[161 NJSuper Page 320] This action in lieu of prerogative writs is before the court on amended complaint filed by plaintiffs Southern Burlington County N.A.A.C.P. and certain individuals, alleging failure by defendant Township of Mount Laurel to comply with an order of this court as modified by the Supreme Court, whose opinion is reported sub nom. Southern Burlington Cty. NAACP v. Mount Laurel Tp. , 67 N.J. 151 (1976), which declared portions of the zoning ordinance of the township to be invalid and directed that they be amended in a manner so as to safeguard the civil rights of the plaintiff. In the present action Davis Enterprises has intervened as plaintiff by leave of the court upon grounds and for reasons hereinafter stated.
The original complaint alleged that the zoning ordinance was so designed so systematically to exclude from the township the development of residential housing such as would be available to persons of low and moderate incomes. Plaintiffs contended that the effect was that numbers of persons, including the individual plaintiffs, were forced to live in housing which was seriously substandard, in a state of advanced deterioration and without even the most basic and elemental municipal services, particularly water and sewer, and that others of low or moderate income were denied the opportunity to live in the township.
A trial was held before Judge Martino, whose opinion is reported as Southern Burlington Cty. NAACP v. Mount Laurel Tp. , 119 N.J. Super. 164 (Law Div. 1972). Judge Martino found that the intent as well as the design and effect of the ordinance were to control affirmatively the residential development of the township so as to attract what he called a "selective type of growth". The restrictions imposed thereby were found to be so onerous as to drive the minimum cost of a house, completely bare and built by nonunion labor, to a level which would not qualify for federally subsidized programs within the reach of the individual plaintiffs. Mobile homes were excluded entirely. All types of multi-family housing were also excluded, except on farms under limited conditions.
The proofs further demonstrated that township officials, in public statements, freely acknowledged a purpose to limit or exclude low or moderate-income housing.
Judge Martino stated his conclusion as follows:
The patterns and practice clearly indicate that the defendant municipality through its zoning ordinance has exhibited economic discrimination in that the poor have been deprived of adequate housing, and the opportunity to secure the construction of subsidized housing and has used federal, state, county and local finances and resources solely for the betterment of middle and upper-income persons. The zoning ordinance, is, therefore, declared invalid.
He thereupon ordered that the township, upon the entry of judgment, immediately undertake a study to identify:
a. The existing sub-standard dwelling units in the township and the number of individuals and families, by income and size, who would be displaced by an effective code-enforcement program;
b. The housing needs for persons of low and moderate income:
1. Residing in the township;
2. Presently employed by the municipality or in commercial and industrial uses in the township;
3. Expected or projected to be employed by the municipality or in commercial and industrial uses, the development of which can reasonably be anticipated in the township.
Defendant township was directed, upon the completion of such investigation, to establish, to the extent possible, an estimated number of both low and moderate-income units which should be constructed in the township each year to provide for the needs as identified in the quoted paragraph. Defendant was further directed, upon completion of such analysis to
The township was directed to explain in detail any circumstances which it might find to exist which would tend to bar implementation of such plan. Time limits were set for required compliance with the court's order. That portion of the judgment declaring the ordinance invalid was suspended until the township should have sufficient time to enable it to "enact new and proper regulations for the municipality".
Appeal by defendant township and cross-appeals by certain of the plaintiffs were certified by the Supreme Court on its own motion before argument in the Appellate Division.
The Supreme Court generally affirmed the findings and conclusions of the trial court, which it summed up thus:
The record thoroughly substantiates the findings of the trial court that over the years Mount Laurel "has acted affirmatively to control development and to attract a selective type of growth" (119 N.J. Super. at 168) and that "through its zoning ordinance has exhibited economic discrimination in that the poor have been deprived of adequate housing and the opportunity to secure the construction of subsidized housing, and has used federal, state, county and local finances and resources solely for the benefit of middle and upper-income persons. [67 N.J. at 170]
The court accepted the representation of the township that the regulatory scheme of the zoning ordinance was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility. Nevertheless, it accepted the view that the effect of Mount Laurel's land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. 67 N.J. at 159. It stated the duty of Mount Laurel (and developing municipalities generally) as follows:
We conclude that every such municipality must by its land use regulations presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of a municipality's fair share of the present and prospective regional need therefor. These obligations must be met unless the particular municipality can sustain the heavy burden of demonstrating peculiar circumstances which dictate that it should not be required so to do. We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs. [at 174]
The court found the Mount Laurel zoning ordinance to be unconstitutional in a number of respects:
1. It permitted basically only one type of housing -- single-family detached dwellings, thus excluding all other
types, e.g. , all multi-family and apartment-type dwellings, town (row) houses, and mobile home parks.
2. Such apartment-type housing as was permitted in Planned Unit Developments (PUD's) was so circumscribed by restrictions as to size, number of bedrooms, etc., as to insure that such housing should be available only to the relatively affluent and of no benefit to low and moderate income families.
3. The ordinance was so restrictive in minimum lot area, lot frontage and building size requirements as to preclude single-family housing for even moderate-income families.
The court opined that the ordinance was "presumptively contrary to the general welfare and outside the intended scope of the zoning power in the particulars mentioned," and that "a facial showing of invalidity" has been established, "shifting to the municipality the burden of establishing valid superseding reasons for its action and non-action."
Rejecting the reasons advanced by the township (chiefly based on economic, tax and environmental considerations) the court concluded:
By way of summary what we have said comes down to this. As a developing municipality Mount Laurel must, by its Land Use Regulations, make realistically possible the opportunity for an appropriate variety and choice of housing for all categories of people who may desire to live there, of course including those of low and moderate income. It must permit multi-family housing, without bedroom or similar restrictions, as well as small dwellings on very small lots, low cost housing of other types, and, in general, high density zoning without artificial and unjustifiable minimum requirements as to lot size, building size and the like, to meet the full panoply of these needs. [at 187]
The court added that the obligation to afford the opportunity for decent and adequate low and moderate-income housing extends at least to the municipality's present and prospective need therefor. It suggested that in the task of determining this township's fair share of a regional need resort may be had to the expertise of the municipal planning
advisor, the county planning board and the state planning agency. Thus, it suggested, "a reasonable figure for Mount Laurel can be determined, which can then be translated to the allocation therefor on the zoning map." 67 N.J. at 190. It added the thought that the type of information called for in Judge Martino's original order concerning the needs of persons of low and moderate income now or formerly residing in the township in substandard dwellings, and those presently employed or reasonably expected to be employed therein, will be pertinent.
Finally, the court concluded that the judgment of the trial court invalidating the zoning ordinance in toto was too broad. It declared it to be invalid only to the extent and in the particulars set forth in the opinion. The township was granted 90 days from the date of the mandate or such additional time as the trial court might allow to adopt amendments to correct the various deficiencies specified. It is, said the court, "the local function and responsibility, in the first instance at least, * * * to decide on the details of the same within the guidelines we have laid down. If plaintiffs desire to attack such amendments they may do so by supplemental complaint filed in this cause within 30 days of the final adoption of the amendments." 67 N.J. at 191.
As a sort of clarifying postlude, the court added:
The municipality should first have full opportunity to itself act without judicial supervision. We trust it will do so in the spirit we have suggested, both by appropriate zoning ordinance amendments and whatever additional action encouraging the fulfillment of its fair share of the regional need for low and moderate income housing may be indicated as necessary and advisable. (We have in mind that there is at least a moral obligation in a municipality to establish a local housing agency pursuant to state law to provide housing for its resident poor now living in dilapidated, unhealthy quarters). The portion of the trial court's judgment ordering the preparation and submission of the aforesaid study and report and plan to it for further action is vacated as at least premature. * * * Should Mount Laurel not perform as we expect, further judicial action may be sought by supplemental pleading in this cause." [at 192]
The township sought certiorari in the Supreme Court of the United States which was denied.
Immediately following the New Jersey Supreme Court's opinion the township commenced gathering information through its land planner, Louis Glass, for the purpose of studying the problems of exclusionary zoning and fair share plans. Under the direction of Judge Martino defendants were to make 90-day progress reports to the court. Ultimately, the planning board approved a series of amendments to the zoning ordinance which were enacted in May 1976 as Ordinance 1976-5.
Pursuant to the leave given by the Supreme Court plaintiffs thereafter filed the present action challenging the amendments and expanding the original allegations of the complaint to include an attack on the ordinance for failure to provide mobile home parks and failure to include such an alternate type of housing in the amendatory ordinance.
In this action Davis Enterprises intervenes as an additional plaintiff, by leave of the court, to litigate "all issues which the intervenor has in common with the litigants in this case". The complaint filed by Davis joins the other plaintiffs in alleging noncompliance by Mount Laurel with the decision of the Supreme Court.
Davis is a landowner and developer who seeks to develop and construct a mobile home community which would provide housing to persons of low and moderate income. The tract upon which he proposes to erect this development contains approximately 107 acres situate at the intersection of Mount Laurel Road and Elbow Lane Road -- an area presently zoned R-3. His repeated applications and requests for approval of such development and for zoning changes to permit the same have been uniformly rejected by the township. He here seeks judgment declaring provisions of the zoning ordinance having the effect of prohibiting the use and development of mobile homes and mobile home parks anywhere within the township to be illegal and invalid, and further seeks judgment
affirmatively directing the township to permit the development by him of a mobile home park on the tract in question.
The case was tried on the central contention of all plaintiffs that Mount Laurel has failed to comply with the direction of the Supreme Court that it adopt amendments to correct the deficiencies specified in the court's opinion.
Mount Laurel contends that the adoption of Ordinance 1976-5 constitutes compliance with these directives and that, by its adoption, the township has taken the steps required of it to make realistically possible, by its land use regulations, an appropriate variety and choice of housing, and that the effect of the amendments is to afford to the extent of its fair share the opportunity for people of low and moderate income to obtain housing within the township.
Plaintiffs, on the other hand, assert that Ordinance 1976-5 is ineffective to constitute compliance with the directive of the Supreme Court. Further, they seek not only the invalidation of Ordinance 1976-5 but also an order for greatly expanded remedies. What they now demand is judgment requiring township to take "affirmative action" to afford low and moderate-income housing within the municipality in accordance with what they contend is the municipality's fair share.
I. The Amending Ordinance
We proceed to examine the amendatory ordinance proffered by the township as establishing compliance.
Ordinance 1976-5 was passed and adopted on April 19, 1976. It is entitled "An Ordinance of the Township of Mount Laurel -- Amending and Supplementing an Ordinance known as the Mount Laurel Zoning Ordinance of 1964 and Providing for the Establishment of R-5, R-6 and R-7 Districts To Comply with the Order of the New Jersey Supreme Court dated March 24, 1975."
The three new zoning classifications established are designated as follows:
R-5 -- Townhouse-Garden Apartment District
R-6 -- Single Family District
R-7 -- Multi-Family District
Garden Apartments and Townhouses are defined as follows:
[Garden Apartments] -- A group of multi-family dwellings, architecturally designed with one unit placed on top of another unit up to three units in height, designed for rental or sale of the individual units, having common open spaces, and designed in accordance with the requirements for such dwellings as set forth in this ordinance.
[Townhouses] -- A building that has not less than three or more than eight one-family adjacent dwelling units erected in a row as a single building, each being separated from the adjoining unit or units by an approved masonry party or partition wall or walls, thus creating distinct units intended for separate ownership or rental. This definition shall also include such terms as "row house", "patio house", "court dwelling", "maisonette", etc.
The ordinance preliminarily declares as its objective: "* * * to comply with the new Supreme Court's order of March 24, 1975, regarding zoning in the township." It recites that the township "has undertaken a study to determine the present housing need for families currently living in Mount Laurel, based on income levels and condition of housing." The base year of 1970 is selected "for statistical consistency, in order to utilize the information available from the U.S. census."
Certain factual determinations or assertions resulting from the study are set forth as follows:
By a "door-to-door field survey" there are found to be 36 existing occupied substandard houses.
It is found that there are 67 "financially deficient" families (defined as resident families and unrelated individuals with incomes up to $10,000).
The recited study ascertained the number of existing housing units in 1970 valued up to $20,000, or renting for no more than $199 a month, and found the "excess number of low income families over available housing units."
The "present need" is thereupon stated to have been "set at 36 substandard units and 67 financially deficient families for a total of 103 units."
A calculation is made based upon a determination "by detailed engineering study" of the availability of developable land in the township, the availability of such land in Burlington County, the ratio of developable land in the township to developable land in the county, and the total number of future units to be "allocated to Burlington County with household incomes up to $10,000" to the year 2000. Mount Laurel's fair share to the year 2000 is set at 515 units.
There follows a "housing timetable," projecting development or building of housing units for the "first five years," setting forth the present need for 103 units, and projecting thereafter the building of 17 units per year for the "first five years." A five-year review is provided to determine whether modifications in this timetable are necessary. To be considered in this quinquennial review are the rate of housing development in the township, the size of lots developed, population and housing data presented in the next U.S. census, employment and commercial development, and "all other pertinent criteria."
The ordinance proceeds to provide detailed "design standards" and density regulations for the housing permitted in the newly created districts. In the R-5 (Townhouse-Garden Apartment) zone there is permitted a maximum of ten units per acre and there is a required allocation of not less than 2,000 square feet of lot area per bedroom. In the R-6 (Single-family) zone the minimum lot size is 6000 square feet with a prescribed average lot frontage of 50 feet. Lots with frontage of "more or less" than 50 feet are permitted, provided that the average frontage for all lots shall not be less than 50 feet.
With respect to the newly created R-7 zone the ordinance recites the previous approval of four planned unit development (PUD) projects and the court's criticism by its present
decision that the regulations pertaining to them "sharply limit the number of apartments having more than one bedroom." The ordinance, "in order to remedy this situation and to comply with the court's order," creates the R-7 zone "by removing certain conditions in multi-family sections of planned unit development districts where such R-7 zone shall be applicable." It further provides that "at the option of the developer, the applicable multi-family sections shall be exempt from specific conditions of approval specified in Exhibit D." (This exhibit is a list of certain elaborate conditions otherwise applicable to all planned unit developments.)
The ordinance adds a series of "control provisions," setting out procedures and conditions for the obtaining of approval of development in the newly created districts. These provisions include the requirements that the applicant make and furnish a traffic impact study, economic cost benefit study, a study of municipal services to indicate the extent of existing services and the need for additional services to meet the needs of the project, an environmental impact statement to be prepared in accordance with guidelines and practices of the New Jersey Department of Environmental Protection, and a study of the impact of the projects on the "Housing Timetable." Such statement must "indicate the number of qualified units proposed, the price or rental ranges, and how the applicant intends to make the units available to qualified families."
Other regulations include provisions for performance bonds, maintenance guarantees and the imposition of penalties for deviations or violations.
The designated districts are as follows:
R-5 is located on the township line between Moorestown and Mount Laurel, bounded on the northeast by Pennsauken Creek and containing 13 acres, more or less.
R-6 is located on the west side of Hartford Road 823 feet from its intersection with the southeasterly side of the Hainesport-Mount Laurel ...