Collester, Lora and Handler. The opinion of the court was delivered by Lora, J.A.D. Handler, J.A.D. (dissenting).
Defendants appeal from that part of the judgment of the Law Division whose opinion is reported at 128 N.J. Super. 379, holding subsection 8(a) of Art. VI, § 603, of the Woodland Township zoning ordinance unconstitutional insofar as it purports to confine the residents of a senior citizens community to persons who are 52 years of age or over, except for one child who may be 19 years of age or over.
Plaintiff contends not only that the qualification for residency, based upon age, is unconstitutional but additionally that the trial judge erred in his determination that authorization of a senior citizens community as a land use regulation is not foreign to the authority granted to municipalities in N.J.S.A. 40:55-30, 32.
Section 603, entitled "Special Uses" by the amendment in question, was employed to add an exception permitted in the residential-agricultural zone, under terms and conditions set forth therein as follows:
8. Senior Citizen Communities. In R-A Zones where one or more parcels of land having a contiguous total area of at least 500 acres are under common ownership or control, there may be established a Senior Citizen Community in accordance with the laws of the State of New Jersey and with the following additional requirements:
a. Age and Occupancy Requirements. The permanent residents of a Senior Citizen Community shall be confined to persons who are 52 years of age or over except that one child who is 19 years of age or over may be permitted to reside in any senior citizen dwelling unit occupied by his or her parent(s) or guardian(s). Full time occupancy of any residential unit shall be limited to 3 individuals.
We are of the view the quoted ordinance provisions do not constitute a valid exercise of the zoning power granted to municipalities by the enabling statute. As stated in Taxpayers Ass'n. of Weymouth Tp. v. Weymouth Tp., 125 N.J. Super. 376, 380 (App. Div. 1973), certif. granted 65 N.J. 570:
Nothing in N.J.S.A. 40:55-30, which grants zoning powers to municipalities, authorizes a zoning regulation limiting the age of those, whether it be individuals or families, who may reside in a structure, be it a house or mobile home, otherwise permitted in a particular zoning district.
All that a municipality may validly be concerned with in the exercise of its zoning power is the physical use of lands and structures thereon. Bridge Park Co. v. Highland Park, 113 N.J. Super. 219, 221-222 (App. Div. 1971).
Cf. Hinman v. Planning and Zoning Comm'n, 26 Conn. Sup. 125, 214 A.2d 131 (Comm. Pl. 1965). The provision for a senior citizens community does not involve the physical use of the land within the permissible district but rather seeks to regulate the age or makeup of the family unit permitted to reside in the structure in contravention of N.J.S.A. 40:55-30, 32, Bridge Park Co. v. Highland Park, 113 N.J. Super. 219, 221-222 (App. Div. 1971).
Defendants argue that Woodland Township is authorized to enact subsection 8(a) of the ordinance by virtue of its power to regulate land use to "promote health, morals or the general welfare * * *." N.J.S.A. 40:55-32. While we appreciate that senior citizens may have special housing needs
meriting special considerations, as evidenced by N.J.S.A. 55:14I-1 et seq., the "Senior Citizens Nonprofit Rental Housing Tax Law" and N.J.S.A. 55:14A-1 et seq., the "Local Housing Authorities Law," and that housing needs are encompassed within the concept of general welfare, Oakwood at Madison, Inc. v. Madison Tp., 117 N.J. Super. 11 (Law Div. 1971), certif. granted 62 N.J. 185 (1972), we are constrained to conclude that absent specific enabling legislation, zoning ...