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Pascack Association Ltd. v. Mayor and Council of Township of Washington

Decided: March 23, 1977.


For modification -- Chief Justice Hughes, Justices Mountain, Sullivan, Clifford and Schreiber and Judge Conford. Dissenting -- Justice Pashman. The opinion of the Court was delivered by Conford, P.J.A.D., Temporarily Assigned. Sullivan, J. (concurring). Schreiber, J., concurring. Pashman, J., dissenting. Sullivan and Schreiber, J.J., concurring in the result.


[74 NJ Page 473] This appeal projects the significant issue as to whether, in the wake of the decisions of this court imposing upon developing municipalities the obligation of providing by zoning for the opportunity to create housing for the low and moderate income segments of the population, see So. Burl. Cty. N.A.A.C.P. v. Tp. of Mt. Laurel, 67 N.J. 151, app. dism. and cert. den., 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975) (Mount Laurel, hereinafter); Oakwood at Madison,

Inc. et al. v. The Township of Madison, 72 N.J. 481 (1977), (Oakwood at Madison, hereinafter) all municipalities, regardless of the state or character of their development, have an obligation to zone for multi-family housing on behalf of middle income occupants if there is a local and regional shortage of multifamily housing in general. More specifically, the issue is whether there is such an obligation on the part of a small municipality, developed substantially fully upon detached single-family dwellings and restricted accordingly in the residential provisions of its zoning ordinance.

Holding in the affirmative on the stated issues, the judgment of the Law Division mandated the grant of a building permit for such purpose to the appellant property owner with respect to its 30-acre tract of land. The Appellate Division reversed, and we granted certification to pass upon the important questions presented. 69 N.J. 73 (1975).

The initial action herein was commenced in 1970 when plaintiff Pascack Association Limited ("Pascack") filed a complaint in lieu of prerogative writ, attacking the rezoning of its property to permit the additional use of offices and research (OR) and challenging the validity of the prior ordinance limiting its residential development to two-acre single-family lots. Thereafter, in August 1971, Waldy, Inc. ("Waldy"), contract purchaser of the property involved, after unsuccessfully applying for a variance to build a 520 unit garden apartment complex on the property, began an action to set aside the variance denial and challenge the entire ordinance for failing to make provision anywhere for multi-family and rental housing. Shortly thereafter the actions were consolidated for trial. In May 1972 by leave of court an amended complaint was filed by both plaintiffs joining as party-defendant the trustees of the Washington Lakes Association and contesting the validity of certain private deed restrictions on file with the Bergen County Clerk's Office, enforcement of which would

preclude plaintiffs' proposed development on a portion of the tract.

On December 20, 1972, the trial court after a hearing issued a memorandum decision: (1) holding invalid the two-acre minimum lot size for single-family residences; (2) holding the entire Washington Township zoning ordinance invalid for failure to make any provision for "multiple and rental housing"; and (3) reversing the board of adjustment's denial of a recommendation for a use variance and remanding the application to the board for reconsideration.

The consequent judgment, entered January 16, 1973, restricted the invalidation of the ordinance to its prohibition of "multiple and rental housing" and the nullification of the lot size limitation. The order recited that it was a "final judgment" and that the court did not retain jurisdiction. There was no direction to the municipality to rezone within any specified period of time, as is customary in such situations.

On January 29, 1973, presumably in response to the judgment, the township passed Ordinance No. 73-1, rezoning a different 34-acre area (in diverse ownership) for multi-family residential use. On February 15, 1973 the board of adjustment again denied the application for a variance, and this decision was never appealed by plaintiffs.

On June 29, 1973, notwithstanding the trial court had not retained jurisdiction, plaintiffs moved in the action to compel the township to issue a building permit for the proposed 520-unit garden apartment complex. At the hearing on the motion, they charged that Ordinance 73-1 failed to "comply" with the court's prior judgment in that although 34 acres were zoned multi-family, in practical terms only 5 acres were available for multi-family construction and the zoning restrictions of the multi-family zone precluded construction meeting the economic and social needs of the area. The trial court agreed with this position, and on July 9, 1973 ordered the township to complete within 60 days "all rezoning required for compliance with the prior Judgment."

Defendants moved for an extension of time on the grounds that the township planning board had recommended adoption of an ordinance rezoning plaintiff's property and that litigation challenging Ordinance 73-1 was pending, but the motion was denied on August 1, 1973.

An appeal from both the July 9, 1973 and January 12, 1973 judgments was filed by the township on August 22, 1973. No timely rezoning having occurred, plaintiffs moved for an order directing the township to issue a building permit to plaintiffs for their proposed multi-family garden apartment complex. In response, the court in October 1973 appointed two planning experts to advise the court on whether Ordinance 73-1 complied with the court's January 1973 judgment, and, if not, to recommend a zoning plan which would so comply.

On January 9, 1974 the experts submitted their report and recommendations. They concluded that Ordinance 73-1 did not comply with the judgment and recommended inclusion of the plaintiffs' tract in the multi-family zone. In addition, they recommended densities in the multi-family zone of at least 6 and up to 9 units per acre. After a hearing on the report the trial court on February 26, 1974 filed an opinion, 131 N.J. Super. 195, ordering:

1) The issuance of a building permit to plaintiffs for construction of a two story garden apartment complex upon proper application by plaintiffs to all necessary agencies for site plan review;

2) The "maximum number" (sic) of multifamily units permitted plaintiff as a matter of right should be no less than 9 per acre;

3) Certain specified regulatory provisions (e.g., minimum off-street parking facilities, number of bedrooms, minimum floor area) were attached to plaintiffs' permit.

On February 6, 1974, over objection by both the township and Washington Lakes Association, the court dismissed as of October 30, 1972, without prejudice, the complaint attacking the validity of the private deed restrictions of that Association.

Defendant township filed another appeal from the January 12, 1973 judgment and the July 9, 1973 order, as well as from the February 6, 1974 order. Plaintiffs cross-appealed from the apartment specifications set forth in the court's judgment.

Plaintiffs moved to dismiss those portions of the consolidated appeals seeking to review the January 12, 1973 judgment as beyond the 45-day time limit provided by the rules for appealing a final judgment. The Appellate Division reserved decision on the motion until determination of the entire appeal, and it ultimately denied the motion because of the "public importance" of the judgment.

Pending the appeal herein, this court decided Mount Laurel in March 1975. The Appellate Division invited supplemental briefs as to the effect of that ruling on the trial court's determination of the invalidity of the ordinance for failure to zone for multi-family housing. In reversing, the Appellate Division, in an unreported per curiam opinion, held that Mount Laurel was not applicable, primarily for the reason that that decision was not authoritative except as to developing municipalities -- a category not represented by the township. We have concluded that that determination was essentially correct, and affirm to that extent.


We direct our attention first to the trial court holding that the ordinance was defective in not providing for multi-family housing. This determination rested on certain essentially undisputed operative facts. The township comprises 1,984 acres or 3 1/4 square miles. It is one of a group of Bergen County residential communities popularly referred to as the Pascack Valley, of which Washington Township is southernmost. The residential nature of the township is almost exclusively single family, on lots ranging from 5000 sq. ft. to two acres or more. These residences take up 94.5% of the land; commercial uses occupy 3.25%, and there are no industrial or multi-family residential uses (except a few

two-family houses). The remaining 2.3% is vacant land, there being no single parcel larger than that here involved.

The 1970 census population was 10,577, with a projection for 1980 on the master plan (made in 1963) of 10,800. There were in 1970 2,742 dwelling units. The growth of population since 1960 has been rapid, outstripping the rate of increase in surrounding municipalities. Housing density has increased from 41 units per square mile in 1950 to 862 in 1970. The average house was valued at $37,508 in 1970. Most houses are on lots of 75 x 100 feet or 100 x 100 feet, but there are many on half-acre lots and a considerable number larger.

In April 1970, 10% of the total single-family homes were renter occupied. In 1971 Bergen County had approximately 283,700 housing units, of which 90,360, or 31.9%, were rental. This may be compared with 5% for the Pascack Valley region. Five of the eight municipalities in the Pascack Valley region have no multi-family units, and the ratio of single-family units to all others is higher in the county than in the State as a whole.

The subject property is the largest undeveloped tract in the township. The plot is roughly rectangular in shape and, except for a few small lots, takes up the whole of the southeast corner of Pascack Road and Washington Avenue, with a total frontage of 774 feet on the former and 370 feet on the latter. On the east the tract abuts a single-family residential area on 7,500 and 10,000 square foot lots. To the west across Pascack Road is a restaurant and a bank followed by single-family residences in both directions. Proceeding west on Washington Avenue near plaintiff's property is a gas station, followed by a small used car lot and another gas station. Going east along Washington Avenue is a municipal firehouse followed by single-family residences. Aside from a vacant 9-acre parcel to the south, the tract mainly abuts single-family homes.

Although the plaintiffs' project has been represented by them at various times to be designed to accommodate middle

to moderate income renters, they firmly took the position at the hearing in January 1974 that if limited to a density of nine units per acre (as provided in the final judgment) they would not be able to provide rental units but only condominiums at a sale price of $50,000. In that event, moreover, there would be approximately 270 rather than 520 units.


Plaintiffs contend the Appellate Division should have dismissed the appeal from the January 1973 order as untimely in view of the trial court having designated it a final judgment. However, the substantive treatment of the subject matter by the trial court after the January 1973 order, its failure to expressly determine that there was "no just reason for delay", see R. 4:42-2, and the remand as to the variance issue, all combine to create ambiguity as to the finality of the January 1973 order. See Application of Tiene, 19 N.J. 149, 161 (1955). In any event, since subsequent orders of the court were appealable and were timely appealed, and the relationship thereto of the earlier order highly germane, we concur in the retention of the appeal by the Appellate Division, for all the reasons stated as well as the public importance of the issues presented.


The determination of the trial court as to invalidity of the ordinance in respect of absence of provision for multi-family housing was based upon the shortage of housing in Bergen County and the Pascack Valley region. The court found this condition operated to create a scarcity of dwelling accommodations affordable by persons, in and out of Washington Township, who needed housing but who were not able to make the average down payment of $8,000, or did not have the $19,000 minimum income requisite to

meet bank standards for a loan needed to purchase the average priced home for sale in the township.

The opinion of the court was that "All segments of the population should have a reasonable choice of living environments to the extent that it is possible * * *"; and that where, as in this part of Bergen County, there is a need for multi-family housing, there is "a statutory requirement to provide as part of a comprehensive plan for a well-balanced community at least some area, however limited it must be under the circumstances present here, where such housing may be constructed." Throughout the opinion zoning not providing for multi-family housing is described as "exclusionary zoning."

The trial opinion and judgment here was rendered prior to this court's determination in Mount Laurel, but plaintiffs bring to their aid the thesis that that case supports the trial court's rationale. However, the relevance of Mount Laurel here is affected by two important considerations: (1) the population category effectively excluded by the ordinance involved in Mount Laurel -- and the class intended to be relieved by our decision therein -- was that of persons of low and moderate income; (2) the municipal category subjected to the mandate of the decision was that of the "developing municipality."*fn1 It required the combined circumstances of the economic helplessness of the lower income classes to find adequate housing and the wantonness of foreclosing them therefrom by zoning in municipalities

in a state of ongoing development with sizeable areas of remaining vacant developable land that moved this court to a decision which we frankly acknowledged as "the advanced view of zoning law as applied to housing laid down by this opinion." 67 N.J. at 192.

We have recently reaffirmed and faithfully enforced the principles of Mount Laurel in an appropriate fact situation. See Oakwood at Madison, supra. But it would be a mistake to interpret Mount Laurel as a comprehensive displacement of sound and long established principles concerning judicial respect for local policy decisions in the zoning field. What we said recently in this regard in Bow & Arrow Manor v. Town of West Orange, 63 N.J. 335, 343 (1973), is worth repeating as continuing sound law:

It is fundamental that zoning is a municipal legislative function, beyond the purview of interference by the courts unless an ordinance is seen in whole or in application to any particular property to be clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning or the statute. N.J.S.A. 40:55-31, 32. It is commonplace in municipal planning and zoning that there is frequently, and certainly here, a variety of possible zoning plans, districts, boundaries, and use restriction classifications, any of which would represent a defensible exercise of the municipal legislative judgment. It is not the function of the court to rewrite or annul a particular zoning scheme duly adopted by a governing body merely because the court would have done it differently or because the preponderance of the weight of the expert testimony adduced at a trial is at variance with the local legislative judgment. If the latter is at least debatable it is to be sustained.

See also Kozesnik v. Montgomery Twp., 24 N.J. 154, 167 (1957); Vickers v. Tp. Com. of Gloucester Tp., 37 N.J. 232, 242 (1962), cert. den. and app. dism. 371 U.S. 233, 83 S. Ct. 326, 9 L. Ed. 2d 495 (1963).

There is no per se principle in this State mandating zoning for multi-family housing by every municipality regardless of its circumstances with respect to degree or nature of development. This court confronted a cognate problem in Fanale v. Hasbrouck Heights, 26 N.J. 320 (1958). We

there reversed a trial court decision invalidating an ordinance prohibiting any further construction of apartment houses in the entire borough. We said (at 325-326):

It cannot be said that every municipality must provide for every use somewhere within its borders. Duffcon Concrete Products, Inc. v. Borough of Cresskill, 1 N.J. 509 (1949); Pierro v. Baxendale, 20 N.J. 17 (1955). Whether a use may be wholly prohibited depends upon its compatibility with the circumstances of the particular municipality, judged in the light of the standards for zoning set forth in R.S. 40:55-32.

Apartment houses are not inherently benign. On the contrary, they present problems of congestion and may have a deleterious impact upon other uses. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 394, 47 S. Ct. 114, 71 L. Ed. 303 (1926). Accordingly, an ordinance has been upheld although it confined apartment houses to a small portion of the municipality. Guaclides v. Borough of Englewood Cliffs, 11 N.J. Super. 405 (App. Div. 1951); Fox Meadow Estates, Inc. v. Culley, 233 App. Div. 250, 252 N.Y.S. 178 (App. Div. 1931), affirmed, 261 N.Y. 506, 185 N.E. 714 (Ct. App. 1933). And elsewhere it has been broadly said that circumstances may permit a municipality to zone for a single use to retain its residential character. Valley View Village, Inc. v. Proffett, 221 F.2d 412 (6 Cir. 1955); Connor v. Township of Chanhassen, 249 Minn. 205, 81 N.W. 2d 789, 795 (Sup. Ct. 1957). No definitive pattern can be judicially prescribed; each case must turn upon its own facts.

While it is true that in Fanale, as contrasted with the factual situation here, the municipality already had a substantial number of apartments when the prohibitory ordinance was adopted, the principles enunciated in the foregoing excerpt from Fanale are nevertheless pertinent here. It is obvious that among the 567 municipalities in the State there is an infinite variety of circumstances and conditions, including kinds and degrees of development of all sorts, germane to the advisability and suitability of any particular zoning scheme and plan in the general interest. There must necessarily be corresponding breadth in the legitimate range of discretionary decision by local legislative bodies as to regulation and restriction of uses by zoning. The legislative designation of the purposes and criteria of zoning, as set forth in N.J.S.A. 40:55-32, is broad and comprehensive,

its most dominant notes being (a) avoidance of undue crowding of uses: e.g., "lessen congestion in the streets; * * * provide adequate light and air; prevent the over-crowding of land or buildings; avoid undue concentration of population * * *"; and (b) consideration of the character of the district and its peculiar suitability for particular uses and encouraging the most appropriate use of land throughout the municipality.*fn2

Beyond the judicial strictures against arbitrariness or patent unreasonableness, it is merely required that there be a substantial relation between the restraints put upon the use of the lands and the public health, safety, morals, or the general good and welfare in one or more of the particulars involved in the exercise of the use-zoning process specified in the statute. Delawanna Iron and Metal Co. v. Albrecht, 9 N.J. 424, 429 (1952).

Without in any way deprecating the recent salutary judicial, executive and legislative efforts at promoting the construction of multi-family housing to meet an obvious and urgent need therefor, see Mount Laurel, supra, 67 N.J. at 178-180; Oakwood at Madison, supra, 72 N.J. at 531-532, 535, there has been no fundamental change, beyond the holding in Mount Laurel itself, in the statutory and constitutional policy of this State to vest basic local zoning policy in local legislative officials. N.J. Const. 1947, Art. 4 § 6, par. 2; cf. Art. 4, § 7, par. 11 (liberal construction of powers of municipal corporations). Thus, maintaining the character of a fully developed, predominantly single-family residential community constitutes an appropriate desideratum of zoning to which a municipal governing body may legitimately

give substantial weight in arriving at a policy legislative decision as to whether, or to what extent, to admit multi-family housing in such vacant land areas as remain in such a community. Cf. Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974); Fanale v. Hasbrouck Heights, supra, 26 N.J. at 326, quoted above.

Unless there is something in Mount Laurel, either directly or by compelling analogy, to persuade otherwise, the long held principles just stated must be controlling here. During the period of development of Washington Township it served a widespread contemporaneous demand of people employed elsewhere for single-family residential housing -- a kind of housing traditionally highly valued by the American family -- and until fairly recent years affordable by the average family. Such development was characteristic of many communities. It served a basic social and regional need. There was thus nothing invidious about such development or about the decision of the township municipal planners in 1963 to continue that basic scheme of development in order to maintain the established character of the community. Such a determination fully accorded with the statutory criteria of consideration of the character of the municipality and the most appropriate use of land throughout the municipality. As to the potential deleterious zoning effects of emplacing apartment house projects amidst solid single-family development, as here, see Leimann v. Board of Adjustment, Cranford Tp., 9 N.J. 336, 341-342 (1952); Shipman v. Town of Montclair, 16 N.J. Super. 365, 370 (App. Div. 1951). In the same tenor, in part, was the report of the planning experts appointed by the trial court and the testimony of the opposing planning experts herein.

The decision of the municipal legislators, prior to the institution of the present litigation, to keep the municipality free from multi-family development, was, for the reasons stated above, not an arbitrary one, although, concededly, respectable arguments could be mounted for a different policy determination.

Nor is the reasonableness of the municipal residential zoning policy affected by the experimental and defensible zoning decision to try to attract commercial ratables by expanding the permitted uses of some areas, including the instant property, for professional, office and research purposes.*fn3 See Gruber v. Mayor and Tp. Com. of Raritan Tp., 39 N.J. 1, 9-11 (1962); Mount Laurel, supra, 67 N.J. at 185. Whether that regulation was so factually unjustified as to merit judicial nullification was not decided by the trial court and it is not an issue here.

But the overriding point we make is that it is not for the courts to substitute their conception of what the public welfare requires by way of zoning for the views of those in whom the Legislature and the local electorate have vested that responsibility. The judicial role is circumscribed by the limitations stated by this court in such decisions as Bow & Arrow Manor and Kozesnik, both cited above. In short, it is limited to the assessment of a claim that the restrictions of the ordinance are patently arbitrary or unreasonable or violative of the statute, not that they do not match the plaintiff's or the court's conception of the requirements of the general welfare, whether within the town or the region.

The Public Advocate argues that the lesson of Mount Laurel and the implications of such decisions as Sente v. Mayor and Mun. Coun. Clifton, 66 N.J. 204 (1974) and DeSimone v. Greater Englewood Housing Corp. No. 1, 56 N.J. 428 (1970), are that housing needs of all segments of the population are a priority charge on the zoning regulations of all municipalities, whether or not developed. There is no such implication in the cases cited, individually or collectively. None of them stands for the proposition that because of the conceded general shortage of multi-family

housing the zoning statute has, in effect, been amended to render such housing an absolutely mandatory component of every zoning ordinance -- as virtually contended for by plaintiffs and the Public Advocate. In this regard, it is significant that the Legislature has just completed a comprehensive revision of the zoning statute and has made no change approaching the impact of the proposition just stated.*fn4 See note 2, supra, p. 483.

There are allusions in the briefs to approving references in our cases to zoning for an appropriate variety and choice of housing, see, e.g., Mount Laurel, 67 N.J. at 174, 179, 187, and corollary arguments that such references support the thesis that all municipalities must zone for housing for all categories of the population, middle and upper classes as well as low and moderate income. A moment's reflection will suffice to confirm the fact that such references contemplate fairly sizeable developing, not fully developed municipalities -- particularly small ones -- which may vary in character from such a tiny municipality as Winfield in Union County, developed in a dense, moderate-income, multi-family residential pattern, to one like the subject municipality, homogeneously and completely developed as a middle-upper income, moderate to low density, single-family community. The ideal of the well balanced community, providing all kinds of housing for a cross-section of the regional population pattern, is, quite obviously, realizable physically only in the kind of

developing municipality of sizeable area identified in Mount Laurel as such, see 67 N.J. at 160, or perhaps in a developed municipality undergoing thorough-going redevelopment of blighted areas.*fn5

What Justice Hall probably had in mind, in this regard, when writing for the court in Mount Laurel, supra, was foreshadowed when he said, in his noted dissent in Vickers v. Tp. Com. of Gloucester Tp., supra (37 N.J. at 252, 253)

The instant case, both in its physical setting and in the issues raised, is typical of land use controversies now current in so many New Jersey municipalities on the outer ring of the built up urban and suburban areas. These are municipalities with relatively few people and a lot of open space, but in the throes, or soon to be reached by the inevitable tide, of industrial and commercial decentralization and mass population migration from the already densely settled central cores. They are not small, homogeneous communities with permanent character already established, like the settled suburbs surrounding the cities in which planning and zoning may properly be geared around things as they are and as they will pretty much continue to be. (emphasis added).

We are, of course, not insensitive to the current social need for larger quantities of affordable housing of all kinds for the general population. See Mount Laurel; Oakwood at Madison, supra, both passim; Inganamort, et al. v. Bor. of Fort Lee, et al., 62 N.J. 521, 527 (1973). A possibility of some relief in that regard is contained within the statutory special exception or variance processes. See Mount Laurel, 67 N.J. at 181-182, n. 12. But insofar as ...

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