Oakwood at Madison, Inc. v. Township of Madison

Schreiber, J.

(concurring in part and dissenting in part). We are now called upon to fashion a remedy for and implement our decision in So. Burl. Cty. N.A.A.C.P. v. Tp. of Mt. Laurel, 67 N. J. 151 (1975), hereinafter referred to as Mt. Laurel. At the outset it would be well to identify and define the wrong condemned in Mt. Laurel.

Mt. Laurel invalidated the Township’s zoning ordinance which effectively excluded low and moderate income housing. The Township frankly conceded that adoption of the exclusionary provisions of the ordinance was motivated by the desire to protect the fiscal interests of its residents, for in-habitation by substantial numbers of low and moderate income families would probably increase the local tax rate which would then be thrust upon all the municipality’s residents. The underlying cause of this state of affairs is New Jersey’s tax structure, essentially local in nature, which generates most of its revenues from real estate assessments.

*620 In Mt. Laurel Justice Hall graphically described the financial pattern behind exclusionary zoning:

There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property . . . and that the policy was carried out without regard for non-fiscal considerations with respect to people, either within or without its boundaries. . . .

This policy of land use regulation for a fiscal end derives from New Jersey’s tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality’s children. The latter expense is much the largest, so, basically, the fewer the school children, the lower the tax rate. Sizeable industrial and commercial ratables are eagerly sought and homes and the lots on which they are situate are required to be large enough, through minimum lot sizes and minimum floor areas, to have substantial value in order to produce greater tax revenues to meet school costs. Large families who cannot afford to buy large houses and must live in cheaper rental accommodations are definitely not wanted, so we find drastic bedroom restrictions for, or complete prohibition of, multi-family or other feasible housing for those of lesser income.

This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost every one acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing. There has been no effective intermunicipal or area planning or land use regulation, lid. at 170-171].

The ratio decidendi of Mt. Laurel is that a municipality’s zoning ordinance which effectively excludes low and moderate income families from living within its borders and which has been enacted to escape the adverse financial impact on the community is contrary to the general welfare and consequently invalid. Art. I, par. 1 of New Jersey Constitution. 1 No one can reasonably quarrel with that proposition.

*621 Obviously, an effective remedy to alleviate the evil which Mt. Laurel has exposed is one which strikes at its root causes, srtch as revitalization of the cities with new commercial and industrial enterprises which would add substantial ratables to the local tax base, or reformation of New Jersey’s tax structure, or both, so that, as Justice Iiall wrote, municipalities would “zone primarily for the living welfare of people and not for the benefit of the local tax rate.” Id. at 188 (footnote omitted). Most would readily concede that the legislature and not the courts is the proper body to exercise such relief. The Public School Education Act of 1975, N. J. S. A. 18A:7A-1 et seq., as funded, N. J. S. A. 54A:1-1 et seq., will have some effect on the local tax rate, but most public educational costs, expenses for police and fire departments, municipal aid to the poor, and expenditures for other local related services are still borne by local taxes with urban areas having disproportionately greater costs in these respects. See Robinson v. Cahill, 67 N. J. 333, 369-370 (1975) (Pashman, J., concurring in part and dissenting), cert. denied, 423 U. S. 913 , 96 S. Ct. 217 , 46 L. Ed. 2d 141 (1975). No party in these proceedings has advocated that the judicial remedy be directed toward elimination of the causes. Instead efforts, following the lead of Mt. Laurel, have been directed toward the amelioration or elimination of the result, namely modification of the exclusionary provisions of the zoning ordinance.

The judicial remedial guideline suggested in Mt. Laurel was that a municipality must bear its “fair share” of low and moderate income housing in the “region”. Problems inherent in the “fair share” of the “region” formula have been expressed by the majority as well as Justice Mountain and need not be repeated. Clearly the legislature or an administrative agency with the necessary expertise would un *622 questionably be in a far superior position than the courts to receive all relevant information and data and reach legitimate results using the concepts of “fair share” and “region”. 2 Furthermore, the Court should not be and is not limited to solutions within that framework. The opportunity to construct low or moderate income housing predicated upon projected population growth (municipal county, regional or area), geological, geographical, environmental, ecological conditions or on other rational bases may satisfy the Mt. Laurel mandate. 3

There is broad language in Mt. Laurel to the effect that a “developing” municipality must provide by its land use regulations the reasonable opportunity for an appropriate variety and choice of housing for all categories of people who may desire to live within its boundaries. 67 N. J. at 179. I do not accept that generalization. The general welfare calls for adequate housing of all types, but not necessarily within any particular municipality. Fanale v. Hasbrouck Heights, 26 N. J. 320 (1958). Environmental, ecological, geological, geographical, demographic, regional or other factors may justify exclusion of certain types of housing, be it two-acre or multifamily. See N. J. S. A. 40:55D-2 c, i, j, k. It should be noted that the general welfare includes “public health, safety, morals and welfare by means of adequate light and air, the avoidance of overcrowding of land and *623 buildings and the undue concentration of population; these among other considerations related to the essential common good, the basic principle of civilized society.” San-Lan Builders, Inc. v. Baxendale, 28 N. J. 148, 157 (1958). See also Village of Belle Terre v. Boraas, 416 U. S. 1 , 94 S. Ct. 1536 , 39 L. Ed. 2d 797 (1974).

Madison Township’s zoning ordinance, as amended, is facially exclusionary to the extent delineated in the majority opinion. It was the Township’s burden to justify the exclusionary provisions of its amended ordinance on a reasonable basis such as projected population growth, regional requirements, geological, geographical, environmental or ecological considerations. This it has not done. Accordingly, I would remand to permit the municipality to present evidence to justify the extent to which its ordinance now permits construction of low and moderate income housing to meet the criteria set forth herein or to revise its ordinance in accordance with the minimum requirements projected in Part XIII of-the majority opinion. I also agree with Part XII with respect to relief for the corporate plaintiffs at this time under the unusual circumstances of this case. Lastly, I agree with the majority that the trial court erred in not receiving in evidence the environmental depositions. On the remand these should be admitted and additional relevant evidence in connection with that subject matter, if offered by any of the parties, should be considered.

I concur in the remand consistent with the provisions stated herein.

If adoption of the zoning ordinance had not been motivated by fiscal reasons, but for proper purposes, it could be contended that the validity of the ordinance should be upheld. Compare Arlington Heights v. Metropolitan Housing Development Corp., - U. S. -, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977), where the Supreme Court *621 held that failure to establish a racially discriminatory motive in refusing to rezone for low and moderate income tenants did not invalidate a zoning ordinance under the Fourteenth Amendment.

See Division of State and Regional Planning, A Statewide Housing Allocation Plan for New Jersey (preliminary draft, 1976), which commented that court decisions have attempted to deal with “fair shares” and related issues, but not on a uniform basis. Id. at 2. The study allocated low and moderate income housing needs among the municipalities, using factors such as municipal fiscal capability, employment growth, vacant developable land and personal income. Id. at 13-15.

Judge Conford in the majority opinion and Justice Pashman in his concurring and dissenting opinion recognize the need for flexibility in determining “region” and “fair share”, but even then, the “fair share” — “region” principle may unduly circumscribe a municipality in its efforts to satisfy the constitutional requirement that a zoning ordinance be consonant with the general welfare.