Vickers v. Tp. Committee of Gloucester Tp.

Hall, J.

(dissenting). The majority decides that this particular municipality may constitutionally say, through exercise of the zoning power, that its residents may not live in trailers—or in mobile homes, to use a more descriptive term. I am convinced such a conclusion in this case is manifestly wrong. Of even greater concern is the judicial process by which it is reached and the breadth of the rationale. The import of the holding gives almost boundless freedom to developing municipalities to erect exclusionary walls on their boundaries, according to local wliim or selfish desire, and to use the zoning power for aims beyond its *253 legitimate purposes. Prohibition of mobile home parks, although an important issue in itself, becomes, in this larger aspect, somewhat a symbol.

The instant case, both in its physical setting and'in the issues raised, is typical of land use controversies now current in so many New Jersey municipalities on the outer ring of the built up urban and suburban areas. These are municipalities with relatively few people and a lot of open space, but in the throes, or soon to be reached by the inevitable tide, of industrial and commercial decentralization and mass population migration from the already densely settled central cores. They are not small, homogeneous communities with permanent character already established, like the settled suburbs surrounding the cities in which planning and zoning may properly be geared around things as they are and as they will pretty much continue to be. On the contrary these areas are sprawling, heterogeneous governmental units, mostly townships, each really amounting to a region of considerable size in itself. Their present rural, semi-rural or mixed nature is about to change substantially and they are soon to become melded into the whole metropolitan area. Their political boundaries are artificial and hence of relatively little significance beyond defining one unit of 'local government. Their existing conglomeration of land uses is sectionally distributed—large or small scale agriculture, residences in separated communities and on good sized plots or acreage in the open country, business establishments in the populated sectors and along through highways, and perhaps a spot or two of industry much sought after to aid municipal tax revenues. Many differing land uses, both present and future, are and can be made comfortably compatible by reason of the distances involved and the varying characteristics of geographical sections. Present municipal services are not more extensive than necessary to serve a population scattered over a large territory. Increased facilities, especially schools, required to accommodate a sudden population growth of large propor *254 tions must be provided almost solely at local expense, which in New Jersey means from additional taxation on real estate within the municipal boundaries. And it is elementary knowledge that small homes with children to be educated in local schools cannot pay their own way tax-wise.

Such municipalities, above ' all others, vitally need and may legally exercise comprehensive planning and implementing zoning techniques to avoid present haphazard development which can only bring future grief. They are entitled to aim thereby for a sound and balanced area, with varying uses confined to specified districts and appropriately regulated. They may even limit the pace of growth to coincide with the availability of the necessary additional facilities and services so as to minimize growing pains. See Fagin, “Regulating the Timing of Urban Development,” 20 Law and Contemporary Problems 298 (1955). They do not have to permit an Oklahoma land rush or a Western boom town. They need not allow every land use wherever someone wants to put it or the property is suitable and, in accordance with a comprehensive plan, may reasonably restrict districts to a particular future use even though another use would be’ equally suitable. They would be well advised to plan with adjoining communities, especially for joint public services and facilities. Intercommunity planning is also best able to accommodate those categories of uses that ought not to be excluded everywhere, but which may be more desirably located in one municipality rather than another. Unfortunately, our statutory provisions for voluntary regional planning boards, R. S. 40:27-9 to 11, have been little used, if at all.

And this gets to the nub of what this, and similar cases, are really all about, i. e., the outer limit of the zoning power to be enjoyed by these municipalities most in need of comprehensive authority. What action is not legitimately encompassed by that power and what is the proper role of courts in reviewing its exercise?

*255 The inquiry involves important fundamentals. In the broad sense the considerations are well posed in Williams, “Planning Law and Democratic Living,” 20 Law and Contemporary Problems 317 (1955):

“The main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society—equality of opportunity and equality of treatment, freedom of thought and considerable freedom of action, and fairness. Under the American system, a more or less independent mechanism of judicial review is established to provide an independent check on whether specific governmental decisions conform to these standards. While controversy has often raged about judicial action in other areas, it has altoays been recognized that it is an essential part of the judicial fimction to ivateh over the parochial and ewclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare.

Constitutional law should serve to shed light upon thinking about local planning, by requiring those concerned to do what they should be doing anyway—to work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity.

An intelligent application of constitutional law to the measures used in planning the environment will therefore force a searching inquiry into basic problems—and thus become in fact an excellent vehicle for getting at what is really involved in planning decisions. If such searching inquiries are to be undertaken, this means that no major problem in planning law can really be understood except by an analysis thereof in relation to the whole background of the changing physical, economic and social environment. In short, what is needed in planning law is a super-Brandeis-brief approach.

The leaders of liberal-democratic thought are all too often so confused with abstractions (‘health, safety, morals and welfare,’ ‘character of the neighborhood,’ etc.), so full of respect for local autonomy, and so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise' of governmental power.” (Emphasis supplied) (at pp. 318, 319, 349-350).

Looking first at the judicial role in such matters, it may well be suggested there is nothing revolutionary or even *256 novel in the majority’s approach, the formulation of the decision or even in what is said. True it is that the opinion flows smoothly, beginning with common principles and presumptions of constitutional and statutory validity, continuing through recital of a succession of prior decisions in this court, to the seemingly irresistible conclusion that the local action is beyond successful attack. But as I see it, the result of this judicial process goes so far off the mark here as to point up in bold relief the necessity to pause for reappraisal of some of what has gone before and at least to halt what I think has developed into a most improper trend.

The decision formula runs as follows: The 1947 Constitution requires that zoning enabling laws be construed liberally in favor of municipal power. Any local exercise of that power is presumed valid until overcome by an affirmative showing of unreasonableness. Judicial review is so narrow that this showing can never be made if even a “debatable issue” exists. Such an issue exists in this case. Therefore the local prohibition stands.

The majority’s spelling out of the “debatable issue” falls into this syllogistic pattern: Developing municipalities need not provide for every use. Cited precedent supports the local right to exclude uses on broad grounds. Planning and zoning in growing municipalities must look ahead to anticipate and prevent blight and to provide for “the hopes of the planners.” Any zoning ordinance provision by such a municipality is proper if only it furthers the “general welfare” of the particular municipality in isolation. It does so if, in the single view of a majority of the local governing body, it “is reasonably calculated to advance the community as a social, economic and political unit” or aids in making the community a desirable place in which to work and live. Trailer camps present problems, are unattractive in appearance (“aesthetics may properly be considered in establishing a zoning scheme”), and may be detrimental to present and prospective property values, thereby retarding the “progress” of a municipality. Moreover, once allowed *257 to exist, they become irremovable nonconforming uses with a permanent jarring note if future conditions impel zoning revision. Eactually, since validity must be considered in the light of the particular circumstances, this township is in the path of growth potential and is presently in a state of flux. It is seeking the orderly development of a well integrated community. Its officials do not like the looks of trailer camps in industrial districts or anywhere else— they “are unsightly” and “do not contribute anything to the general appearance of the local scenery and do not enhance the use or value of the local real estate.” Therefore their complete prohibition furthers the “general welfare” in the eyes of the local authorities. The court cannot go against their view.

As the first stone in building its thesis, the majority relies on the 1947 constitutional mandate, Art. IV, Sec. VII, par. 11, enjoining liberal construction of provisions in that document and of laws concerning local government. Analysis demonstrates that the mandate has no true application in this situation. It was intended to reverse the former rule of construction of municipal power which had required, as stated for example in N. J. Good Humor, Inc. v. Bradley Beach, 124 N. J. L. 162, 16A-165 (E. & A. 1939), that

“[a]ny reasonable or fair doubt of the existence of the asserted power, or any ambiguity in the statute whence it springs, or those in pari materia, is to be resolved against the municipality, and the power is denied. Municipalities are to be confined within the limits that a strict construction of the grants of powers will assign to them.”

See 1 Proceedings of the New Jersey Constitutional Convention of 1947 401. But municipalities are still governmental units carrying out only those state functions and duties delegated to them by the Legislature either expressly, by necessary or fair implication, or as incidental or essential to powers expressly conferred. The new constitutional provision did not create a new concept of limitless home rule or give omnipotence to a local government to do anything it desires without regard to the limits of the delegated power supposedly exercised. Magnolia Development *258 Co., Inc. v. Coles, 10 N. J. 223 (1952); Fred v. Mayor and Council, Old Tappan Borough, 10 N. J. 515, 518 (1952); Grogan v. DeSapio, 11 N. J. 308, 316-317 (1953); Wagner v. Newark, 24 N. J. 467, 476-478 (1957).

In land use regulation, the Legislature has specifically-defined and delineated the objects and methods of municipal action in accordance with expressed standards. Liberal construction cannot be applied in such matters so as to “constitute an authorization for a municipality to exercise the powers therein conferred without compliance with the provisions and procedures therein described,” many of which are for the protection of property owners, Magnolia Development Co., Inc. v. Coles, supra (10 N. J., at p. 227), nor does it, speaking more generally, “connote an extension the boundaries delineated by the statutory phraseology as commonly used,” Grogan v. DeSapio, supra (11 N. J., at p. 316). We are not here concerned with the physical scope of the zoning power, cf. United Advertising Corp. v. Borough of Raritan, 11 N. J. 144, 150 (1952), but rather with the propriety of its exercise in the light of the prescribed statutory scheme and standards and other inherent limitations. It is a misapplication of the constitutional mandate to utilize it, as the majority seems to do, for the purpose of glossing over or watering down the requisite inquiry as to reasonableness with reference to the particular action under review.

The other foundation stones of the majority’s approach are the twin shibboleths of presumption of validity of municipal action and restraint on judicial review if the proofs do not overcome it “beyond debate.” The trouble is not with the' principles—if we did not have them, governments could not well operate at all—but rather with the perfunctory manner in which they have come to be applied. Undoubtedly influenced at the same time by loose application of the constitutional provision for liberal construction, Lionshead Lake, Inc. v. Township of Wayne, 10 N. J. 165, 172 (1952), appeal dismissed 344 U. S. 919 , 73 S. Ct. 386 , *259 97 L. Ed. 708 (1953), our courts have in recent years made it virtually impossible for municipal zoning regulations to be successfully attacked. Judicial scrutiny has become too superficial and one-sided. 1 The state of the trend is exemplified in the language of the majority that “if the amendment presented a debatable issue we cannot nullify the Township’s decision that its welfare would be advanced by the action it took.”

In passing, a further principle may be noticed which seems to have been lost sight of in recent zoning decisions: “the presumption of validity * * * is only a presumption and may be overcome or rebutted not only by clear evidence aliunde, but also by a showing on its face or in the light of facts of which judicial notice can be taken, of transgression of constitutional limitation or the bounds of reason.” Moyant v. Paramus, 30 N. J. 528, 535 (1959). Accordingly, it seems only fair to private citizens seeking judicial determination of their rights to require the municipality, with all its resources, to assume the burden of going' forward to justify its action when the challenged measure gives good possibility on the surface of going to a doubtful extreme. 2

*260 While it has long been conventional for courts to test the validity of local legislation by the criterion of whether a fairly debatable issue is presented, and if so to sustain it, it makes all the difference in the world how a court deals with that criterion. Proper judicial review to me can be nothing less than an objective, realistic consideration of the setting—the evils or conditions sought to be remedied, a full and comparative appraisal of the public interest involved and the private rights affected, both from the local and broader aspects, and a thorough weighing of all factors, ([with government entitled to win if the scales are at least balanced or even a little less s<^ Of course, such a process involves judgment and the measurement can never be mathematically exact. But that is what judges are for—-to evaluate and protect all interests, including those of individuals and minorities, regardless of personal likes or views of wisdom, and not merely to rubber-stamp governmental action in a kind of judicial laissez-faire. The majority approach attaches exclusive significance to the view of the governing body that, in its summary opinion, the “welfare” of the municipality would be advanced. On this criterion it is hard to conceive of any local action which would not come within the “debatable” class.

The majority falls in line with a plainer expression of the same thought in two earlier cases upon which it relies—Lionshead Lake, Inc. v. Township of Wayne, supra (10 N. J. 165, concurring opinion) and Pierro v. Baxendale, 20 N. J. 17 (1955). In the latter the court said: “We are satisfied that at long last conscientious municipal officials have been sufficiently empowered to adopt reasonable zoning measures designed towards preserving the wholesome and attractive characteristics of their communities and the values of taxpayers’ properties.” (20 N. J., at p. 29.) In the former: “[The attacked provision] constituted important legislative action representing the governing body’s best judgment as to what zoning restrictions were required to promote the health, morals and general welfare of the *261 community as a whole. Decent respect for its problems and sincerity required that its action remain unimpaired in the absence of clear showing that it was arbitrary, unreasonable, or beyond the authority of the general Zoning Act.” (10 N. J., at p. 179.) I think it is basically wrong for a court to take this point of view. Municipal legislative action is always assumed to have been taken conscientiously, sincerely and honestly. The test of validity is certainly something much more than bad faith or corruption. ÍLocal officials, no matter how conscientious and sincere in their own minds, may be legally wrong in formulating into legislation what they think is best for their community. The only place that question can be tested and individual rights and privileges safeguarded is in the courts. The judicial branch does not meet its full responsibility when, as here, its concept of review gives unquestioning deference to the views of local officials^]

Turning to the way the majority looks at local zoning regulations from the substantive standpoint, it is asserted to be enough, as has been indicated, that the “general welfare” of the community is advanced. And the definition of the term, taken from prior cases, is so broad—anything “reasonably calculated to advance the community as a social, economic and political unit,” including “public convenience” and “general prosperity”—one could hardly conceive of any land use regulation which would not fulfill it, especially when the governing body’s determination is so controlling. All the other purposes and criteria of valid zoning set forth in the enabling act, R. S. 40:55-32, seem to be written out as unnecessary and of no bearing. The result is an extension of local control in directions and for purposes, under the' guise of zoning, which go beyond the legitimate aims of the power. We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily *262 stated purposes. The basic definition by the first authority in the field still holds good: “Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.” Bassett, Zoning 45 (1940). The purpose “to promote * * * the general welfare” does not stand alone in the statute. Its meaning and scope must have some relation to the other specified standards and the whole authorized scheme. Certainly “general welfare” does not automatically mean whatever the municipality says it does, regardless of who is hurt and how much. /

And no matter how broadly the concept is viewed, it cannot authorize a municipality to erect a completely isolationist wall on its boundaries. This was early recognized in the foundation ease of Euclid v. Ambler Realty Co., 272 U. S. 365 , 47 S. Ct. 114 , 71 L. Ed. 303 (1926), where the court was careful to say: J“It is not meant by this, however, to exclude the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the wayJf 71 L. Ed., at p. 311 . Two of our own landmark decisions (one wonders what has lately happened to them) made it very plain, even though our zoning scheme is legislatively keyed to municipal lines, that validity of local use prohibitions is to be judged by, among other things, availability of other appropriate locations, Duffcon Concrete Products, Inc. v. Borough of Cresskill, 1 N. J. 509 (1949), and that one town’s zoning should give due recognition to conditions across its boundaries, Borough of Cresskill v. Borough of Dumont, 15 N. J. 238 (1954). See Haar, “Regionalism and Realism in Land-Use Planning,” 105 U. Pa. L. Rev. 515 (1957); Note, “Zoning Against the Public "Welfare: Judicial Limitations on Municipal Parochialism,” 71 Yale L. J. 720 (1962). Though the Cresskill cases dealt with built-up suburbs, their underlying philosophy is equally applicable to developing municipalities in a vast metropolitan complex. They stand for the proposi *263 tion that “general welfare” transcends the artificial limits of political subdivisions and cannot embrace merely narrow local desires.

I have at least equal difficulty with the breadth of another major aspect of the majority’s thesis—that the local power to zone is especially carte blanche when the municipality is a relatively virgin one, and in the path of metropolitan expansion. The specter of future blight and a present inward vision of what the municipality hopes or dreams of someday becoming or remaining seem enough to sanction most any restriction, however drastic or provincial. This is, of course, partly true, since such municipalities may validly exercise comprehensive planning and zoning powers in many ways to meet their peculiar problems, present and prospective. Reasonableness depends on particular circumstances and some of the techniques legitimately available to them might be invalid if applied to relatively small built-up municipalities with settled character. But the reverse is also true. Euclid long ago noted: “A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities.” 71 L. Ed., at p. 310 . Some of the cases relied on by the majority—Duffcon Concrete Products, Inc. v. Borough of Cresskill, supra (1 N. J. 509) (a densely settled suburb may properly exclude industry, if it has some other place to go in the general area); Fanale v. Borough of Hasbrouck Heights, 26 N. J. 320 (1958) (such a community may say it has had enough of some problem-creating method of living); Pierro v. Baxendale, supra (20 N. J., at p. 17) (it may keep transient motels at least out of its residential districts even though it allows dwellings to be used for boarding and rooming houses)— have little substantive pertinency in passing on the propriety of regulations in virgin territories.

Townships like Gloucester, with their vast areas of vacant land, have plenty of room in which to accommodate the variety of land uses people of all income levels and indi *264 vidual desires may want to enjoy. Sound planning and zoning regulation by appropriate districts can easily make sucb uses compatible while avoiding detrimental impact on each other. The technique is to allow for differing uses-by putting them in the right places and with accompanying restrictions. I am unconvinced that “adequate light and air,” lessening “congestion in the streets,” avoidance of “undue concentration of population,” “safety from fire, panic and other dangers” and prevention of suburban blight reasonably require a minimum five-acre dwelling lot in 90% of a 24-square-mile township with a population of 1600, if that municipality is a growing one or about to be reached by the tide. 3

In my opinion legitimate use of the zoning power by such municipalities does not encompass the right to erect barricades on their boundaries through exclusion or too tight restriction of uses where the real purpose is to prevent feared disruption with a so-called chosen way of life. Uor does it encompass provisions designed to let in as new *265 residents only certain kinds of people, 4 or those who can afford to live in favored kinds of housing, or to keep down tax bills of present property owners. When one of the above is the true situation deeper considerations intrinsic in a free society gain the ascendency and counts must- not be hesitant to strike down purely selfish and undemocratic enactments. I am not suggesting that every such municipality must endure a plague of locusts or suffer transition to a metropolis over night. I suggest only that regulation rather than prohibition is the appropriate technique for attaining a balanced and attractive community. The opportunity to live in the open spaces in decent housing one can afford and in the manner one desires is a vital one in a democracy, fit seems contradictory to sustain so readily legislative policy at the state level forbidding various kinds of discrimination in housing, e. g., Levitt & Sons, Inc. v. Division Against Discrimination, 31 N. J. 514 (1960), appeal dismissed 363 U. S. 418 , 80 S. Ct. 1257 , 4 L. Ed.

2d 1515 (1960), and permitting the use of eminent domain and public funds to remove slums and provide decent living accommodations, e. g., Ryan v. Housing Authority of Newark, 125 N. J. L. 336 (Sup. Ct. 1940); Wilson v. Long Branch, 27 N. J. 360 (1958), cert. den. 358 U. S. 873 , 79 S. Ct. 113 , 3 L. Ed. 2d 104 (1958), and at the same time bless selfish zoning regulations which tend to have the effect of precluding people who now live in congested and undesirable city areas from obtaining housing *266 within their means in open, attractive and healthy communities^

Lionshead (10 N. J., at pp. 173-175), and Fischer in the breadth of some of its language (11 N. J., at pp. 204, 205), rationalize such exclusionary results, as does the majority here, by reference to the statutory zoning purposes, R. S. 40:55-32, of “conserving the value of property” and “encouraging the most appropriate use of land” and in the name of preservation of the character of the community or neighborhood. I submit these factors are perverted from their intended application when used to justify Chinese walls on the borders of roomy and developing municipalities for the actual purpose of keeping out all but the “right kind” of people or those who will live in a certain kind and cost of dwelling. What restrictions like minimum house size requirements, overly large lot area regulations and complete limitation of dwellings to single family units really do is bring about community-wide economic segregation. It is a proper thing to exclude factories from residential zones to conserve property values and to encourage the most appropriate use of land throughout the municipality. It is quite another and improper thing to use zoning to control who the residents of your township will be. To reiterate, all the legitimate aspects of a desirable and balanced community. can be realized by proper placing and regulation of uses, as the zoning statute contemplates, without destroying the higher value of the privilege of democratic living. Eor a fuller discussion see Williams, “Planning Law and Democratic Living,” 20 Law and Contemporary Problems 317 (1955); Haar, “Zoning for Minimum Standards: The Wayne Township Case,” 66 Harv. L. Rev. 1051 (1953); Haar, “Wayne Township: Zoning for Whom—In Brief Reply,” 67 Han. L. Rev. 986 (1954).

We should not perpetuate or augment this fundamental error of Lionshead. Prohibition of mobile home parks is of a piece with absolute minimum house sizes there approved and the same reasoning is utilized here to support it. *267 Trailer living is a perfectly respectable, healthy and useful kind of housing, adopted by choice by several million people in this country today. Municipalities and courts can no longer refuse to recognize its proper and significant place in today’s society and should stop acting on the basis of old wives’ tales. A fair, modern appraisal is found in Note, “Toward an Equitable and Workable Program of Mobile Home Taxation,” 71 Yale L. J. 702 (1962) :

“Between 1951 and 1956 the mobile home population doubled; it currently totals over 3,000,000 persons. The number of mobile homes in use grew from 550,000 in 1953 to 1,200,000 in 1959. This figure has been augmented by mobile homes recently produced— produced at a rate which exceeds 10 per cent of the private single family housing starts in this country.

Bor many years communities viewed the house trailer as the source of at least three major problems: its presence was expected to blight surrounding areas, causing property values to fall; its occupants were often viewed as personally undesirable; and the municipal expense attributable to trailerites was expected to exceed the revenue which could be raised from them.

Gommunity fear of blight can be traced to the low quality of both the early trailers and their parking facilities. Economic conditions of the ‘thirties, followed by wartime housing shortages and rapid relocations of the labor force, pressed many thousands of unattractive trailers into permanent use. Often these units were without running water or sanitary facilities. There were no construction standards to insure even minimum protection against fire or collapse. They were parked in areas which were usually crowded, poorly equipped, and generally unsuited to residential use. As a result, conditions in these parks seldom exceeded minimum health and sanitation standards. The specter of such parks teeming with tiny trailers made community apprehension understandable. But substantial improvements in the quality of both mobile homes and park facilities may have undermined the bases for this antipathy today. The mobile home currently produced is an attractive, completely furnished, efficiently spacious dwelling for which national construction standards have been adopted and enforced by the manufacturers’ associations. Some of today’s parks are landscaped, and feature ample lots imaginatively arranged around paved streets. Recreation facilities—such as swimming pools, boat docks and playgrounds—found in high quality parks could be the envy of conventional housing developments. Although many parks have yet to match such progress, communities have ample poioer to require improvement of existing facilities and to set.high standards for future park construction. They need only exercise it.

*268 Community distaste for toiler dwellers personally developed at a time when the trailerites were often considered footloose, nomadic people unlikely to make any positive contribution to community life. The early trailer was used primarily by tourists and transient workers; the permanent residents who did use trailers were likely to be low income workers with temporary positions. Mobile homes, however, can no longer be said to be inhabited primarily by migratory paupers; according to recent surveys, the present occupations and incomes of their occupants vary widely. Skilled workers, many of whom are engaged in construction or mineral development, now seem to form the largest single group of mobile home owners. Many mobile homes are also used by military personnel, young couples, and retired persons. Even professional people, perhaps attracted by the comfort available in a high quality mobile home and park, perhaps by tax economies, currently represent a large segment of the mobile home population. With the increasing variety of occupational groups living in mobile homes has come a substantial upgrading in income level. In 1958, the median income of mobile home dwellers ($5,250) was approximately the same as the national average ($5,300). There seems little justification, therefore, for any continuing personal antipathy toward mobile home dwellers as a group.” (Emphasis supplied) (at pp. 702-704)

In the face of these facts, it is arbitrary to permit the prohibition of mobile home parks completely in a municipality where they can be placed in appropriate districts and in which there is a need or demand for. them. To hold otherwise would be to allow any method of housing to be outlawed by local whim. I cannot understand how, in a large and roomy township, a properly situated and regulated mobile home park can have a detrimental effect on the value of all the property in the township or on its overall attractiveness any more than industrial and commercial districts or even small lot housing developments. 5

*269 Moreover, the aesthetic warrant for the prohibition, additionally relied upon by the majority, is not a reasonable basis for the exercise of zoning power in this situation. Without getting into all the ramifications surrounding the difficult question of how and to what extent aesthetics may validly be considered in zoning regulations, it certainly is not enough to sanction exclusion of a particular kind of use on the sole ground that its appearance offends the subjective sensibilities of the local governing body. Objective standards in this field are hard enough to fashion and work with, for even expert tastes vary so greatly. Bassett, Zoning 97-98 (1940). Letting a use be controlled by individual preferences and prejudice, devoid of standards entirely, is the antithesis of proper judicial review. The majority’s view could as well support exclusion of modernistic dwelling architecture, split level homes, or even whole developments of identical houses if a bare majority of the township committee does not like their looks.

Eor is a use validly prohibited because it might later develop that the zone for it was improvidently chosen necessitating a change in classification, resulting in a nonconforming use. If this were to be a sound criterion, we could never have any planning or zoning of virgin areas, for the best theoretical views of planners may often not work out in practice and amendment is frequently found necessary.

I have no doubt that, if the issue in this case is approached in the way I have indicated it should be, the particular circumstances in Gloucester Township shown by *270 the record are such that prohibition of mobile home parks throughout the municipality should be held unlawful. It is clearly a heterogeneous, growing municipality, very close by the Philadelphia metropolitan area, in the path of further expansion of varied kinds. The northern half of its 23 square miles is already quite densely settled, mostly with small home development and neighborhood business areas along and adjacent to old and new highways. The southern half is very largely undeveloped, with no established character as yet. Most of the vacant land throughout the township is zoned for industrial use, although there is none now. This classification seems more a device to block further home construction on any large scale (as witness the provision permitting dwellings therein only with approval of the Board of Adjustment) than evidence of any real hope of filling with industry the areas so zoned. Planning and zoning to date have been pretty much catch-as-catch-can and piecemeal. But practically all conceivable uses except nuisance industries and mobile home parks are permitted. There is plenty of room in the vast undeveloped areas for all manner of classification districts, which, by appropriate regulations, can compatibly exist without deleterious impact on each other and at the same time lead to the creation of a balanced and attractive community. There is nothing to indicate that a mobile home park is not a legally and factually appropriate use somewhere in such a scene. To hold that it is not exceeds the bounds of reason.

I would affirm the judgment of the Appellate Division. Justice Schettino joins in this opinion.

For reversal—Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor and Haneman—5.

For affirmance—Justices Hall and Sciiettino—2.

One student of the subject, writing in the fall of 1959,' finds that since liberality of application of the principles was stated so strongly in Kozesnik v. Montgomery Township, 24 N. J. 154, 167 (1957), this court has sustained the challenged ordinance in every ease but one. Cunningham, “Control of Land Use in New Jersey by Means of Zoning,” 14 Rutgers L. Rev. 37 , 48. And the record has not changed substantially since.

The instant ease is a good example. At the inception, plaintiff, a single, small property owner, was seeking authority, on any possible basis, to use his particular land for a mobile home park, a then permissible use. The prohibitory ordinance amendment adopted in the middle of the litigation shifted the issue to the comprehensive one with which this dissent is concerned. His proofs—and the township’s too, for that matter—are sparse on the meaningful aspects of the ultimate controversy. Undoubtedly he was without the facilities or financial means to marshal and present the many-sided evidence needed to make a telling attack and even come close to meeting the heavy burden the majority imposes upon him and others similarly situated.

The reference is to Fischer v. Township of Bedminster, 11 N. J. 194 (1952), also relied on by the majority. While the court used broad language, to be mentioned again shortly, the result of the case is supportable on the proofs set forth in the opinion. They showed a completely rural municipality, with land uses and population little changed from what they had been 122 years before. More important, it was said to be in the center of a group of municipalities having substantially the same characteristics and there is no indication given of the probability of a population invasion in the near future. All the expert evidence found the restriction reasonable under the circumstances.' The court did say that changed conditions might make the approved restriction unreasonable at a later time. (11 N. J., at p. 205).

' I do not mean to urge by what I have said or am about to say that every sparsely populated township cannot zone to maintain, reasonably, present basic rural land uses, at least until growth reaches it. Many such areas are so far away from the metropolitan center and suburbs that any substantial change will not come or be threatened for many years. I speak only of those municipalities where substantial growth has begun or is so practically imminent that it cannot validly be held off by local legislative walls denominated as zoning.

That this kind of motivation was not entirely absent in the barring of mobile homes from Gloucester Township is indicated by the statement at oral argument of the township’s counsel, during the course of discussion of the local reasons for the action, that people who lived in trailers were a shifting population without roots and did not make good citizens. Aside from the fact that such characterizations are today without true foundation, the statement is an example of frequently found resentment and distrust by present residents of newcomers, including renters, who vote on school budgets and the election of local officials with the power over municipal appropriations, but who do not pay real estate taxes directly or in sufficient amount to cover the cost of local services rendered to them.

It should be noted that, as we were advised at oral argument, the mobile home industry in this state now accepts the proposition that trailers properly belong in parks and may legitimately be barred by zoning as single dwellings on individual lots in residential zones. Napierkowski v. Township of Gloucester, 29 N. J. 481 (1959). The best modern planning thought seems to be that, since mobile home living is truly residential, parks should be situated in a residential type of environment and not in commercial and industrial districts. They are, in effect, a horizontal multi-residential use,—no more of a commercial venture than a rented garden apartment. The sug *269 gestión seems sound that they should be located in districts akin to multi-family residential zones away from busy highways, but with particular requirements of ground area, arrangement, buffers and the like to immunize any adverse impact on other uses in the vicinity. Bartley and Bair, Mobile Home Parks and Comprehensive Community Planning 77-79 (1960). The special exception technique, N. J. S. A. 40:55-39(b), would appear to be an especially appropriate method of handling both specific location and desirable physical regulations of each individual case.