Opposition Brief — Yeager v. Township of Mansfield

TABLE OF CONTENTS

PAGE

ARGUMENT:

Point 1—The decision of the Supreme Court of

New Jersey in this case does not establish

law which in any way frustrates or interferes

with the Congressional legislation cited by Pe-

titioners and no question is presented under

the Supremacy Clause, U.S.C.A., Article 6,

Clause 2, requiring review by this Court __... 2

Point 2—The decision of the New Jersey Su-

preme Court sanctioning the total prohibition

of Mobile Home Parks from a municipality

does not deny Petitioners any right protected

by the 14th Amendment of the Constitution of

the United States 16

ConcLusion 31

Cases Cited

Andrews v. Board of Adjustment of Ocean Town-

ship, 30 N. J. 245; 152 A. 2d 580 (1959)... 25

California v. Zook, 336 U. S. 725, 731; 93 L. Ed. 1005;

69 S. Ct. 341 15

DeSimone v. Greater Englewood Housing Corp., No.

1, 56 N. J. 428; 276 A. 2d 31 (1970) .26, 30

Duffcon Concrete Products, Ine. v. Borough of Cress-

kill, 1 N. J. 509; 64 A. 2d 347 (1949) 11

Fanale v. Borough of Hasbrouck Heights, 26 N. J.

320, 325; 139 A. 2d 749 (1958) 11, 12, 30

LP el a ee

SPOR” plea pmrataIy sama

EON NAA NE OER ETA YN YUEN RIN RE MM YRREREIRRT HE

|

ii TABLE OF CONTENTS

Fischer v. Township of Bedminster, 11 N. J. 194;

93 A. 2d 378 (1952) ll

Gibbons v. Ogden, 9 Wheat. 1; 6 L. Ed. 23 (1824)... 14

Head v. New Mexico Board of Examiners in Opto-

metry, 374 U. S. 434; 83 S. Ct. 1759; 10 L. Ed.

983 (1963) 15

Heines v. Davidowitz, 312 U. 8S. 52, 67; 61 S. Ct. 399,

404; 85 L. Ed. 581 (1941) 14

James v. Valtierra, 402 U. S. 137; 91 S. Ct. 1331;

28 L. Ed. 2d 678 (1971) 4

J. D. Const. v. Board of Adjustment, Twp. of Free-

hold, 119 N. J. Super. 140; 290 A. 2d 46 (Law

Div. 1972) 30

Kelly v. Washington, 302 U. S. 1, 10-13; 82 L. Ed.

10, 12; 58 S. Ct. 87 15

Kozesnik v. Township of Montgomery, 24 N. J. 154,

167; 131 A. 2d 1 (1957) 10

Lionshead Lakes, Inc. v. Township of Wayne, 10 N. J.

165, 173; 89 A. 2d 693 (1952) Appeal dismissed,

344 U. S. 919; 97 L. Ed. 708 (1953) 10, 11

Nectow v. City of Cambridge, 277 U. S. 183; 72 L.

Ed. 842; 48 S. Ct. 447 (1928) 22, 23, 27, 28, 31

Oakwood at Madison, Inc. v. Twp. of Madison, 117

N. J. Super. 11; 283 A. 2d 353 (Law Div. 1971)... 30

Perez v. Campbell, 402 U. S. 637; 91 S. Ct. 1704; 29

L. Ed. 2d 233 (1971) 2,14

Pierro v. Baxendale, 20 N. J. 17; 118 A. 2d 401 (1955) = 11

Schmidt v. Bd. of Adj. City of Newark, 9 N. J. 405;

88 A. 2d 607 (1952) 12

TABLE OF CONTENTS iii

Schoelppie v. Woodbridge Twp., 60 N. J. Super. 146,

150; 158 A. 2d 338 (App. Div. 1960) 26

Skaf v. Zoning Bd. of Adj. of Asbury Park, 35 N. J.

Super. 215, 222; 113 A. 2d 843 (App. Div. 1955) ......25, 26

Southern Burl. Cty. N.A.A-C.P. v. Twp. Mt. Laurel,

119 N. J. Super. 164; 290 A. 2d 465 (Law Div.

1972) 30

Vickers v. Tp. Comm. of Gloucester Tp., 37 N. J. 232;

181 A. 2d 129 (1962) appeal dismissed Cert. den.

371 U. S. 233; 83 S. Ct. 326; 9 L. Ed. 2d 495

(1963) rev’d 68 N. J. Super. 263; 172 A. 2d 218

(App. Div. 1961) 9-13, 26-28, 30

Village of Euclid, Ohio v. Ambler Realty Co., 272

U. S. 365; 47 S. Ct. 104 (1926) 000. 4, 7, 9, 20-23, 27-31

United States Constitution Cited

Article 6, Clause 2 9

Fourteenth Amendment, Section 1 16, 18, 27, 28

New Jersey Constitution Cited

N. J. Const. 1844, Art. IV, See. VI, Par. 5 22000. =O

N. J. Const. 1947, Art. IV, Sec. VI, Par. 2... 7,12

Statutes Cited

Housing and Urban Development Act of 1969, as

amended: 83 Stat. 379; Public Law 91-309... 3, 4

Housing Act of 1937 5

National Housing Act of 1954, as amended: Section

701 5

iv TABLE OF CONTENTS

PAGE

New Jersey Statutes:

N.J.S.A. § 40:55-30, et seq.; L. 1928, e. rie

p. 696; later amended L. 1948, ch. 305 4 1

8

1221 2, 7, 8, i2, 13, 29

N.J.S.A. § 40:55-31 8, 9, 12, 13

N.J.S.A. § 40:55-32 8-10, 12, 13, 24

N.J.S.A. § 40:55-33 9

N.J.S.A. § 40:55-36 to 45 23

N.JS.A. § 40:55-39 24

N.J.S.A. § 40:55-39(d) 25

N.JS.A. § 40:55-48 13

12 US.C.A.:

See. 1701, G-3 4

Veterans’ Housing Act of 1970, as amended: 84 Stat.

1108; Public Law 9-506 3, 4, 14

Rule Cited

Rule 24.1 1

Other Authorities Cited

42 ALR 3rd 598 (1972) 27

Cunningham, “Control of Land use in New Jersey”,

14 Rutgers Law Review 37, 38 (1959)... 10

IN THE

Supreme Court of the United States

Octoser Term, 1972

No. 72-907

»™

vw

OSCAR YEAGER and ANNA C. YEAGER,

Petitioners,

TOWNSHIP OF MANSFIELD, WARREN COUN yo

NEW JERSEY, a municipal corporation, TOWNSHIP

COMMITTEE OF MANSFIELD, and the BOARD OF

ADJUSTMENT of the TOWNSHIP OF MANSFIELD,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of New Jersey

-s

~~

BRIEF IN OPPOSITION

To the Honorable Chief Justice and the Justices of the

United States Supreme Court:

Pursuant to the provisions of Rule 24.1 of this Court

the Respondents file this Brief in opposition to Petition-

ers’ application for the issuance of a Writ of Certiorari

to the Supreme Court of New J ersey.

2

ARGUMENT

I

The decision of the Supreme Court of New Jersey

in this case does not establish law which in any way

frustrates or interferes with the Congressional legis-

tion cited by Petitioners and no question is presented

under the Supremacy Clause, U.S.C.A. Article 6. Cl. 2,

requiring review by this Court.

While failing to make specific reference to the New

Jersey Zoning enabling legislation (N.J.S.A. 40:55-30 et

seq.) and the ordinance of the respondent, Township of

Mansfield, it is assumed that these are the two pieces of

State legislation as construed by the New Jersey Court;

which petitioners allege undermine and frustrate the in-

tent of Congress as expressed thru the three passages

quoted by Petitioners in Appendix D of their Petition.

In the language of Mr. Justice White expressing the

majority opinion of this Court in the recent case of

Perez v. Campbell, 402 U. S. 637, 91 S. Ct. 1704 (1971);

deciding whether a state statute is in conflict with a fed-

eral statute and hence invalid under the Supremacy

Clause is essentially a two-step process of first ascertain-

ing the construction of the two statutes and then deter-

mining the constitutional question whether they are in

conflict. Mere parallel undertakings by the federal and

state legislatures working in their respective ways to

achieve common goals, or legislation by one tending to

complement or assist in the implementation of the other

is not offensive to the constitutional requirement that

the Acts of Congress made in pursuance of the constitu-

tion shall be the supreme law of the Land.

3

There can be no doubt in anyone’s mind that the na-

ture, design and purpose of the Veterans Housing Act of

1970, as amended by Public Law 91-506 and approved

October 23, 1970 has as one of its primary objectives the

encouragement and facilitation of private residential con-

struction and rehabilitation and that as part of this pro-

gram the Congress expanded the insurance provisions

of the law to encourage loans to qualified veterans who

desire to build, purchase, or rehabilitate residences for

themselves and their families, and that mobile homes are

recognized as eligible for such insurance, subject to cer-

tain conditions and restrictions spelled out in the Act

and in the regulations promulgated thereunder by the Ad-

ministration.

The same characterization is warranted in summarizing

the intent and purpose of the Housing and Urban Develop-

ment Act of 1969, as amended by Public Law 91-809, ap-

proved December 31, 1970, except that the insurance pro-

vided in this plan is available to others as well as veterans.

In both statutory programs there is a requirement that

the borrower use the mobile home as his principal resi-

dence. Both plans provide for insurance of the loan to ac-

quire not only the mobile home itself but also an approved

site upon which it is to be located. The amount of insur-

ance available varies in each case dependent upon the site

cost and the number of modules of which the mobile home

is composed.”

? While prohibiting commercial Mobile Home Parks, the Mans-

field Township Zoning Ordinance does not prohibit the erection and

use of mobile homes per se which in many cases are essentially

portable prefabricated homes on individual lots in any residential

zone, so long as such lots meet the minimum physical dimensions

(Footnote continued on. following page)

Nowhere in the congressional statutory language cited

by the petitioners, nor in the context of either the Vet-

erans Housing Act, or the Housing and Urban Develop-

ment Act, is there a manifestation of Congressional intent

to enter into the legislative regulation of local land uses,

or in any way to interfere with or supersede the local zon-

ing regulations which traditionally have been recognized

as of particular concern, and the province of, the local

communities involved. This court as well as the federal

and state courts has consistently refrained from interfer-

ing with the judgment of the local authorities in zoning

matters except in the most extreme cases and under the

most extreme circumstances. This attitude goes back at

least as far as the landmark decision of this court in Vil-

lage of Euclid v. Ambler Realty Co., 272 U. 8. 365, 47 8.

Ct 104.

The late Mr. Justice Black in James v. Valtierra, 402

Government has offered

accept

endums on whether this aid should be accepted.” The

California law was sustained as constitutional.

zoning ordinances. The very ordinance here being chal-

lenged was prepared by Mansfield Township officers with

the assistance of planning consultants and other profes-

sional personnel paid with funds provided by the Federal

Government. Mansfield Township, along with more than

170 New Jersey municipalities participated in this pro-

gram which was administered by the Division of Regional

Planning in the New Jersey Department of Conservation

and Economie Development. This Federal Aid program

which provided up to seventy-five percent of the cost of

development of local municipal Master Plans and Zoning

ordinances to provide for land development and use regu-

lation, was administered through the Federal Housing and

House Finance Administrator, the funds being allocated

by the Urban Renewal Administration, pursuant to Sec-

tion 701 of the National Housing Act of 1954 as amended.

This congressional measure to aid and encourage local

—————aa

|

municipality? One for each square mile? One

each 10,000 of population? How many spaces must

be provided for a Mobile Home Park to qualify? How

such spaces be? Will ten spaces do, or must

ty or fifty or perhaps one hundred? If

any i Shes 0 ele Ge tall es

PAT a ee tegen oe

mercial, industrial, agricultural, educational, hospital,

health care or other buildings and uses (to mention a few)

for the construction, maintenance and/or operation of

which the Congress also provides financial assistance.

7

Following the sanctioning of zoning by the United

States Supreme Court in Euclid, supra (1926), New Jer-

sey, with many other states, began to build a sound

base for its zoning program. By an amendment of the

Constitution of the State of New Jersey (N. J. Const.

VI, Par. 5) which became effective

October 28, 1927, the language and authorization of which

amendment was carried into the 1944 Constitution (N.J.

Const. 1947, Art. IV, See. VI, Par. 2), the state-wide

zoning as a permitted exercise of the

‘ Pa er ee a

EE

+t

g8

ie

first by L. 1928, C. 274, See. 3, and by later amendment,

L. 1948, Ch. 305, Sec. 1 effective August 9, 1948 enacted

the power

shall be adopted by the governing body of such

municipality, as hereinafter provided, except in ci-

The authority confirmed by this article shall in-

elude the right to regulate and restrict the height,

number of stories, and sizes of buildings, and other

structures, the percentage of lot that may be occu-

pied, the sizes of yards, courts, and other open

ee tion tion and the location

~ —_a

other purposes.” N.J.S.A. 40:55-30, as amended

L. 1948, C. 305, p. 1221, See. 1 effective August 9,

1948.

“For any or all of said purposes, the governing

body or board of public works may divide the

municipality into districts of such number, shape,

and area as may be deemed best suited to carry out

the purposes of this article, and it may regulate

and restrict the erection, construction, reconstrac-

tion, alteration, repair, or use of buildings or other

structures, and the nature and extent of the uses

of land within such district.

' All such regulations shall be uniform for each

class or kind of buildings or other structures or

uses of land throughout each district, but the reg- __

ulations in one district may differ from those in

other districts.” N.J.S.A. 40:55-31, as amended L.

1948, C. 305, p. 1221, Sec. 2 effective August 9,

1948.

“Such regulations shall be in accordance with a

comprehensive plan and designed for one or more

of the following purposes: to lessen congestion in

the streets; secure safety from fire, flood, panic and

other dangers; promote health, morals, or the gen-

eral welfare; provide adequate light and air; pre-

vent the overcrowding of land or buildings; avoid

undue concentration of population. Such regula-

tions shall be made with reasonable consideration,

among other things, to the character of the dis-

trict and its peculiar suitability for particular uses,

and with a view of conserving the value of prop-

erty and encouraging the most appropriate use of

land throughout the municipality.” N.J.S.A. 40:55-

32 as amended L. 1964, C. 150 See. 1.

—_ _

Then follow various provisions with respect to the pro-

cedure to be followed in the development of the regula-

tions, public hearings, notice, the adoption of the ordi-

nance, and provisions regarding the creation, composition,

powers and duties of the Board of Adjustment, and vari-

ous other guidelines, to assure the fair and reasonable

application of the regulations and restrictions and to pro-

vide relief therefrom in specified circumstances. N.J.S.A.

40 :55-33 et seq.

Thus it is seen that the fundamental purpose and in-

tent of zoning as well as the basic guidelines for the

adoption and administration of zoning regulations, are

clearly stated in both the New Jersey Constitution and

the above cited enabling acts. The New Jersey Courts

have stated and restated the clear language of the fore-

going quoted passages of the New Jersey Constitution

and the Zoning Enabling Statute. Having referred to the

standards therein set out, following the guidelines set

forth in Euclid, supra, they proceed to determine whether

or not the matter presented has respected the guidelines

therein established. As was said by Mr. Justice Proctor

speaking for the Supreme Court of New Jersey in the

important case of Vickers v. Township Committee of

Gloucester Township, 37 N. J. 233, appeal dismissed and

certiorari denied 371 U. S. 233 (1963):

“In N.J.S.A. 40:55-30 and N.J.S.A. 40:55-31, the

legislature has given municipalities extensive power

to create districts and regulate structures and the

use of land therein through zoning ordinances. The

guiding purpose in exercising this power is set forth

in N.J.S.A. 40:55-32 [and he quotes the passage as

set out supra.] (Bracketed language supplied)

“The role of the judiciary in reviewing zoning or-

dinances adopted pursuant to the statutory grant

a

10

of power is narrow. The court cannot pass upon

the wisdom or unwisdom of an ordinance, but may

act only if the presumption in favor of validity of

the ordinance is overcome by an affirmative show-

ing that it is unreasonable or arbitrary. Kozesnik

v. Township of Montgomery, 24 NJ 154, 167 (1957).

See Cunningham ‘Control of Land Use in New Jer-

sey’ 14 Rutgers Law Review 37, 48 (1959). By

these standards which control judicial review, the

plaintiff to prevail must show beyond debate that the

Township in adopting the challenged amendments

(an amendment precluding Mobile Home Parks in

any part of the Township) transgressed the stand-

ards of N.J.S.A. 40:55-32. In other words, 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.”

He goes on:

“It cannot be said that every municipality must

provide for every use within its borders. Fanale v.

Borough of Hasbrouck Heights, 26 N. J. 320, 325

(1958). The fact that a municipality is largely un-

derdeveloped does not impose a contrary obliga-

tion. Sound planning and zoning look beyond the

present into what lies ahead in the hopes of the

planners. It requires as much official watchfulness

to anticipate and prevent suburban blight as it does

to eradicate city slums.” Lionshead Lakes, Inc. v.

Township of Wayne, 10 N. J. 165, 173 (1952), ap-

peal dismissed, 344 U. S. 919, 97 L. Ed. 708 (1953).

Vickers, supra, sustained an ordinance which completely

precluded Mobile Homes Park from a large undeveloped

ll

Township. The Supreme Court of New Jersey, in the in-

stant case denied petitioners’ application for certiorari to

review the decision of the Appellate Division of the New

Jersey Syperior Court, set forth in Appendix B of Peti-

tioners’ ‘Petition, which expressly followed Vickers. Other

eases in which the New Jersey Court sustained municipal

ordinances enacted pursuant to the above cited Zoning

Enabling Act, which totally excluded certain uses were:

Duffcan Concrete Products, Inc. v. Borough of Cresskill,

1 N. J. 509 (1949) (Ordinance totally excluding heavy

industry) ; Lionshead Lakes, Inc. v. Township of Wayne,

supra (ordinance barring anywhere in the Township any

residence having less than 768 square feet of living area) ;

Fischer v. Township of Bedminster, 11 N. J. 194 (1952)

(an ordinance placing most of the Town in a residence

zone with a minimum lot size of five acres for each resi-

dence); Pierro v. Baxendale, 20 N. J. 17 (1955) (an or-

dinance barring motels from the entire Township) ; Fanale

v. Borough of Hasbrouck Heights, supra (an ordinance

prohibiting apartment houses of any kind anywhere in the

Borough).

In Vickers, supra (P. 246) the New Jersey Supreme

Court notes that:

“Trailer camps, because of their particular nature

and relation to the public health, safety, morals and

general welfare, present a municipality with a host

of problems, and these problems persist wherever

such camps are located. ... In Famale we said

at page 325: ‘Apartment houses are not inherently

benign. On the contrary, they present problems of

congestion and may have a deleterious impact upon

other uses.’ This description is equally applicable

to trailer camps. Clearly trailer camps bring prob-

lems of congestion with all their difficulties.”

PPM ee FE TN

12

“And if the Township is to avoid the ‘deleterious

impact which one use may have upon other uses

and encourage the most appropriate use of land

throughout such municipality’ it must be concerned

with the future as well as the present values of

property. Our recent decisions have uniformly held,

in conformance with the constitutional provisions

and the zoning statutes hereinbefore cited [N. J.

Cons. Art. IV Sec. VI par. 2 and N.J.S.A. 40:55-30,

31 and 32] that ‘general welfare’ should be given

a broad interpretation. . . . If the zoning ordinance

is reasonably calculated to advance the community

as a social, economic and political unit, it furthers

the general welfare and therefore is a proper ex-

ercise of the zoning power. Schmidt v. Board of

Adjustment of the City of Newark, 9 N. J. 405

(1952).” (Bracketed data supplied by counsel.)

In another place in the Vickers opinion, Justice Proctor

said:

“Since trailer camps are not permitted in the

other districts, the effect of the amending ordi-

nance prohibiting them in the industrial district is

to bar them from the entire municipality. There

are no trailer camps in the Township at present.

Plaintiff contends that total prohibition is illegal.

However, we have held that a municipality need

not provide a place for every use. Fanale v. Bor-

ough of Hasbrouck Heights (26 N. J. 320, 325

(1958)). We do not think that a municipality must

open its borders to a use which it reasonably be-

lieves should be excluded as repugnant to its plan-

ning scheme. It must be remembered that once a

use is legally established even though conditions

13

impel a revision of the zoning ordinance and the

use strikes a jarring note, it cannot be eliminated

by such revision under existing law. N.J.S.A. 40:

59-48. If through foresight a municipality is able

to anticipate the adverse effects of particular uses

and if resulting actions are reasonable, it should

be permitted to develop without the burdens of such

uses.”

It is submitted that the Mansfield Township Committee

in the exercise of its legislative judgment and discretion

enacted a Master Plan and Zoning ordinance which it be-

lieves will promote the health, morals and general wel-

fare of its community and that its ordiances, as found

by our New Jersey Courts, which reviewed and weighed

its factual content and local conditions, is a valid ex-

ercise of the police power and constitutionally valid.

Our New Jersey Supreme Court, then, in action as late

as its consideration of the instant case, has adopted the

statement of purpose set out in the above-cited section

of the New Jersey Constitution and the above quoted

passages of the Zoning Statute (N.J.S.A. 40:55-30, 31,

and 32) and has reiterated the interpretation thereof in

terms of the policy stated in Vickers, supra. The New

Jersey legislation dealing with Zoning has nothing to do

with the purchase of Mobile Homes by veterans or any-

one else. On the facts of this case, the New Jersey Su-

preme Court sustained the Mansfield Township ordinance

under attack, adopted in 1964 by the Respondent Town-

ship Committee of the Township of Mansfield, in strict

compliance with every procedural requirement of the New

Jersey Zoning Enabling Act (N.J.S.A. 40:55-30 et seq.),

as a valid and constitutional exercise of the Police Power

of the State and Municipality, and in particular, sustained

14

the constitutionality of the total exclusion of Mobile Home

Parks from the Township of Mansfield by the terms of

such zoning ordinance.

Having thus ascertained the nature, intent and purpose

of the respective Federal and State legislation, the Peti-

tioners allege to be in conflict and thus violation of the

supremacy Clause, we must next determine whether the

provision of the Mansfield Township Zoning Ordinance

excluding Mobile Home Parks as a permitted use from all

parts of the Township conflicts with the provisions of

the portions of the Veterans Housing Act of 1970 as

amended, supra and the Housing and Uniform Develop-

ment Act of 1969 as amended, supra, to such a degree

that, as Chief Justice Marshall stated in Gibbons v. Ogden,

9 Wheat 1, 6 L. Ed. 23 (1824), it so interferes with or

is contrary to such congressional acts, made in pursuance

of the constitution; that it is invalid under the supremacy

clause.

Mr. Justice Black, in Heines v. Davidowitz, 312 U. S.

52, 67, 61 Sup. Ct. 399, 404, 85 L ed 581 (1941) as quoted

by Mr. Justice White in Perez, supra P. 1704, review-

ing precedents, wrote “This Court, in considering the

validity of state laws in the light of treaties or federal

laws touching the same subject, had made use of the fol-

lowing expressions: conflicting; contrary to; occupying

the field, repugnance; differences; irreconcilability, incon-

sistency, violation, and interference . . . in the last analy-

sis, our function is to determine whether a challenged

state statute stands as an obstacle to the accomplish-

ment and execution of the full purposes and objectiveness

of Congress.

Said Mr. Justice White in Perez, supra, p. 1711:

“Since Heines the Court has frequently adhered

to this articulation of the meaning of the supremacy

15

clause. (citing numerous cases). . . . Indeed, in

Florida Lime and Avocado Growers, Inc. v. Paul,

373 U.S. 132, 83 S. Ct. 1210, 10 L. Ed. 2d 248 (1963)

a recent case in which the court was closely di-

vided, all nine Justices accepted the Heines test.”

As was said in an opinion by Mr. Justice Stewart in

Head v. New Mezico Board of Examiners in Optometry,

374 U. S. 424, 83 S. Ct. 1759, 10 L. Ed. 2d 983 (1963),

a case dealing with an alleged violation of the supremacy

clause by a New Mexico statute regulating advertising

by optometrists as in contravention of the Federal Com-

munications Act and the regulations of its Commission

governing radio broadcasting:

“Statements concerning the exclusive jurisdiction

of Congress beg the only controversial question:

Whether Congress intended to make its jurisdiction

exclusive. California v. Zook, 336 U. S. 725, 731,

93 L. Ed. 1005, 69 S. Ct. 341. Kelly v. Washington,

302 U. S. 1, 10-1382 L. Ed. 10, 12, 58 S. Ct. 87.

‘In areas of the law not inherently requiring na-

tional uniformity, our decisions are clear in re-

quiring that state statutes, otherwise valid, must

be upheld unless there is found such actual con-

flict between the two schemes of regulation that

both cannot stand in the same area, or evidence

of a congressional design to preempt the field.’

Florida Lime and Avocado Growers, Inc. v. Paul,

supra, 373 U. S. 132, 141.”

In the absence of positive evidence of clear legislative

intent to the contrary, it is incredible that Congress in

the legislation cited by petitioners, has ousted the State

and local municipal governing bodies from an area of

16

such fundamentally local concern as zoning. Surely the

legislative exclusion of Mobile Home Parks by the zon-

ing of one small rural municipality in the exercise of

its legislative judgment in a manner consistent with the

statutory policy governing zoning in New Jersey, for lo-

cal reasons, determined to be valid and constitutional by

the Supreme Court of New Jersey, as within the police

power of the municipality, cannot be determined as a

frustration of the federal legislation cited by Petitioners,

The decision of the New Jersey Supreme Court

sanctioning the total prohibition of Mobile Home

Parks from a municipality, does not deny Petitioners

any right protected by the 14th Amendment of the

Constitution of the United States.

Petitioners in their petition (Page 8) complain that the

decision of the New Jersey Supreme Court and the Mans-

field Township Zoning Ordinance, if sustained, prohibit

legitimate business use of Mobile Home Parks under the

guise of zoning regulation in a residential zone. This

position recognizes that the petitioners’ operation of a

Mobile Home Park is a business use, as distinguished from

a conventional residential use in a residential zone. Peti-

tioners contention on the merits that the denial of its

request for a permit to expand its mobile home park was

unreasonable and arbitrary, and that there were “spe-

cial reasons” for granting the variance, were heard and

considered by the Mansfield Township Board of Adjust-

ment on two separate hearings. The appeal was denied.

The same contention was presented to the Superior Court

of New Jersey at a plenary trial at which the same is-

17

sues of fact were presented for review. Again the ap-

peal was denied and the refusal of the Board to grant

the variance was sustained. On appeal by Petitioners,

the Appellate Division of the New Jersey Superior Court

again reviewed the facts, received briefs and heard ar-

guments. The appeal was denied and the validity of the

zoning ordinance and the action of the Board of Adjust-

ment in denying the requested variance was again sus-

tained. The New Jersey Supreme Court after considera-

tion of the facts and the law, denied certiorari. The fac-

tual questions dealing with the nature of the community,

its needs, the petitioners’ circumstances, and the reason-

ableness of the ordinance in the Mansfield Township con-

text were all resolved against the petitioners and in favor

of the respondents.

Petitioners in their statement of the case assert that

a portion of their lands measuring 1,200 feet by approxi-

mately 400 feet, “was originally projected for use as a

Mobile Home Park.” The Board of Adjustment and the

New Jersey Superior Court found as a fact that Peti-

tioners had used a parcel only about one-third of that

area as a Mobile Home Park and that they had improved

that smaller area to provide 28 spaces. There was a

finding that Petitioners had not done anything to im-

prove or otherwise prepare the additional area into which

they desired to expand the operation by creating an ad-

ditional 41 trailer spaces, and that the legal non-conform-

ing use which Petitioners had a right to continue using

did not include the additional area or the right to de-

velop and use the 41 additional spaces. In Superior

Court Judge Collins’ opinion—Appendix C, pp. 5a-18a ine.

Petition. Plainly petitioners factual contention that they

had a non-conforming use as to the expansion area for

the 41 extra trailer spaces was adjudicated against them.

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eation of constitutional principles, statutes and or-

dinances, which after giving due weight to the new

conditions are Jound clearly not to conform to the

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constitutional, of course, must fall.” (Bracketed

language inserted by counsel.)

It was argued by the property owner in Euclid that the

Euclid ordinance was invalid because it excluded not only

objectionable industrial uses but all industrial uses. In

dealing with this contention, Justice Sutherland said:

“Here however the exclusion is in general terms

of all industrial establishment, and it may there-

by happen that not only offensive and dangerous

industries will be excluded but those which are

neither offensive or dangerous will share the same

fate. But this is no more than happens in respect

to many practice-forbidding laws which this Court

has upheld, although drawn in general terms so as

to exclude individual cases that may turn out to be

innocuous in themselves.”

In sustaining the Euclid ordinance, the Supreme Court

firmly established the principle that the comprehensive

zoning based upon reasonable exercise of the Police power

to serve local conditions is constitutional, especially with

respect to the due process and equal protection clauses

of the Fourteenth Amendment. It determined that the

main features of orthodox zoning ordinances: the divi-

sion of the community into districts, and the restriction

in the use of private lands within such districts and the

exclusion of certain industrial, commercial, residential and

other uses were within the reach of the police power.

Two years after Euclid, the Supreme Court, decided

the case of Nectow v. City of Cambridge, 277 U. S. 183,

72 L. Ed. 842, 48 S. Ct. 447 (1928) which dealt with the

application of a municipal zoning ordinance which divided

Nectow’s property so that one small portion thereof was

—

in a residential zone; and the rest in an industrial zone.

Nectow could not feasibly use the one piece for a resi-

dence and claimed the ordinance was unconstitutional as

to his land. The Court declined to hold that the ordi-

nance was invalid but did say that from the evidence of

the case its strict application to Nectow’s property would

be arbitrary and unreasonable and therefore was not en-

forceable as to such property.

With the basic problems of due process and equal pro-

tection thus resolved in Euclid and Nectow, municipal

zoning was quickly authorized in all of the states and

the State Courts, following the guidelines laid down in

Euclid and Nectow, began the long case by case review

of problems arising within their jurisdiction dealing with

the individual zoning regulations as the same have been

developed and applied in local situations. The Supreme

Court has heard few zoning cases leaving the matters of

local supervision to the administration of the quasi judi-

cial agencies created by the states (in New Jersey Zon-

ing Boards of Adjustments, under the provisions of

N.JS.A. 40:55-36-45 inclusive) and the State Courts.

Hence the test of whether or not the provisions of a

given zoning ordinance and its application to the local

condition under review, is a valid exercise of the police

power of the municipality within the framework of New

Jersey's zoning enabling legislation, quoted under the first

point of this brief, and thus valid under Section 1 of the

Fourteenth Amendment as interpreted by Euclid and Nec-

tow, is the day to day case by case undertaking of the State :

Courts. The case which the Petitioners urge the Court

to review was subjected to just such a test. As Peti- ;

tioners themselves insist, they raised these very questions ;

and presented factual evidence and legal arguments to

the Mansfield Township Board of Adjustment (in two sep-

Jersey Superior Court which,

its consideration of the specific

legal arguments urged by the Petitioners that the ex-

municipal police power, and therefore violated the

and equal protection clauses of the Consti-

in sustained the factual and legal findings of

Trial Court that the allegedly offensive restriction

inst Mobile Home Parks in Mansfield Township and

particularly in the residential zone where Petitioners’ park

is located was valid as a justified exercise of the munici-

pal police power, that on the evidence, under settled rules

of law, Petitioners’ legal non-conforming use was limited

to their present 28 space Mobile Home Park. See perti-

nent language in the opinion of Judge Collins, on Page

13a of Appendix C of Petitioners’ Petition.

Moreover, the Board of Adjustment and Judge Collins,

as affirmed by the Appellate Division, also found as a

fact that Petitioners had failed to sustain their burden

of establishing any special reasons which at once would

meet the test set forth in N.J.S.A. 40-55-32 supra, and

also meet the specifie condition precedent to the grant-

ing of relief to a property owner by way of variance set

out in N.J.S.A. 40-55-39, providing:

“No relief may be granted or action taken un-

der the terms of this Section unless such relief can

be granted without substantial detriment to the

25

public good and will not substantially impair the

intent and purpose of the zone plan and zoning

ordinance.” *

As was pointed out by Judge Collins (page 15a of Ap-

pendix C of the Petition) in sustaining the findings of

fact by the Board of Adjustment:

“In Andrews v. Ocean Township [30 N. J. 245, 249

(1959)], the [Supreme] Court [of New Jersey]

stated that no definition of ‘special reasons’ has

been attempted and a precise formula is not feasi-

ble, therefore each case must turn on its own facts.

(material in brackets supplied)

In addition to requiring that ‘special reasons’ be

found for the granting of a variance under N.J.S.A.

40:55-39(d), there must also be a finding that the

variance will not substantially impair the intent and

purpose of the zone plan and zone ordinance.

This fixed and far reaching restriction represents

a requisite in additicn to and not substitutionary

for the affirmative requirement Skaf v. Zoning Bd.

2 It is interesting to note that this negative criteria is an important

part of the legislative procedural requirement to prevent the grant-

ing of variances upon a mere showing of hardship of some other

’ reason alone and the consequent erosion of the very uni-

form regulations which have been ordained to carry out the pur-

poses which justify the regulations as a valid exercise of the police

power in the restricting of not only the land of the party seeking re-

lief but his neighbors in the same zone which have relied upon the

restrictions to protect their investment in a permitted use! In other

words, this test is one essential part of our legislation implementing

due process and equal protection clauses, part of the whole pattern

designed to conform to the classic guidelines set out in Euclid, to

see that the police power is invoked reasonably and administered

uniformly.

The

which

The

vision

Mobile

(1963).

26

of Adj. of Asbury Park, 35 NJ, Sup. 215, 222 (App.

Div. 1955); Schoelppie v. Woodbridge Twp., 60

NJ Super. 146, 150 (App. Div. 1960).

As to this second criteria the Board found, and

the record seems to support its determination, that

the granting of this variance would substantially

impair the intent and purpose of the zone plan

and zoning ordinance.

As to the ‘special reason’ criteria the only rea-

son given by the plaintiff that is worth mention

is that of need of housing. This would not con-

stitute a ‘special reason’ because since the prop-

erty can be used for residential purposes the need

will be satisfied. The Court does not believe that

Mobile Home Parks is the only answer to the hous-

ing shortage.”

Court goes on to distinguish the facts in the in-

stant case from those in the case of DeSimone v. Greater

Englewood Housing Corp. No. 1, 56 N. J. 428 (1970)

dealt with a public housing program found to be

an answer in a built-up urban community to the need to

provide housing for minority or underprivileged segments

of its population outside its ghettos.

trial judge, as noted above, also found the pro-

of the Mansfield Township ordinance excluding

Home Parks from the Township as a valid ex-

ercise of the police power in Mansfield Township and

held the ordinance constitutional following Vickers vy.

Township Committee of Gloucester Township, 37 NJ 232

(1962), App. dismissed and Cert. Den., 371 U. S. 233

27

It is noteworthy that the Appellate Division of the New

Jersey Superior Court in affirming the action of the re-

spondent Board of Adjustment an the Trial Court said:

“We have studied the record and affirm the judg-

ment under review substantially for the reasons set

forth in the opinion of Judge Collins for the Law

Division. We are constrained to reach that con-

clusion in the light of the findings of fact by the

trial court, our decisional law adverse to expan-

sions of non-conforming uses and the policy of our

State as expressed in Vickers v. Twp. Com. of

Gloucester Twp., 37 N. J. 232 (1962), appeal dis-

missed and Cert. Den., 371 U. S. 233 (1963) re-

versing the decision of this court in that case re-

ported at 68 N. J. Sup. 263 (App. Div. 1961).

For a full discussion of the problem see annota-

tion to Mobile Home or Trailer Parks.” 42 ALR

3rd 598 (1972).

It is respectfully submitted that in this case the New

Jersey Zoning Legislation, the Mansfield Township Zon-

ing Ordinance, the Action of the Mansfield Township

Board of Adjustment, the judgments of the Law Divi-

sion, and the Appellate Division of the New Jersey Su-

perior Court, and the denial of a writ of certiorari by

the New Jersey Superior Court, all are well within the

guidelines established by this Court long ago in Euclid,

supra and Nectow, supra, and that Petitioners, as the

findings of fact case so clearly demonstrate, have not

been denied the equal protection of our ordinance or of

the enabling legislation, nor have they suffered arbitrary

or unreasonable regulation violative of their rights under

the due process clause of the Fourteenth Amendment.

Bs BD ae RT ae oes Saale a ae ee a a ae

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a

28

It is the performance of our State Courts in the man-

ner here symbolized which has enabled the local govern-

ments of our country, since Euclid and Nectow, to erect

a legal institution of land use regulation which has be.

come an integral part of our real estate property law

and one of the most useful and constructive tools yet

devised to encourage stability of real estate values and

to encourage the most appropriate use of land throughout

the nation, an institution upon which all of us has come

to rely in investing in permitted uses as part of our valid

property rights the denial of which are prohibited by the

very same Fourteenth Amendment!

One might observe that New Jersey Courts have demon-

strated continued alertness to changing conditions and

deep concern for the rights of individuals as well as the

right of minority and underprivileged segments of our

population in all areas.

Analysis of Petitioners’ Statement of Reasons for grant-

ing the requested writ (Pet. pp. 6-12 inclusive, passim)

fails to set forth any substantial novel question of na-

tional importance or, indeed, any issue upon which this

court has not spoken. On Page 7 they protest that “The

direct holding of the decision under review is that Mo-

bile Homes may be excluded from Mansfield Township.

The more significant impact of the subject decision, how-

ever, taken in context with Vickers, supra, is that “any

and all municipalities in the State of New Jersey may

exclude mobile home parks from their boundaries under

the guise of reasonable zoning regulation.”

It is suggested that petitioners falsely assume that the

only places where “Mobile Homes” may be located are

29

Mobile Home Parks.* They contend, too, that no use

should be excluded from a municipality which argument

would lead to the logical conclusion that every town must

permit every use somewhere within its boundaries.

But more importantly, Petitioners concern that the hold-

ing in this case will inevitably result in total exclusion

of Mobile Home Parks from all municipalities in New

Jersey, betrays a fundamental misinterpretation of the

Euclid doctrine, as well as the long settled policy of

New Jersey’s own law. They disregard the elementary

premise that each case and each ordinance must be tested

as to its constitutionality on the basis of the local con-

ditions prevailing in the municipality involved, and the

relevance of the ordinance provisions and its application

to the promotion of health, morals, or the general wel-

fare of the community; its function in the achievement

of a reasonable planned land use pattern; and its econ-

formity with N.J.S.A. 40:55-30 et seq. supra. Our local

zoning tribunals and our state courts may be depended

upon to apply the Euclid test as well as any other ap-

plicable standard to the circumstances which present them-

selves in the various communities of the state, just as

they did in the case at bar. Indeed, Petitioners them-

selves acknowledge on Page 10 of the Petition:

“New Jersey Courts have recognized that Zon-

ing Ordinances containing excessive and unreason-

able restrictions designed to discourage or exclude

5It is a matter of common knowledge that the “Mobile Home”

industry in recent years has turned to the manufacture of modular

“mobile homes” which are essentially prefabricated houses, which

are permitted almost anywhere on conventional lots, provided they

meet the same standards applicable to so-called conventional homes.

Petitioners seem to be limiting the argument to trailers, which in-

deed are usually confined to Mobile Home Parks.

—,

30

the development of certain types of housing ac.

commodations can no longer be tolerated.” Citing

Oakwood at Madison, Inc. v. Twp. of Madison, 117

N. J. Super. 11 (Law Div. 1971), 283 A 2d 353;

Southern Bure Cty. NAACP v. Twp. of Mt. Laurel,

119 N. J. Super. 164 (Law Div. 1972); 290 A 2d

465; and J. D. Const. v. Bd. of Adjustment of

Twp. of Freehold, 119 N. J. Super. 140 (Law Div.

1972), 290 A 2d 46. (Decisions were based upon

the facts of each of the cases the court struck

down certain zoning provisions).”

It would appear that our courts are consistent in ap-

plying the classic test laid down so long ago by Mr. Jus- _

tice Sutherland in Euclid. In some cases factual condi- _

tions have been found to support the ordinance and the

court has sustained the municipality (Vickers, supra,

DeSimone, supra, Fanale, supra), and in others, by ap-

plication of the very same tests, the court has found the

municipal act wanting in support e.g. Madison Twp.,

supra; Mt. Laurel, supra; J. D. Const. v. Bd. of Adj.

of Freehold, supra. It seems Petitioners have a propensi-

ty to regard as valid exercise of the police power only

those cases which on the surface appear to favor their

position. Yet unlike many decisions in many other fields,

each zoning case historically and by necessity must be

treated on its own merits, in its own context, and in no |

case does it really stand as a binding precedent in the |

normal use of the term for any other case.

Mr. and Mrs. Yeager have resorted to the very process

mandated by Euclid and are disappointed in the result.

The case is typical of thousands of zoning cases reviewed

by our courts throughout the nation every year. There is

no new question presented.

31

In this case our New Jersey Courts have certainly met

the judicial burden placed upon them by LFuclid, supra,

and Nectow, supra, and once again have demonstrated

the wisdom of the historic policy of this Court which

may be characterized as (a) a constraint to leave to the

States and their local tribunals the review, supervision

and regulation of zoning matters in a manner at once

consistent with local circumstances and community need,

and (b) a consistent restraint from interference with the

judgment of local legislators and the findings of Courts

in zoning matters, except in the most extreme cases and

under the most extreme circumstances. It is submitted

that the instant case is not such a case and that Peti-

tioners’ request for the issuance of the writ of certiorari

to the New Jersey Supreme Court is unjustified.

CONCLUSION

Petitioners have failed to present any novel constitu-

tional issue of substantial national importance. The limi-

tation upon the use of their land results from a valid

zoning restriction properly enacted by the Respondent

Township Committee, pursuant to the New Jersey State

Zoning enabling legislation and under a reasonable ex-

ercise of its police power with the constitutional guide-

lines established by this Court.

Wuenrerore, it is respectfully submitted that the Peti-

tioners’ application for a writ of certiorari to the New

Jersey Supreme Court should be denied.

Respectfully submitted,

Martin Bry-NILpsen, Jr.

27 West Washington Avenue

Washington, New Jersey 07882

Counsel for Respondents

Of Counsel:

Harry K. Seysout

= i aa Ret i i PAs DINE Sp LINES E EI LN LEME BO OL