Oakwood at Madison, Inc. v. Township of Madison

Mountain, J.,

concurring and dissenting. As lawyers, judges, scholars and concerned citizens have quickly come to realize, the decision of the Court in Mount Laurel 1 has raised problems that defy easy answer. Some of these problems are *624 identified and commented upon below. It is the thesis of this opinion that the solutions of these problems, individually and in the aggregate, will be far more speedily and effectively devised by the Legislature than by the courts.

Mount Laurel announced a limitation on the zoning power. Henceforth, in a “developing municipality,” 2 that power must not be so exercised as to exclude from the community any who may wish to reside there; land use regulation must not be so structured that thereby entrance into the community will be beyond the economic reach of any persons, notably those in the low-and moderate-income groups. As a rule of law and statement of principle this seems unexceptionable. 3 It is in its implementation that difficulties are immediately encountered.

The opinion in Mount Laurel laid upon each developing municipality in the State an obligation to exercise its zoning power in such a way as to provide for its “fair share” of the housing needs of the lower-and moderate-income persons resident within the “region” within which the municipality was found to lie. It now seems to me, as it has come to seem to many others, that neither “fair share” nor “region” can be determined with even approximate accuracy in any given case and that neither concept provides a really workable tool to aid in the resolution of this difficult problem. For instance, the majority adopts the trial court’s definition of “region” as being “the area from which, in view of available employment and transportation, the population of the township would be drawn, absent invalidly exclusionary zoning” p. 537. As soon as one seeks to apply this definition it is seen that it rests upon circular reason *625 ing. A predicate of exclusionary zoning is a finding that a municipality is contributing less than its fair share of particular housing needs of its region. So before we can know whether zoning is exclusionary we must first find the region to whose housing needs it is allegedly making an inadequate contribution. But by the foregoing definition a determination of region implicates a prior finding of exclusionary zoning. Where is one to begin? 4

Actually, in light of the rule announced by the majority, it seems no longer necessary to define either “region” or “fair share.” The opinion states very clearly that a reviewing tribunal henceforth need not specify a particular region nor fix a fair share quota. (Pp. 498-499, 524, 543). It would seem implicit that a municipality also need not do so. In place of the fair share-regional approach, the majority now postulates a rule directing attention to the substance of zoning ordinances and to the bona fide efforts of those responsible for the administration of plans of land use regulation. (Pp. 499, 500, n. 5). This is undoubtedly a very great improvement; and yet it carries its own particular weaknesses. Implicit in this rule is the likelihood of ad hoc determinations rather than uniform application of a well understood governing principle. Eurthermore, and perhaps somewhat naively, it places what I fear is undue reliance upon good faith effort, despite the fact that, for understandable if not laudable reasons, any such effort has thus far been conspicuous by its almost total absence. Nevertheless, there is probably nothing better to offer as a judicially devised alternative.

Quite apart from the uncertain efficacy of this newly formulated rule, there are a number of reasons why courts should abstain from seeking ultimate solutions in this area, but should rather urge a legislative, or legislative-adminis *626 trative approach. In the first place courts are not equipped for the task. If a court goes beyond a declaration of validity or invalidity with respect to the land use legislation of a particular municipal body, it invites the fairly certain prospect of being required itself to undertake the task of rezoning. Of course it has neither- the time, the competence nor the resources to enter upon such an undertaking. It must therefore appoint planning experts to do the work for it. Such a course was followed in Pascack Association Ltd. v. Mayor and Council of Washington Twp., 131 N. J. Super. 195 (Law Div. 1974), certif. granted 69 N. J. 73 (1975). A principal weakness inherent in this approach is that no authoritative guidelines exist at the present time to aid the trial judge and the planning experts he has appointed, and to which the law would require that they adhere. Therefore a land use plan so devised will reflect rather the informed judgment of the chosen expert than a judicial application of settled principle to particular facts. Eull realization of this is likely further to diminish the probability of community acceptance.

Many of the difficulties a court faces in embarking upon such a venture have been discussed in an extremely instructive law review note:

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

*627 The court that rezones a municipality to accommodate low-and moderate-income housing must also consider whether it will retain jurisdiction to hear pleas for variances from the scheme it has mandated. A developer might, for instance, wish to build a pharmacy in an area that the court has designated for high-density, multi-unit dwellings. If a court itself decides upon the request, there will be little left of the principle that courts should not function as super-zoning bodies. Moreover, the court will be burdened with administrative duties until the land that it has rezoned is totally developed.

The desirability of a judicial remedy cannot be assessed without considering, for example, the potential for undesirable permanent alteration of the municipality that is inherent in any decision to rezone. A court that concludes it has unwisely ordered busing to desegregate a school system can easily correct its error by withdrawing or altering its order. If a court finds that a court-ordered reapportionment scheme was ill-advised, it can modify the districts or allow the legislature to modify them. In both of these areas, unwise decrees of the judiciary pertaining to complex or potentially inflammatory situations can usually be altered with a minimum of permanent harm. When a court rezones, however, buildings may be erected and development plans previously under consideration may be abandoned. Thus, unlike courts that reapportion to secure an effective political process or employ busing as a temporary measure to desegregate schools until society develops integrated and equal school facilities, the court that rezones makes a decision for the community that may not be subject to effective revision. [Note, The Inadequacy of Judicial Remedies in Cases of Exclusionary Zoning, 74 Mich. L. Rev. 760, 774-77, 1976]

On the other hand a legislatively created body, whether of an administrative nature or otherwise, would have the equipment and resources to study the problem in depth, take objective account of competing interests, avail itself of expert advice and hopefully achieve results not only in the public interest but also acceptable to the public — results reached by applying legislatively determined standards to particular factual contexts.

A second, and at least equally important reason why courts should not rezone, lies in the fact that in so doing they must inevitably make policy decisions that have traditionally been the prerogative of a democratically selected branch of government. Judicial rezoning, like all other zoning, implicates a choice among competing, often mutually *628 exclusive uses. While a court may rightfully challenge a municipality’s parochialism, it may at the same time find that its own activism constitutes an intrusion upon a legitimate political debate as to how the limited supply of land in a developing municipality is to be regulated. Id. at 779 . Many others have expressed a like concern. Professor John M. Payne, for instance, has recently drawn attention to the undesirability of seeking ultimate answers to problems of exclusionary zoning through the application of judicially fashioned remedies. Payne, Delegation Doctrine in the Reform of Local Government Law: The Case of Exclusionary Zoning, 39 Rutgers L. Rem. 808 (1976). Speaking directly to the current tendency of New Jersey courts to seek final remedies where zoning imbalance is perceived, he says,

This expansive judicial role raises grave constitutional problems going to the inherent limitations on the ability of a court to encroach upon legislative and executive prerogatives, since the structural issues being addressed by the current litigation can seldom be remedied without either legislative and executive cooperation or judicial action that is essentially legislative in scope. Assuming (all other things being reasonably equal) that the law reform decisions under discussion here ought to be framed in terms that are as minimally intrusive of the ordinary democratic process as possible, it appears that the trend of recent decisions seriously and unnecessarily violates that norm of non-intrusiveness. [I'd. at 804-05]

He further points out that such action on the part of the courts may not only exceed the boundaries of judicial skill but also those of “political tolerance.” Id. at 805 . Such activity “cuts too closely to the political core of our society.” Id. at 817 .

No one questions that zoning is a legislative function. Wlien the judiciary — for whatever reason — undertakes to move in this field, it immediately places in issue its power of legitimacy. I suggest that such intrusion may be especially resented, and hence more likely to be denied acceptance, where the subject matter is as controversial and potentially inflammatory as are many questions of zoning. *629 How much better were tbe Legislature to .take steps that would obviate this problem altogether!

A chief obstacle to achieving a rational, useful and adequate answer to our problem inheres in the fact that the zoning power today rests — potentially at least — with 567 different entities. Any municipality in the State is at liberty to adopt a zoning ordinance or plan of land use regulation, and presumably most have done so. Of these municipalities a goodly number must surely qualify — albeit reluctantly — as “developing.” Their land use plans are therefore required to meet the test of Mt. Laurel. But it must be obvious that the housing needs with which we are concerned can be better met in some municipalities within the region than in others. Prom a purely rational point of view, it makes little sense to apportion the regional obligation, willy-nilly, among some number of diverse political entities, set off from one another by boundary lines placed where they are by historical accident. As Professor Payne observes,

[I]t becomes necessary to ask whether the central premise of Mount Laurel, that each community has a proportional responsibility for each component of the region’s socio-economic makeup, makes sense. Would a competent planner, as a matter of total professional discretion, ever recommend that each community in a region, no matter how large or small, no matter how blessed with or without certain natural features, no matter what its past and its present makeup, should be an exact (or even approximate) microcosm of the whole. Even in a world of perfect social motivation, and of perfectly equitable distribution of public resources, it seems self-evident that rational planning would require corridors of growth, concentration of housing of various sorts in appropriate locales, preservation of natural amenities on the basis of absolute merit rather than proportional share and so forth. [Payne, supra, at 812-13]

Any comprehensive review of our zoning problems should take account of a state-wide or regional allocation of zoning power as a possibly preferable alternative to present arrangements. The strength of the home rule tradition in New Jersey as well as other rather securely built-in forces *630 will almost certainly provoke immediate opposition to any such proposal. And yet it should be carefully considered, despite the almost certain necessity of constitutional revision that would be entailed.

In Mount Laurel we said, “Courts do not build housing nor do municipalities.” 67 N. J. at 193. Today the majority repeats, “Municipalities do not themselves have the duty to build or subsidize housing.” p. 499. This I take to be settled doctrine, which should not, I submit, be altered in any way except by legislation. This comment is provoked by the plethora of suggestions that have arisen on all sides demanding various kinds of immediate and far-reaching affirmative action — kinds of action that if undertaken would require the exercise of some unspecified municipal power, but certainly not the zoning power.

There is no real likelihood that any of the problems to which I have adverted will yield to unaided judicial ingenuity. There is, on the other hand, very legitimate hope that our zoning difficulties and land use problems — centered as they are today around the injustice of exclusionary zoning, but by no means limited to that — can be ameliorated and eventually solved by careful and imaginative legislative action. The Legislature can recruit the expertise, hear all sides of each strand of the tangled web, view the State regionally or as a whole, experiment if need be, and develop a land use program responsive to the needs of all its citizens. I am satisfied this is a feat of which the courts are incapable.

In the meantime this case must be decided. Courts cannot pass. I agree that the case should be remanded to the trial court, but I disagree strongly with the proposed terms of remand. They seem to me unfair to the municipality. The majority has today announced a new rule henceforth to govern the determination as to whether or not a municipality is guilty of exclusionary zoning. The defendant has had no opportunity to address the issue as so propounded. It should have that opportunity, which should include the right to present not only argument but further testimony as well. *631 Without going into detail, I wish simply to register my disagreement with everything appearing in Point XIII of the majority opinion.

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

The correct name of the case is Southern Burlington County N.A.A.C.P. v. Twp. of Mount Laurel, 67 N. J. 151 (1975), cert. denied 423 U. S. 808 , 96 S. Ct. 18 , 46 L. Ed. 2d 28 (1975). It is here and elsewhere commonly referred to simply as Mount Laurel.

“Developing municipality” is a phrase that has now taken on a special, if not entirely precise, meaning. See Rose and Levin, What Is a “Developing Municipality” Within the Meaning of the Mount Laurel Decision?, 4 Real Estate Law Jour. 359 (1976).

The rule has an idealistic, even Utopian quality. For this I would make no apology.

This is not to say that “fair share” and “region” might not prove useful and entirely workable concepts as part of a well-considered program of legislatively-developed regional zoning.