[128 NJSuper Page 439] Madison Township amended its 1970 zoning ordinance, effective October 1, 1973, between the decision of this court holding the 1970 zoning ordinance invalid (reported in 117 N.J. Super. 11 (1971) and the resolution by the Supreme Court (certif. granted, 62 N.J. 185 (1972)) of an appeal from that decision. The Supreme Court remanded to this court for a trial, retaining jurisdiction, in accordance with appellate procedural law that an appellate court determines the legal validity of the zoning
ordinance in effect at that time. Tidewater Oil Co. v. Mayor, etc., Carteret, 44 N.J. 338, 341 (1965).
This court held in the earlier decision that:
In pursuing the valid zoning purpose of a balanced community, a municipality must not ignore housing needs, that is, its fair proportion of the obligation to meet the housing needs of its own population and of the region. Housing needs are encompassed within the general welfare. The general welfare does not stop at each municipal boundary. Large areas of vacant and developable land should not be zoned, as Madison Township has, into such minimum lot sizes and with such other restrictions that regional as well as local housing needs are shunted aside. [at 20, 21]
The precedents relied on include Chief Justice Vanderbilt's opinion in Duffcon Concrete Products v. Cresskill, 1 N.J. 509, 513 (1949), recognizing regional needs as a proper consideration in local zoning. A zoning ordinance prohibiting heavy industry anywhere within the municipality was sustained in Duffcon, but only under the circumstance that "in the same geographical region, there is present a concentration of industry in an area peculiarly adapted to industrial development and sufficiently large to accommodate such development for years to come * * *." [at 515]
In Fanale v. Hasbrouck Heights, 26 N.J. 320 (1958) Chief Justice Weintraub, in upholding a prohibition by zoning ordinance against any new multi-family housing, noted:
There of course is no suggestion that the county is so developed that Hasbrouck Heights is the last hope for a solution, and hence we do not have the question whether under the existing statute the judiciary could resolve a crisis of that kind. [at 328-329]
DeSimone v. Greater Englewood Housing Corp. No. 1, 56 N.J. 428, 442 (1970), and Andrews v. Ocean Tp. Board of Adjustment, 30 N.J. 245, 251 (1959), recognized that the serving of regional as well as local needs by, respectively, public multi-family housing and a parochial school were "special reasons" supporting zoning variances under N.J.S.A. 40:55-39(d).
Presumptively, the Supreme Court would have recognized the general welfare as overriding and struck down the ordinances under review in Duffcon and in Fanale if, respectively, there had not been adequate industry or adequate multifamily housing nearby.
As a parallel, this court, finding desperate housing needs in the county and region, held that the Madison Township zoning ordinance was invalid because it failed to provide for the township's fair share of housing to meet the housing shortage. Whatever general welfare benefits might be served within the township by population limitations (the conceded objective), these were overridden and the general welfare in balance thwarted by exclusionary zoning restrictions against new low and moderate income housing.
Factually, a crisis in housing needs continues; most severe for those of low and moderate incomes, and a disadvantaged population remains trapped in the ghettoes of the central cities. The issue thus is whether the amended zoning ordinance of Madison Township provides for the township's fair share ...