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Home Builders League of South Jersey Inc. v. Township of Berlin

Decided: July 30, 1979.


On certification to the Superior Court, Law Division, whose opinion is reported at 157 N.J. Super. 586 (1978).

For affirmance -- Chief Justice Hughes and Justices Mountain, Pashman, Clifford, Schreiber and Handler, and Judge Halpern. For reversal -- None. The opinion of the court was delivered by Schreiber, J.


At issue in this case is the validity of provisions in a municipal zoning ordinance which impose minimum floor area requirements for residential dwellings irrespective of the number of occupants living in the home and unrelated to any other factor, such as frontage or lot size. The challenge was initiated when the Home Builders League of South Jersey, Inc. (League) and three builders, Award Homes, Inc., Lincoln Property Co., N.E., Inc., and Chiusano Bros., Inc., filed a complaint in lieu of prerogative writ in the Superior Court seeking invalidation of the floor area minima in the zoning ordinances of four municipalities in Camden County -- Voorhees Township, Berlin Township, and the Boroughs of Pine Hill and Stratford. The New Jersey Public Advocate, the Senior Citizens Advocate Center, the Gray Panthers of South Jersey, and the South Jersey Tenants Organization were permitted to intervene as plaintiffs. At the conclusion of an extended trial the trial court found defendants' "nonoccupancy based" floor area minima to be unrelated to the public health, safety or welfare and hence an arbitrary, capricious and unreasonable exercise of the municipal zoning power. Defendants were given 90 days to amend their ordinances to provide for occupancy-related floor area standards. 157 N.J. Super. 586 (Law Div.1978).

Only Voorhees Township appealed. Plaintiff-intervenors filed a cross-appeal because of the trial court's "failure to declare occupancy-based floor space requirements greater than the minimum necessary to protect the public health, safety and general welfare unreasonable per se, irrational, arbitrary and void."

Before the case was heard in the Appellate Division, we granted direct certification on our own motion, pursuant to R. 2:12-1. 77 N.J. 503 (1978). We now affirm, albeit for slightly different reasons from those given by the trial court.


A preliminary issue is whether plaintiffs have standing to bring this action. Plaintiffs fall into two major categories: builders, consisting of a trade organization and three private builders, and the public, represented by the Public Advocate, the Senior Citizens Advocate Center, the Gray Panthers of South Jersey and the South Jersey Tenants Organization.

Defendant has argued strenuously before us that in determining whether plaintiffs have standing, we should apply the criteria for standing in the federal courts enunciated by the United States Supreme Court. Under the test applied in Warth v. Seldin, 422 U.S. 490, 502, 95 S. Ct. 2197, 2207, 45 L. Ed. 2d 343, 357 (1975), plaintiffs would have to allege and show that they themselves have been injured economically or otherwise and "not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent." See also Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977). However, we are not bound by Warth, and insofar as its requirements are more restrictive than what we have traditionally demanded of plaintiffs to establish standing, we have chosen not to follow it.*fn1

Our leading case on the subject of standing is Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98 (1971). Justice Jacobs, after reviewing the New Jersey cases and noting that traditionally they have taken a less stringent approach, distinguished the federal law and laid down the general principles which are to be applied here.

Unlike the Federal Constitution, there is no express language in New Jersey's Constitution which confines the exercise of our judicial power to actual cases and controversies. U.S.Const. art. III, § 2; N.J.Const. art. VI, § 1. Nevertheless we will not render advisory opinions or function in the abstract (New Jersey Turnpike Authority v. Parsons, 3 N.J. 235, 240 (1949)) nor will we entertain proceedings by plaintiffs who are "mere intermeddlers" (Baxter v. Baxter, 43 N.J. Eq. 82, 86 (Ch. 1887), aff'd, 44 N.J. Eq. 298 (E. & A. 1888), or are merely interlopers or strangers to the dispute (Bergen County v. Port of New York Authority et al., 32 N.J. 303, 307, 318 (1960)). Without ever becoming enmeshed in the federal complexities and technicalities, we have appropriately confined litigation to those situations where the litigant's concern with the subject matter evidenced a sufficient stake and real adverseness. In the overall we have given due weight to the interests of individual justice, along with the public interest, always bearing in mind that throughout our law we have been sweepingly rejecting procedural frustrations in favor of "just and expeditious determinations on the ultimate merits." [58 N.J. at 107-108]

Thus, plaintiffs must show both a sufficient stake in the outcome of the proceedings and that their position is adverse to that of defendants. These prerequisites are inherently fluid and "in cases involving substantial public interest * * * 'but slight private interest, added to and harmonizing with the public interest' is sufficient to give standing." Elizabeth Federal Savings & Loan Ass'n v. Howell, 24 N.J. 488, 499 (1957). See also In re Quinlan, 70 N.J. 10, 34-35, cert. den. 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed. 2d 289 (1976). In addition, in zoning matters the Legislature has seen fit to express that public interest by defining an "interested party" as "any person, whether residing within or without the municipality, whose right to use, acquire, or enjoy property is or may be affected by any action taken under this act * * *." N.J.S.A. 40:55D-4. Accordingly, in

Southern Burlington Cty. NAACP v. Tp. of Mt. Laurel, 67 N.J. 151, 159 n. 3, 336 A.2d 713, app. dsm. 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975), this Court, relying on a virtually identical statute (N.J.S.A. 40:55-47.1, repealed by L. 1975, c. 291, § 80), held that nonresidents who desired to secure decent housing had standing.

Applying the foregoing principles, we hold that the Public Advocate has standing. The Public Advocate's standing may also be justified alone on his authority to represent the interests or rights of citizens of this State, or a broad class of such citizens, arising out of the laws of this State, N.J.S.A. 52:27E-30, it being within his "discretion to represent or refrain from representing the public interest in any proceeding." N.J.S.A. 52:27E-31. His assertion that some are being deprived of the opportunity to obtain adequate housing because of the minimum square footage building requirement which he equates with creating unnecessarily higher cost housing sets forth a sufficient interest justifying his standing in these proceedings.*fn2

We are also satisfied that the Home Builders League of South Jersey, Inc. may rightfully maintain this action. The League, an incorporated nonprofit association whose members are engaged in the business of housing construction or related businesses in Camden County, has four classes of membership: builders, developers, subcontractors, and a miscellaneous category which includes banks, title companies, financial and lending

companies, and others who have an interest in the housing market in southern New Jersey. Its members are ready and willing to build homes in Voorhees, but the size requirements foreclose their opportunity to construct small homes at lower prices for which there is a substantial market. It claims that plaintiff builders and others similarly situated continue to be deprived of that opportunity, and that housing appropriate to the needs, desires and resources of a large segment of the population of Camden County and its region will not be constructed in defendant towns or elsewhere in Camden County or its region.

No question exists concerning the League's opposition to the zoning ordinance's provisions. The main difficulty is whether the League (or its members) has a sufficient stake in the outcome of the litigation. There is no allegation that any specific project of any of the League's members is currently precluded either by the ordinances or by defendant's actions in enforcing them. Nor is there any allegation that any member has applied to Voorhees for a building permit or a variance. See Warth v. Seldin, supra, 422 U.S. at 516, 95 S. Ct. at 2214, 45 L. Ed. 2d at 365. However, even though there is nothing in the allegations or record to establish "injury in fact," there are ample indications of a substantial likelihood of harm, which in view of the relevant statute and case law are sufficient.

We have previously recognized that a deprivation of commercial opportunity may be a sufficient stake to permit a nonresident to challenge a zoning ordinance. In Al Walker, Inc. v. Borough of Stanhope, 23 N.J. 657 (1957), plaintiff, a retail seller of trailer homes whose place of business was outside the defendant municipality, challenged a local ordinance which licensed and regulated trailer camps. This Court held that "[t]here has been real and substantial interference with [plaintiff's] business and the serious legal questions [plaintiff] has raised should, in the interest of the public as well as the plaintiff, be passed upon without undue delay." 23 N.J. at 666. Standing was granted

despite the lack of certainty that plaintiff, even if it ultimately prevailed on the merits, would be able to sell any trailers in the defendant municipality.

Similarly, there was no guarantee that plaintiffs in the Mount Laurel litigation, even if successful, would obtain what they were seeking, i.e., decent housing in Mount Laurel. Nevertheless, in view of the substantial public interest in the question to be litigated, as well as the statute, N.J.S.A. 40:55-47.1, which appeared to require something less than "injury in fact," plaintiffs were held to have standing. The same considerations are equally pertinent here. There is a strong likelihood that some League members, if victorious, will build houses with smaller floor areas than presently permitted. It is clear from the record that the demand for smaller houses is substantial and likely to continue. Moreover, the exclusionary aspect of the zoning provision and the strong public interest involved justify a balancing or weighing in favor of having the matter adjudicated.*fn3


Voorhees Township is located within the Philadelphia-Camden area, less than 15 miles southeast of Camden. It is a developing municipality. Its population grew from 3784 in 1960 to 6214 in 1970, and 7320 in 1976. The Camden County Planning Board has projected an increase in population to 23,458 by 1990, and the Township's master plan estimates population at full development to be 37,627. Voorhees Township is linked to the Philadelphia-Camden urban center by a number of highways and the PATCO Hi-Speed rail line. The Township's area is 7345 acres.

In 1970, there were 3899 acres of vacant developable land (exclusive of (1) land with slopes greater than 12%; (2) wetlands; (3) qualified farmlands; and (4) public lands), or about 53% of the Township's total area.

The Voorhees Township Zoning Ordinance establishes a number of residential zones, each with different lot area, frontage, and floor area minima. They may be summarized as follows:

Minimum Minimum Minimum

Lot Size Frontage Floor Area

Zone (sq. ft.) (ft.) (sq. ft.)

R.R. (rural) -- single

family houses 43,560 200 1,600

R-100A -- single family houses 15,000 100

up to 3 bedrooms 1,600

each additional bedroom 400

RD-2 -- single family houses 12,500 90

60% of subdivision ...

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