[117 NJSuper Page 13] This prerogative writ action challenges the constitutionality of the Zoning Act, N.J.S.A. 40:55-30 et seq. , and the validity under that act of the Madison Township zoning ordinance adopted on September 25, 1970.
Plaintiffs are two developers, who own vacant and developable land in Madison Township, and six individuals, all with low income, representing as a class those who reside outside the township and have sought housing there unsuccessfully because of the newly adopted zoning restrictions, including one and two-acre minimum lot sizes.
Madison Township is 42 square miles in the southeast corner of Middlesex County, extending from Raritan Bay westward. In two decades of explosive growth from 1950 to 1970, paralleling the trend in the county and region, its population mounted from 7,366 to 48,715. Most of the new housing was single-family in developments on 15,000 square foot or smaller lots, and since 1965 multi-family in garden apartments. Reflecting school construction and other expanded costs of government, the real property tax rate increased from one of the lowest in 1950 to the highest in 1970 in the county.
Despite this population surge much of the township, approximately 30% of its land area, excluding Cheesequake State Park, is vacant and developable. A member of the planning firm which submitted a new master plan in May 1970 testified that the township could hold a population of 200,000 without overcrowding.
A new township administration in 1970 determined to curb population growth significantly and thus to stablize the tax rate. The township was to "catch its breath," a phrase recurrent in the testimony. Because of exigencies of time arising from a court order in other litigation, the planning firm which was retained early in 1970 was given only two months within which to submit its proposal for a master plan. The deadline was met. The master plan proposal relied in part upon the studies of the township's previous planning consultant. It purported to represent a shift in approach, from explosive growth on a patchwork basis to orderly growth in densely developed areas and the preservation of open areas. The new planning firm's recommendations
were followed, with three important exceptions discussed infra , in the ensuing zoning ordinance.
The attack on the constitutionality of the Zoning Act is novel. By way of background plaintiffs suggest that the purposes of zoning, which were enacted in 1928, a time of relatively static population, are not commensurate with the general welfare today, a time of rapid population expansion. Specifically plaintiffs contend that the declared zoning purposes are fatally defective, thwarting the general welfare, because they fail to encompass housing needs.
N.J.S.A. 40:55-32 is as follows:
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 general welfare; provide adequate light and air; prevent the overcrowding of land or buildings; avoid undue concentration of population. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality.
The New Jersey Constitution (1947), Art. IV, § VI, par. 2, empowered the Legislature to enact a zoning enabling law authorizing municipalities to adopt zoning ordinances to regulate land uses. N.J.S.A. 40:55-30 et seq. was thereupon reenacted. The zoning enabling act is not immune from other constitutional requirements, including in conformity with the police power that it must be in reasonable furtherance of the public health, safety or general welfare. Fischer v. Bedminster Tp. , 11 N.J. 194 (1952); Mansfield & Swett, Inc., v. West Orange , 120 N.J.L. 145 (Sup. Ct. 1938); cf. Ward v. Scott , 11 N.J. 117 (1952).
Provision for housing needs, local and regional, is not a specified purpose of zoning under N.J.S.A. 40:55-32, but promotion of the general welfare is. Although stated in the disjunctive ...