# Opposition Brief — Yeager v. Township of Mansfield

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1973
- **Citation:** 410 U.S. 955

## Text

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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thus imparted, not to the meaning but the a

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eation of constitutional principles, statutes and or-
dinances, which after giving due weight to the new
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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

=

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1790%3A2. Public record. Not legal advice.