Petition — City of Newark v. Township of West Milford

) Office “Supreme Court, U.S.

FILED

JAN 3 186@

ALEXANDER L. STBVAS,

CLERK

4

NO.

IN THE

Supreme Court of the United States

Ocroser Term, 1983

CITY OF NEWARK,

Petitioner,

TOWNSHIP OF WEST MILFORD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPERIOR COURT OF NEW JERSEY,

APPELLATE DIVISION

Pum S. ELsera

Counsel of Record

Mepvin & ELBERG

Gateway I

Newark, New Jersey 07102

(201) 642-1300

Rosert Hotmes

50 Park Place

Newark, New Jersey 07102

(201) 622-4521

Attorneys for Petitioner, City of Newark

Adams Press Corp, 50 Park Place, Newark, New Jersey 07102—(201) 623-8611

Question Presented

Whether the State must provide a monetary remedy to

a landowner whose property has been “taken” by a regu-

latory ordinance which violates the Just Compensation

Clause of the Fifth Amendment.

TABLE OF CONTENTS

A—Order of the Supre1 Court of New Jer-

sey, Denying Petition for Certification

the Superior Court

New Jersey, Appellate Division, dated

TABLE OF AUTHORITIES iii

PAGE

Table of Authorities

Cases Cited

Agins Vv. ! liburon, 447 U.S. 255 (1980)

Pennsylvania ( | v. Mahon, 260 U.S. 393 (1922) +

San Diego Gas & Electric Co. y. San Diego, 45 U.S.

621 (1981) .

South Burlington County N.A.A.C.P. v. Township of

Mt. Laurel, 67 N.J. 151: 336A.2d. 7135 (1975); 92

N.J. 158: 456 A2d. 390 (1983) 2,3

United States Constitution Cited

Ser ] Aye di} 2

NO.

In THE

Sipreuw Court of the United States

Octoper Term, 1983

CITY OF NEWARK

Petitioner,

TOWNSHIP OF WEST MILFORD,

Respondent.

*

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPERIOR COURT OF NEW JERSEY,

APPELLATE DIVISION

Opinions Below

On October 7, 1983, the New Jersey Supreme Court

entered an Order denying the application for a Petition

for Certification filed by the petitioner herein and dis-

missing its appeal. The New Jersey Supreme Court Order

is set forth in the Appendix at la.

The opinion of the Superior Court, Appellate Division,

was issued on April 28, 1983, and is set forth in Appendix

B at 3a.

Two earlier opinions of the Superior Court, Law Divi-

sion, dated February 19, 1981 and March 31, 1980 are set

forth in Appendix C and D respectively at 9a and 13a.

Jurisdiction

The judgment of the Superior Court of New Jersey,

Appellate Division was entered on April 28, 1983 affirm-

ing the Trial Court’s opinion that there had been no tak-

ing of petitioner’s property “without just compensation”

as proscribed by the United States Constitution. There-

after, on October 7, 1983, the New Jersey Supreme Court

denied a petition for certification and dismissed the peti-

tioner’s appeal. This Petition for Certiorari was filed with-

in ninety days of the final order of the New Jersey Su-

preme Court. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1257(5).

+

‘

‘

Statement of the Case

The City of Newark, New Jersey’s largest city, owns

approximately 18,000 acres of land in the Township of

West Milford, a sprawling municipality located approxi-

mately 25 miles from Newark and within the New York

metropolitan area.

In 1978, after its plans for development on a small por-

tion of its West Milford lands were stymied by West Mil-

ford’s zoning ordinance, Newark filed suit in the New

Jersey Superior Court. The Complaint set forth a factual

pattern of exclusionary zoning in violation of the New

Jersey Supreme Court holding in South Burlington Coun-

ty N.A.A.C.P. v. Township of Mt. Laurel, 67 N.J. 151,

336 A2d. 713 (1975) and of a constitutional taking “with-

vut just compensation” in violation of both the United

States and State constitutions.

In support of its claims, Newark demonstrated that vir-

tually all of its property was placed in an R-4 zone with

a minimum lot size of one unit to every four acres of

land. Relying on the testimony of the defendant’s own

officials, Newark proved and the Trial Court found that

he intent of this ordinance was to prevent the develop-

ment of Newark’s land for housing purposes (2la) and

to preclude its economic use

The practical effect of this intentional policy of pre-

venting all economically feasible uses was also clear. Using

a hypergeometric model to evaluate the likelihood of the

property owner making economically feasible use of its

land in the R-4 zone, Newark’s expert provided undis-

puted testimony demonstrating that the R-4 zoning pre-

cluded any viable use of any significant portion of New-

ark’s acres during the next 25 or even 50 years. (Tran-

script, August 21, 1979, p. 111). The Trial Court’s li-

ability phase decision accepted the plaintiff’s proof and

concluded that the intent and effect of the four acre (R-4)

zone was to keep all the Newark lands vacant and that

this zoning precluded economic use of the property, (22a)

As a result, the ordinance was invalidated and further

proceedings were ordered in regard to fashioning an ap-

propriate remedy. Damages, however, were denied.

While this matter was pending before the Appellate

Division of Superior Court, the New Jersey Supreme

Court revised and clarified the nature of the claim for

“exclusionary” zonrhng under the New Jersey constitution,

So. Burlington Cty. N.A.A.C.P. v. Mt. Laurel Tp., 92 N.J.

158, 456 A2d. 390 (1983). Because of the change in the

governing law on that issue, the Appellate Division re-

versed and remanded the matter to the Trial Court for

a new trial! consistent with the revised Mt. Laurel doc-

trine. But the Court’s opinion went on to hold that in

spite of the intent and effect of the ordinance, the de-

fendant’s actions were no more than a non-compensable

exercise of the police power rather than a “taking with-

out just compensation” and thus there was no violation of

the United States Constitution, Amendment V (6a).

A petition for certification, asking the New Jersey Su-

preme Court to review the Appellate Division decision

in regard to the “Taking without Just Compensation” is-

sue was denied by the New Jersey Supreme Court.

Reasons for Granting the Writ

Since Pennsylvania Coal Co. vy. Mahon, 260 U.S. 393

(1922), it has been clear that while the United States

Constitution permits property to be regulated to a certain

extent, if regulation goes too far, it will be recognized as

a taking. The question of whether the sole remedy for

such police power “takings” is mere invalidation of the

regulation leaving the property owner without the just

compensation guaranteed by the Fifth Amendment re-

mains unresolved.

On several occasions in recent years, this Court has

considered but then not decided this issue. First in Agins

v. City of Tiburon, 447 U.S. 255, 263 (1980), and then in

San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621

(1981), the Court was asked to decide whether a payment

was required to remedy the loss to a property owner

whose land was taken by a regulatory ordinance allegedly

justified by the exercise of local police powers. Because

this Court did not believe there was a taking in Agins,

supra, or jurisdiction in San Diego Gas & Electric Co.

supra, it declined to address this critical issue. This case

presents a further opportunity to address this increasingly

important problem and clarify finally that public entities

may not zone land out of utility and expect only one

taxpayer to pay for it.

The City of Newark owns approximately 18,000 acres in

West Milford. Like all other lands in the suburban muni-

cipality, the Newark acreage drains into reservoirs that

provide water to Newark and neighboring municipalities.

But unlike all other lands in West Milford, the Newark

owned and taxed lands have remained entirely vacant

while its neighbors have converted West Milford into one

of New Jersey’s fastest growing municipalities.

As West Milford’s population has grown, so has the

demand for local services and the taxes necessary to pro-

vide these services. Faced with an inability to continue

to pay increasing taxes for entirely vacant land, Newark

sought permission from the defendant to utilize a small

portion of its lands for environmentally sensitive develop-

ment. West Milford’s response was to place every Newark

owned acre without exception and without regard to its

suitability for development in a four acre residential zone.

Although the Trial Court recognized the intent and

effect of the ordinance, neither it nor the Appellate Divi-

sion was prepared to order any meaningful remedy for

this confiscation of plaintiff’s right to make economically

feasible use of its property.

As a practical matter, the defendant’s zoning ordinance

requires plaintiff to pay vast amounts of taxes while

leaving its substantial holdings entirely vacant. While

all of the defendant’s citizens enjoy the benefits of this

“park” only one pays for it. And while one has been told

it cannot build in a drainage basin, other landowners

develop at will with municipal approval.

In his dissenting opinion in San Diego Gas & Electric

Co., supra, Justice Brennan suggests that the United States

Constitution requires government entities to pay just com-

pensation for the period commencing on the date a regu-

lation first effects a taking and ending on the date the

government entity chooses to rescind or otherwise amend

the regulation.

We urge the Court to grant this petition so as to adopt

precisely that constitutional rule.

CONCLUSION

The Petition for Certiorari should be granted.

Respectfully submitted,

Puimip S. ELBerc

Counsel of Record

Mepiixs & ELBerc

Geteway I

Newark, New Jersey 07102

(201) 642-1300

Rosert Homes

50 Park Place

Newark, New Jersey 07102

(201) 622-4521

Attorneys for Petitioner, City of Newark

APPENDIX A

Order of the Supreme Court of New Jersey,

Denying Petition for Certification

(Filed—October 7, 1983)

SUPREME COURT OF NEW JERSEY

C-189 Sepremper TerRM 1983

21,309 sd

La

SS

CITY OF NEW YORK,

Plaintiff-Petitioner,

TOWNSHIP OF WEST MILFORD,

Defendant-Respondent.

+

To the Appellate Division, Superior Court:

A petition for certification of the judgment in A-3420-

SOT2 having been submitted to this Court, and the Court

having considered the same;

It is Orperep that the petition for certification is de-

nied with costs; and it is further

Orperep that the appeal in the within matter is dis-

missed pursuant to f. 2:12-9.

[la]

Appendiz A

Witness, the Honorable Robert N. Wilentz, Chief Jus-

ah ‘ s. s6. 2 , Lor 102%

‘eo at Trenton. this 4th day of October, LOSS.

STEPHEN W. TOWNSEND

Clerk

3a

APPENDIX B

Per Curiam Opinion of the Superior Court of New Jersey,

Appellate Division, dated April 28, 1983

(Filed—April 28, 1983)

SUPERIOR COURT OF NEW JERSEY

Appellate Division

A-3240-80 T2

in

>

CITY OF NEWARK,

Plaintiff-Appellant

and Cross-Respondent,

TOWNSHIP OF WEST MILFORD,

Defendant-Respondent

and Cross-Appellant.

?

Argued January 4, 1983. Decided April 28, 1983.

sefore Judges Michels, Pressler and Trautwein.

On appeal from the Superior Court of New Jersey,

Law Division, Passaic County.

da

Appendix B

Arnold K, Mytelka argued the cause for appellant and

cross-respondent City of Newark (Philip S. Elberg, at-

torney; Clapp & Eisenberg. of counsel; Mr. Mytelka,

on the brief).

Martin F. Murphy argued the cause for respondent and

cross-appellant Township of West Milford (Johnson,

Johnson & Murphy, attorneys; Mr, Murphy, of counsel

and on the brief).

William M, Cox argued the cause for amicus curiae

Pequannock Watershed Coalition (Dolan and Dolan, at-

tornevs; Mr. Cox, of counsel and on the brief).

Per CurtaM,

Plaintiff City of Newark (Newark) instituted this action

by a complaint in lieu of prerogative writs, in which

it challenged the validity of the zoning ordinance of de-

fendant Township of West Milford (West Milford), New-

ark claimed that the West Milford ordinance (1) was un-

constitutional exclusionary zoning and violated the prin-

ciples enunciated by our Supreme Court in So. Burl. Cty.

NAACP. ve. Tp. of Mt. Laurel, 67 N.J. 151 (1975),

apys dism. and cert. den, 423 U.S. 808, 96 S.Ct. 18, 46

L.Ed, 2d 28 (1975) (Mount Laurel 1) and (2) was arbi-

trary, discriminatory and confiscatory as applied to its

land. Newark sought injunctive relief permitting it to

develop its land in accordance with its proposed develop-

ment plan, an order directing West Milford to issue the

permits necessary to implement that plan and damages.

Newark owns approximately 18,000 acres of undeveloped

woodland situated in West Milford. This land has been

used exclusively for almost a century as a watershed for

the collection and storage of potable water. In 1976

5a

Appendiz B

Newark adopted a conservation and development plan for

the watershed land, pursuant to which it proposed to

develop over a 30 year period approximately 10 per cent

of its land for high density residential, commercial, light

industrial and recreational uses. In 1978 West Milford

refused to amend its zoning ordinance to permit the

proposed development, and this action was instituted.

The challenge to the validity of the zoning ordinance

wes tried first. At the conclusion of the proofs, the trial

court, applying the principles enunciated in Mount Laurel

I, found that “West Milford is a developing municipal-

ity” and that its ordinance “was adopted to prevent the

development of Newark’s land for housing purposes and

as a corollary, [t]o exclude low or moderate income hous-

ing.” The trial court declared the ordinance invalid be-

cause West Milford did not provide for its fair share

of the regional need for low and moderate income or

least cost housing. The trial court directed, however,

that the ordinance continue in foree pending completion

of the trial on the issue of the nature of the relief, if

any, to which Newark was entitled. At the conclusion

of the proofs on this issue the trial court denied Newark’s

request for injunctive relief and damages. However, it

ordered West Milford to revise its zoning ordinance with-

in 90 days to provide for low and moderate income and

least cost housing, and retained jurisdiction to enforce the

provisions of the judgment.* Newark appealed and West

Milford cross-appealed,

* According to a letter dated March 15, 1983 from Kenneth

Ochab, Planning Director of West Milford, furnished to us by

counsel, West Milford has rezoned in accordance with the judg-

ment of the trial court to provide 994 acres in the Planned Neig! bor-

hood zone, 248 acres in the Mobile Home zone and 1738 acres

in the Commercial Recreation zone.

6a

Appendix B

While this appeal was pending, the Supreme Court

reaffirmed its commitment to the Mount Laurel I doctrine,

clarified its original decision and set more definitive and

workable standards and guidelines for its application.

So. Burlington Cty, N.A.A.C.P. vy. Mount Laurel Tp., 92

N.J. 158 (1983) (Mount Laurel 11), Mount Laurel IT im-

plicates substantially all of the issues raised in this mat-

ter with the exception of those relating to Newark’s claim

for monetary damages. Because of this change in the

overning law, the judgments under review, with the lim-

ited exception of the denial of Newark’s claim for mone-

tary damages, are reversed and the matter is remanded

to the trial court for a new trial.

With respect to that portion of the judgment entered

favor of West Milford denying Newark’s claim for

monetary damages, we are satisfied to affirm the same

substa itialls for the reasons expressed by Judge Rubin

in his letter opinion of February 19, 1981.

We are convineed that there has been no taking “with-

out just compensation” as proseribed by U.S.Const.,

Amend. V and N.J.Const. (1947), Art. I, par. 20. See

Cappture Realty Corp. v. Bd. of Adj. Elmwood Pk., 126

N.J.Super, 200, 216 (Law Div. 1973), aff'd 133 N.J.Super.

216 (App. Div. 1975). Rather, “there has been a non-

compensable governmental exercise of the police power.”

Wa hington Market Muterprise Ss We Trenton, 68 N.J. 107,

116 (1975); Usdin vy. Environmental Protection Dep't of

NJ, 173 N.J.Super. 311, 322 (Law Div. 1980), aff’d o.b.

179 N.J. Super. 113 (App. Div. 1981). See also Sands

Point Harbor, Inc, vy. Swlivan, 136 N.J, Super. 436, 440-

441 (App. Div. 1975); Ronade Associates, Inc. vy. Dept.

Conservation, etc., T N.J.Super, 132, 139-140 (App. Div.

1950),

7a

Appr ndix B

We are also convinced that the trial court correctly

held Newark’s claim for damages to be barred by the

New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq.

Under N.J.S.A. 59:2-sb of that Act “A publie entity is

not liable for legislative or judicial action or inaction,

or administrative action or inaction of a legislative or

judicial nature.” More directly, under N.J.S.A, 59 :2-4,

“A public entity is not liable for any injury caused by

it a law or by failing to en-

foree any law.” The Act applies only to the right to ob-

tain damages. N.J.S.A. 59:1-4. These sections of the Act

were applied to dismiss an allegation of “taking” against

adopting or failing to ad

a municipality in Woodsum Pemberton Tp., 172 N.J.

Super. 489, 518-520 (Law Div. 1980), aff'd 177 N.J.Super.

639 (App. Div. 1981), and to shield a municipality’s de-

nial of a zoning variance Centennial Land & Dev. Co.

Ve Tp. or Mi dford, lf N J.Super. 220, passim (Law Div.

1979),

The general principle that underlies this Act was stated

recently by our Supreme Court, and seems clearly to en-

compass the ty pe of decision at issue here:

These subparagraphs are signposts to under-

standing the nature of immunized discretionary de-

terminations. The cgost that the “exercise of

_. , diseretion” in N.J.S.A. 59:2-3(a) refers to ac-

tual, high-level policymaking decisions involving

the balancing of competing considerations. Such

decisions have been tradjitionally entrusted to co-

ordinate branches of government, and courts, utiliz-

ing standard tort principles, all ill-equipped to in-

terfere with them. [Costa v. Josey, 83 N.J. 49, 55

L980) }.

ll

8a

A ppe ndix B

Accordingly ‘

except to afiirm that portion of the judg.

Newark’s claim for monetary damages, we

e t] udgment unde

review and remand the mat-

anew trial consistent with the

forth in Mount Laurel II. We do not re-

Ya

APPENDIX C

Letter Opinion of Rubin, J.S.C., dated February 19, 1981

SUPERIOR COURT OF NEW JERSEY

Invinc I. Ruse Court House

Judge Paterson, New Jersey

February 19, 198]

Philip S. Elberg, Esq.

744 Broad Street

Newark, New Jersey 07102

Arnold K. Mytelka, Esq.

Clapp & Fisenberg, esas.

744 Broad Street

Newark, New Jersey 07102

Martin F. Murphy, Esq.

Johnson, Johnson and Murphy, Esqs

401 Wanaque Avenue

Pompton Lakes, New Jersey 07442

Re: City of Newark V, Tp. of West Milford

Docket No. L-25413-77 PW

Gentlemen:

This matter was before the C rt pursuant to the Pre-

trial Orders of June 14, 1979 and July 30, 1980 and the

judgment entered May 15,

of relief and damages, if any, to be awarded plaintiff.

LOSO. on the issues of the type

The relief to be awarded in similar situations has re-

ceived attention by our courts. In Southern Burlington

v. Mt. Laurel, 67 N.J. 151, 191-192, the municipality was

10a

Appendix C

granted the opportunity to correct its ordinance which

the court found invalid. Although Oakwood v. Madison,

72 N.J. 481, decreed specifie relief for the plaintiff (p.

549-550), such action appeared limited to the facts of

that case, the court saving in a footnote (p.551-552) :

“This determination is not to be taken as a precedent

for an automatic right to a permit on the part of

any builder-plaintiff who is successful in having

a zoning ordinance declared unconstitutional. Such

relief will ordinarily be rare, and will generally

rest in the diseretion of the court, to be exercised

in the light of all attendant circumstances.”

The foregoing caveat was reaffirmed in Pascack v. Wash-

ington Tp., 74 N. J. 470, 485, 487-488, which principle was

followed by Home Builders v. Berlin, 157 N. J. Super.

586, G02, where the court said, “- - - A court does not

enact ordinances; local legislatures do. - - -”

It should also be noted, Item 9 of the pretrial order

of July 30, 1980 stated, “- - - the plaintiff in this litigation

is not seeking any building permits, - - -”.

Accordingly, judgment shall be entered on the issue of

relief:

(1) Ordering West Milford to revise its Zoning Ord-

inance (Land Development Ordinance) within 90

days from the date of the judgment herein, to pro-

vide for low and moderate income and least cost

housing consistent with the opinions and judgments

herein:

(2) the court will retain jurisdiction upon proper ap-

plication to enforce the provisions of the judgments

entered in the matter ;

placing IL )

R-4 district.

\ y “217 + ]

i ») i pe |

a or 7

,

7

most beneficial u

basis for a claim ¢

Zoning lay

of per iss}

Care V.

suffered under the within facts would

continued in

effective date of such

r the rurthnel! order ot

1) Is

s irom U

ae = ti

la ul 79, while

lid by the

1

° = n such

] nv wa 0

é YD ner? OT

deemed a taking or a

at

} ’ )

he classic exampl

prohibit

Annotation, 57

ty of New York,

v of Healtl

152, 164, the tvnpe of loss

hye recoverable.

l2a

Appendix C

Plaintiff urges Lomarch v. Englewood, 51 N.J. 108 and

and Washington Market v. Trenton, 68 NJ. 107 as au-

thority for granting it damages. Both are inapplicable.

In Lomarch, the temporary taking was, in effect, to pro-

hibit any use of the property. In the present case the

defendant did not deprive plaintiff of all beneficial use

of the property which was not income producing, all mak-

ie within matter distinguishable to the situation in

Washington Market. See Schnack v. State, 160 N.J. 3438,

It would further appear that immunity both under com-

mon law and the provi : of the New Jersey Tort Claims

et bars plaintiff. N.J.S.A. 59:2-3b; Woodsum v. Tp. of

Pi mberton, 172 NJ. Suner. 489, See also Centennial

Land vy. Tp. of Medford, 165 N.J. Super. 220; Expo y. City

if Passaic, 149 N.J. Super. 416, 424-425.

A form of judgment should be submitted embodying

the foregoing determinations.

Very truly yours,

Irvine I, Rusry, J.S.C.

[TR :mf

l3a

APPENDIX D

Letter Opinion of Rubin, J.S.C., dated March 31, 1980

SUPERIOR COURT OF NEW JERSEY

Irvine I. Rvusin Court House

Judge Paterson, New Jersey

March 31, 1980

Clapp and Eisenberg, Esqs.

744 Broad Street

Newark, New Jersey 07102

Elberg and Westreich, Esqs.

744 Broad Street

Newark, New Jersey 07102

Johnson, Johnson and Murphy, Esqs.

401 Wanaque Avenue

Pompton Lakes, New Jersey 07442

Re: City of Newark v. Tp. of West Milford

Docket No. L-25413-17( PW

Gentlemen:

Plaintiff, owner of approximately 1800 acres of land

in the Tp. of West Milford, by these proceedings seeks

to void defendant's zoning ordinance, which in effect, re-

property for a one family unit.

quires four acres of such

This is claimed to he contrary to So, Burl. Cty. N.A.A.C.P.

v. Tp. of Mt. Laurel. 67 N.J. 151 (1975) (hereinafter

referred to as Mt. Laurel) and as further provided in

Oakwood at Madison Inc. v. Tp. of Madison, 72 N.J.

48] (1977) (hereinafter referred to as Oakwood).

l4a

Appendix D

Plaintiff also asserts that the ordinance is arbitrary,

discriminatory and confiscatory. It further demands spe-

cifie relief and damages. At pretrial, it was provided that

the issues other than the type of relief and damages be

tried first. Accordingly, we must now address the attack

on the validity of the ordinance.

The position of plaintiff is that defendant is a develop-

ing community and as such must make realistically pos-

sible an appropriate variety and choice of housing. Mt.

Laurel, 174, 179 or least cost housing, Oakwood, 512.

The preliminary question was squarely raised, is West

Milford a developing community?

Mt. Laurel is said to have laid down the test which

was paraphrased in Glenview Development Co. v. Frank-

lin Tp., 164 N.J.Super. 563, 567 (Law Div. 1978) as fol-

lows:

*** A developing municipality:

(1) has a sizable land area,

(2) lies outside the central cities and older built-

up suburbs,

(3) has substantially shed rural characteristics,

(4) has undergone great population increase since

World War II or is now in the process of

doing so,

(5) is not completely developed and

(6) is in the path of inevitable future residential,

commercial and industrial demand and growth.

The testimony reveals that West Milford covers an area

of approximately 78.3 miles (10th largest municipality in

l5a

Appendix D

the State), three times larger than Mt. Laurel and situated

about 15-16 miles from the City of Paterson and approxi-

mately 21 miles from the City of Newark. Although West

Milford meets the express language of criteria number

two above, it would comply with the meaning ascribed

by defendant’s witness of being in close proximity. Glen-

view Development Co. vy. Franklin Tp. supra at 570.

West Milford’s population grew from 3,650 in 1950 to

8.157 in 1960 (124%) to 17,304 in 1970 (112%) to 21,745

in 1975 (26%) which was in excess of Mt. Laurel’s growth

which increased in lesser percentages from 2,817 in 1950

to 15,451 in 1975. West Milford’s increase in population

was far in excess of the remainder of Passaic County

and projected to a figure of 47,995 in 1990. (Exhibit

P-2).

The statistics further disclosed that 89% of West Mil-

ford was vacant land with a population density in 1975

of 277 persons per square mile. The presence of one or

more shopping centers, professional buildings, a movie

theatre, financial institutions and the extent of municipal

services offered by the community including six elemen-

tary schools, two parochial schools, a high school com-

plex, police station and municipal building and an eco-

nomic development committee actively seeking growth

(Exhibit P-4) gave additional weight for the Court’s de-

termination that West Milford had substantially shed its

rural characteristics. One of the experts, Alan Mallach,

summed it up when he said; (T. 8/8/79 p.2.49)

* ** Yes sir. To predict future growth, of course,

is always done without perfect certainty, but if

there’s any community that appears to be well suited

for future growth, particularly population growth

with commercial and industrial growth as well in

l6a

Appendix D

the New York Metropolitan area during the com-

ing decades, that could well be West Milford Town-

ship.

The foregoing and other factors which were included in

the testimony would confirm the opinion of plaintiff’s ex-

perts establishing that West Milford was a developing

community.

Therefore, as said in Mt. Laurel p. 179, 180;

the presumptive obligation arises for each

such municipality affirmatively to plan and pro-

vide, 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 re-

sources of all categories of people who may desire

to live within its boundaries. Negatively, it may

not adopt regulations or policies which thwart or

preclude that opportunity.

*?s

Procedurally, we think the basic importance

of appropriate housing for all dictates that, when

it is shown that a developing municipality in its

land use regulations has not made realistically pos-

sible a variety and choice of housing, including

adequate provision to afford the opportunity for

low and moderate income housing or has expressly

prescribed requirements or restrictions which pre-

elude or substantially hinder it, a facial showing

of violation of substantive due process or equal

protection under the state constitution has been

made out and the burden, and it is a heavy one,

shifts to the municipality to establish a valid basis

for its action or non-action.

17a

Appendix D

and on p. 187;

* * * Tt must permit multi-family housing, with-

out 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 require-

ments as to lot size, building size and the like to

meet the full panoply of these needs.

By its zoning ordinance, West Milford has created resi-

dential zones requiring generally, one, two, three or four

acres for a single family dwelling denoted as R-1, R-2,

R-3 and R-4 respectively. It appears that with central

sewer and water (not presently existent) and meeting

conditions imposed by the ordinance, the minimum size

lot requires at least 11,000 square feet or 7500 square

feet in the R-1 zone but limited to 3.1 lots per acre.

(Mallach T. 8/8/79 p. 2.70). The witness Coppola eal-

culated the limitation as up to 3.6 units per acre. (T.

10/23/79 p. 32). The overall density provision would

work out to require a plot of 14,000—15,000 square feet.

(T. 8/8/79 p. 2.75).

The provisions of the ordinance will not produce least

cost housing. (T. 8/8/79 pp. 2.71, 2.73).

The foregoing was not considered favorably in Oak-

wood p. 505, quoting Justice Hall in Mt. Laurel;

* * * minimum size lots of 9,875 to 20,000 square

feet “cannot be called small lots and amounts to

low density zoning.”

and as said in Oakwood p. 516;

* * * Clearly no effort was made to permit “least

cost” single family homes—and certainly not in

reasonable numbers.

18a

Appendix D

Approximately 1° of West Milford was zoned for PN

uses, (T, 10/23/79 p. 35). Provisions for housing in this

zone are so cireumseribed by conditions, including a 50

acre area, parking provisions and no lookalike as to be

cost exacting and proscribe low cost housing. None of

the residential zones are available for least cost housing or

as a corollary, low or moderate income housing. (T. 8/8/79

p. 2.71);

* * * (. (at 18) Are these factors enough, Mr.

Mallach, to make it impossible to produce least cost

housing?

A. Yes,

The ordinance excludes mobile homes and garden apart-

ments which is further evidence of failure by a develop-

ing community to provide least cost housing. Mt. Laurel

p. 181; So. Burl. Cty. vy. Tp. of Mount Laurel, 161 NJ.

Super. 317, 359 (Law Div. 1978).

The proofs having established the need for housing in

the region, West Milford did not sustain its burden of

proof as laid down in Mt, Laurel.

West Milford pleads in effect a special defense to its

obligation as a developing community; i.e, ecological and

environmental considerations. However, as was said in

Oakwood p. O44:

* * * 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 con-

sideration in zoning, the danger and impact must

be substantial and very real (the construction of

19a

Appe dic D

ironmental

appear on yt

wood », S44, the answer may 1 he

lation of the density of deve ent per se

use of the land, th adequat trols

West Milford based lt ent o7

expert witnesses who intro i variety o

tending to wi 4 tion tha

of every | mental i

ential for LB ho

mply beca n

Wiel i

(ther ¢ ot

LOU et « r ¢

elu ! truction «

eXistin Lie! velit ec’ yt use Lor

pos The wit . LO/OL/ 7!

the theory, aflirmed | nesses, tl

a wat Ipp \) I}

‘ ‘ t tre } 0

protects ral

the rt tha t l a buifer

et, Plaintiff's « liv stated

can we ¢ tru i l eT

ply.”

A consideration of all t 10 dy

rom the « ivironm

West

sufficient to bar

community.

every | ot ha ome

simply a mak t to port e

n asures or preclud rowth ° ° °

t Wt. Lav would inelude

int

au

impact)

uggested

prohibit ion or res

construct

not

<clusionary hous

statements

in Oak

u

but careful

number of}

exhibits, all

ion

‘t and po

ling within

ete or. ¢

erosion of

using pu

enunciating

the greater

rect of pollutants Oy)

area of 1000

that “dwellings

SuU})

establish

al Viewpoll t

as a developing

20a

Appendix D

The testimony established the intent of the adoption

of the R-4 zone was to keep the land vacant and prevent

the utilization thereof, Every acre owned by plaintiff was

placed in the R-4 zone with ownership appearing as the

sole test. That appears from the testimony of West Mil-

ford’s Director of Planning, Kenneth Nelson, who testi-

fied plaintiff's lands had been zoned on the basis of New-

ark’s ownership without regard to suitability, location or

other factors. See testimony of West Milford’s Director

of Planning, Kenneth Nelson, (T. 8/16/79 p. 8:54-3) ;

* * * Mr. Elberg: Q. Is it then safe to say that

the Planning Board proposed that all of the Newark

land be zoned on the basis of ownership, that is,

that all the residential areas would be included

in the R-4 zone, because they were owned by New-

ark?

A: Yes. But I want to make clear the chronology

of the events here. When the Master Plan was

adopted, the majority of the Newark acreage was

put in the R-4 district, pending the further study

that was ultimately conducted by Mr. Coppola, and

subsequent to that study, yes the Planning Board

and Council put all the Newark acreage in the R-4

district on the basis of ownership.

Further, T. 8/16/79 p. 8.62;

** * Q: As a result of discussions with the ex-

perts retained in this litigation, was a decision made

to place all of the Newark land in an R-4 zone?

A: That was the decision of the council.

Also T. 10/16/79 p. 1386;

. >. . (

a: And the ones owned by the City of

Newark are zoned R-4, is that correct?

immediately adjacent

{) \ I i

thereto a I it correct

L: R-2 01

T. 10/16/79, p 2

ee *f GC t r «different that

0 rat s r zoning thos

} \] elso 4

ige and O

! | have to sa‘ tha

t t\ prope!

I I ltapnie » Tre ['o

us atersiie

irks | a corollary, ex

“ Therefore, it

, t wh lands, the zon

ito ind conhse

22a

Appendix D

Rockhill v. ¢ he sterfield T p., 20 Nie. 117, 126 (1957):

and as said in Bd. of Ed. of City Council, City of Glen

Cove, 29 N.Y. 2d 681; 274 N.E. 2d 749 (Ct. of Appeals

* * * The undisputed proof in the record estab-

shes that the city’s zone classification of the land

spute as R-l part of a general policy amect-

publicly held land and having no rational

relation to the location or nature of the land it-

self

The prime reason and purpose of West Milford in al-

cating a these lands to the R-4+ zone was not grounded

1 anv of the object of N.J.S.A, 40:55D-1 et seq. and

erefore such designations are invalid. Homebuilders

Leaque of So, Jersey VanNess, 157 N.J.Super. 586, 596

Cit Newark 1 West Milford’s ordinance precludes

‘onomic use of such property. The witness Coppola,

ho had assisted West Milford in the preparation of

its Master Play for th Zonin ordinance in question,

expressed doubts as to parts of Newark’s lands being

‘

cle served al as to the type of

lief a aves (cl d by plaintiff) to another trial

lat Lint a weessful on the issues determined

matter is hereby set down for

April 18, 1980 at

In view of the foregoing, the present ordinance will be

continued until a reasonable time o be specified upon