. [49] This direction will be executed under the enforcement and supervision of the trial judge in such manner as to assure compliance with reasonable building code, site-plan, water, sewerage and other requirements and considerations of health and safety. Cf. Township of Williston v. Chesterdale Farms, Inc., supra ( 341 A. 2d at 468-469 ).

An express condition of this holding, moreover, is that the trial court, after consideration of the ecological and environmental proofs referred to in IX, supra, determine that the plaintiff's land is environmentally suited to the degree of density and type of development plaintiffs purpose. Subject to these conditions it is our purpose to assure the issuance of a building permit to corporate plaintiffs within the very early future. [50]

*552 XIII

Remedy and Remand

We herewith modify the judgment entered in the Law Division to hold, as we did in Mount Laurel as to the ordinance there involved, that the 1973 zoning ordinance is invalid, not in toto, but only "to the extent and in the particulars set forth in this opinion". Mount Laurel, 67 N.J. at 191 . For the reasons elaborated above the ordinance is presumptively contrary to the general welfare and beyond the scope of zoning power in the particulars mentioned. Mount Laurel, 67 N.J. at 185 . The municipality has not borne its consequent burden of establishing valid reasons for the deficiencies of the ordinance. Id. at 185. It is obvious that a revision of the residential provisions of the ordinance is called for in order to provide the opportunity for that amount of least-cost housing in the township which will comply with the directions contained in this opinion.

In Mount Laurel we elected not to impose direct judicial supervision of compliance with the judgment "in view of the advanced view of zoning law as applied to housing laid down by [the] opinion". 67 N.J. at 192 . The present case is different. The basic law is by now settled. Further, the defendant was correctly advised by the trial court as to its responsibilities in respect of regional housing needs in October 1971, over five years ago. 117 N.J. Super. 11 . It came forth with an amended ordinance which has been found to fall short of its obligation. Considerations bearing upon the public interest, justice to plaintiffs and efficient judicial administration preclude another generalized remand for another unsupervised effort by the defendant to produce a satisfactory ordinance. The focus of the judicial effort after six years of litigation must now be transferred from theorizing over zoning *553 to assurance of the zoning opportunity for production of least cost housing. See Mytelka and Mytelka "Exclusionary Zoning: A Consideration of Remedies", 7 Seton Hall L. Rev. 1 , 18, 23 (1975).

The trial court on remand shall execute the directions in IX and XII above and render its findings thereon with the reasonable dispatch appropriate to the age of this litigation. It shall become the obligation of the defendant, within 90 days thereafter, unless more time is allowed by the trial court, to submit to the trial court for its approval a revised ordinance.

The revision shall zone, in the manner specified in this opinion, to create the opportunity for a fair and reasonable share of the least cost housing needs of Madison's region, the concept of "region" to be understood as generally set forth in II and VIII hereinabove. While no formulaic determination or numerical specification of such a fair and reasonable share is required, we do not preclude it if the municipal planning advisors deem it useful. The revision shall, as minima : (a) allocate substantial areas for single-family dwellings on very small lots; (b) substantially enlarge the areas for dwellings on moderate sized lots; (c) substantially enlarge the AF district or create other enlarged multi-family zones; (d) reduce the RP, R-80 and R-40 zones to the extent necessary to effect the foregoing, subject to the directions in IX, supra; (e) modify the restrictions in the AF zones and PUD areas discussed hereinabove which discourage the construction of apartments of more than two bedrooms; (f) modify the PUD regulations to eliminate the undue cost-generating requirements specified above; and (g) generally eliminate and reduce undue cost-generating restrictions in the zones allocated to the achievement of lower income housing in accordance with the principles of least cost zoning set forth in V hereinabove.

The trial court shall have discretion, in the event of undue delay in compliance with this opinion or of a finding by the court that any zoning revision submitted by defendant fails *554 to comply with this opinion, to appoint an impartial zoning and planning expert or experts. Such expert may be directed to file a report or to testify, as the court may deem appropriate, as to a recommendation for the achievement by defendant of compliance with this opinion or with any further directions by the court pursuant thereto. See Mount Laurel, 67 N.J. at 216 (Pashman, J., concurring); Pascack Assoc. v. Mayor, Coun. Tp. of Washington, 131 N.J. Super. 195 (Law. Div. 1974); Mytelka and Mytelka, "Exclusionary Zoning: A Consideration of Remedies". 7 Seton Hall L.J. 1, 31 (1975); Hartman, "Beyond Invalidation: The Judicial Power to Zone", 9 Urban L. An. 159, 171-173 (1975); Rubinowitz, "Exclusionary Zoning: A Wrong in Search of a Remedy's", 6 Mich. J.L. Ref. 625, 656-657 (1973).

Judgment modified, and affirmed as modified; no costs.

PASHMAN, J., concurring and dissenting.

OUTLINE OF CONCURRING AND DISSENTING OPINION

I Limited Agreement with Majority 555

II The Need for Affirmative Relief 556

III The Nature of Affirmative Judicial Relief 576

(A) Remedial Objectives 577

(B) Procedural Approach 582

(C) Calculation of the Municipal "Fair Share"

of Regional Housing Needs 588

(D) Imposition of Remedial Devices 595

(1) Award Specific Relief to Corporate

Plaintiffs 596

(2) Enjoin Interference with Construction

of Low and Moderate Income Housing 601

(3) Establish "Set-Aside" or "Override"

Procedures to Facilitate Construction

of Low and Moderate Income Housing 602

*555

(4) Declare that Regional Housing Needs

Constitute a "Special Reason" for

Granting Use Variances 605

(5) Order Specific Changes in the

Zoning Ordinance 609

(6) Enjoin Municipal Approval of Other

Forms of Development 610

(7) Order Municipality to Provide

Density Bonuses and Other Incentives

for Building Lower Income

Housing 611

(8) Order Municipality to Impose

Subdivision Conditions and Other

Inclusionary Devices 612

(9) Order Municipal Government to

Establish a Local Housing Authority 615

IV Conclusion 616

I

LIMITED AGREEMENT WITH MAJORITY

I concur in the majority holding that the 1973 Madison Township zoning ordinance is invalid. Contrary to the constitutional precepts of Southern Burlington Cty. NAACP v. Mt. Laurel Tp., 67 N.J. 151 (1975), appeal dismissed and cert. den. 423 U.S. 808 , 96 S.Ct. 18 , 46 L.Ed. 2d 28 (1975) (hereinafter "Mt. Laurel" ), the instant ordinance fails to "make realistically possible the opportunity for an appropriate variety and choice of housing for all categories of people who desire to live there," particularly persons of low and moderate income. In this opinion for the Court, Judge Conford details the ways in which the Madison Township ordinance falls short of the obligation under Mt. Laurel. The township has *556 failed to zone adequate amounts of vacant and developable land for multi-family housing and for homes on very small lots, and has imposed undue cost-generating features which raise the rental or purchase price of new housing units above levels affordable by lower income families. Consequently, the majority concludes that the township has failed to foster or promote the construction of new, least-cost housing. I am in substantial accord with these findings.

I also agree with the majority that "[c]onsiderations bearing upon the public interest, justice to plaintiffs and efficient judicial administration" require immediate, specific relief and judicial supervision of all remedial efforts. Unquestionably, it is time that we begin to steer our energies toward good faith implementation of established principles.

I differ with the majority, however, as to the nature and scope of judicial remedies made available for the trial court during the remedial stages of the litigation. In cases of this nature, I conceive that powerful judicial antidotes may become necessary to eradicate the evils of exclusionary zoning. For this reason, I would proceed less gingerly than the majority; I would go further and faster in outlining for the trial judge the full arsenal of judicial weaponry available for this purpose. I will first analyze the need for stronger, more effective judicial relief in exclusionary zoning cases and then enumerate the various remedial weapons which are or should be available to the trial judge upon remand.

II

THE NEED FOR AFFIRMATIVE RELIEF

The evils which the widespread practice of exclusionary zoning inflicts upon the State are now well-documented and need only be summarized here.

Exclusionary land use devices, such as minimum house size requirements, minimum lot size and frontage requirements, bedroom restrictions, overzoning for nonresidential or low density residential uses, and the outright prohibition of *557 multifamily housing, mobile homes and other forms of lower cost housing, effectively preclude construction of low and moderate cost housing units and thereby foreclose the opportunity for low and moderate income families to reside within the community. Mt. Laurel, supra, 67 N.J. at 170-173; id. at 197-203; (Pashman, J., concurring). The nefarious effects of this pattern of land use development are obvious.

First, exclusionary zoning contributes to the current housing shortage, not only by legislatively foreclosing opportunities for construction of low and moderate cost housing, but also by preventing construction of "least cost" housing which might create vacancies in units affordable by low income families. As to exclusionary zoning and the housing shortage generally, see Mallach, "Do Law Suits Build Housing?" The Implications of Exclusionary Zoning Litigation," 6 Rutgers-Camden L.J. 653, 659 n. 24 (1975); Sagalyn & Sternlieb, Zoning and Housing Cost : The Impact of Land-Use Controls on Housing Price (1973); Dep't of Community Affairs, The Housing Crisis in New Jersey (1970).

Exclusionary zoning also tends to undermine rather than promote efficient land use development by sometimes subserving parochial interests in derogation of more efficient regional plans for the development and utilization of land. Mt. Laurel, supra, 67 N.J. at 171. It raises the unfortunate spectre of not only excluding from the community "strangers" whom local residents consider to be "undesirable," but also excluding (or even expelling) former or current residents who can no longer afford the high costs of housing in the community. Such persons might include elderly residents dependent upon fixed incomes, newly married sons and daughters of suburbanite parents, young families with children or persons currently residing in substandard housing. See, e.g., Pascack Ass'n Ltd. v. Mayor of Council of Washington Tp., 131 N.J. Super. 195, 201 (Law Div. 1974), certif. granted, 69 N.J. 73 (1975).

*558 Another similarly "incongruous result" stems from the fact that exclusionary land use practices often make it impossible for lower paid industrial or municipal employees to reside in the community where they work, Mt. Laurel, supra, 67 N.J. at 172. See also L. Rubinowitz, Low-Income Housing : Suburban Strategies 215, 235-236 (1974); Aloi & Goldberg, "Racial and Economic Exclusionary Zoning: The Beginning of the End?", 1971 Urban L. Ann. 9, 12-13; Sager, "Tight Little Islands: Exclusionary Zoning, Equal Protection, and the Indigent," 21 Stan. L. Rev. 767 , 781 (1969).

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

Finally, exclusionary land use regulation builds a wall around the cities over which only the well-to-do can escape. Mt. Laurel, supra, 67 N.J. at 171; Mytelka & Mytelka, "Exclusionary Zoning: A Consideration of Remedies," 7 Seton Hall L. Rev. 1 , 3 (1975). Residential segregation is the inevitable result, violating the scared ideals of our *559 pluralist society expressed in our State and Federal Constitutions. Among these are the right to travel, the right to live wherever one chooses and the basic right to equal opportunity to seek the amenities of life Mt. Laurel, supra, 67 N.J. at 221 (Pashman, J., concurring); Kleven, supra, 21 U.C.L.A. Rev. at 1507-1508; Sager, supra, 21 Stan L. Rev. at 791.

In Mt. Laurel, this Court began to deal with the sinister side of municipal land use controls. After discussing in detail the evils, pervasiveness and detrimental impact of exclusionary zoning practices, we concluded that such practices are inconsistent with the general welfare and violate both the zoning enabling act, N.J.S.A. 40:55-30 et seq. [1] and the State constitutional requirements of substantive due process and equal protection of the laws, N.J. Const. (1947), Art. I, ¶ 1. Mt. Laurel, supra, 67 N.J. at 175, 185; id. at 195 (Pashman, J., concurring). As a result, we imposed upon each developing community an obligation "affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries." Mt. Laurel, supra, 67 N.J. at 179. Having found the Mount Laurel Township zoning ordinances violative of this principle, we set aside those portions of the ordinance deemed to be exclusionary and allowed the township 90 days within which do adopt amendments to correct the deficiencies. Mt. Laurel, supra, 67 N.J. at 191. The majority *560 declined, however, to directly provide judicial supervision of municipal compliance with the decision, and noted simply that:

It is not appropriate at this time, particularly in view of the advanced view of zoning law as applied to housing laid down by this opinion, to deal with the matter of the further extent of judicial power in the field or to exercise any such power. * * * The municipality should first have full opportunity to itself act without judicial supervision. We trust it will do so in the spirit we have suggested, both by appropriate zoning ordinance amendments and whatever additional action encouraging the fulfillment of its fair share of the regional need for low and moderate income housing may be indicated as necessary and advisable.

[67 N.J. at 192]

Expressing concern that reliance upon voluntary municipal action might prove to be ineffective and that the abuses condemned by the Court were already widespread and deeply ingrained in local attitudes, I urged this Court to go "farther and faster" in implementing the principles announced that day. I once again call upon this Court to increase its efforts to combat the ills of exclusionary zoning.

In Mt. Laurel, I indicated several reasons justifying direct, immediate and effective judicial involvement. These factors remain equally pertinent today. There can be no doubt that abuse of the municipal zoning power is still widespread and pervasive. Zoning devices which have an exclusionary impact govern the vast majority of suburban New Jersey's vacant and developable land. Mt. Laurel, supra, 67 N.J. at 181-184; id. at 197-203 (Pashman, J., concurring); Sagalyn & Sternlieb, supra, at 193-195; Williams & Norman, "Exclusionary Land Use Controls: The Case of North-eastern New Jersey," 22 Syracuse L. Rev. 476 (1971); N.J. Dep't of Community Affairs, Div. of State and Regional Planning, Land Use Regulation: The Residential Land Supply (1972), Clawson, supra, at 261-280. Recent indications show that there has been no substantial change in this unlawful pattern of land use development. Mallach, *561 supra, 6 Rutgers-Camden L.J. at 653. [2] Mere invalidation of exclusionary ordinances and even the veiled threat of further judicial action ( see Mt. Laurel, supra, 67 N.J. at 192) apparently have not succeeded in stimulating voluntary compliance with the principles of Mt. Laurel.

For one thing, local attitudes continue to militate against efforts to bring municipal land use regulations into conformity with the letter and spirit of Mt. Laurel. As we noted in Mt. Laurel, exclusionary zoning stems in part from the belief — partially discredited by recent studies [3] — that opening the suburbs to low and moderate income families will increase demands on locally financed government services without producing a corresponding increase in local revenues. It is feared that higher property taxes will be the inevitable result. See, e.g., N.J. Cty. & Mun. Gov't Study Comm'n, supra note 3, at xi, 83-88. This concern prompts *562 local officials to strive for the benefits but avoid the costs of suburban development, by encouraging commercial and industrial uses while barring construction of housing for nonaffluent families. Ibid.

Exclusionary zoning is also motivated to a large extent by long-standing social and racial fears and prejudices. [4] Suburbanites generally perceive exclusionary land use regulation as a way of preserving cherished middle class values and the amenities of their insular communities. They fear that low and moderate income people will bring to their communities a corresponding influx of urban ills and social conflict. Id. at 86. See also Kleven, "Inclusionary Ordinances — Policy and Legal Issues in Requiring Private Developers to Build Low Cost Housing," 21 U.C.L.A.L. Rev. 1432, 1464-1465 and n. 107 (1974); Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 14. The public resistance to the spirit of Mt. Laurel, which derives from these attitudes, would effectively stymie any action by locally elected officials. Hence, it is parochial interests which continue to dominate land use planning, at the expense of broader statewide and regional needs.

Other factors, which have come to light since Mt. Laurel, further illustrate the urgent need both for close judicial supervision and for the formulation of guidelines to direct remedial efforts. Critics of Mt. Laurel have urged a narrow reading of its applicability to other communities and the extent and nature of the judical relief which it authorizes, thereby producing uneven and equivocal results in the lower courts. Compare, e.g., Pascack Ass'n Ltd. v. Mayor & Council of Washington Tp., supra, 131 N.J. Super. 195 and *563 Urban League of Greater New Brunswick v. Mayor & Council of Carteret, 142 N.J. Super. 11 (Ch. Div. 1976) with Segal Construction Co. v. Wenonah Zoning Bd. of Adjustment, 134 N.J. Super. 421 (App. Div. 1975), and Nigito v. Borough of Closter, 142 N.J. Super. 1 (App. Div. 1976). See also Rose, "From the Courts: The Trickle Before the Deluge from Mount Laurel," 5 Real Estates L.J. 69 (1976); The Bergen Record, "Mt. Laurel Zoning Ruling: A Vision Ignored," Jan. 19, 1976, at A-4, col. 5.

The failure to clarify ambiguities and to formulate guidelines for effective judicial review serves to strip the principles laid down in Mt. Laurel of all practical effect. Town officials who believe that courts will equivocate in enforcing municipal obligations to meet regional housing needs have no reason to act voluntarily in satisfying the mandate of Mt. Laurel, especially where such action faces strong local opposition. Under these circumstances, judicial timidity merely encourages municipal officials to yield to local prejudices and await the filing of law suits by low income persons and frustrated developers. In order to furnish a real incentive to good faith efforts on the part of municipal government, our legal pronouncements must guarantee prospective litigants effective relief for the vindication and enforcement of their constitutional rights.

Yet, even when law suits are filed, dilatory tactics by the municipality can still frustrate efforts to implement the principles of Mt. Laurel. For example, recalcitrant communities can delay legal proceedings by simply rezoning during litigation, or engaging in what one article calls the "zoning amendment shuffle." Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 29-30.

The instant case provides an illustration of the problem. Plaintiffs instituted this action in November 1970. After the trial court invalidated defendant's zoning ordinance, Oakwood at Madison, Inc. v. Madison Tp., 117 N.J. Super. 11 (Law Div. 1971), cross-appeals were taken and this Court certified the appeals pending unheard in the Appellate *564 Division. 62 N.J. 185 (1972). In October 1973, while the matter was awaiting a second hearing before this Court, Madison Township adopted the revised zoning ordinance now under review. As a result, we remanded to obtain rulings on the ordinance as amended. In April 1974, the trial court again invalidated the Madison Township zoning scheme, Oakwood at Madison, Inc. v. Madison Tp., 128 N.J. Super. 438 (Law Div. 1974) and, now, more than six years after the action was initially filed, the case is again before this Court.

While I do not question the motivations or impugn the intentions of the municipality in this particular case, it demonstrates that rezoning during the course of litigation can be used as a means of forestalling compliance with judicial decrees. In fact, several jurisdictions have responded to this danger by refusing to consider amendatory afterthoughts where a litigant has received a favorable determination in a suit challenging the exclusionary nature of a zoning ordinance. First Nat'l Bank v. Village of Skokie, 35 Ill. App. 3d 545 , 342 N.E. 2d 448, 451 (App. Ct. 1975); Fiore v. City of Highland Park, 93 Ill. App. 2d 24 , 235 N.E. 2d 23, 26-28 (App. Ct. 1968), cert. den. 393 U.S. 1084 , 89 S.Ct. 867 , 21 L.Ed. 2d 776 (1969); First Nat'l Bank v. Village of Skokie, 85 Ill. App. 2d 326 , 229 N.E. 2d 378, 381-384 (App. Ct. 1967); Casey v. Warwick Tp. Zoning Hearing Bd., 328 A. 2d 464, 467-468 (Pa. Sup. Ct. 1974); Bd. of Supervisors of Willistown Tp. v. Walsh, 20 Pa. Cmwlth. 275, 341 A. 2d 572 (Cmwlth. Ct. 1975); Camp Hill Dev. Co., Inc. v. Zoning Bd. of Adjustment, 13 Pa. Cmwlth. 519, 319 A. 2d 197 (Cmwlth Ct. 1974); Sauer v. Richland Tp., 8 Pa. Cmwlth. 464, 303 A. 2d 269 (Cmwlth. Ct. 1973).

The hesitancy to order direct judicial supervision and assure adequate enforcement of Mt. Laurel principles may lead to another, equally distressing result. In the absence of such supervision following a final adjudication of invalidity, imaginative draftspeople will be able to construct *565 "fresh devices, untrammeled by precedent" to circumvent the holding of the trial court and preserve the exclusionary character of the community. Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 19. Again, the instant case furnishes an illustration of the problem.

In October 1971, the trial court struck down Madison Township's zoning ordinance as impermissibly exclusionary and violative of the general welfare. Oakwood at Madison, Inc. v. Madison Tp., supra, 117 N.J. Super. at 21 . On October 1, 1973, following oral argument in this case but prior to a second hearing before this Court, Madison Township substantially amended its earlier ordinance. The ostensible purpose of this revision was to rectify some of the deficiencies in the original ordinance. Though making the new ordinance more complex and sophisticated, township draftspeople failed to alter its illegal exclusionary character. For instance, the trial judge's first opinion criticized the township for zoning too much of its vacant and developable land for large minimum size lots and not devoting enough acreage to zones permitting construction of multifamily dwellings and lower cost houses on small lots. Id. at 19-21 . As a result, the township reduced the size of its most restrictive zone, R-80, which requires a minimum lot size of two acres. But at the same time, it increased the size of the R-40 zone which requires minimum lot sizes of one acre. Additionally, it created a new zone, RP, which is developable as an R-80 zone until condemned by the township. These changes effectively offset the salutary effect of reducing the size of the R-80 zone. Furthermore, while the ordinance as amended now devotes a somewhat larger area to higher density districts and multifamily zones, these zones still cover only a small fraction of the township and, in fact, much of the land so zoned is not even vacant or developable. Thus, while the AF or multifamily apartment zone was enlarged by 150 acres and now encompasses 676 acres, at most only 193 of these acres are vacant and developable. [5] *566 See generally Judge Conford's analysis of this aspect of the revised ordinance, ante at 505-507. [6]

In order to offset these apparent deficiencies, Madison Township claims to have satisfied its obligation with respect to lower income housing by permitting establishment of PUDs (planned unit developments) and residential clusters pursuant to "The `Municipal Planned Unit Development Act'," N.J.S.A. 40:55-54 et seq. (superseded by the "Municipal Land Use Law," L. 1975, c. 291, §§ 28-46, effective August 1, 1976). While PUDs and residential clusters ordinarily increase the potential for low and moderate cost housing ( Mt. Laurel, supra, 67 N.J. at 166; see generally Babcock & Bosselman, Exclusionary Zoning : Land Use Regulation and Housing in the 1970's 69-76 (1973)), here the township has foreclosed this possibility by locating two of the three PUD sites in remote areas of the township unserviced by essential utilities. Furthermore, other restrictions on PUD and residential cluster also foreclose low and moderate income housing: (1) maximum PUD density levels are even more restrictive than those contained in the Mount Laurel Township ordinance; and (2) an additional cost-generating *567 stage has been added to the approval process in addition to other cost-generating requirements, such as the mandatory construction of a school building to accommodate a specified number of students. For these reasons, I agree with the majority's assessment that the township's reliance upon these provisions is misplaced. Ante at 506. I also concur in the trial court's conclusion regarding the township effort to redraft its zoning ordinance: "The advances towards moderate-income housing opportunities are token, towards low-income housing opportunities nil." Oakwood at Madison, Inc. v. Madison Tp., supra, 128 N.J. Super. at 446 .

A similar situation was presented in Pascack Ass'n Ltd. v. Mayor & Council of Washington Tp., supra, 131 N.J. Super. 195 . There, the municipal zoning ordinance was struck down, partly because "it failed to make any provision for multi-family or rental-type housing." Id. at 197. In response to this holding, the township adopted an amendment to its zoning ordinance creating a multifamily district. Id. at 198. Nonetheless, in doing so, the township fell palpably short of complying with the court's mandate with respect to multifamily housing: first, the area actually rezoned for this use was quite limited both in size and in suitability for multifamily housing and, second, the ordinance imposed unreasonably demanding restrictions concerning lot size, unit density, minimum floor areas, and the required number of bedrooms and bathrooms, which together precluded multifamily residential use consistent with the economic needs of local residents. Id. at 199-200, 207.

Numerous other techniques and devices exist for circumventing judicial decisions which attempt to eradicate impermissible, exclusionary land use regulations. For example, in three landmark Pennsylvania cases, the plaintiff-developer was successful in having an exclusionary device invalidated but was still unable to build his proposed project. Appeal of Kit-Mar Builders, Inc., 439 Pa. 466 , 268 A. 2d 765 (Sup. Ct. 1970) (two to three acre minimum lot size requirement invalidated); *568 Appeal of Girsh, 437 Pa. 237 , 263 A. 2d 395 (Sup. Ct. 1970) (de facto ban on apartment buildings invalidated); Nat'l Land & Inv. Co. v. Easttown Tp. Bd. of Adjustment, 419 Pa. 504 , 215 A. 2d 597 (Sup. Ct. 1965) (four acre minimum lot size requirement struck down). As one commentator explains:

None of the landmark decisions of the Supreme Court of Pennsylvania ... resulted in a victory for the builder in the sense that the builder was able, as a result of litigation, to construct the development he proposed to build. Joseph Girsh never built his apartments. After the decision of the Supreme Court, In re Girsh ... the Township classified several properties other than that owned by Girsh for apartment development. The present owners of the Girsh property are still attempting to convince the Township and the courts that apartments should be permitted on the tract involved in the Girsh case. In fact, the Girsh property, possibly as a result of the persistence demonstrated by the would-be developers, has now been condemned as a public park....

Kit-Mar Builders ... are still negotiating for subdivision approval[ [7] ].... Finally, even after the Supreme Court invalidated the four-acre zoning involved in National Land and Investment Co. v. Easttown Township Board of Adjustment. ... Easttown Township then threatened to impose three-acre zoning. National Land finally abandoned its effort to build on one-acre lots, and the case was settled at two-acre minimum lots.[ [8] ]

Similar tactics were employed by the municipality in Fiore v. City of Highland Park, 76 Ill. App. 2d 62 , 221 N.E. 2d *569 323 (App. Ct. 1966). There the plaintiff-developer sought to build apartments in a single family zone. Prior to a final judgment in the case, the city rezoned the property to office and research use. The trial court held that both this classification and the original single-family use were too restrictive and hence invalid. On appeal, the appellate court affirmed, but set aside the determination with respect to the original classification because the question was then moot. Fiore v. City of Highland Park, supra, 221 N.E. 2d at 330-331 . The city then rezoned back to the single-family classification and the trial court again struck it down. Obviously irritated by the municipality's bad faith, the appellate court affirmed, stating:

In the light of the language, intent and meaning of the opinion and mandate, and the understanding of it, as indicated in the report of the Plan Commission, the act of the City in rezoning plaintiffs' property to the same single-family classification which it had in 1963, indicated a complete disregard for, and constituted an attempt to thwart, the opinion and mandate of this court. We have utmost respect and deep regard for the philosophy embodied in the principle of the separation of the powers of the three branches of our government. However, a City which is an appellant in zoning litigation, cannot parlay the doctrine of separation of powers into an authorization to exercise its delegated legislative powers after the case is decided adversely to it and remanded to the trial court with directions, and thereby frustrate and void the opinion and mandate of the reviewing court to which it submitted its case for decision.

[ Fiore v. City of Highland Park, supra, 235 N.E. 2d at 27-28 .]

For other examples of municipal delay and subterfuge, see, Gautreaux v. Chicago Housing Authority, 342 F. Supp. 827 (N.D. Ill. 1972), aff'd 480 F. 2d 210 (7 Cir.1973), cert. den. 414 U.S. 1144 , 94 S.Ct. 895 , 896, 39 L.Ed. 2d 98 (1974) (inaction by city officials aimed at subverting a court order for the construction and placement of public housing); Crow v. Brown, 457 F. 2d 788 (5 Cir.1972), aff'g 332 F. Supp. 382 (N.D. Ga. 1971) (refusal by local officials to grant developers building permits for apartments to be occupied by low income black tenants); Dailey v. City of Lawton, *570 425 F. 2d 1037 (10 Cir.1970), aff'g 296 F. Supp. 266 ( W.D. Okla. 1969) (denial of building permits for construction of low-income housing); Kennedy Park Homes Ass'n v. Lackawanna, 318 F. Supp. 669 (W.D.N.Y. 1970), aff'd 436 F. 2d 108 (2 Cir.1970), cert. den. 401 U.S. 1010 , 91 S.Ct. 1256 , 28 L.Ed. 2d 546 (1971) (imposition of a moratorium on new subdivisions); Casey v. Warwick Tp. Zoning Hearing Bd., supra, 328 A. 2d 467 -468 (amending zoning ordinance during litigation); G & D Holland Constr. Co. v. City of Marysville, 12 Cal. App. 3d 989 , 91 Cal. Rptr. 227 (Ct. App. 1970) (rezoning to frustrate construction of an apartment building for lower income families).

Thus, in the absence of effective judicial supervision, a recalcitrant community can employ a variety of techniques to forestall efforts to eliminate exclusionary zoning practices. See one court's expressed recognition of this problem in Van Ness v. Borough of Deal, 139 N.J. Super. 83, 101 (Ch. Div. 1975). See generally Babcock & Bosselman, supra, at 14-17. Using these techniques, a "bad-faith municipality can play games until a developer gives up and goes elsewhere." Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 24. For this reason, most commentators agree that sole reliance upon the municipality to correct the exclusionary effect of its zoning scheme is insufficient [9] and that, in the words of one authority,

... if judicial review of local zoning action is to result in anything more than a farce, the courts must be prepared to go beyond mere invalidation and grant definite relief.

[ Casey v. Warwick Tp. Zoning Hearing Bd., supra, 328 A. 2d at 469 , quoting Krasnowiecki, supra note 7, 120 U. Pa. L. Rev. at 1082.]

*571 Obviously, action by other branches of government designed to address the problem of exclusionary zoning is preferable to judicial intervention on a case-by-case basis. [10] I strongly urge and warmly welcome such action. However, in its absence, courts must be prepared to provide effective relief in cases properly before them. Without such relief, the principles of Mt. Laurel will be shorn of all value and meaning, and the infringement of constitutional rights will remain unredressed.

In seeking to vindicate the constitutional rights of low- and moderate-income families, ... the courts' responsibility is to take all steps within their power to provide real remedies for those deprived of constitutional rights.

[Rubinowitz, supra, 26, 224; emphasis supplied]

*572 Judicial enforcement of our decision in Mt. Laurel would be consistent with the role other courts have taken in similar situations. Recently, in a case which upheld a remedial order compelling the U.S. Department of Housing and Urban Development to implement a comprehensive plan for the construction and deconcentration of public housing facilities in the Chicago metropolitan area, the United States Supreme Court reaffirmed the power of courts to provide such relief in housing discrimination cases:

... Our prior decisions counsel that in the event of a constitutional violation "all reasonable methods be available to formulate an effective remedy," North Carolina State Board of Education v. Swann, 402 U.S. 43, 46 [ 91 S.Ct. 1284, 1286 , 28 L.Ed.2d 586, 589 ], and that every effort should be made by a federal court to employ those methods "to achieve the greatest possible degree of [relief], taking into account the practicalities of the situation." Davis v. Board of School Comm'rs, 402 U.S. 33, 37 [ 91 S.Ct. 1289, 1292 , 28 L.Ed.2d 577, 581 ]. As the Court observed in Swann v. Charlotte-Mecklenburg Board of Education : "Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." 402 U.S. [1], at 15 [ 91 S.Ct. 1267 at 1276 , 28 L.Ed.2d 554, at 566 ].

[ Hills v. Gautreaux, 425 U.S. 284, 297 , 96 S.Ct. 1538, 1546 , 47 L.Ed. 2d 792, 803 (1976) aff'g sub. nom. Gautreaux v. Chicago Housing Authority, 503 F. 2d 930 (7 Cir.1974)]

See also Hawkins v. Town of Shaw, 437 F. 2d 1286 (5 Cir.1971), aff'd en banc 461 F. 2d 1171 (5 Cir.1972); Kennedy Park Homes Ass'n v. Lackawanna, supra , 436 F. 2d 108 ; Norwalk Core v. Norwalk Redevelopment Agency, 395 F. 2d 920 (2 Cir.1968), Cf. Griffin v. School Bd. of Prince Edward Cty., 377 U.S. 218, 233-234 , 84 S.Ct. 1226, 1234-1235 , 12 L.Ed. 2d 256, 266-267 (1964); Newman v. Alabama, 503 F. 2d 1320, 1332-1333 (5 Cir.1974), cert. den. 421 U.S. 948 , 95 S.Ct. 1680 , 44 L.Ed. 2d 102 (1975); Robinson v. Cahill, 69 N.J. 133, 152 (1975); id., 70 N.J. 155, 174 (Pashman, J., dissenting). When constitutional rights have been violated and the responsible governmental agencies *573 have failed to correct the violation, courts have a duty to provide effective relief by taking whatever reasonable steps are necessary to right the wrong. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15-16 , 91 S.Ct. 1267 , 28 L.Ed. 2d 554, 566 (1971); Green v. Cty. School Bd., 391 U.S. 430 , 437-438 & n. 4, 88 S.Ct. 1689, 1694 , 20 L.Ed. 2d 716, 723 (1968); Louisiana v. United States, 380 U.S. 145, 154 , 85 S.Ct. 817 , 13 L.Ed. 2d 709, 715 (1965); Robinson v. Cahill, supra, 69 N.J. at 152-153 ; id., 69 N.J. at 156 (Pashman, J., concurring and dissenting); Jackman v. Bodine, 43 N.J. 453 (1964), supplemented 53 N.J. 585 (1969); Cooper v. Nutley Sun Publishing Co., 36 N.J. 189, 196-197 (1961); Asbury Park Press, Inc. v. Woolley, 33 N.J. 1 (1960); King v. South Jersey Nat'l Bank, 66 N.J. 161, 177 (1974) (dictum).

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

It is precisely because of the difficulty in enforcing our decision in Mt. Laurel that I have urged this Court and others to utilize a creative hand in shaping remedies which will adequately address the problems which have engaged our attention. This Court's role must not be limited by the complexities of the problems which it faces; though simplicity is desirable, it must not be purchased at the cost of sacrificing *574 the place which the Judiciary has attained in remedying the injustices of our society. Accordingly, I enthusiastically endorse Professor Chayes' eloquent expression of these principles:

In my view, judicial action only achieves such legitimacy by responding to, indeed by stirring, the deep and durable demand for justice in our society. I confess some difficulty in seeing how this is to be accomplished by erecting the barriers of the traditional conception to turn aside, for example, attacks on exclusionary zoning and police violence, two of the ugliest remaining manifestations of official racism in American life. In practice, if not in words, the American legal tradition has always acknowledged the importance of substantive results for the legitimacy and accountability of judicial action. Otherwise it could not praise Marbury v. Madison as creative judicial statesmanship while condemning Lochner v. New York as abuse of power. Perhaps the most important consequence of the inevitably exposed position of the judiciary in our contemporary regulatory state is that it will force us to confront more explicitly the qualities of wisdom, viability, responsiveness to human needs — the justice — of judicial decisions.

["The Role of the Judge in Public Law Litigation," 89 Harv. L. Rev. 1281 , 1316; footnotes omitted, emphasis added.]

Any tribunal which stops short of redressing a known wrong, particularly one of constitutional dimension, has been misguided as to the value of the right which it seemingly upholds. I do not read Mr. Justice Mountain's opinion as meaning in any way to disparage the important rights which we discussed in Mt. Laurel. On the contrary, he clearly states that the "rule of law and statement of principle" announced in Mt. Laurel are unexceptionable, yet it is in their implementation that difficulties arise. (at 624, Mountain J., concurring and dissenting). Yet to the extent that my Brother's opinion applauds a person's right to equal protection of the laws and due process, it is equally insensitive to those rights in its failure to provide appropriate remedies to ensure their continued enjoyment.

The problems inherent in the nature of the judicial power were realized and discussed by Chief Justice Marshall, in the landmark case of Marbury v. Madison, 1 Cranch (5 *575 U.S. ) 137, 2 L.Ed. 60 (1803). There the United States Supreme Court faced for the first time the difficult task of enforcing a decision to hold unconstitutional an Act of Congress, and thereby act as the final arbiter of the law. Chief Justice Marshall did not find the Court's task insurmountable. Instead, he noted the importance of its decision to our constitutional form of government:

[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.

Id. at 163 . Yet Chief Justice Marshall's statement would have reflected a wholly inadequate view of the meaning of liberty and of our duty today if he had not added the important qualification that "[o]ne of the first duties of government is to afford that protection." Id. To the extent that Mr. Justice Mountain is willing to leave the protection of important constitutional guarantees dependent on legislative action, he incorporates into our State Constitution an uncertainty in enforcement which renders equally uncertain the enjoyment of these rights.

Of course, to the extent that Mr. Justice Mountain urges legislative action to remedy the persistent wrongs of exclusionary zoning, I commend his effort and join in his opinion. [11] This Court has repeatedly cited the need for *576 comprehensive planning and a regional approach to zoning which the Legislature may accomplish with the power which it has within its grasp. [12] Though the Judiciary acts independent of the Legislature and is, constitutionally, an independent branch of the government, I am not opposed to a legislative solution which would lessen the burden facing this Court. Nevertheless, I realize that we must not avoid our constitutional duty to remedy the violation which the Court unanimously agrees exists in this case. We cannot remain aloof when fundamental liberties are at stake. Accomplishing effective relief in this case is a job which belongs to this Court alone.

III

THE NATURE OF AFFIRMATIVE JUDICIAL RELIEF

In Mt. Laurel, I called for the trial court to be "flexible and imaginative" in molding remedies to fit the circumstances of each case. I now go a step further and propose guidelines which I hope will fuel the judicial imagination.

Because all communities have differing characteristics, a remedial order which is suitable for one town may be wholly *577 inappropriate for another. For this reason, it would be ludicrous for this Court to define a standard remedial order applicable to all municipalities which have failed to use their land use regulations to make possible an appropriate variety and choice of housing. Nevertheless, contrary to the majority, I firmly believe that this Court can and should specify the goals which must be furthered by such judicial relief and then outline the procedures and devices which, depending on local circumstances, can be employed to attain those goals.

A. Remedial Objectives

Five basic goals or objectives are readily identifiable. Most important, the trial court must prohibit continued use of the zoning power for illegal, exclusionary purposes. Ordinarily, this may be accomplished by enjoining operation of exclusionary devices and ordering the municipality to amend its zoning ordinance to correct these deficiencies. Thus the court can alter an exclusionary scheme and foreclose prospective denial of plaintiffs' rights. Mt. Laurel, supra, 67 N.J. at 191. Insofar as the majority opinion sets aside the unlawfully exclusionary provisions of the Madison Township zoning ordinance and orders the township to correct the deficiencies therein, I join in that opinion. Ante at 552-553.

Second: Not only must the trial court enjoin all prospective abuse of the zoning power, but through its remedial order it must provide effective relief to remedy past discrimination as well. Thus, in Mt. Laurel, we held that where a municipality chooses to exercise its power pursuant to the zoning enabling act, it automatically assumes a presumptive obligation with respect to regional housing needs:

We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people *578 mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need therefor.

[67 N.J. at 174; emphasis supplied.]

When a court has determined that a municipality has failed to meet this obligation, it must order that community to fulfill its duty. [13] This means that the town must make housing opportunities reasonably available to persons who desire to live there, but have been precluded from doing so by the town's land use regulations. Obviously, if the rights afforded by Mt. Laurel are to have any real meaning or value, fulfillment of the obligation must be measured in terms of actual production of sufficiently dispersed low and moderate income housing. [14] Judicial relief therefore must *579 be geared toward achieving that goal. One well-reasoned article states:

Where a municipality has engaged in exclusionary practices, particularly where it has done so in the face of precedents like Mount Laurel , the overriding judicial consideration should be to get housing built without delay.[ [15] ] [Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 26.]

Third: While principally designed to eliminate exclusionary zoning and encourage construction of low and moderate cost housing, remedial decrees must not be insensitive to other legitimate local concerns. Therefore, judicial decrees must also strive to preserve the amenities which have made the defendant-municipality an attractive place in which to live. This goal reflects the fact that providing an appropriate variety and choice of housing, though fundamental, is not the only objective of land use planning. Other objectives include preservation of the environment, regulation of the pace of community growth and development and protection of the public health, safety and welfare. N.J.S.A. 40:55-32, superseded by Municipal Land Use Act, L. 1975, c. 291, § 2. In Mt. Laurel, we stressed the importance of these additional functions of zoning. Mt. Laurel, supra, 67 N.J. at 190-191; id. at 212-213 (Pashman, J., concurring). Cf. Village of Belle Terre v. Boraas, 416 U.S. 1 , 94 S.Ct. 1536 , 39 L.Ed. 2d 797 (1974); Euclid v. Ambler Realty Co., 272 U.S. 365 , 47 S.Ct. 114 , 71 L.Ed. 303 (1926). A failure to advance this third objective could invariably lead to a condition which has been described as follows:

*580 Exclusionary zoning can be successfully attacked in the courts, but the excluded can win too well. If land use regulations are torn down without regard to the efficacy of substitute ordinances, the desirable residential community which originally attracted the plaintiffs can rapidly deteriorate into a place of soaring taxes, disappearing amenities, and inadequate schools, utilities, and public services — in short, a scene of chaotic, ugly growth. [Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 1-2.]

To avoid such a result the trial court must carefully balance the objective of building lower cost residences with the goal of preserving local amenities. As we noted in Mt. Laurel, both of these objectives can be achieved through careful planning and local cooperation:

There is no reason why developing municipalities like Mount Laurel, required by this opinion to afford the opportunity for all types of housing to meet the needs of various categories of people, may not become and remain attractive, viable communities providing good living and adequate services for all their residents in the kind of atmosphere which a democracy and free institutions demand. They can have industrial sections, commercial sections and sections for every kind of housing from low cost and multifamily to lots of more than an acre with very expensive homes. Proper planning and governmental cooperation can prevent over-intensive and too sudden development, insure against future suburban sprawl and slums and assure the preservation of open space and local beauty. We do not intend that developing municipalities shall be overwhelmed by voracious land speculators and developers if they use the powers which they have intelligently and in the broad public interest. Under our holdings today, they can be better communities for all than they previously have been.

[67 N.J. at 190-191]

See generally Sedler, "Conditional, Experimental and Substitutional Relief," 16 Rutgers L. Rev. 639 (1962).

Fourth: So far as practical, the relief granted should respect the principle of local prerogative in land use planning. As was recognized in Mt. Laurel, zoning is still largely a function of local government. [16] Mt. Laurel, supra, 67 *581 N.J. at 189. Therefore, at least in the first instance, it is the function and responsibility of local government to revise and amend its zoning ordinance and to formulate plans to meet its affirmative obligation under Mt. Laurel. Id. at 191. For this reason courts usually require the initial stages of remedial action to be undertaken by the municipality. Of course, respect for local judgment and control of land use decisions does not justify judicial acquiescence to indifference, evasion or subterfuge on the part of the municipality. Therefore, respect for local control should never override the other objectives of remedial action. As I stated in Mt. Laurel, "[t]he mere fact that local land use control issues are involved does not preclude the court ... from exercising full panoply of equitable powers to remedy the situation." 67 N.J. at 215 (Pashman, J., concurring).

Fifth: The relief ordered by the trial court must be judicially manageable. This, of course, does not mean that it may not be innovative, flexible, or require long-range or novel forms of judicial involvement. In short, the appropriateness and sufficiency of each remedial device must be measured in terms of its relation to the advancement of these five goals and objectives. [17]

*582 B. Procedural Approach

In cases challenging the validity of municipal legislation, the traditional equitable remedy has been to enjoin operation and enforcement of the offending provisions. As noted in Part II, supra, this remedy is wholly inadequate in the context of exclusionary zoning. It makes no provision for vindicating and redressing past wrongs; skillful draftspeople will be able to circumvent it by devising new exclusionary devices, requiring prolonged litigation to achieve desired results; and, finally, an unqualified injunction against operation of the ordinance may subvert the legitimate, nonexclusionary function of land use planning, to the detriment of the entire community. Therefore, I conceive that the remedial stage of most exclusionary zoning cases will require both affirmative relief and close judicial supervision, almost as a matter of course.

The need for a deliberate approach implementing this relief is apparent. As I noted in Mt. Laurel, effective relief can be achieved only if the trial court proceeds steadfastly in following these four steps:

(1) identify[ing] the relevant region;

(2) determin[ing] the present and future housing needs of the region;

(3) allocat[ing] these needs among the various municipalities in the region; and

(4) shap[ing] a suitable remedial order.

[67 N.J. at 215-216]

In order to effectuate each of these steps, the procedural guidelines which follow might be utilized by the trial court.

*583 Upon entering a judgment against the municipality, the trial court should, at the earliest practical point, join all municipalities located in the region surrounding the defendant community. Mt. Laurel, 67 N.J. at 216 (Pashman, J., concurring). If necessary, this may be on the court's own motion. R. 4:28-1, 4:30. Not only is this necessary in order to equitably allocate housing needs among municipalities in a region, but it is essential if conflicting decisions are to be avoided in cases involving communities in the same region. 67 N.J. at 216 (Pashman, J., concurring).

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

However, if prior to assessing each municipality's "fair share" the trial court finds that statistical data or independent testimony would be of assistance, the trial court may appoint its own zoning and planning experts to aid in its judgment. See Matter of Walter Peterson, 253 U.S. 300, 312 , 40 S.Ct. 543 , 64 L.Ed. 919, 925 (1920) (finding that a court possesses the inherent power to appoint persons unconnected with the court to aid in the performance of specific duties arising in a case); Mt. Laurel, 67 N.J. at 216 (Pashman, J., concurring); Handleman v. Marwen Stores Corp., 53 N.J. 404 (1969); Pascack Ass'n v. Washington Tp., supra; Polulich v. J.G. Schmidt Tool Die & Stamping Co., 46 N.J. Super. 135 (Cty. Ct. 1957); Scott v. Spanjer *584 Bros., Inc., 298 F. 2d 928 (2 Cir.1962). See generally, Wigmore, Evidence § 2484 at 270 (3 ed. 1940); Botter, "The Court Appointed Impartial Expert" in M. Kraft, Using Experts in Civil Cases (PLI 1977) at 73. Or, the court might appoint an independent expert if it finds that municipal recommendations are inadequate. Such consultants are to be appointed at the expense of the defendant; they should be allowed to consult with defendant, other parties, and the trial court; and ultimately, they should file a report and testify in any proceedings. This would provide the best way of ensuring a dialogue designed to meet Mt. Laurel obligations. Additionally, discussions with all parties should have the valuable effect of making certain that the expert's recommendations are sensitive to legitimate local concerns.

After quantifying the municipality's "fair share" of the region's lower income housing needs, the court would order the town to formulate and submit a remedial plan designed to enable, encourage and affirmatively attain satisfaction of its portion of the regional need. The plan should include, among other things, proposed amendments to the municipal zoning ordinance and affirmative programs deemed necessary to satisfy the municipality's obligation under Mt. Laurel. Such additional programs might involve establishment of a local housing authority, creation of a mobile home park district, imposition of inclusionary conditions upon subdivision, PUD and cluster zone developments, or provision of density bonuses and other inclusionary devices. See Part III (D) infra. The plan would then be submitted to the trial court for approval within a specified number of days.

After a hearing at which all parties could comment upon the proposed plan, the trial court would either approve the plan and order immediate implementation or, upon finding it deficient, modify the plan or order the municipality to do so. Such revisions would be submitted to the court for approval at a subsequent hearing. After the remedial plan has been formulated, approved and incorporated by the court into a judicial decree the court would retain jurisdiction in *585 order to supervise implementation of the plan. During this process, the court could require submission of progress reports from those charged with implementing the plan and could, when necessary, issue supplemental orders enforcing or modifying the remedial decree. If it has not yet done so, independent planning consultants could be appointed to assist with implementation, and additionally, suggestions and participation by all parties to the suit should be encouraged. Finally, if there is evidence of bad faith, inadvertence or neglect on the part of the municipality, the court could assume direct control over certain aspects of the plan and impose stronger remedial measures than those provided for in the initial decree. See Part III (D) infra.

Ample precedent exists for this approach. It has already been utilized by several of our trial courts in cases challenging the exclusionary character of local zoning ordinances. Mt. Laurel, supra, 119 N.J. Super. at 178-180 ; Pascack Ass'n Ltd. v. Mayor & Council of Washington Tp., supra. 131 N.J. Super. 195 ; Urban League of Greater New Brunswick v. Borough of Carteret, supra, 142 N.J. Super. at 35-39. It also mirrors the relief commonly provided by federal courts in school and housing desegregation cases. See, e.g., Swann v. Charlotte-Mecklenberg Bd. of Educ., supra, 402 U.S. 1 , 91 S.Ct. 1267 , 28 L.Ed. 2d 554 . (Defendant's failure to meet a school desegregation deadline fixed by the District Court, triggered the appointment of an independent consultant whose recommendations were ultimately incorporated into a desegregation plan adopted by the court); Southern Alameda Spanish Speaking Organization ( SASSO ) v. Union City, 424 F. 2d 291 (9 Cir.1970), on remand, 357 F. Supp. 1188, 1199 (N.D. Cal. 1970) (District Court gave the city nine months within which to "take steps necessary and reasonably feasible under the law to accommodate ... the [housing] needs of [its] low income residents," and also ordered the city to submit periodic reports concerning the steps it had taken to accomplish this objective); Crow v. Brown, supra , 332 F. Supp. at 395-396 (county officials and *586 a local housing authority were ordered to appoint a joint committee to prepare a county wide plan for the development and placement of low rent public housing projects and to implement the recommendations of the joint committee after first reporting to the court); Gautreaux v. Chicago Housing Authority, supra, 296 F. Supp. 907 (N.D. Ill. 1969), supplemented 304 F. Supp. 736 (N.D. Ill. 1969) (the District Court ordered the parties to submit plans designed "to prohibit the future use and to remedy the past effects of [the housing authority's] unconstitutional site selection and tenant assignment procedures"; following review of these plans, the Court issued a detailed order providing for the immediate deconcentration of public housing facilities in the Chicago Metropolitan area and further compelling the housing authority to revise its tenant assignment policy, submit such revisions to the Court for approval and undertake certain studies); Hawkins v. Town of Shaw, supra, 437 F. 2d at 1286 (5 Cir.), aff'd en banc 461 F. 2d 1171 at 1174 (5 Cir.1972) (town required to submit a plan for the court's approval detailing proposed cures for the "long history of discrimination which the record reveals."). Cf. Brown v. Bd. of Educ., 349 U.S. 294, 299-300 , 75 S.Ct. 753 , 99 L.Ed. 1083, 1105-1106 (1955); Wright v. City of Emporia, 407 U.S. 451, 454-458 , 92 S.Ct. 2196 , 33 L.Ed. 2d 51, 57-59 (1972); Mahaley v. Cuyahago Metropolitan Housing Authority, 355 F. Supp. 1257, 1269 (N.D. Ohio 1973), rev'd on other grounds, 500 F. 2d 1087 (6 Cir.1974), cert. den. 419 U.S. 1108 , 95 S.Ct. 781 , 42 L.Ed. 2d 805 (1975). [18]

*587 This approach is attractive in several respects. First, placing the initial responsibility for formulating a remedial plan into the hands of municipal officials furthers the objective of assuring maximum respect for local prerogatives. Cf. Reynolds v. Sims, 377 U.S. 533, 586 , 84 S.Ct. 1362, 1394 , 12 L.Ed. 2d 506, 541 (1964); Jackman v. Bodine, supra, 43 N.J. at 473-474 . Good faith compliance with the letter and spirit of the initial court decree will obviate the need for additional judicial interference and thus guarantee the retention of municipal control and responsibility over zoning matters.

Second, this approach recognizes the need to preserve local amenities. As noted above, if the municipality must accommodate low and moderate income families, it is best that this be done in a planned and orderly fashion. Intelligent use of PUD restrictions, density bonuses, landscape requirements and dispersal of different types of housing throughout the community can achieve compliance with the municipality's obligation under Mt. Laurel and still adequately protect the amenities which make the town an attractive place to live. Phased zoning, a technique which permits control over the pace and location of new development affords another means of achieving these ends. [19] Nevertheless, this technique must be used with caution. See Golden v. Ramapo Planning Bd., 30 N.Y. 2d 359 , 334 N.Y.S. 2d 138 , 285 N.E. 2d 291 (Ct. App. 1972), appeal dismissed 409 U.S. 1003 , 93 S.Ct. 436 , 34 L.Ed. 2d 294 (1972); Constr. Industry Ass'n of Sonoma Cty. v. Petaluma, 375 F. Supp. 574 (N.D. Cal. 1974), rev'd 522 F. 2d 897 (9 Cir.1975), cert. den. 424 U.S. 934 , 96 S.Ct. 1148 , 47 L.Ed. 2d 342 (1976); *588 Kleven, supra, 21 U.C.L.A.L. Rev. at 1453 n. 66. All such efforts, if otherwise proper and valid, should be

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