On appeal from Superior Court of New Jersey, Law Division, Passaic County.
Plaintiff applied to the Wayne Township Planning Board "for a change in the zoning" of a tract of land owned by it to "a Planned Unit Development Zone wherein four high rise residential apartment buildings" were proposed. The planning board rejected the application. Plaintiff appealed to the board of adjustment, which concurred in the determination of the planning board. Plaintiff brought a prerogative writ action challenging the rejection of its proposal. The trial judge wrote the following letter to counsel for the parties:
As I recall the discussion at our last conference it was suggested that the court defer the question of whether the plaintiff should be required to exhaust his statutory remedy of application for a variance.
Instead, it was suggested that the parties immediately attack the issue presented by the plaintiff that in light of So. Burl. Cty. N.A.A.C.P. v. Tp. of Mt. Laurel , 67 N.J. 151 (1975), and specifically the first paragraph on page 174, that the Wayne zoning ordinance is unconstitutional and is invalid as it bears upon the zoning statutes, in that it makes no provision for upper middle income and luxury high-rise apartments of high density per acre usage as distinguished from garden apartment construction which is permissible under the ordinance and has resulted in the construction of approximately 4,000 of such housing units rented to persons of higher than medium income.
I would suggest that motions be made by the respective parties in the above areas supported by briefs and that the same be sent to my chambers within three weeks.
Summary judgment motions were made and argued by the parties.
The trial judge decided the matter in an oral opinion. He first determined plaintiff had standing to attack the
ordinance. He then specifically rejected any equal protection argument in connection with this application "concerned with luxury apartments," saying,
And when considering the problems of the wealthy in American society, a different focus must be taken from other cases which involve wealth classifications. * * * Here, even though housing may be an important and even a fundamental interest, there's been no demonstration of an inability to pay for this benefit or an absolute deprivation.
He also rejected application of his concept of South Burlington Cty. N.A.A.C.P. v. Mt. Laurel Tp. , 67 N.J. 151 (1975), cert. den. and app. dism. 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975), saying,
Now, I don't feel that the plaintiff has sufficiently sustained his position from the regional point of view. Secondly, where the plaintiff speaks in terms and in his argument of the fact that a municipality must make provision for varied and choice of accomodation [ sic ] for all areas of the population, I think that the plaintiff is taking that out of context. As I see the argument in the Mt. Laurel case, the approach was to provide for relief for the poor and the underprivileged, those with low and moderate income and when they said, when the Court said in its decision that all areas of society must be accommodated, what they really in effect were saying was, since other areas, higher income areas have been accommodated, it will be essential to accommodate low income areas so that all areas of society should be accommodated. And having arrived at that point wherein [ sic ] my judgment we ...