Decided [As corrected at 80 N.J. 6]: September 28, 1976.
For reversal -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Pashman, J.
This appeal raises the question whether a zoning ordinance may create a district in which one of the permitted uses is a mobile home park for the exclusive use of the elderly. The Appellate Division disagreed with the determination of the Law Division that such zoning is valid. Because this pattern of zoning developed in a rather roundabout way, it is helpful to state the following chronology and content of the relevant municipal legislation:
Prior to the adoption in 1971 of Ordinances Nos. 172-1971 ("No. 172") and 171-1971 ("No. 171"), whose validity we deal with here, the general zoning ordinance of Weymouth Township, Ordinance No. 144, adopted in 1966, established six zoning districts, one of which was designated "T-Trailer and Mobile Districts." In that district, property was permitted to be used for any use allowed in an R-A Rural Residence District and also for "trailer camps." The ordinance contained specific regulations concerning such camps and the specifications of lots on which mobile homes or trailers could be placed.
Ordinances Nos. 171 and 172, adopted on July 7, 1971 and on June 25, 1971, respectively, were obviously conceived as a single legislative program and intended to be read together, even though No. 171 uses the terminology of Ordinance No. 144 in rezoning the property of the defendant property owner (Block 85, Lots 1, 2 and 3) as a "Trailer and Mobile Home District."
No. 172 is an unusual ordinance. Although its title indicates that it is merely a regulatory ordinance concerning the parking, location and licensing of "mobile home parks," it actually functions as a zoning ordinance as well. Specifically, it prohibits "trailer parks . . . generally" within the township. However, it then provides that, upon recommendation of the planning board and approval by the township committee, mobile home parks may be established on tracts exceeding 140 acres. Moreover, each home site must be at least 5,000 square feet in area (section VI(b)), and no more than 20% of all mobile homes in any park may contain more than two bedrooms. Section XXII. Most important, the ordinance restricts occupancy of all mobile home parks to "elderly persons" or "elderly families." Section XXIII. Elderly persons are defined as persons 52 years of age or over, and elderly families as those "the head of which, or his spouse is 52 years of age or over." Section II. Occupancy of a mobile home or trailer outside an approved mobile home park is prohibited. Section XVII. Only three licenses for a mobile home park are permitted to be outstanding at any one time. Section XXI.
No. 172 also contains a "Declaration of Policy and Purpose," reciting the need for decent, safe and moderately priced housing for the elderly, the suitability of mobile home parks to satisfy this need and the necessity for regulation of such parks by the detailed regulatory and licensing provisions contained in the ordinance. These provisions apparently supersede the regulatory provisions of No. 144 relative to trailers and mobile home residences and parks or camps, although No. 172 states that it is "subject to
the provisions of Ordinance No. 144 and amendments thereto * * *."
The net effect of these ordinances is that defendant property owner's land now constitutes a zoning district which is restricted to use for mobile home parks (whose occupancy is limited exclusively to elderly persons or elderly families), or to any use permissible in an R-A Rural Residential District. Moreover, mobile homes or trailers are not permitted as residences anywhere in the municipality except as homes for the elderly or elderly families.
In July 1971, defendant property owner filed applications for a Mobile Home Park license and for a site plan review with the township committee and the township planning board as required by section V of No. 172. These applications were accompanied by the appropriate tender of fees. Because of the pendency of the instant litigation, no official action has been taken on these applications.
In October 1971, the Taxpayers' Association of Weymouth Township and several of its members who are individual property owners in Weymouth Township filed a joint complaint in lieu of prerogative writ challenging Ordinances Nos. 171 and 172 on a variety of grounds. Essentially, plaintiffs alleged that the ordinances were enacted improperly, have an unconstitutional effect on the rights of children, resulted from an unlawful conspiracy among the defendants and constituted illegal "spot zoning." After trial, the court ruled for defendants on all counts and dismissed the complaint with prejudice.
The Appellate Division reversed in a reported opinion and held that the age limitation of No. 172 was beyond the powers delegated to municipalities by the zoning enabling act, N.J.S.A. 40:55-30 et seq. Taxpayers Ass'n of Weymouth Tp. v. Weymouth Tp., 125 N.J. Super. 376 (App Div. 1973). The court also found the ordinance to be an unreasonable exercise of the police power and violative of the equal protection clause of the fourteenth amendment to the federal constitution. We granted the municipality's
petition for certification*fn1 and joined the case for oral argument with Shepard v. Woodland Tp. Comm., 71 N.J. 230 (1976), also decided today, to consider the validity and constitutionality of planned housing developments for the elderly. Because of the broad implications of this case, the Public Advocate and Leisure Technology Corp., a developer of planned housing developments for senior citizens, were permitted to appear as amici curiae.
We note initially that the trial court properly dismissed the unlawful conspiracy and illegal spot zoning challenges.*fn2 We also agree with its rejection of the claim that the Weymouth Township ordinances concern matters which should more properly arise through the variance procedure, N.J.S.A. 40:55-39(d),*fn3 and not by amendment to the zoning ordinance. Plaintiffs presented no evidence in support of the first claim and their counsel frankly conceded in his arguments to the trial court that this contention was without factual support. In addition, the trial judge correctly held that the third claim was only a restatement of plaintiffs' allegation of "spot zoning."
"Spot zoning" is the use of the zoning power to benefit particular private interests rather than the collective interests of the community. It is zoning which disregards the requrement of N.J.S.A. 40:55-32 that regulation be accomplished in accordance with a comprehensive plan to promote
the general welfare. Palisades Properties, Inc. v. Brunetti, 44 N.J. 117, 134 (1965); Kozesnik v. Montgomery Tp., 24 N.J. 154, 172-73 (1957); Hyland v. Mayor & Tp. Comm. of Morris Tp., 130 N.J. Super. 470, 477-78 (App. Div. 1974), aff'd o.b. 66 N.J. 31 (1974). An ordinance enacted to advance the general welfare by means of a comprehensive plan is unobjectionable even if the ordinance was initially proposed by private parties and these parties are in fact its ultimate beneficiaries. Kozesnik v. Montgomery Tp., supra, 24 N.J. at 173-74; Hyland v. Mayor & Tp. Comm. of Morris Tp., supra, 130 N.J. Super. at 478-79.
Plaintiffs bear the burden of proving that a zoning ordinance constitutes illegal "spot zoning." Ward v. Montgomery Tp., 28 N.J. 529, 539 (1959); Kozesnik v. Montgomery Tp., supra, 24 N.J. at 167. They have not successfully carried that burden in this case. In support of their claim, they could only establish (1) that the defendant property owner had initially suggested to the township committee that his land be rezoned for use as a trailer park and (2) that he would benefit by that rezoning. These isolated facts do not present a prima facie case of "spot zoning." Moreover, the uncontradicted testimony of the municipal officials established that, prior to the adoption of these ordinances, the planning board and the governing body gave conscientious consideration both to the appropriateness of this site as a mobile home park for the elderly and the effect of this use on the general well-being of the community. The law requires no more. Ward v. Montgomery Tp., supra, 28 N.J. 529.
The more important issues presented in this case were addressed by the Appellate Division in its opinion: whether the ordinances are beyond the authority delegated to municipalities
by N.J.S.A. 40:55-30 et seq.*fn4 and whether they violate principles of substantive due process or equal protection of the law.*fn5
Zoning is inherently an exercise of the State's police power. Rockhill v. Chesterfield Tp., 23 N.J. 117, 124-25 (1957); Schmidt v. Newark Bd. of Adjustment, 9 N.J. 405, 413-14 (1952); cf., Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926). Consequently, municipalities have no power to zone except as delegated to them by the Legislature. J.D. Construction Corp. v. Freehold Tp. Bd. of Adjustment, 119 N.J. Super. 140, 144 (Law Div. 1972); Kirsch Holding Co. v. Manasquan, 111 N.J. Super. 359, 365 (Law Div. 1970), rev'd on other grounds, 59 N.J. 241 (1971); Piscitelli v. Scotch Plains Tp. Comm., 103 N.J. Super. 589, 594-95 (Law Div. 1968); see N.J. Const. (1947), Art. IV, § VI, par. 2. In this regard, zoning powers are granted to municipalities by the zoning enabling act, N.J.S.A. 40:55-30 et seq. [71 NJ Page 264] Ordinances enacted under this grant of power, like other municipal ordinances, are accorded a presumption of validity which can only be overcome by an affirmative showing that the ordinance is arbitrary or unreasonable. Bow & Arrow Manor v. Town of West Orange, 63 N.J. 335 (1973); Harvard Enterprises, Inc. v. Madison, Tp. Bd. of Adjustment, 56 N.J. 362, 368 (1970); Vickers v. Gloucester Tp. Comm., 37 N.J. 232, 242 (1962), cert. den. 371 U.S. 233, 83 S. Ct. 326, 9 L. Ed. 2d 495 (1963); Ward v. Montgomery Tp., supra, 28 N.J. at 539; Bellings v. Denville Tp., 96 N.J. Super. 351, 356 (App. Div. 1967). Nevertheless, municipalities which exercise this power must observe the limitations of the grant and the standards which accompany it. Kohl v. Mayor & Council of Fair Lawn, 50 N.J. 268, 275 (1967); Morris v. Postma, 41 N.J. 354, 359 (1964); Rockhill v. Chesterfield Tp., supra, 23 N.J. at 125; Garden State Farms, Inc. v. Bay, 136 N.J. Super. 1, 20-21 (Law Div. 1975); Sussex Woodlands, Inc. v. Mayor & Council of West Milford Tp., 109 N.J. Super. 432, 437 (Law Div. 1970). Thus, ordinances adopted under the zoning enabling act must bear a real and substantial relationship to the regulation of land within the municipality. Bridge Park Co. v. Highland Park, 113 N.J. Super. 219 (App. Div. 1971); Garden State Farms, Inc. v. Bay, supra, 136 N.J. Super. at 20-21; see generally, Schmidt v. Newark Bd. of Adjustment, supra, 9 N.J. at 416-418. They must also advance one of the several purposes specified in the enabling statute. N.J.S.A. 40:55-32.*fn6 Among these purposes is to "promote . . . the general welfare," a capacious phrase which appears to encompass all the others. Southern Burlington Cty. NAACP v. Mt. Laurel Tp., 67 N.J. 151, 175 (1975), appeal dismissed 423 U.S. 803, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975). [71 NJ Page 265] The concept of the general welfare in land use regulation has been given an expansive interpretation by both this Court and the United States Supreme Court. See, e.g., Village of Belle Terre v. Boraas, 416 U.S. 1, 6, 94 S. Ct. 1536, 39 L. Ed. 2d 797, 802 (1974); Berman v. Parker, 348 U.S. 26, 32-33, 75 S. Ct. 98, 99 L. Ed. 27, 37-38 (1954); Kunzler v. Hoffman, 48 N.J. 277, 286-287 (1966); Roman Catholic Diocese of Newark v. Ho-Ho-Kus Borough, 42 N.J. 556 (1964); Black v. Montclair, 34 N.J. 105, 111 (1961); Andrews v. Ocean Tp. Bd. of Adjustment, 30 N.J. 245 (1959); Ward v. Montgomery Tp., supra, 28 N.J. 529; Fanale v. Hasbrouck Heights, 26 N.J. 320 (1958); Pierro v. Baxendale, 20 N.J. 17, 28-30 (1955); Lionshead Lake, Inc. v. Wayne Tp., 10 N.J. 165, 172-174 (1952), appeal dismissed 344 U.S. 919, 73 S. Ct. 386, 97 L. Ed. 708 (1953); Yahnel v. Jamesburg Bd. of Adjustment, 79 N.J. Super. 509, 516-518 (App. Div. 1963), certif. den. 41 N.J. 116 (1963); see generally, 8 McQuillin Municipal Corporations (3 ed. 1965) § 25.20 at 59-60. In this regard, the term is mutable and reflects current social conditions.*fn7 Southern Burlington Cty. NAACP v. Mt. Laurel Tp., supra, 67 N.J. at 176-177; Vickers v. Gloucester Tp. Comm., supra, 37 N.J. at 250; Pierro v. Baxendale, supra, 20 N.J. at 29; Fischer v. Bedminster Tp., 11 N.J. 194, 205 (1952); 8 McQuillin, supra, § 25.20 at 60. In today's economic and social setting, the term clearly encompasses the concerns of housing and related needs. Southern Burlington Cty. NAACP v. Mt. Laurel Tp., supra, 67 N.J. at 175, 178-180; DeSimone v. Greater Englewood Housing Corp. No. 1, 56 N.J. 428, 440-442 (1970); N.J. Mortgage
Finance Agency v. McCrane, 56 N.J. 414, 420 (1970) and cases cited; Oakwood at Madison v. Madison Tp., 117 N.J. Super. 11, 20 (Law Div. 1971), on remand 128 N.J. Super. 438 (Law Div. 1974), appeal pending; see also, Vickers v. Gloucester Tp. Comm., supra, 37 N.J. at 262-268 (Hall, J., dissenting). In fact, not only do housing needs fall within the purview of the "general welfare," but they have been recognized as "basic" by this Court. As Justice Hall wrote in Mt. Laurel:
This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms of the land use regulation which that relationship mandates. There cannot be the slightest doubt that shelter, along with food, are the most basic human needs. See Robinson v. Cahill, supra (62 N.J. at 483). "The question of whether a citizenry has adequate and sufficient housing is certainly one of the prime considerations in assessing the general health and welfare of that body." New Jersey Mortgage Finance Agency v. McCrane, 56 N.J. 414, 420 (1970).
The question therefore arises whether the ordinances under review serve to "promote . . . the general welfare." Cf. Roselle v. Wright, 21 N.J. 400, 408, 410 (1956). The relationship which the Weymouth ordinances bear to the general welfare can only be appreciated when viewed against the background of larger demographic and social changes that have recently occurred both in New Jersey and in the nation at large.
The United States is experiencing a sharp demographic shift. As a consequence of declining birth rates and longer life expectancies, the elderly are increasing both in absolute numbers and in relative proportion to the total population. In 1950, there were approximately 12.3 million persons over the age of 65 in the United States, comprising 8.2% of the total population. By 1970, these numbers had risen to approximately 20 million, and 9.9% of the total population. U.S. Bureau of the Census, 1970 Census of the Population, Characteristics of the Population: United States
Summary 1-276 (1973). More recent figures show that this age-group now includes more than 22 million people. If current trends continue, demographers project that there will be more than 29 million Americans over the age of 65 by the year 2000. Hearings on Specialized Housing and Alternatives to Institutionalization before a Subcomm. of the House Comm. on Gov't Operations, 93rd Cong., 2d Sess., at 2 (1974). Though the total population grew by one-third between 1950 and 1970, the number of elderly citizens in this country increased by nearly two-thirds. Ibid. In the next two decades, it is expected that the number of people between the ages of 65 and 74 will increase by an additional one-third and those 75 years of age and older will increase by 64%. Neugarten, "Age Groups in American Society and the Rise of the Young-Old," The Annals of the American Academy of Political and Social Sciences 193 (Sept. 1974). These national trends are reflected in the changing demographic composition of New Jersey as well. In 1950, New Jersey had approximately 394,000 residents over the age of 65, comprising 8.2% of its total population. By 1970, this number had grown to 697,000, and 9.7% of the population. U.S. Bureau of the Census, 1970 Census of the Population, Characteristics of the Population: New Jersey 32-64 (1973).
The rapid increase of the elderly population has brought increasing public recognition of the special problems confronting this age group. See generally, Older Americans Act of 1965, 42 U.S.C.A. §§ 3001 et seq.; N.J.S.A. 26:1A-107 et seq.; N.J.S.A. 52:27D-28.1 et seq., L. 1975, c. 36; Senior Citizens' Recreational Opportunities Act of 1968, N.J.S.A. 52:27D-29.1 et seq.; Retirement Community Full Disclosure Act, N.J.S.A. 45:22A-1 et seq.; White House Conference on Aging, Toward a National Policy on Aging (1971); President's Task Force on Aging, Toward a Brighter Future for the Elderly (1970); "Law and the Aged: Symposium," 17 Ariz. L. Rev. 267-545 (1975). Among these problems are the special housing
needs of the elderly. The lack of housing specially designed to meet the needs and desires of the elderly is a matter that has generated increasing public concern at both the national and state levels. See, e.g., 2 White House Conference on Aging, Toward a National Policy on Aging 29-36 (1971); President's Task Force on Aging, supra at 38-40; Hearings on Adequacy of Federal Response to Housing Needs of Older Americans Before the Subcomm. on Housing for the Elderly of the Senate Special Comm. on Aging, 92nd Cong., 1st Sess., 2nd Sess., 93rd Cong., 1st Sess., 2nd Sess., pts. 1-12 (1972-74); Hearings on Specialized Housing and Alternatives to Institutionalization Before a Subcomm. of the House Comm. on Gov't Operations, supra; N.J. Office on Aging, Proceedings -- Aging and Housing Conference (1972); N.J. Office on Aging, A Community Guide: Housing New Jersey's Elderly (1971) (hereinafter " Housing New Jersey's Elderly"); Div. of Aging, N.J. Dept. of State, Local Planning for Housing the Elderly (1964); Div. on Aging, N.J. Dep't. of State, Housing for an Aging Population (1962); K. Heintz, Retirement Communities: For Adults Only (Center for Urban Policy Research, Rutgers Univ., 1976) (soon to be published; hereinafter "Retirement Communities").
In part the need of the elderly for specialized housing results from the fixed and limited incomes upon which many older persons are dependent. In 1970, 82.3% of households in New Jersey with persons over the age of 65 had incomes of less than $10,000 and 62.1% had incomes of less than $5,000. N.J. Office on Aging, Detailed Housing and Income Information on the Elderly of New Jersey 2 (1973). By comparison, the median income for all families in New Jersey at that time was $11,407. Because many of the elderly derive their incomes from pensions, social security or other government benefit programs, or from interest on savings or income-producing securities, they are among those hardest hit by inflation and the current
statewide housing shortage. N.J. Dep't of Community Affairs, The Housing Crisis in New Jersey 1970 (1970). Consequently, many of the elderly cannot afford housing specifically designed for their needs, and in many cases are actually obliged to live in substandard housing. Housing New Jersey's Elderly, supra at 3. Many others must devote a disproportionate amount of their available resources to housing costs. N.J. Office on Aging, Detailed Housing and Income Information on the Elderly of New Jersey, supra at 4. Moreover, those who are homeowners must often forego proper maintenance and upkeep of their homes. Retirement Communities, supra at 2.
In part, though, the need for specialized housing transcends economic status and results from the particular physical and social problems of the elderly. The desirability of housing to meet the special physical needs of the elderly is summarized in a report by the N.J. Office on Aging:
The needs of the elderly differ from those of the rest of the general populace; muscles and skin become less pliable with increased age, bones become more brittle, and hearing and sight begin to fail. The older person has difficulty in performing normal home maintenance tasks.
To the elderly, accidents in the home are a real danger. Falls, for example, are the leading cause of accidental death for those 65 and over. Throw rugs, stairs and many other objects can cause serious accidents. Older people have different needs, and housing is one area where special consideration must be given. Plans should include more and wider walkways with fewer stairs, an interior and exterior designed to permit easy social contact, provision for common rooms, short distances between buildings, easy refuse collection, little maintenance, and well-lighted walkways and halls.
In addition, housing designed for the elderly should include such facilities as a central dining room, health care facilities and recreational facilities.
[ Housing New Jersey's Elderly, supra at 4].
See aso N.J. Office on Aging, Proceedings -- Aging and Housing Conference, supra at 37-41.
Though special social and psychological needs of the elderly are perhaps less obvious than their physical needs,
they are no less real. The elderly are apt to be less mobile than younger persons. They may have lost friends and relatives of comparable age and background. As a result, readily accessible companionship becomes increasingly important to them. In addition, the fact that children may have moved away sometimes causes elderly persons to seek an age-homogeneous environment to replace broken family ties. Retirement Communities, supra at 3. Such an environment also helps older citizens to adjust to the social and psychological effects of retirement. As one commentator observed:
Obviously, there are economic ramifications involved with retirement, but there are far subtler changes in life-style as well. . . . Retirement signals a change in social status and a need to find fulfillment in what many elderly view as excessive time. As one commentator suggests, ...