For affirmance -- Chief Justice Weintraub and Justices Jacobs Proctor, Hall, Schettino and Mountain. For reversal -- None. The opinion of the Court was delivered by Hall, J.
The question presented by this litigation is whether Rutgers, The State University, ("Rutgers") is subject to the zoning ordinance provisions of a municipality in which one of its campuses is located -- here Piscataway Township, Middlesex County. Although the provision precisely involved is a limitation on the permissible number of housing facilities for student families, the broader issue necessarily present encompasses the matter of intergovernmental land use regulation in general as well as the particular status of Rutgers. The Law Division, granting Rutgers' motion for summary judgment, held that it is an instrumentality of the state and immune from local zoning enactments. 113 N.J. Super. 65 (1971). We certified the township's appeal while it was pending in the Appellate Division. R. 2:12-2.
This legal problem arises in the following panoramic context. It is well known that New Jersey has long lagged in providing public higher education facilities. To commence to meet that unquestioned need, Rutgers has expanded tremendously during the past few years in undergraduate and graduate enrollment and necessary teaching buildings, student housing and other physical facilities required for a larger university for the benefit of the people of the whole state. Further expansion in all these aspects will undoubtedly continue for many years to come. As far as the New Brunswick center of operations is concerned (two other centers are situated in Newark and Camden), the original College Avenue campus within the city is fully occupied. A second campus, which includes Douglass College and the College of Agriculture and Environmental Science, located in the southern end of the city and running over into North Brunswick Township, offers some room for expansion. But it is
apparent that the greater part of the necessary future physical growth will have to take place on the Piscataway campus, where a substantial number of new buildings and other facilities have already been erected.
That campus, across the Raritan River from the College Avenue campus, comprises many hundreds of acres and occupies almost all of the southwesterly corner of the township. It is quite set apart, physically, from other land uses and is roughly composed of two segments -- University Heights and the Kilmer section -- separated only by a county road. (A small portion of the Kilmer section extends into Edison Township and the Borough of Highland Park.) The University Heights area has been owned by Rutgers for many years; the Kilmer section is a recent acquisition from the federal government. It is a portion of former Camp Kilmer, a military installation during World War II.
University Heights is already rather substantially occupied by collegiate buildings and facilities. These comprise classroom and research buildings, mostly new and principally used for science and engineering studies, the College of Pharmacy, and the Medical School (now administered by a separate governing body). Also located there are the stadium, golf course and playing fields, as well as apartments and small dwellings for the housing of married students. The Kilmer section is the site of recently opened Livingston College, an undergraduate unit of the university; the rest of its very sizeable area is largely vacant land where most future expansion will have to take place.
The township as a whole is a large, sprawling area -- until fairly recently mostly unimproved land with few centers of population, but now, typical of so many such municipalities in the northeastern New Jersey suburban ring, in the throes of extensive development of all kinds. Many housing developments, a few garden apartments, and a very considerable number of industrial establishments adjacent to new Interstate Highway Route 287 have come in, and there is room for a lot more of each. This growth has necessitated
great extensions of municipal services and facilities, including schools, which must be principally financed, under New Jersey's present tax system, out of local property taxes. The result has been financial and other growing pains.
The township's present zoning ordinance, enacted in 1964, along with amendments thereto, reflects the usual means employed by this type of municipality in attempting to meet local financial problems by land use regulation, i.e., so-called "fiscal zoning." The legally dubious stratagems of zoning wide expanses of vacant land for industrial use only, requiring large lots for undeveloped residential land, and rigidly regulating multi-family dwellings are all utilized to restrict private growth to land uses which will produce few school children and show a "tax profit."
Also included in the ordinance are detailed regulations of all of Rutgers' lands. They are placed in and comprise most of the area of an education and research zone (E-R). Permitted uses are "educational and research activities and related service activities" conducted by non-profit public and private educational institutions and by "scientific or research laboratories of private corporations, institutions, or other agencies" together with accessory uses, as well as uses allowed in the highest residential zone. Accessory uses are spelled out in considerable detail, as are minimum lot size, setback, first floor building area and percentage of lot coverage requirements. It may be observed in passing that while these detailed regulations are pertinent with respect to a private research enterprise, they are not physically suited to a vast university complex comprising dozens of buildings and allied collegiate uses on huge tracts of land having their own private interior roads. (The record does not disclose whether they were insisted upon or complied with in connection with the previous erection of university buildings and facilities.)
The ordinance provision here precisely involved is found among the permitted accessory uses in the E-R zone and reads as follows:
Dormitories for matriculated students; dormitories and other housing facilities for use by matriculated students and their families, provided, however, that such facilities do not exceed 500 units.*fn1
In other words, the township purported to allow unlimited housing facilities for unmarried students, but to arbitrarily restrict the number of those which could be used by married students and their families.
In 1969 Rutgers had reached the maximum of 500 student family housing units in Piscataway. It sought to build 374 more garden apartments in the middle of the Kilmer section (together with an additional number in adjacent Edison Township.) Building permits were refused because of the ordinance restriction. The university then sought a variance, which the Board of Adjustment denied.
Rutgers thereupon started the instant suit. Originally it asserted three claims for relief: one, to compel grant of the variance; two, to declare the ordinance restriction invalid; and three, to declare Rutgers, as an instrumentality of the state, not subject to a local zoning ordinance. The variance aspect was remanded for further evidence before the township agency. When that was completed, Rutgers abandoned the first two claims and successfully moved in the trial court for summary judgment on the third, thereby producing ...