For reversal and remandment -- 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 is a companion case to Taxpayers Ass'n of Weymouth Tp. v. Weymouth Tp., 71 N.J. 249 (1976), rev'g 125 N.J. Super. 376 (App. Div. 1973). It too concerns the validity and constitutionality of zoning for planned housing developments for the elderly.
The facts are essentially undisputed. In April 1973 the township committee of Woodland Township, Burlington County, amended certain sections of its zoning ordinance to permit "senior citizen communities" as a special use exception in a residential-agricultural district.
Section 601 of the municipal zoning ordinance was amended to provide:
Purpose. It is the purpose of this zone to preserve the open agricultural character of this section of the Township, and, at the same
time, provide an area for large lot residential development, and/or Senior Citizen Communities
[Amended portion italicized]
Section 603, which authorizes the zoning board of adjustment to permit certain "special uses" in that district with the approval of the township committee, was also amended to permit establishment of senior citizen communities as follows:
8. Senior Citizen Communities. In R-A Zones where one or more parcels of land having a contiguous 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.
The remaining provisions of the amendatory ordinance prescribe the terms and conditions under which these communities are to be constructed and operated. They provide that senior citizen developments may include, as permissible uses, single-family dwellings, one-story attached dwellings (such as townhouses and apartments), limited commercial and service facilities "intended primarily for the use and convenience of the residents" and shopping centers as a "special permitted use." These amendments also require that developers furnish certain recreational and cultural facilities, including a clubhouse and recreational building, a shuffleboard court and a swimming pool. These facilities are intended for the sole benefit of community members and their guests. Finally, the amendatory ordinance contains detailed specifications concerning residential densities, green areas, maximum building coverage, set backs, minimum floor areas, roads and drainage, parking facilities, utilities,
sanitation, fire protection and protection of topsoil, trees, water courses and unique physical and historical landmarks.
In accordance with the procedures and standards established in the Woodland Township zoning ordinance, defendant Sunny Pine, Inc., a/k/a Crestwood Village, Inc. (hereinafter "Sunny Pine") submitted an application to the township zoning board of adjustment for a special use permit to construct a senior citizen community on a tract of land within the township. While the application was pending before the board, plaintiff, a resident of Woodland Township,*fn1 initiated this action challenging the amendatory ordinance as an improper exercise of the zoning power and as an unconstitutional provision.*fn2 The matter was heard on cross-motions for summary judgment.
The trial court in a reported opinion held that zoning for senior citizen communities "is not foreign to the authority granted to municipalities in the [zoning] enabling act." Nonetheless, the court found the specific age qualifications in the Woodland Township ordinance which restrict residency to persons 52 years of age and over to be "constitutionally impermissible." Shepard v. Woodland Tp. Comm., 128 N.J. Super. 379, 384 (Ch. Div. 1974). The Appellate Division, with one judge dissenting, affirmed but modified the lower court decision. Relying on the Appellate Division decision in Taxpayers Ass'n of Weymouth Tp. v. Weymouth Tp., supra, the court held that zoning for this type of planned housing does not constitute a valid exercise
of the zoning power. Concluding that the Woodland Township amendatory ordinance was invalid in its entirety, the court found it unnecessary to determine the validity of the residence requirements. Shepard v. Woodland Tp. Comm., 135 N.J. Super. 97 (App. Div. 1975).*fn3
Defendant Sunny Pine appealed as of right. R. 2:2-1(a). Defendants Woodland Township Committee and Planning Board and Larry Jones, the township building inspector, declined to appeal but did file a respondent's brief pursuant to R. 2:6-4. Motions were granted to permit the Retirement Communities Council of the New Jersey Builders Association and the Manchester Communities Coordinating Council to file briefs as amici curiae.*fn4 The cause was
joined for argument before this Court with Taxpayers Ass'n of Weymouth Tp. v. Weymouth Tp., supra (hereinafter "Weymouth Tp.").
We first address the issue whether zoning for planned housing developments for the elderly constitutes a valid exercise of the municipal zoning power under the pertinent enabling legislation. N.J.S.A. 40:55-30 et seq.*fn5 In Weymouth ...