Surrick v. ZHB OF U. PROVIDENCE TP.

*198 ROBERTS, Justice,

concurring.

I concur in the result. The Township’s allocation of land clearly is not reasonable. See Concord Township Appeal, 439 Pa. 466 , 268 A.2d 765 (1970); Girsh Appeal, 437 Pa. 237 , 263 A.2d 395 (1970); National Land and Investment Company v. Easttown Township Board of Adjustment, 419 Pa. 504 , 215 A.2d 597 (1965); Township of Willistown v. Chesterdale Farms, 462 Pa. 445 , 341 A.2d 466 (1975) (concurring opinion of Roberts, J.). I cannot agree, however, with the majority’s use of the notion of “fair share.”

The majority asserts that this Court in Township of Willistown v. Chesterdale Farms, 462 Pa. 445 , 341 A.2d 466 (1975) (plurality opinion) adopted the view that each municipality must provide a “fair share” of township land for “the legitimate needs of all categories of people who may desire to live within its boundaries.” To the contrary, the “fair share” theory has never commanded a majority of this Court. Strong reasons exist for this Court to continue its refusal to endorse “fair share.”

In Willistown, the plurality looked to Southern Burlington County NAACP v. Township of Mount Laurel, 67 N.J. 151 , 336 A.2d 713 (1975), appeal dismissed and cert. denied, 423 U.S. 808 , 96 S.Ct. 18 , 46 L.Ed.2d 28 (1975), where the Supreme Court of New Jersey relied upon “fair share” in striking down an exclusionary zoning scheme. Although the New Jersey Court, like today’s majority, expressed the hope that its examination of local zoning would not transform the court into an all-powerful board of adjustment, the history of the New Jersey Court’s attempted enforcement of “fair share” suggests strongly that a theory so closely akin to court imposed regional zoning must convert courts into regional planning commissions.

In Oakwood at Madison, Inc. v. Township of Madison, 72 N.J. 481 , 371 A.2d 1192 (1977), the New Jersey Court was called upon to explicate its decision in Mount Laurel. So devisive, apparently, was the attempt to translate the broad propositions of “fair share” announced in Mount Laurel into concrete and manageable standards, that the Court could *199 not reach a decision until after hearing argument four times over a period of nearly four years. The majority that emerged once more asserted that courts should not interfere with local zoning matters. Nevertheless, in the absence of regional planning and legislative or administrative controls, the Court required the judiciary to assume the task of ensuring that each municipality in a region allocate land in accordance with the current and anticipated needs of the region. 72 N.J. at 535 , 371 A.2d at 1219 . 1

In Oakwood, the court emphasized that trial courts attempting to enforce Mount Laurel need not set precise quotas on the land townships must allocate for particular uses. 72 N.J. at 523, 543 , 371 A.2d at 1213, 1223 . That instruction of course did not relieve trial courts of the obligation to receive and analyze volumes of statistics concerning regional needs and to construct estimates of the acreage to be set aside by each municipality in the region. See id. at 525-29 , 371 A.2d at 1214 — 16. The court must therefore engage in the essentials of regional zoning.

Indeed, in Oakwood, the trial court waded through three comprehensive planning studies which assessed and evaluated the housing, population, labor, income, transportation, real estate and educational conditions of the region, current and prospective, and which estimated the “fair shares” of Madison and its sister municipalities for the region’s zoning needs. Based on these studies, the trial court determined that to meet its “fair share” of the housing needs of the region, Madison’s 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%.” Id. at 541 , 371 A.2d at 1222 . When a court makes such determi *200 nations and issues such orders, it is zoning, performing the role of a legislature or of a regional zoning board. That appellate courts, as well as courts at the trial level, are needlessly cast into this role compounds the error.

Mount Laurel relied in part on our own cases, such as Concord Township Appeal, Girsh Appeal, and National Land and Investment Company v. Easttown Township Board of Adjustment, supra, in striking down exclusionary zoning, but in introducing “fair share” went far beyond anything this Court had ever decided or suggested. At a time when New Jersey itself is limiting application of Mount Laurel, 2 it is ironic that the majority should adopt the New Jersey Court’s vast expansion of the zoning principles applied in our cases when this Court has declined to embrace such an expansion independently.

The crucial distinction between our cases and those of New Jersey is that “fair share” transforms courts, both trial and appellate, into what Mr. Justice Pomeroy in his dissent in Willistown called “super boards of adjustment” and “planning commissions of last resort.” 462 Pa. at 452-53 , 341 A.2d at 470 . 3 Nothing in law, policy or constitutional decision-making in land use disputes requires that we subject our judicial system to an unnecessary burden for which it is singularly ill equipped, or impose on regions and municipalities a “fair share” scheme of land use regulation which properly is for legislative and administrative bodies to develop. Our own case law has proved adequate to the task of preventing unconstitutional exclusionary zoning schemes without involving our judiciary in the endless complications *201 engendered by Mount Laurel in New Jersey. 4 We would do well to continue to steer clear of “fair share.”

. “But unless and until other appropriate governmental machinery is effectively 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 effectively as is consistent with the limitations of the judicial process.” Oakwood at Madison, Inc. v. Township of Madison, 72 N.J. 481, 535 , 371 A.2d 1192, 1219 (1977).

. Our cases have been cited with approval. See e. g., Golden v. Planning Board of Town of Ramapo, 30 N.Y.2d 359 , 334 N.Y.S.2d 138 , 285 N.E.2d 291 (1972); R. Rosenzweig, From Euclid to Eastlake —Toward a Unified Approach to Zoning Change Requests, 82 Dick. L.Rev. 59 (1977); Comment, Zoning: Closing the Economic Gap, 43 Temp.L.Q. 347 (1970).

. New Jersey faced Mount Laurel challenges in Fobe Association v. Demarest Mayor and Council (A129 September Term, 1975) and Pascack Association Limited, Inc. v. Mayor and Council of Washington Township, etc. (A130 September Term, 1975) both reported in 100 N.J. Law Journal 909 (October 13, 1977). In both cases, the New Jersey Court declined to apply Mount Laurel to municipalities almost fully developed.

. The Willistown plurality’s use of “fair share” is criticized in Note, The Inadequacy of Judicial Remedies in Cases of Exclusionary Zoning, 74 Mich.L.Rev. 760, 774 n. 66 (1976).