Westampton Township adopted a zoning ordinance establishing minimum floor space requirements for residential units. The ordinance is challenged by plaintiff Builders League on the ground that these requirements do not relate to any permissible zoning purpose. Its motion for summary judgment is addressed by this opinion.
Plaintiff places principal reliance upon Home Builders League v. Berlin, 81 N.J. 127 (1979). That case held that minimum floor space requirements, like all zoning restrictions, must promote the public health, safety, morals or general welfare. The court recognized that, even when such restrictions do so operate, they usually cause some detriment and therefore require a balancing of the good and the bad. A predominantly detrimental regulation is not acceptable. Id. at 138-139. The required relationship must be shown on the face of the zoning ordinance, usually by showing that one or more of the zoning purposes set forth in the Municipal Land Use Law has been met. Otherwise the burden is upon the municipality to prove that it exists. Id. at 142.
Westampton's ordinance contains, on its face, various statements calculated to show that the Berlin criteria are met.*fn1 All are couched in conclusory terms and are therefore doubtful carriers of conviction. Their effect, assuming their evidential adequacy, is to leave the burden of proof with the League. That burden, even in a summary judgment setting, has been carried. There are no genuine factual disputes. The affidavits filed by both parties, read in the best light from the township's standpoint (while ignoring conclusory statements), coupled with the provisions of the ordinance itself, support only one conclusion: the minimum space requirements are arbitrary and bear no relation to health, safety, morals or general welfare.
Standing alone, the ordinance exhibits the following defects (not intended to be comprehensive):
(1) Minimum footage varies with the number of stories of a dwelling. This denies any relation to occupancy, the only possible connection to concerns about health.
(2) The same dwelling unit is subject to different minimums in different zones. If protection of health is the objective, health cannot require different sizes in different areas of the same community.
(3) The minimums are not related to lot size or frontage, a legitimate zoning arrangement.
(4) Some apartment minimums are larger than some single-dwelling minimums. The difference is arbitrary and reflects a discouragement of multi-family housing, an improper goal.
(5) The largest minimum (1400 sq. ft.) applies to a two-story dwelling constructed in a cluster zone, usually designed for smaller houses, but is permitted on the smallest allowable township lot (10,000 sq. ft.). The provision is arbitrary.
(6) Multi-family dwelling units are assigned an 800 sq. ft. minimum but must average 1,000 sq. ft., thus requiring at least one 1,200 sq. ft. unit for every 800 sq. ft. unit. Consequently, minimum floor space requirements may be different in the same building or group of buildings and in the same zone. Further, there is a requirement that builders provide for the expansion of multi-family units in order to provide assurance that future units will meet minimum average requirements. The provision imposes a difficult if not impossible construction condition, impermissibly burdening multi-family housing in a discriminatory way.
(7) The minimum space for a one bedroom dwelling unit is between 620 and 719 sq. ft. This does not provide certainty; it raises questions as to the ...