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Montgomery Associates v. Township of Montgomery

Decided: March 1, 1977.


Meredith, J.s.c.


Plaintiff Montgomery Associates seeks to build an apartment complex in Montgomery Township on property in an R-1 zone (single-family residential). It applied for and was denied a variance by the board of adjustment. This proceeding in lieu of prerogative writs challenging that decision was then instituted. It was a two-count complaint attacking both the denial of the variance and the underlying zoning ordinance. The denial of the variance was upheld by this court in its letter opinion dated April 29, 1976. The only issue remaining to be decided is the constitutionality of the Montgomery zoning ordinance.

A plenary trial was held February 28-March 1, 1977. At that hearing Michael Kauker, a planner retained by plaintiff, admitted that Montgomery Township's zoning ordinance provided for its "fair share" of the regional housing needs of low and moderate-income families. He estimated that Montgomery Township, a developing municipality under South Burlington Cty. N.A.A.C.P. v. Mt. Laurel Tp. , 67 N.J. 151, app. dism. and cert. den. 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975), with a population of 6,590, covering 32.8 square miles, had to allow for the construction

of approximately 1,700 units to meet the prospective need over the next 20 years.

Presently multi-unit dwellings are allowed only in the APT/TH zone, a 459-acre tract of land in the southeastern corner of the township. Kauker estimated that between 2,700 and 3,600 apartment units could be built within this zone. This is more than sufficient to meet the "fair share" obligation of Montgomery Township, even assuming that the available land is never fully developed. See Oakwood at Madison, Inc. v. Madison Tp. , 72 N.J. 481 (1977).

Despite this, plaintiff characterized its suit against the zoning ordinance as founded on Mount Laurel criteria. Plaintiff advanced this contention by focusing on the following language from Mount Laurel: "We conclude that every such [developing] municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing." 67 N.J. at 174 (emphasis added). Plaintiff asked that this court interpret the phrase "variety and choice of housing" to mean that a municipality cannot designate just one area of the township for apartment units, but must scatter them throughout the municipality so that apartment dwellers can have a variety in choosing where within the township they will live. Defendant disagreed and moved for an involuntary dismissal at the close of plaintiff's case. While our Supreme Court has not precisely defined the phrase "variety and choice," this court does not feel that Mount Laurel , together with the recent decision in Oakwood at Madison , lends credence to plaintiff's novel argument. Instead, the court views this suit as a dispute over differing planning concepts, instead of reaching the constitutional dimensions of Mount Laurel. Defendant's motion is therefore granted.

The decision in Mount Laurel was premised upon a judicial recognition of the desperate need for low and moderate income housing. 67 N.J. at 158. Where a municipality excludes those individuals who would have a negative impact on the tax base, it exacerbates the critical shortage of decent

housing in New Jersey. Thus, Mount Laurel was aimed at reversing the exclusionary effects of fiscal zoning. Oakwood at Madison, supra , 72 N.J. at 491 (Schreiber, J., concurring and dissenting.)

Further insight into the meaning and effect of Mount Laurel can be gleaned from our Supreme Court's decision in Oakwood at Madison, supra. There the court grappled with some of the many questions that have arisen post Mount Laurel. The court directed that trial courts, in reviewing the constitutional validity of a local zoning ordinance, give attention "to the substance of a zoning ordinance under challenge and to bona fide efforts toward the elimination or minimization of undue cost-generating requirements in respect of reasonable areas of a developing municipality." 72 N.J. at 499.

The court, recognizing that in the absence of governmental subsidization private enterprise is unlikely to build housing within the financial reach of low and moderate income families, adopted a "least cost" approach to new construction. Id. at 513. Least cost housing is that housing which is consistent with minimum health and safety requirements, yet unfettered by unnecessary cost-generating requirements. Id. at 512. The logic behind this requirement is the hope that building new housing within the reach of moderate income families will have a beneficial "filtering down" impact on housing for lower income families.

Thus, as our Supreme Court affirmatively states, "Nothing less than zoning for least cost housing will, in the indicated circumstances, satisfy the mandate of Mount Laurel." Oakwood at Madison, supra , 72 N.J. at 513 (footnote omitted). The question posed by this law suit is: What is the allowable scope of discretion of local governing bodies in zoning for an appropriate number of least cost housing units? This court believes that despite the judicial activism ...

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