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State v. Baker

Decided: July 30, 1979.


On certification to the Superior Court, Appellate Division, whose opinion is reported at For affirmance -- Justices Pashman, Clifford, Schreiber and Handler and Judge Halpern. For reversal -- Chief Justice Hughes and Justice Mountain. The opinion of the court was delivered by Pashman, J. Mountain, J., dissenting. Chief Justice Hughes joins this opinion.


The issue presented by this appeal is whether a municipality may utilize criteria based upon biological or legal relationships in order to limit the types of groups that may live within its borders. Specifically, we must determine the validity of § 17:3-1(a)(17) of the Plainfield Zoning Ordinance which seeks to preserve the "family" character of the municipality's neighborhoods by prohibiting more than four unrelated individuals from sharing a single housing unit. For the reasons to be given below, we conclude that although the goal sought to be furthered by that provision is entirely legitimate, the means chosen do not bear a substantial relationship to the effectuation of that goal. Hence, the regulation violates N.J.Const. (1947) Art. I, par. 1 and Art. IV, § 6, par. 2, and cannot stand.

Defendant Dennis Baker is the owner of a house located at 715 Sheridan Avenue, Plainfield. This dwelling is situated in a zone restricted to single family use. On three separate occasions during the fall of 1976 defendant was charged with allowing more than one family to reside in his home in violation of section 17:11-2 of the Plainfield Zoning Ordinance. "Family" is defined in the ordinance as:

One (1) or more persons occupying a dwelling unit as a single non-profit housekeeping unit. More than four (4) persons * * * not related by blood, marriage, or adoption shall not be considered to constitute a family. [City of Plainfield Zoning Ordinance § 17:3-1(a)(17)]

A trial as to all three charges was held in Plainfield Municipal Court. The evidence presented indicated that the home was generally shared by nine individuals: Mr. and Mrs. Baker, their three daughters, Mrs. Conata and her three children. Several other persons also apparently resided within the household for indeterminate periods of time.

The Bakers and Conatas lived together in what defendant termed an "extended family." The two groups view each other as part of one large family and have no desire to reside in separate homes. Defendant, an ordained minister of the Presbyterian Church, testified that the living arrangement arose out of the individuals' religious beliefs and resultant desire to go through life as "brothers and sisters." The Bakers and Conatas ate together, shared common areas and held communal prayer sessions. Each occupant contributed a fixed amount per week to defray household expenses.

Defendant was found guilty of all three charges and fines were imposed. After a trial de novo in the Union County Court -- based upon the Municipal Court transcript, see R. 3:23-8(a) -- defendant was again found in violation of the ordinance. The County Court judge concluded that defendant's religious beliefs regarding his lifestyle were sincere and that the household resembled a traditional extended family, thus constituting a "single non-profit housekeeping unit" within the meaning of the zoning ordinance. Nevertheless, he found both that the living arrangement of the Bakers and Conatas violated the numerical restriction of § 17:3-1(a)(17) and that the provision was a valid exercise of the municipality's police powers. Accordingly, he imposed the same penalties as had the Municipal Court. He ordered, however, that the fines for the first and third violations be suspended.

Defendant filed a notice of appeal to the Appellate Division. State v. Baker, 158 N.J. Super. 536 (App.Div.1978). The appellate judges concluded that "the Plainfield ordinance * * * 'so narrowly delimits the persons who may occupy a single family dwelling as to prohibit numerous potential occupants who pose no threat to the style of family living sought to be preserved[.]'" Id. at 541 (quoting from Berger v. State, 71 N.J. 206, 224 (1976)). Consequently, they held the ordinance invalid insofar as it classified permissible uses according to occupants' biological or legal relationships. The judges also ruled, however, that the "single non-profit housekeeping unit" criterion used in the ordinance was valid. After concluding that the County Court's finding that the Baker household constituted such a unit "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole * * *," 158 N.J. Super. at 540, they reversed defendant's convictions and vacated the fines.

We granted the State's petition for certification. 77 N.J. 508 (1978). The Public Advocate was permitted to appear as amicus curiae. We now affirm.


A municipality's zoning power, although broad, is not without limits. In order to be valid, a zoning regulation must both represent a reasonable exercise of the police power and bear a real and substantial relation to a legitimate municipal goal. Moreover, the regulation may "not exceed the public need or substantially affect uses which do not partake of the offensive character of those which cause the problem sought to be ameliorated." Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 251 (1971). See, e.g., Pascack Ass'n, Ltd. v. Mayor & Coun. of Washington Tp., 74 N.J. 470, 483 (1977); Berger v. State, 71 N.J. 206, 223-224 (1976); J.D. Construction Corp. v. Board of Adj. of Freehold Tp., 119 N.J. Super. 140, 145 (Law

Div.1972). Under this test the numerical limitations of § 17:3-1(a)(17) must fall.

We have no quarrel with the legitimacy of Plainfield's goal. Local governments are free to designate certain areas as exclusively residential and may act to preserve a family style of living. See Berger v. State, supra, 71 N.J. at 223; Collins v. Board of Adj. of Margate City, 3 N.J. 200, 208 (1949); Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974). A municipality is validly concerned with maintaining the stability and permanence generally associated with single family occupancy and preventing uses resembling boarding houses or other institutional living arrangements. See Berger v. State, supra, 71 N.J. at 225. Moreover, a municipality has a strong interest in regulating the intensity of land use so as to minimize congestion and overcrowding. As we stated in Berger, a municipality may endeavor in every legitimate way to "secure and maintain 'the blessings of quiet seclusion' and to make available to its inhabitants the refreshment of repose and the tranquillity of solitude." 71 N.J. at 223.

Nevertheless, the power to attain these goals is not without limits. A municipality may not, for example, zone so as to exclude from its borders the poor or other unwanted minorities. See, e.g., Oakwood at Madison, Inc. v. Township of Madison, 72 N.J. 481 (1977); So. Burlington Cty. NAACP v. Tp. of Mt. Laurel, 67 N.J. 151, cert. den. and app. dism., 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975). Nor may zoning be used as a tool to regulate the internal composition of housekeeping units. Taxpayer's Ass'n of Weymouth Tp. v. Weymouth Tp., 80 N.J. 6, 33 (1976), cert. den. and app. dism., 430 U.S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977). See, e.g., Kirsch Holding Co. v. Borough of Manasquan, supra; City of White Plains v. Ferraioli, 34 N.Y. 2d 300, 357 N.Y.S. 2d 449, 313 N.E. 2d 756 (Ct.App.1974). A municipality must draw a careful balance between preserving family life and prohibiting social diversity.

The fatal flaw in attempting to maintain a stable residential neighborhood through the use of criteria based upon biological or legal relationships is that such classifications operate to prohibit a plethora of uses which pose no threat to the accomplishment of the end sought to be achieved. Moreover, such a classification system legitimizes many uses which defeat that goal. Plainfield's ordinance, for example, would prohibit a group of five unrelated "widows, widowers, older spinsters or bachelors -- or even of judges" from residing in a single unit within the municipality. Kirsch Holding Co. v. Borough of Manasquan, supra, 59 N.J. at 248. On the other hand, a group consisting of 10 distant cousins could so reside without violating the ordinance.*fn1 Thus the ordinance distinguishes between acceptable and prohibited uses on grounds which may, in many cases, have no rational relationship to the problem sought to be ameliorated.

Regulations based upon biological traits or legal relationships necessarily reflect generalized assumptions about the stability and social desirability of households comprised of unrelated individuals -- assumptions which in many cases do not reflect the real world. Justice Schaefer, writing for the Supreme Court of Illinois, has noted that

a group of persons bound together only by their common desire to operate a single housekeeping unit, might be thought to have a transient quality that

would affect adversely the stability of the neighborhood, * * * And it might be considered that a group of unrelated persons would be more likely to generate traffic and parking problems than would an equal number of related persons.

But none of these observations reflects a universal truth. Family groups are mobile today, and not all family units are internally stable and well-disciplined. Family groups with two or more cars are not unfamiliar. [ City of Des Plaines v. Trottner, 34 Ill.2d 432, 437, 216 N.E. 2d 116, 119 (Sup.Ct.1966) (emphasis supplied)]

Accordingly, that court held a municipality without power to adopt a zoning ordinance which would "penetrate so deeply * * into the internal composition of a single housekeeping unit."*fn2 Id. at 120.

Nevertheless, despite the inexactitude and overinclusiveness of such regulations, we would be reluctant to condemn them in the absence of less restrictive alternatives. Such options do, however, exist.

The courts of this and other states have often noted that the core concept underlying single family living is not biological or legal relationship but, rather, its character as a single housekeeping unit. Berger v. State, supra, 71 N.J. at 227. See Kirsch Holding Co. v. Borough of Manasquan, supra, 59 N.J. at 250; City of Des Plaines v. Trottner, supra; Boston-Edison Protective Ass'n v. Paulist Fathers, 306 Mich. 253, 10 N.W. 2d 847 (Sup.Ct.1943); City of White Plains v. Ferraioli, 34 N.Y. 2d 300, 305-307, 357 N.Y.S. 2d 449, 452-454, 313 N.E. 2d 756, 758-759 (Ct.App.1974). As long as a group bears the "generic character of a family unit as a relatively permanent household," it should be equally as entitled to occupy a single family dwelling as its

biologically related neighbors. City of White Plains, supra, 34 N.Y. 2d at 306, 357 N.Y.S. 2d at 453, 313 N.E. 2d at 758; see, e.g., Brady v. Superior Ct., 200 Cal.App. 2d 69, 19 Cal.Rptr. 242 (Dist.Ct.App.1962); Oliver v. Zoning Comm'n of Chester, 31 Conn.Sup. 197, 326 A.2d 841 (C.P. Middlesex Cty.1974); Carroll v. City of Miami Beach, 198 So. 2d 643 (Fla.Dist.Ct.App.1967); Group House of Port Washington, Inc. v. Board of Zoning, 45 N.Y. 2d 266, 408 N.Y.S. 2d 377, 380 N.E. 2d 207 (Ct.App.1978); Little Neck Comm. Ass'n v. Working Org. for Retarded Children, 52 A.D. 2d 90, 383 N.Y.S. 2d 364 (App.Div.1976); Missionaries of Our Lady of La Salette v. Village of Whitefish Bay, 267 Wis. 609, 66 N.W. 2d 627 (Sup.Ct.1954).

Plainfield has a legitimate interest in preserving a "family" style of living in certain residential neighborhoods. Such a goal may be achieved, perhaps more sensibly, by the single-housekeeping unit requirement, as well as the exclusion of incompatible residential uses such as commercial residences, non-familial institutional uses, boarding homes and other such occupancies without infringing unnecessarily upon the freedom and privacy of unrelated individuals.*fn3 See Berger v. State, supra; Gabe Collins Realty, Inc. v. City of Margate City, 112 N.J. Super. 341, 350 (App.Div.1970).

In addition to preserving a "family" style of living, the municipality also defends its ordinance as necessary to prevent

overcrowding and congestion. The instant regulation, however, is too tenuously related to these goals to justify its impingement upon the internal makeup of the housekeeping entity. The Plainfield Ordinance is both underinclusive and overinclusive. It is overinclusive because it prohibits single housekeeping units which may not, in fact, be overcrowded or cause congestion; it is underinclusive because it fails to prohibit certain housekeeping units -- composed of related individuals -- which do present such problems. Thus, for example, five unrelated retired gentlemen could not share a large eight bedroom estate situated upon five acres of land, whereas a large extended family including aunts, uncles and cousins, could share a small two bedroom apartment without violating this ordinance.

An appropriate method to prevent overcrowding and congestion was suggested by this Court in Kirsch Holding Co. v. Borough of Manasquan, supra. We there stated that

[w]hen intensity of use, i.e., overcrowding of dwelling units and facilities, [presents a problem] consideration might quite properly be given to zoning or housing code provisions, which would have to be of general application, limiting the number of occupants in reasonable relation to available sleeping and bathroom facilities or requiring a minimum amount of habitable floor area per occupant. [59 N.J. at 254 (emphasis supplied)]

See Sente v. Mayor and Mun. Coun. of Clifton, 66 N.J. 204 (1974).*fn4 Area or facility-related ordinances not only bear a much greater relation to the problem of overcrowding than do legal or biologically based classifications, they also do not impact upon the composition of the household. They ...

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