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Urban League of Greater New Brunswick v. Mayor and Council of Borough of Carteret

Decided: May 4, 1976.

URBAN LEAGUE OF GREATER NEW BRUNSWICK, A NONPROFIT CORPORATION OF THE STATE OF NEW JERSEY; CLEVELAND BENSON; JUDITH CHAMPION; LYDIA CRUZ; BARBARA TIPPETT; KENNETH TUSKEY ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
THE MAYOR AND COUNCIL OF THE BOROUGH OF CARTERET; TOWNSHIP COMMITTEE OF THE TOWNSHIP OF CRANBURY; MAYOR AND COUNCIL OF THE BOROUGH OF DUNELLEN; TOWNSHIP COMMITTEE OF THE TOWNSHIP OF EAST BRUNSWICK; TOWNSHIP COMMITTEE OF THE TOWNSHIP OF EDISON; MAYOR AND COUNCIL OF THE BOROUGH OF HELMETTA; MAYOR AND COUNCIL OF THE BOROUGH OF HIGHLAND PARK; MAYOR AND COUNCIL OF THE BOROUGH OF JAMESBURG; TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MADISON; MAYOR AND COUNCIL OF THE BOROUGH OF METUCHEN; MAYOR AND COUNCIL OF THE BOROUGH OF MIDDLESEX; MAYOR AND COUNCIL OF THE BOROUGH OF MILLTOWN; TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MONROE; TOWNSHIP COMMITTEE OF THE TOWNSHIP OF NORTH BRUNSWICK; TOWNSHIP COMMITTEE OF THE TOWNSHIP OF PISCATAWAY; TOWNSHIP COMMITTEE OF THE TOWNSHIP OF PLAINSBORO; MAYOR AND COUNCIL OF THE BOROUGH OF SAYREVILLE; MAYOR AND COUNCIL OF THE CITY OF SOUTH AMBOY; TOWNSHIP COMMITTEE OF THE TOWNSHIP OF SOUTH BRUNSWICK; MAYOR AND COUNCIL OF THE BOROUGH OF SOUTH PLAINFIELD; MAYOR AND COUNCIL OF THE BOROUGH OF SOUTH RIVER; MAYOR AND COUNCIL OF THE BOROUGH OF SPOTSWOOD; TOWNSHIP COMMITTEE OF THE TOWNSHIP OF WOODBRIDGE, DEFENDANTS AND THIRD-PARTY PLAINTIFFS, V. CITY OF NEW BRUNSWICK AND CITY OF PERTH AMBOY, THIRD-PARTY DEFENDANTS, AND NEW JERSEY LEAGUE OF WOMEN VOTERS AND MIDDLESEX COUNTY LEAGUE OF WOMEN VOTERS, INTERVENORS



Furman, J.s.c.

Furman

[142 NJSuper Page 17] Plaintiffs attack the zoning ordinance of 23 of the 25 municipalities of Middlesex County as unconstitutionally exclusionary and discriminatory. Third-party complaints against the cities of New Brunswick and Perth Amboy were dismissed after trial. The remedy sought by plaintiffs is an allocation to each municipality of its fair share of low and moderate-income housing to meet the countywide need. Plaintiffs rely on So. Burl. Cty. N.A.A.C.P. v. Mt. Laurel Tp. , 67 N.J. 151, cert. den. 423 U.S. 808, 96

S. Ct. 18, 46 L. Ed. 2d 28 (1975), which imposes on a developing municipality the obligation to provide by land use regulations for its fair share of the present and prospective regional need for low and moderate-income housing.

Plaintiffs comprise an organization and five persons who sue individually and as representatives of others similarly situated. The standing of all plaintiffs is challenged. Under Warth v. Seldin , 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975), the individual plaintiffs as nonresidents lack standing to urge federal constitutional and statutory infirmities in municipal zoning. But their standing as nonresidents to pursue state constitutional objections is sustained in Mt. Laurel, supra 67 N.J. at 159. The standing of the three organizations which were plaintiffs in Mt. Laurel was not at issue and not passed on in Justice Hall's opinion.

Plaintiff Urban League of Greater New Brunswick seeks housing for its members and others, mostly blacks and Hispanics, throughout the county and elsewhere nearby, encountering rebuffs and delays. Under the liberal criteria for standing which prevail in this State, standing must be accorded to plaintiff Urban League. Crescent Pk. Tenants Ass'n v. Realty Eq. Corp. of N.Y. , 58 N.J. 98 (1971).

No monetary or other specific recovery and no counsel fee for maintaining class actions are sought. Unquestionably, some others are similarly situated to plaintiff Champion, a white, who cannot find adequate low-income housing in the county for her family of three; plaintiff Benson, a black, who cannot find adequate moderate-income housing in the county for his family of 11; plaintiff Tippett, a black, whose family of five is adequately housed in New Brunswick but who cannot find equivalent housing in an unsegregated neighborhood, and plaintiff Tuskey, a white, who objects to the racial and economic imbalance in South Brunswick, the predominately white municipality in which he resides with his family, including two children attending public school. The class actions are maintainable under R. 4:32-1(a) and (b) (3).

At the close of plaintiff's proofs the court dismissed the cause of action for wilful racial discrimination. The impact of low-density zoning is most adverse to blacks and Hispanics, who are disproportionately of low and moderate-income. But no credible evidence of deliberate or systematic exclusion of minorities was before the court. That dismissal must result in the dismissal also of the specific count for violation of Federal Civil Rights Acts, 42 U.S.C.A. §§ 1981, 1982 and 3601 et seq.

The challenge to the exclusionary aspects of defendants' zoning ordinances remains. All three branches of government have recognized overwhelming needs for low and moderate-income housing in the State as a whole.

In Executive Order No. 35, dated April 2, 1976, Governor Byrne stated that

The Legislature in the preamble to the New Jersey Housing Assistance Bond Act of 1975, L. 1975, c. 207, § 2(a), made a finding:

Despite the existence of numerous Federal programs designed to provide housing for senior citizens and families of low and moderate income, construction and rehabilitation of such housing units has not proceeded at a pace sufficient to provide for the housing need of the State.

In Mt. Laurel Justice Hall concluded that

There is not the slightest doubt that New Jersey has been, and continues to be, faced with a desperate need for housing, especially of decent living accommodations economically suitable for low and moderate income families. [67 N.J. at 158]

Other recent legislation dealing with the housing shortage is set out in Mt. Laurel at 179.

In Middlesex County the shortage of low and moderate-income housing is critical. From 1960 to 1970 the number of new jobs in the county increased by 2.2 times the number of new housing units, and the number of employees in the county residing outside the county increased by 291%. In 1960 the total vacant land in the county was zoned 24.9% for industry, 22.7% for one-acre or larger single-family housing, 21.5% for less than one-quarter acre single-family housing and 2.1% for multi-family housing. Ten years later the zoning countywide was markedly more exclusionary: 41.7% for industry, 38.7% for one-acre or larger single-family housing, 4.9% for less than one-quarter acre single-family housing, and .5% for multi-family housing.

The pattern of dwindling low and moderate housing opportunities has continued in the county since 1970. Minimal modest lot single-family housing has been built. Housing congestion is worsening in the urban ghettoes. New mobile homes are prohibited in all municipalities. Thirteen municipalities have enacted rent control ordinances in response to the multi-family housing shortage.*fn1 Vacancy rates are low. Despite overzoning for industry, new industry is reluctant to settle in the county because of the shortage of housing for its workers. Experts for various defendants acknowledged a substantial market and a pressing need for new low and moderate housing.

The issue whether Middlesex County is a housing region is of significance because of the adoption of the term "region' in Mt. Laurel. Housing which must be afforded by a developing municipality is defined as its fair share of the present and prospective regional need. In Oakwood at Madison,

Inc. v. Madison Tp. , 117 N.J. Super. 11 (Law Div. 1971), certif. granted 62 N.J. 185 (1972), on remand 128 N.J. Super. 438 (Law Div. 1974), this court struck down a zoning ordinance which failed to provide for a fair proportion of the housing needs of the municipality's own population and of the region, holding that it was in derogation of the general welfare encompassing housing needs and therefore unconstitutional. Justice Hall noted in Mt. Laurel

The composition of the applicable "region' will necessarily vary from situation to situation and probably no hard and fast rule will serve to furnish the answer in every case. [67 N.J. at 189]

Middlesex County is part of the New York metropolitan region. Plainsboro and Cranbury and portions of South Brunswick and Monroe to the southwest of the county are in some measure also part of the Philadelphia metropolitan region. Those areas look predominately towards Trenton, Princeton and Hightstown in Mercer County for local shopping and services. In the north of the county South Plainfield, Dunellen and Middlesex and portions of Piscataway and Edison look predominately towards Plainfield in Union County for local shopping and services. The balance of the county is oriented within the county, towards New Brunswick, Perth Amboy or elsewhere, for local shopping and services.

Regions are fuzzy at the borders. Middlesex County is a Standard Metropolitan Statistical Area as fixed by the United States Office of Management and Budget. Such an area is specified as an integrated economic and social unit with a large population nucleus. Twenty of the 25 municipalities joined in a Community Development Block Grant application as an "urban county' under the regulations of the Housing and Community Development Act of 1974, 42 U.S.C.A. § 5301 et seq.*fn2 A county master plan and a

wealth of applicable statistics are available through the county planning board. Some one employed in any municipality of the county may seek housing in any other municipality, and someone residing in any municipality may seek employment in any other municipality. Residence within walking distance of the place of employment, or within the same municipality, is no longer a desideratum. Nor is the availability of public transportation a major factor. The county is crisscrossed by arterial highways, including the New Jersey Turnpike and the Garden State Parkway. Mobility by automobile is the rule. A large proportion of even the low-income wage earners within the county own automobiles and many of those travel regularly 20 miles or more to their places of employment. The entire county is within the sweep of suburbia. Its designation as a region for the purpose of this litigation, within larger metropolitan regions, is sustained.

In compliance with Mt. Laurel plaintiffs undertook to establish by a prima facie showing that each of the 23 defendant municipalities' zoning ordinances was constitutionally invalid because of failure to provide for a fair share of the low and moderate-income housing needs of the region. That burden was met as to 11 municipalities, as will be analyzed infra. Dunellen was granted an outright dismissal. With a population of over 7,000 in a square mile area and about 42% low and moderate-income households, Dunellen has less than 20 acres of vacant land, mostly unsuitable for housing, and no patently exclusionary provisions in its zoning ordinance.

In addition, 11 municipalities -- Carteret, Helmetta, Highland Park, Jamesburg, Metuchen, Middlesex, Milltown, South Amboy, South River, Spotswood and Woodbridge -- were granted dismissals conditional upon adoption of amendments to their zoning ordinances which are agreed to by their respective attorneys, accepted by plaintiffs and approved by the court. These amendments include the following: Deletion of limitations on the number of bedrooms or [142 NJSuper Page 23] of rooms in multi-family housing;*fn3 deletion of restrictive special exception procedures for multi-family housing and provision for it as an allowable use;*fn4 reduction of excessive parking space requirements in multi-family housing;*fn5 reduction of excessive minimum floor area requirements in multi-family or single-family housing or both;*fn6 reduction of excessive minimum lot sizes for multi-family or single-family housing or both,*fn7 increase of maximum density of multi-family housing to 15 units per acre,*fn8 increase of maximum height of multi-family housing to 2 1/2 stories or higher;*fn9 deletion of a multi-family housing ceiling of 15% of total housing units within a municipality;*fn10 rezoning from industry to multi-family residential*fn11 and from single-family to multi-family residential.*fn12 A number of these agreed revisions have been enacted.

The 11 municipalities which were dismissed conditionally from the litigation are substantially built up without significant vacant acreage suitable for housing, except Woodbridge with about 800 acres, Spotswood with about 200 acres and Jamesburg, South Amboy and South River with about 100 acres each. In view of the consent dismissals no issue is before the court whether these 11 municipalities are "developing municipalities' in the sense of that term in Mt. Laurel. Incontrovertibly, a fair share allocation of a substantial number of new housing units to meet regional needs would be nugatory in a municipality with minimal vacant acreage. But a municipality is not exempt from the constitutional standards of reasonableness in its zoning because it is not "developing' within Mt. Laurel.

Exemption from Mt. Laurel was pressed by Cranbury and Plainsboro on another ground. Mt. Laurel (67 N.J. at 160) cites as one of the characteristics of a developing municipality that it has undergone a great population increase since World War II. These two townships have not, in contrast to the explosive growth countywide. But their relatively static population is attributable in large measure to restrictive zoning. Past exclusionary practices cannot shield them from an obligation to meet their fair share of regional housing needs.

Eleven municipalities were not dismissed outright or conditionally and, as prescribed in Mt. Laurel , assumed the "heavy burden' of establishing peculiar circumstances justifying their failure to afford the opportunity for low and moderate income housing to the extent of their respective fair shares. These 11 municipalities comprise seven townships south of the Raritan River (Cranbury, East Brunswick, Old Bridge (formerly Madison), Monroe, North Brunswick, Plainsboro and South Brunswick), two townships north of the Raritan River (Edison and Piscataway), and two boroughs, Sayreville south and South Plainfield north of the Raritan River.

The exclusionary zoning practices in some or all of these 11 municipalities, compounded in effect because of the proximity of several to each other, embrace overzoning for industry and low-density residential housing, underzoning for high-density single-family and multi-family residential housing, prohibition of multi-family housing and mobile homes, bedroom and density restrictions on multi-family housing excluding couples with two or more children, and floor area and other restrictions on multi-family housing forcing up construction costs.

Prior to a discussion seriatim of the 11 zoning ordinances, population, income, employment and vacant acreage tables are appropriate.

East Brunswick, Edison, Monroe, North Brunswick, Old Bridge, Piscataway, Sayreville, South Brunswick and South Plainfield underwent a population upsurge since 1950 even beyond the 120% gain in the county. Only Cranbury and Plainsboro trailed perceptibly behind.

POPULATION INCREASE

1950 1960 1 970 1950-1970

Cranbury 1,797 2,001 2,253 25%

East Brunswick 5,699 19,965 34,166 500%

Edison 16,348 44,799 67,120 310%

Monroe 4,082 5,831 9,138 124%

North Brunswick 6,450 10,099 16,691 159%

Old Bridge 7,366 22,772 48,715 561%

Piscataway 10,180 19,890 36,418 258%

Plainsboro 1,112 1,171 1,648 48%

Sayreville 10,338 22,553 32,508 214%

South Brunswick 4,001 10,278 14,058 251%

South Plainfield 8,008 17,879 21,142 164%

Middlesex County 264,872 433,856 583,813 120%

Based on the 1970 census, low income in the following table is figured as up to $7,000 a year and moderate income up to $10,000. Those limits approximate the bottom 20% and the next 20% in the State as a whole, and compare closely in Middlesex County with the Federal ...


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