On certification to the Superior Court, Law Division, whose opinion is reported at 161 N.J. Super. 317 (1978) (A-35/36 Southern Burlington County N.A.A.C.P., et al. v. Township of Mount Laurel). On certification to the Superior Court, Law Division (A-172 Southern Burlington County N.A.A.C.P., et al. v. Township of Mount Laurel). On certification to the Superior Court, Appellate Division, whose opinion is reported at 170N.J. Super. 461 (1979) (A-4 Urban League of Greater New Brunswick, etc., et al. v. The Mayor and Council of the Borough of Carteret, et al.). On certification to the Superior Court, Law Division (A-7/21 Joseph Caputo, et al. v. Township of Chester, et al.). On certification to the Superior Court, Law Division, whose opinion is reported at 164 N.J. Super. 563 (1978) (A-8 Glenview Development Co., etc. v. Franklin Township, et al.). On certification to the Superior Court, Law Division (A-18 Urban League of Essex County, et al. v. Township of Mahwah). On certification to the Superior Court, Appellate Division, whose opinion is reported at 173 N.J. Super. 45 (1980) (A-37 Round Valley, Inc., etc. v. Township of Clinton, etc., et al.).
For reversal and remandment in Nos. A-4, A-18, A-35/36 and A-37 -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. Opposed -- None. For affirmance in part; reversal in part and remandment in Nos. A-8 and A-7/21 -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. Opposed -- None. For affirmance as modified in No. A-172 -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. Opposed -- None. The opinion of the Court was delivered by Wilentz, C.J.
A. History of the Mount Laurel
B. Constitutional Basis for Mount
Laurel and the Judicial Role 208
C. Summary of Rulings 214
II.Resolution of the Issues 220
A. Defining the Mount Laurel
B. Determining the Mount Laurel
Obligation: Use of the State
Development Guide Plan 223
C. Calculating Fair Share 248
D. Meeting the Mount Laurel
1. Removing Excessive Restric-
2. Using Affirmative Measures 260
b. Inclusionary Zoning Devices 265
ii. Mandatory Set-Asides 267
3. Zoning for Mobile Homes 274
4. Providing "Least Cost" Housing 277
2. Revision of the Zoning Ordinance:
3. Remedies for Non-Compliance 285
4. Summary of the Remedial Stage 290
F. Judicial Management 292
III.Resolution of the Cases 293
1. The 1976 Revised Zoning Ordinance 293
2. The Builder's Remedy 307
C. Glenview Development Co.
D. Round Valley v. Township of Clinton 321
1. Procedural and Factual Setting 321
2. The Appellate Division Opinion 324
3. Analysis of Clinton's Fair
a. The Fair Share Determination 328
b. The Builder's Remedy 330
E. Urban League of Essex County
1. Procedural and Factual Setting 332
3. Determination of Mahwah's
F. Urban League of Greater New
Brunswick v. Borough of Carteret 339
1. Procedural and Factual Setting 341
2. The Appellate Division Opinion 348
3. Procedure on Remand 350
This is the return, eight years later, of Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel, 67 N.J. 151 (1975) (Mount Laurel I). We set forth in that case, for the first time, the doctrine requiring that municipalities' land use regulations provide a realistic opportunity for low and moderate income housing. The doctrine has become famous. The Mount Laurel case itself threatens to become infamous. After all this time, ten years after the trial court's initial order invalidating its zoning ordinance, Mount Laurel remains afflicted with a blatantly exclusionary ordinance. Papered over with studies, rationalized by hired experts, the ordinance at its core is true to nothing but Mount Laurel's determination to exclude the poor.
Mount Laurel is not alone; we believe that there is widespread non-compliance with the constitutional mandate of our original opinion in this case.
To the best of our ability, we shall not allow it to continue. This Court is more firmly committed to the original Mount Laurel doctrine than ever, and we are determined, within appropriate judicial bounds, to make it work. The obligation is to provide a realistic opportunity for housing, not litigation. We have learned from experience, however, that unless a strong judicial hand is used, Mount Laurel will not result in housing, but in paper, process, witnesses, trials and appeals. We intend by this decision to strengthen it, clarify it, and make it easier for public officials, including judges, to apply it.
This case is accompanied by five others, heard together and decided in this opinion.*fn1 All involve questions arising from the
Mount Laurel doctrine. They demonstrate the need to put some steel into that doctrine. The deficiencies in its application range from uncertainty and inconsistency at the trial level to inflexible review criteria at the appellate level. The waste of judicial energy involved at every level is substantial and is matched only by the often needless expenditure of talent on the part of lawyers and experts. The length and complexity of trials is often outrageous, and the expense of litigation is so high that a real question develops whether the municipality can afford to defend or the plaintiffs can afford to sue.
There is another side to the story. We believe, both through the representations of counsel and from our own research and experience, that the doctrine has done some good, indeed, perhaps substantial good. We have tried to make the doctrine clearer for we believe that most municipal officials will in good faith strive to fulfill their constitutional duty. There are a number of municipalities around the State that have responded to our decisions by amending their zoning ordinances to provide realistic opportunities for the construction of low and moderate
income housing.*fn2 Further, many other municipalities have at least recognized their obligation to provide such opportunities in their ordinances and master plans. Finally, state and county government agencies have responded by preparing regional housing plans that help both the courts and municipalities themselves carry out the Mount Laurel mandate. Still, we are far from where we had hoped to be and nowhere near where we should be with regard to the administration of the doctrine in our courts.
These six cases not only afford the opportunity for, but demonstrate the necessity of reexamining the Mount Laurel doctrine. We do so here. The doctrine is right but its administration has been ineffective.
A brief statement of the cases may be helpful at this point. Mount Laurel II results from the remand by this Court of the original Mount Laurel case. The municipality rezoned, purportedly pursuant to our instructions, a plenary trial was held, and the trial court found that the rezoning constituted a bona fide attempt by Mount Laurel to provide a realistic opportunity for the construction of its fair share of the regional lower income housing need. Reading our cases at that time (1978) as requiring no more, the trial court dismissed the complaint of the N.A.A.C.P. and other plaintiffs but granted relief in the form of a builder's remedy, to a developer-intervenor who had attacked the total prohibition against mobile homes. Plaintiffs' appeal of the trial court's ruling sustaining the ordinance in all other respects was directly certified by this Court, as ultimately was defendant's appeal from the grant of a builder's remedy allowing construction of mobile homes. We reverse and remand to determine Mount Laurel's fair share of the regional need and for further proceedings to revise its ordinance; we affirm the grant of the builder's remedy.
In Caputo v. Township of Chester, two resident landowners of that Morris County township had long sought rezoning of their property to allow residential construction with densities greater than those previously permitted. After much negotiation the municipality rezoned but not to plaintiffs' satisfaction. Plaintiffs therefore commenced an action challenging the validity of the ordinance, an action that ultimately was based upon our decision in Mount Laurel. The trial court held that the ordinance was invalid but refused to grant a builder's remedy to the would-be-developer, who appealed. Chester apparently acceded to the court's ruling, no appeal having been taken. We granted direct certification of the developer's appeal. The only issues before us in that matter are the propriety of the denial of a builder's remedy and of the invalidation of a five acre minimum lot requirement in a single family zone. We affirm that denial, reverse the ruling as to the minimum lot requirement, and reverse and remand the cause for further proceedings limited to the issue of the satisfaction of Chester's present indigenous need for lower income housing.
In Glenview Development Co. v. Franklin, again a developer sought both to invalidate the zoning ordinance and to obtain a builder's remedy. The trial court held that this rural Hunterdon County township was not subject to the Mount Laurel obligation because it was deemed not to be a "developing" community, from which ruling the developer appealed. We certified the matter directly. We affirm the trial court's ruling but reverse and remand the cause for further proceedings limited to the issue of the satisfaction of Franklin's present indigenous need for lower income housing.
In Round Valley, Inc. v. Clinton, the usual two-pronged attack by the developer (declaration of invalidity and builder's remedy) was successful at the trial level, where the court entered a judgment invalidating the ordinance and appointing a master to assure its appropriate revision and to assist in effectuating a builder's remedy. On appeal, the Appellate Division held that the judgment below did not pass upon the validity of the
ordinance but simply granted a builder's remedy; that such action by a trial court was not authorized by the Mount Laurel doctrine, since it consisted of little more than the grant of a variance without complying with the statutory requirements. The Appellate Division also indicated that the sale of a portion of the developer's tract between the trial and the appeal rendered most of the matters moot, since the portion sold was that designed by the developer for all of its multi-family units. The matter is before us on the developer's appeal. We reverse the Appellate Division and remand for further proceedings to determine fair share and thereafter to revise the ordinance; in effect we sustain the trial court's finding that the ordinance is invalid and its appointment of a master to aid in its revision, as well as its award of the builder's remedy subject to the conditions set forth herein.
Urban League of Essex Co. v. Mahwah was the latest of numerous attempts to force the construction of housing for those who work in Mahwah in Bergen County. The trial court held that the Mahwah zoning ordinance complied with the Mount Laurel doctrine in that it allowed for the construction of "least cost" housing although admittedly no lower income housing could possibly be built there. Plaintiffs, being both those who live in and out of Mahwah and who work there, believing that the ordinance could more realistically provide an opportunity for the construction of lower income housing, appealed to the Appellate Division and we certified the matter directly. We reverse and remand for further proceedings concerning Mahwah's fair share and thereafter to revise the ordinance.
In Urban League of Greater New Brunswick v. Carteret, the zoning ordinances of all the municipalities in Middlesex County were initially challenged. The majority of the cases were settled during trial (through the revision of ordinances to comply with the trial court's directives, or, in the cases of Perth Amboy, Carteret and Dunellen, through judgments of the trial court holding that no Mount Laurel obligation existed). Only seven municipalities appealed from the judgment of the trial court.
As to those seven, the trial court held that their zoning ordinances violated the Mount Laurel doctrine. The court determined the regional need and then allocated to each municipality a sufficient part of the regional need so that, were it built, that municipality's lower income housing would constitute the same percentage of its total housing as the lower income housing of the county constituted of its total housing. The balance of the regional need allocable to those seven municipalities was divided among them equally. On appeal the Appellate Division reversed, holding, among other things, that the trial court's determination was improperly "formulaic" and that the formula was incorrect. There was no remand for proceedings in accordance with the Appellate Division's opinion. The appeal to us is from that Appellate Division decision. We reverse the judgment of the Appellate Division but remand to the trial court for further proceedings concerning region, regional need, and fair share and thereafter for revision of the various ordinances.
This opinion is divided into three sections. Section I contains a brief history of the Mount Laurel doctrine with a discussion of the major implementation problems addressed in this opinion; a statement of the constitutional basis for the doctrine and the appropriate scope of the judicial power to enforce it; and a summary of the more significant rulings in today's opinion. In Section II, we resolve the substantive issues raised by the six cases before us and set forth the obligations imposed upon municipalities and trial courts by the Mount Laurel doctrine. Finally, in Section III we apply these rulings to dispose of the six cases themselves.
A. History of the Mount Laurel Doctrine
In Mount Laurel I, this Court held that a zoning ordinance that contravened the general welfare was unconstitutional. We pointed out that a developing municipality violated that constitutional [92 NJ Page 205] mandate by excluding housing for lower income people; that it would satisfy that constitutional obligation by affirmatively affording a realistic opportunity for the construction of its fair share of the present and prospective regional need for low and moderate income housing. 67 N.J. at 174.*fn3 This is the core of the Mount Laurel doctrine. Although the Court set forth important guidelines for implementing the doctrine, their application to particular cases was complex, and the resolution of many questions left uncertain. Was it a "developing" municipality? What was the "region," and how was it to be determined? How was the "fair share" to be calculated within that region? Precisely what must that municipality do to "affirmatively afford" an opportunity for the construction of lower income housing? Other questions were similarly troublesome. When should a court order the granting of a building permit (i.e., a builder's remedy) to a plaintiff-developer who has successfully challenged a zoning ordinance on Mount Laurel grounds? How should courts deal with the complicated procedural aspects of Mount Laurel litigation, such as the appointment of experts and masters, the joinder of defendant municipalities, and the problem of interlocutory appeals? These have been the principal questions that New Jersey courts have faced
in attempting to implement the Mount Laurel mandate, and the principal questions dealt with in this opinion. We begin by examining how some of these questions have been dealt with up to now.
Two years after Mount Laurel I, in Oakwood at Madison, Inc. v. Township of Madison, 72 N.J. 481 (1977), this Court once again faced the exclusionary zoning issue. We ruled that "fair share" allocations need not be "precise" or based on "specific formulae" to win judicial approval. Id. at 498-99. Instead, the Court explained, a court should look to the "substance" of a challenged zoning ordinance and the " bona fide efforts" of a municipality to remove exclusionary barriers in order to determine whether that municipality had met its Mount Laurel burden.
With regard to the definition of the "region" from which fair share allocations were to be made, the majority cited with approval the trial court's formulation of a region as the "'area from which, in view of available employment and transportation, the population of the township would be drawn, absent invalidly exclusionary zoning.'" Id. at 537; quoting Oakwood at Madison, Inc. v. Township of Madison, 128 N.J. Super. 438, 441 (Law Div.1974). We distinguished this very general standard for determining region from the situation with which we would be confronted if a state planning body promulgated a plan that divided the whole state into regions.
Madison also addressed the nature of a municipality's "affirmative" duty to encourage the construction of lower income housing. The Court reaffirmed that affected municipalities must provide realistic opportunities for their fair share of lower income housing, and required the municipality to provide density bonuses for the construction of multi-bedroom units, while reserving judgment, however, on other affirmative measures. 72 N.J. at 517-18 (a density bonus allows the developer to build more units per acre if certain kinds of units are included in the project).
An important aspect of the Court's decision was the award of a builder's remedy to the plaintiff-developer. The Court emphasized that the plaintiff, for "six years" and through "two trials and on this extended appeal," had "borne the stress and expense of this public interest litigation." Id. at 549-50. The Court admonished, however, that this kind of remedy should "ordinarily be rare." Id. at 551-52 n. 50.
Finally, the Court introduced the important concept of "least cost" housing, i.e., housing built at the least cost possible, even though not inexpensive enough for lower income occupancy. Recognizing that even with subsidies and affirmative devices some municipalities simply might not be able to provide a realistic opportunity for the construction of lower income housing, the Court held that under those and only those circumstances such municipalities could meet their obligation with "least cost" housing. Id. at 512-13.
Later in the same year that Madison was decided, the Court determined which municipalities were subject to the Mount Laurel fair share obligation. Pascack Ass'n, Ltd. v. Washington Twp., 74 N.J. 470 (1977); Fobe Associates v. Demarest, 74 N.J. 519 (1977). In Pascack, the Court held that "fully developed, single-family residential" communities such as Washington Township did not have any Mount Laurel obligation. This holding was reaffirmed in Fobe where the Court upheld the decision of the Demarest Board of Adjustment denying a variance sought for multi-family housing given the fact that a "developed" municipality like Demarest did not have a Mount Laurel obligation.*fn4
B. Constitutional Basis for Mount Laurel and the Judicial Role
The constitutional basis for the Mount Laurel doctrine remains the same. The constitutional power to zone, delegated to the municipalities subject to legislation, is but one portion of the police power and, as such, must be exercised for the general welfare. When the exercise of that power by a municipality affects something as fundamental as housing, the general welfare includes more than the welfare of that municipality and its citizens: it also includes the general welfare -- in this case the housing needs -- of those residing outside of the municipality but within the region that contributes to the housing demand within the municipality. Municipal land use regulations that conflict with the general welfare thus defined abuse the police power and are unconstitutional. In particular, those regulations that do not provide the requisite opportunity for a fair share of the region's need for low and moderate income housing conflict with
the general welfare and violate the state constitutional requirements of substantive due process and equal protection. Mount Laurel I, 67 N.J. at 174 and 181.
That is the constitutional rationale for the Mount Laurel doctrine. The doctrine is a corollary of the constitutional obligation to zone only in furtherance of the general welfare. The doctrine provides a method of satisfying that obligation when the zoning in question affects housing.
It would be useful to remind ourselves that the doctrine does not arise from some theoretical analysis of our Constitution, but rather from underlying concepts of fundamental fairness in the exercise of governmental power. The basis for the constitutional obligation is simple: the State controls the use of land, all of the land. In exercising that control it cannot favor rich over poor. It cannot legislatively set aside dilapidated housing in urban ghettos for the poor and decent housing elsewhere for everyone else. The government that controls this land represents everyone. While the State may not have the ability to eliminate poverty, it cannot use that condition as the basis for imposing further disadvantages. And the same applies to the municipality, to which this control over land has been constitutionally delegated.
The clarity of the constitutional obligation is seen most simply by imagining what this state could be like were this claim never to be recognized and enforced: poor people forever zoned out of substantial areas of the state, not because housing could not be built for them but because they are not wanted; poor people forced to live in urban slums forever not because suburbia, developing rural areas, fully developed residential sections, seashore resorts, and other attractive locations could not accommodate them, but simply because they are not wanted. It is a vision not only at variance with the requirement that the zoning power be used for the general welfare but with all concepts of [92 NJ Page 210] fundamental fairness and decency that underpin many constitutional obligations.*fn5
Subject to the clear obligation to preserve open space and prime agricultural land, a builder in New Jersey who finds it economically feasible to provide decent housing for lower income groups will no longer find it governmentally impossible. Builders may not be able to build just where they want -- our parks, farms, and conservation areas are not a land bank for housing speculators. But if sound planning of an area allows the rich and middle class to live there, it must also realistically and practically allow the poor. And if the area will accommodate factories, it must also find space for workers. The specific location of such housing will of course continue to depend on sound municipal land use planning.
While Mount Laurel I discussed the need for "an appropriate variety and choice of housing," 67 N.J. 179, the specific constitutional obligation addressed there, as well as in our opinion here, is that relating to low and moderate income housing. Id. All that we say here concerns that category alone; the doctrine as we interpret it has no present applicability to other kinds of housing. See Pascack, 74 N.J. at 480. It is obvious that eight years after Mount Laurel I the need for satisfaction of this
doctrine is greater than ever. Upper and middle income groups may search with increasing difficulty for housing within their means; for low and moderate income people, there is nothing to search for.*fn6
No one has challenged the Mount Laurel doctrine on these appeals. Nevertheless, a brief reminder of the judicial role in this sensitive area is appropriate, since powerful reasons suggest, and we agree, that the matter is better left to the Legislature. We act first and foremost because the Constitution of our State requires protection of the interests involved and because the Legislature has not protected them. We recognize the social and economic controversy (and its political consequences) that has resulted in relatively little legislative action in this field. We understand the enormous difficulty of achieving a political consensus that might lead to significant legislation enforcing the constitutional mandate better than we can, legislation that might completely remove this Court from those controversies. But enforcement of constitutional rights cannot await a supporting political consensus. So while we have always preferred legislative to judicial action in this field, we shall continue -- until the Legislature acts -- to do our best to uphold the constitutional obligation that underlies the Mount Laurel
doctrine. That is our duty. We may not build houses, but we do enforce the Constitution.*fn7
We note that there has been some legislative initiative in this field. We look forward to more. The new Municipal Land Use Law explicitly recognizes the obligation of municipalities to zone with regional consequences in mind, N.J.S.A. 40:55D-28(d); it also recognizes the work of the Division of State and Regional Planning in the Department of Community Affairs (DCA), in creating the State Development Guide Plan (1980) (SDGP), which plays an important part in our decisions today. Our deference to these legislative and executive initiatives can be regarded as a clear signal of our readiness to defer further to more substantial actions.
The judicial role, however, which could decrease as a result of legislative and executive action, necessarily will expand to the extent that we remain virtually alone in this field. In the absence of adequate legislative and executive help, we must give meaning to the constitutional doctrine in the cases before us
through our own devices, even if they are relatively less suitable. That is the basic explanation of our decisions today.
Our rulings today have several purposes. First, we intend to encourage voluntary compliance with the constitutional obligation by defining it more clearly. We believe that the use of the State Development Guide Plan and the confinement of all Mount Laurel litigation to a small group of judges, selected by the Chief Justice with the approval of the Court, will tend to serve that purpose. Second, we hope to simplify litigation in this area. While we are not overly optimistic, we think that the remedial use of the SDGP may achieve that purpose, given the significance accorded it in this opinion. Third, the decisions are intended to increase substantially the effectiveness of the judicial remedy. In most cases, upon determination that the municipality has not fulfilled its constitutional obligation, the trial court will retain jurisdiction, order an immediate revision of the ordinance (including, if necessary, supervision of the revision through a court appointed master), and require the use of effective affirmative planning and zoning devices. The long delays of interminable appellate review will be discouraged, if not completely ended, and the opportunity for low and moderate income housing found in the new ordinance will be as realistic as judicial remedies can make it. We hope to achieve all of these purposes while preserving the fundamental legitimate control of municipalities over their own zoning and, indeed, their destiny.
The following is a summary of the more significant rulings of these cases:
(1) Every municipality's land use regulations should provide a realistic opportunity for decent housing for at least some part of its resident poor who now occupy dilapidated housing. The zoning power is no more abused by keeping out the region's poor than by forcing out the resident poor. In other words, each municipality must provide a realistic opportunity for decent
housing for its indigenous poor except where they represent a disproportionately large segment of the population as compared with the rest of the region. This is the case in many of our urban areas.
(2) The existence of a municipal obligation to provide a realistic opportunity for a fair share of the region's present and prospective low and moderate income housing need will no longer be determined by whether or not a municipality is "developing." The obligation extends, instead, to every municipality, any portion of which is designated by the State, through the SDGP as a "growth area." This obligation, imposed as a remedial measure, does not extend to those areas where the SDGP discourages growth -- namely, open spaces, rural areas, prime farmland, conservation areas, limited growth areas, parts of the Pinelands and certain Coastal Zone areas. The SDGP represents the conscious determination of the State, through the executive and legislative branches, on how best to plan its future. It appropriately serves as a judicial remedial tool. The obligation to encourage lower income housing, therefore, will hereafter depend on rational long-range land use planning (incorporated into the SDGP) rather than upon the sheer economic forces that have dictated whether a municipality is "developing." Moreover, the fact that a municipality is fully developed does not eliminate this obligation although, obviously, it may affect the extent of the obligation and the timing of its satisfaction. The remedial obligation of municipalities that consist of both "growth areas" and other areas may be reduced, based on many factors, as compared to a municipality completely within a "growth area."
There shall be a heavy burden on any party seeking to vary the foregoing remedial consequences of the SDGP designations.
(3) Mount Laurel litigation will ordinarily include proof of the municipality's fair share of low and moderate income housing in terms of the number of units needed immediately, as well as the number needed for a reasonable period of time in the future.
"Numberless" resolution of the issue based upon a conclusion that the ordinance provides a realistic opportunity for some low and moderate income housing will be insufficient. Plaintiffs, however, will still be able to prove a prima facie case, without proving the precise fair share of the municipality, by proving that the zoning ordinance is substantially affected by restrictive devices, that proof creating a presumption that the ordinance is invalid.
The municipal obligation to provide a realistic opportunity for low and moderate income housing is not satisfied by a good faith attempt. The housing opportunity provided must, in fact, be the substantial equivalent of the fair share.
(4) Any future Mount Laurel litigation shall be assigned only to those judges selected by the Chief Justice with the approval of the Supreme Court. The initial group shall consist of three judges, the number to be increased or decreased hereafter by the Chief Justice with the Court's approval. The Chief Justice shall define the area of the State for which each of the three judges is responsible: any Mount Laurel case challenging the land use ordinance of a municipality included in that area shall be assigned to that judge.
Since the same judge will hear and decide all Mount Laurel cases within a particular area and only three judges will do so in the entire state, we believe that over a period of time a consistent pattern of regions will emerge. Consistency is more likely as well in determinations of regional housing needs and allocations of fair share to municipalities within the region. Along with this consistency will come the predictability needed to give full effect to the Mount Laurel doctrine. While determinations of region and regional housing need will not be conclusive as to any municipality not a party to the litigation, they shall be given presumptive validity in subsequent litigation involving any municipality included in a previously determined region.
The Chief Justice will analyze all pending Mount Laurel litigation to determine which, if any, should be transferred to one of the three Mount Laurel judges. As for the cases pending before us, given the knowledge acquired by the judges of the particular facts of the case, each will be remanded to the judge who heard the matter below with the exception of Round Valley, Inc. v. Clinton and Urban League of Greater New Brunswick v. Carteret, since neither of the judges who determined those matters remains on the trial bench.
(5) The municipal obligation to provide a realistic opportunity for the construction of its fair share of low and moderate income housing may require more than the elimination of unnecessary cost-producing requirements and restrictions. Affirmative governmental devices should be used to make that opportunity realistic, including lower-income density bonuses and mandatory set-asides. Furthermore the municipality should cooperate with the developer's attempts to obtain federal subsidies. For instance, where federal subsidies depend on the municipality providing certain municipal tax treatment allowed by state statutes for lower income housing, the municipality should make a good faith effort to provide it. Mobile homes may not be prohibited, unless there is solid proof that sound planning in a particular municipality requires such prohibition.
(6) The lower income regional housing need is comprised of both low and moderate income housing. A municipality's fair share should include both in such proportion as reflects consideration of all relevant factors, including the proportion of low and moderate income housing that make up the regional need.
(7) Providing a realistic opportunity for the construction of least-cost housing will satisfy a municipality's Mount Laurel obligation if, and only if, it cannot otherwise be satisfied. In other words, it is only after all alternatives have been explored, all affirmative devices considered, including, where appropriate, a reasonable period of time to determine whether low and moderate income housing is produced, only when everything has
been considered and tried in order to produce a realistic opportunity for low and moderate income housing that least-cost housing will provide an adequate substitute. Least-cost housing means what it says, namely, housing that can be produced at the lowest possible price consistent with minimal standards of health and safety.
(8) Builder's remedies will be afforded to plaintiffs in Mount Laurel litigation where appropriate, on a case-by-case basis. Where the plaintiff has acted in good faith, attempted to obtain relief without litigation, and thereafter vindicates the constitutional obligation in Mount Laurel -type litigation, ordinarily a builder's remedy will be granted, provided that the proposed project includes an appropriate portion of low and moderate income housing, and provided further that it is located and designed in accordance with sound zoning and planning concepts, including its environmental impact.
(9) The judiciary should manage Mount Laurel litigation to dispose of a case in all of its aspects with one trial and one appeal, unless substantial considerations indicate some other course. This means that in most cases after a determination of invalidity, and prior to final judgment and possible appeal, the municipality will be required to rezone, preserving its contention that the trial court's adjudication was incorrect. If an appeal is taken, all facets of the litigation will be considered by the appellate court including both the correctness of the lower court's determination of invalidity, the scope of remedies imposed on the municipality, and the validity of the ordinance adopted after the judgment of invalidity. The grant or denial of a stay will depend upon the circumstances of each case. The trial court will appoint a master to assist in formulating and implementing a proper remedy whenever that course seems desirable.
(10) The Mount Laurel obligation to meet the prospective lower income housing need of the region is, by definition, one that is met year after year in the future, throughout the years
of the particular projection used in calculating prospective need. In this sense the affirmative obligation to provide a realistic opportunity to construct a fair share of lower income housing is met by a "phase-in" over those years; it need not be provided immediately. Nevertheless, there may be circumstances in which the obligation requires zoning that will provide an immediate opportunity -- for instance, zoning to meet the region's present lower income housing need. In some cases, the provision of such a realistic opportunity might result in the immediate construction of lower income housing in such quantity as would radically transform the municipality overnight. Trial courts shall have the discretion, under those circumstances, to moderate the impact of such housing by allowing even the present need to be phased in over a period of years. Such power, however, should be exercised sparingly. The same power may be exercised in the satisfaction of prospective need, equally sparingly, and with special care to assure that such further postponement will not significantly dilute the Mount Laurel obligation.
We reassure all concerned that Mount Laurel is not designed to sweep away all land use restrictions or leave our open spaces and natural resources prey to speculators. Municipalities consisting largely of conservation, agricultural, or environmentally sensitive areas will not be required to grow because of Mount Laurel. No forests or small towns need be paved over and covered with high-rise apartments as a result of today's decision.
As for those municipalities that may have to make adjustments in their lifestyles to provide for their fair share of low and moderate income housing, they should remember that they are not being required to provide more than their fair share. No one community need be concerned that it will be radically transformed by a deluge of low and moderate income developments. Nor should any community conclude that its residents will move to other suburbs as a result of this decision, for those "other suburbs" may very well be required to do their part to provide the same housing. Finally, once a community has
satisfied its fair share obligation, the Mount Laurel doctrine will not restrict other measures, including large-lot and open area zoning, that would maintain its beauty and communal character.
Many of these points will be discussed later in this opinion. We mention them now only to reassure all concerned that any changes brought about by this opinion need not be drastic or destructive. Our scenic and rural areas will remain essentially scenic and rural, and our suburban communities will retain their basic suburban character. But there will be some change, as there must be if the constitutional rights of our lower income citizens are ever to be protected. That change will be much less painful for us than the status quo has been for them.
A. Defining the Mount Laurel Obligation
In Oakwood v. Madison, this Court held that it was sufficient in Mount Laurel litigation for courts to look to the " substance " of challenged zoning ordinances and to the existence of " bona fide efforts" by municipalities to meet their obligations. 72 N.J. at 499. It was hoped that this test would adequately protect the constitutional rights of lower income persons while at the same time minimizing the role of the courts in this area. Unfortunately, experience has taught us that this formulation is too vague to provide adequate guidance for either trial courts or municipalities. As the Mount Laurel II and Mahwah cases demonstrate, the Madison test does not ensure sufficient judicial scrutiny of zoning ordinances. Even those that plainly fail to meet the requisites of the Mount Laurel doctrine may pass the test of Madison.
Therefore, proof of a municipality's bona fide attempt to provide a realistic opportunity to construct its fair share of lower income housing shall no longer suffice. Satisfaction of the Mount Laurel obligation shall be determined solely on an [92 NJ Page 221] objective basis: if the municipality has in fact provided a realistic opportunity for the construction of its fair share of low and moderate income housing, it has met the Mount Laurel obligation to satisfy the constitutional requirement; if it has not, then it has failed to satisfy it.*fn8 Further, whether the
opportunity is "realistic" will depend on whether there is in fact a likelihood -- to the extent economic conditions allow -- that the lower income housing will actually be constructed. Plaintiff's case will ordinarily include proof of the municipality's fair share of the regional need and defendant's proof of its satisfaction. Good or bad faith, at least on this issue, will be irrelevant. The numberless approach encouraged in Madison, where neither plaintiffs nor defendants are required to prove a fair share number, is no longer acceptable.
The numberless approach is to be distinguished, however, from presumptive facial invalidity. Plaintiff may continue to prove (in addition to or instead of proving the fair share obligation of the municipality) that the land use regulations fail to provide a realistic opportunity for low and moderate income housing or that they contain "expressly prescribed requirements or restrictions which preclude or substantially hinder it." Mount Laurel I, 67 N.J. at 180-81. As before, such a showing shall create a prima facie case of a failure to satisfy the Mount Laurel obligation. The municipality shall then have the heavy burden of demonstrating, by a preponderance of the evidence, its fair share and its satisfaction of that share, or any justification
of its failure. It shall not be sufficient in such cases to show merely that there are one, two or three zones that purport to contain provisions for multi-family dwellings: what is needed where facial invalidity is relied on by the plaintiff is a definite presentation of facts by the defendant-municipality that shows that it has satisfied its fair share obligation.
In the remainder of Section II, we will restate what "fair share" means and what municipalities and courts must do to ensure that Mount Laurel obligations are met. Section IIB, using the DCA's SDGP as the remedial standard, sets forth which municipalities have a prospective fair share obligation. Section IIC describes various ways by which the prospective fair share of municipalities may be calculated. Section IID describes the mechanisms municipalities must use to meet their Mount Laurel obligations. Section IIE outlines the remedies available to trial courts to ensure compliance with our mandate. Finally, Section IIF emphasizes the importance of judicial management in making Mount Laurel effective.
B. Determining the Mount Laurel Obligation: Use of the State Development Guide Plan
The initial question in every Mount Laurel case is whether the municipality is subject to the Mount Laurel obligation. In its initial formulation in Mount Laurel I, this Court described the characteristics of Mount Laurel, implying that any municipality with similar characteristics would have the obligation announced in that opinion. Mount Laurel I, 67 N.J. at 160. Those municipalities are referred to as "developing municipalities." Id. at 190. All subsequent litigation concerning the doctrine treated this preliminary determination as a condition precedent to its applicability (although there were pointed disagreements suggesting the developing-developed distinction inequitable, e.g., Pascack, 74 N.J. at 494-95 (Schreiber, J., concurring)), and the particular factors descriptive of Mount Laurel set forth in that opinion became fixed as the "six criteria of a developing municipality":
A developing municipality (1) has a sizeable land area, (2) lies outside the central cities and older built-up suburbs, (3) has substantially shed rural characteristics, (4) has undergone great population increase since World War II or is now in the process of doing so, (5) is not completely developed and (6) is in the path of inevitable future residential, commercial and industrial demand and growth. [ Glenview Development Co., 164 N.J. Super. at 567-68].
These criteria are discussed as if each must be satisfied in order for a municipality to be "developing."
There are various drawbacks to this approach to the critical question of determining the existence of the obligation. Uncertainty is one of them. Ideally a municipality, and its governing body, should know without question whether it is subject to the Mount Laurel remedy, for without that knowledge municipalities that are "borderline" (between developing and non-developing) cannot be expected to comply with an obligation that may very well not exist. Given the foreseeable political pressures, governing bodies in that situation are almost certain to take the position either that the constitutional remedy or obligation does not apply, or that if it does apply, it has not been violated, or that their responsibility to the municipality and its residents requires that the issues be determined in litigation.
Of at least equal importance, the criteria will not necessarily result in the imposition of the obligation in accordance with sound planning. There may be areas that fit the "developing" description that should not yield to "inevitable future residential, commercial and industrial demand and growth." Those areas may contain prime agricultural land, open spaces and areas of scenic beauty; apart from these their development might impose unacceptable demands on public investment to extend the infrastructure required to support such growth. Indeed, to some extent the very definition of "developing" suggests results that are quite the opposite of sound planning, for the whole purpose of planning is to prevent or deflect what would otherwise be "inevitable."
Lacking any official guidance, however, as to the state's plans for its own future, its own determination of where development should occur and where it should not, and what kind of development,
this Court fashioned its own remedial planning guide in the form of a definition of "developing." It was obvious to anyone who studied the matter that such definition of the Mount Laurel responsibility furnished no guarantee that if lower income housing resulted, it would be built where it should be built, i.e., where a comprehensive plan for the State of New Jersey might indicate such development was desirable. We proceeded in spite of this drawback since, given the constitutional requirement and the lack of any assurance that such a statewide plan would be forthcoming, there appeared no justification for delay.
We now have a satisfactory alternative. The State Development Guide Plan (May 1980) promulgated pursuant to N.J.S.A. 13:1B-15.52, provides a statewide blueprint for future development. Its remedial use in Mount Laurel disputes will ensure that the imposition of fair share obligations will coincide with the State's regional planning goals and objectives.
The SDGP represents the only official determination of the state's plan for its own future development and growth. It is substantially similar, in concept and approach, to various regional planning documents by other entities, such as the Tri-State Regional Planning Association, Delaware Valley Regional Planning Association, the Regional Plan Association, and the Middlesex, Somerset, Mercer Regional Study Council, Inc., which have the goal of guiding all new development within their planning jurisdictions. The SDGP resulted from an intensive study of all aspects of New Jersey's current growth and development considered in conjunction with the "physical assets" of the state: its natural resources, open spaces, farmland, "infrastructure" (transportation, sewage facilities, water supplies and facilities), including the location of present intensive development, employment centers, community facilities, recreation areas, etc.*fn9 By
using proven sound planning concepts the Division of State and Regional Planning, statutorily charged with the obligation (N.J.S.A. 13:1B-15.52), developed a master plan (the SDGP and the Concept Map) for the purpose of guiding the future growth and development of this state.
The SDGP divides the state into six basic areas: growth, limited growth, agriculture, conservation, pinelands and coastal zones (the pinelands and coastal zones actually being the product of other protective legislation).*fn10 While it does not purport to draw its lines so finely as to delineate actual municipal boundaries or specific parcels of land, the concept map, through the county maps, makes it quite clear how every municipality in the state should be classified (see Appendix). By clearly setting forth the state's policy as to where growth should be encouraged and discouraged, these maps effectively serve as a blueprint for the implementation of the Mount Laurel doctrine. Pursuant to the concept map, development (including residential development) is targeted for areas characterized as "growth." The Mount Laurel obligation should, as a matter of sound judicial discretion reflecting public policy, be consistent with the state's plan for its future development. Consequently,
the obligation should apply in these "growth" areas, and only in these areas, subject to the exceptions mentioned infra at 240-243.*fn11
The use of the SDGP for this purpose is consistent with the statute authorizing its preparation and with its actual use by the Legislature, counties, municipalities, the Federal government and the Division of State and Regional Planning within the Department of Community Affairs. The administrators who carried out the legislative requirement to prepare such a plan ". . . for the future improvement and development of the State," N.J.S.A. 13:1B-15.52 a.(2), interpreted the statute to require a plan that would guide and influence the location of future development, including residential development. Channeling the development impetus of the Mount Laurel doctrine into "growth areas" is precisely the kind of use of the plan that was intended by those who prepared it.
The statute requires the Division of State and Regional Planning to "[p]romote programs to insure the orderly development of the State's physical assets by . . . preparing and maintaining a comprehensive guide plan and long term development and capital improvement program for the future improvement and development of the State . . . ." N.J.S.A. 13:1B-15.52(a), (a)(2). The same section of the statute requires the Division to "assembl[e]
and analyz[e] pertinent facts as to existing development conditions and trends." N.J.S.A. 13:1B-15.52(a)(1). The plan is "comprehensive," its intent is to "guide . . . the future . . . development of the State," and its purpose of assuring the orderly development of the State's "physical assets" (land, open spaces, infrastructure -- all of the State's natural and man-made "physical resources" (SDGP at ii)) is to be achieved by, among other things, "stimulating, assisting and coordinating local, county and regional planning activities." N.J.S.A. 13:1B-15.52(a)(4).*fn12
The Division of State and Regional Planning completed its Horizon Plan and Ten Million Plan in the 1960's, see SDGP, Preface at 1, and by 1975 was well along in its studies and work aimed at the preparation of the State Development Guide Plan. That work was proceeding through the efforts of the State Planning Task Force started in the early 1970's.
In 1975, the Legislature recognized and supported this effort to guide the further development of the state in accordance with that comprehensive guide plan. Presumably with knowledge of the Division's ongoing work in preparing the SDGP, it required all municipalities to consider the relationship of their master plans to the SDGP, each master plan to "include a specific policy statement indicating the relationship of the proposed development of the municipality as developed in the master plan to . . . [the State Development Guide Plan]." N.J.S.A. 40:55D-28(d). While it did not mandate conformance of the municipal master plan or the development of the municipality to the SDGP, the legislative intent was clear: municipalities were encouraged to
guide their development in conformance with the state plan to make it more likely that through voluntary municipal action, the future development of the entire state would be in accordance with comprehensive sound planning.
This legislatively mandated use of the SDGP is found in the Municipal Land Use Law, L. 1975, c. 291, N.J.S.A. 40:55D-1 to -92, in which the Legislature explicitly recognized the importance of regional planning and the need to integrate each municipality's development with the development of the state as a whole. Among the purposes of the Act are the following: "to encourage municipal action to guide the appropriate use or development of all lands in this State," "to ensure that the development of individual municipalities does not conflict with the development and general welfare of neighboring municipalities, the county and the State as a whole," "to promote the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, communities and regions . . .," "to provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space, both public and private, according to their respective environmental requirements in order to meet the needs of all New Jersey citizens," and "to promote the conservation of open space and valuable natural resources and to prevent urban sprawl and degradation of the environment through improper use of land." N.J.S.A. 40:55D-2.
Among the many devices found in the law to achieve these purposes is the municipal master plan. That plan, which must relate to the SDGP, is "to guide the use of lands within the municipality." Thus, it is essentially a plan to help determine, control, and provide locations for the municipality's future growth. N.J.S.A. 40:55D-28(a). Among other things, master plans require "[a] land use plan element . . . showing the existing and proposed location, extent and intensity of development of land to be used in the future for varying types of residential, commercial, industrial, agricultural, recreational, educational
and other public and private purposes or combination of purposes, and . . . including a statement of the standards of population density and development intensity recommended for the municipality." N.J.S.A. 45:55D-28 b(2).
When the Division of State and Regional Planning circulated its first draft of the SDGP in 1977 and then (after broad consultation with citizens throughout the state involved in the planning process, including county and regional planning agencies) released the SDGP in May 1980, it knew that the areas it had carved out of the state and designated for "growth," "limited growth," "conservation," and "agricultural" would be used by municipalities in determining where development in fact should and should not occur. The SDGP was not only a document that could be used to decide where growth should be encouraged and discouraged, permitted, and prohibited, but a document that the Legislature said must be used for that purpose. And so it has been used by municipalities in accordance with the Municipal Land Use Law and in many other ways.
The primary function of the SDGP is to determine where growth, including residential growth, should be encouraged or discouraged.
The State Development Guide Plan is a policy statement about the State's future growth and development. It contains a concept map which shows spacially where growth should be either discouraged, encouraged or delayed, and reflects the need to balance conservation areas, agricultural land and water resource imperatives with opportunities for further economic and residential expansion. [SDGP at ii].
Speaking of population and employment projections that indicate that the already-developed "pattern of more widespread suburbanization will continue into the 1980's," and noting that "this could result in the development of substantial amounts of open land for residential, commercial and industrial uses," the SDGP describes the challenge that it is designed to help meet:
A major challenge faced by the people of New Jersey is how to guide this projected growth so that open space and environmental quality are retained while, at the same time, good residential areas are made available, needed employment opportunities are created, and public investments are efficiently utilized and developed. [SDGP at 2].
Housing is one of the major factors discussed in the Plan, along with population distribution and growth, the economy, energy, urban areas, infrastructure, environmental quality and natural resources. The Plan notes that "a major challenge in the coming years will be to provide a variety of housing opportunities in appropriate locations for New Jersey's expanding population." SDGP at 7. Referring to the "suburbanization process" that followed World War II as "expensive and wasteful," the Plan notes "a need now in New Jersey to alter this unplanned pattern of spread development. A compact development pattern for the future can serve to promote the utilization of the existing infrastructure and service system in an economical way . . . . It is now suggested that a major portion of the State's development efforts should be directed to areas within and contiguous to existing development." SDGP at 25. One of its growth management strategies advocates "a suitable balance between conservation and growth in New Jersey with space for both the conservation of agricultural and critical environmental areas and for residential and economic growth." SDGP at 26.
"The overall strategy of the Guide Plan is to attain a sharper focus in governmental efforts directed to urban, suburban and open space areas so that the proposed patterns of conservation and development can be realized." SDGP at 80. The strategy is one of "discouraging population expansion" in "Limited Growth Areas," SDGP at 91, "to refrain from public investment in growth inducing facilities" in "Agricultural Areas," SDGP at 90, to utilize "acquisitions and regulatory control, the withholding of major public investments for growth-inducing facilities to deter development" in conservation areas, SDGP at 87, and to target public investments for new growth-inducing facilities to "Growth Areas," and within those areas "encourage housing development in proximity to jobs, commercial areas and public transportation," and "provide a variety of housing types so that households of varying sizes and incomes can find suitable housing," SDGP at 86, "Growth Areas" being those parts of the [92 NJ Page 232] State previously defined as being "particularly suitable for development." SDGP at 47.*fn13
The remedial use by this Court of the SDGP as the primary standard to determine the locus of the Mount Laurel obligation, and consequently to determine where development (in this case housing) should be encouraged and, as importantly, its use to assure that the Mount Laurel doctrine does not encourage development in conflict with the State's comprehensive plan, is thus the kind of use of the SDGP contemplated by the Legislature in various statutes, and by the Plan itself.
For instance, it is clear that municipal master plans, pursuant to the statutory mandate, have considered the SDGP; that many seem to view it as a helpful guide; that some conscientiously attempt to conform their proposed development to that suggested in the Plan; that others comply with it out of a concern that needed public funds will not be forthcoming unless they do; and that others simply note their consideration in a pro forma manner. The overriding fact, however, is that the SDGP is being used, to a greater or lesser extent, by municipalities in planning for their future development, and in particular is being used to determine where future development, including housing, should be located by referring to those areas of the SDGP classified as "growth areas."
While its impact is not clear, the SDGP is being used by the state in commenting on all applications for major subdivisions
exceeding either 150 acres or 500 dwelling units. The Municipal Land Use Law requires that the Division of State and Regional Planning be notified of hearings on such applications (N.J.S.A. 40:55D-12(g)), the Legislature presumably intending that the location of such proposed developments be reviewed by the Division to determine if they conform with sound statewide comprehensive planning -- and ultimately if they conform with the comprehensive guide plan that the Legislature required all master plans to consider. The obvious purpose of this provision is to enable the Division to advise local agencies, before they act on such applications, of the relationship of the proposed development to statewide comprehensive planning and of the recommendations of the Division concerning either approval or disapproval, and of the conditions that might be considered in connection with such applications. The Division has used the SDGP "as a reference in its review of major subdivisions," SDGP at iii, "to evaluate the suitability of major subdivision proposals [of this kind]" in order to "assess [ ] major development proposals in terms of statewide priorities and policies . . . [and to] shar[e] such assessments with the private sector and local governments concerned," SDGP at 80 (in other words to let the municipality and the proposed developer know of the Division's recommendations concerning the proposed development based on the SDGP). The direction by the Legislature provides a practical support for its declared policy that municipal land use regulations shall be applied in accordance with regional and statewide planning objectives, for it brings the Division of State and Regional Planning and the SDGP directly onto the stage where the development decisions are made.
The SDGP is also used by the state and its agencies in reviewing their own "functional plans." "Some agencies have found the plan useful and have incorporated its major recommendations within their own programs. Some progress has been made, though on an informal basis, toward establishing a unified statewide land use and investment policy." SDGP at iii. The Governor's Office of Policy and Planning, created in 1978,
designed to assure that the policies of state departments are complementary and mutually enforcing, has "given impetus to the movement toward coordinated comprehensive land use policies." Id. The SDGP is "designed to assist the Governor's Office of Policy and Planning and the various cabinet committees it serves," id. at iv, in this function. The clear implication is that in accordance with its intent, the SDGP is being used to help guide state investment policies, capital growth strategies, and overall programmatic policies.
The SDGP has been used, since 1977, by the Division in its review of and for its comments on "applications for federal assistance processed through the Project Notification and Review System." SDGP at iii. This is a system designed to obtain comments that will enable the federal government to determine whether its grant programs are in conflict with comprehensive planning projects of regions and states, to what extent in conflict, all for the purpose of determining whether or not to approve or reject an application, or to attach varying conditions to it. Many of the projects for which federal aid is sought are development-inducing (sewage construction, roads, water treatment, etc.); they may determine as much as any other governmental policy where residential development will occur and where it will not.
A brochure issued by the Division in September 1981 notes that its review of a federal aid application is to determine, among other things, the application's "conformance with the State Development Guide Plan" as mandated by the federal legislation. Case studies in the brochure show the extent to which the SDGP's classification of the State into growth areas and others has actually been used in influencing decisions affecting the State's development.*fn14
The lessons of history are clear, even if rarely learned. One of those lessons is that unplanned growth has a price: natural resources are destroyed, open spaces are despoiled, agricultural land is rendered forever unproductive, and people settle without regard to the enormous cost of the public facilities needed to support them. Cities decay; established infrastructures deteriorate for lack of funds; and taxpayers shudder under a financial burden of public expenditures resulting in part from uncontrolled migration to anywhere anyone wants to settle, roads leading to places they should never be -- a pattern of total neglect of sensible conservation of resources, funds, prior public investment, and just plain common sense. These costs in New Jersey, the most highly urbanized state in the nation, are staggering, and our knowledge of our limited ability to support them has become acute. More than money is involved, for natural and man-made physical resources are irreversibly damaged. Statewide comprehensive planning is no longer simply desirable, it is a necessity recognized by both the federal and state governments.
Based on all of the foregoing, we are able to fashion judicial relief through means not available to us when we established the "developing municipality" remedial doctrine. These considerations, founded in sound public policy relating to comprehensive planning, are compelling in favor of a remedial solution that imposes the Mount Laurel obligation only in those areas designated as "growth areas" by the SDGP. For reasons shortly to be noted, we have decided to allow some limited variation from that rule. The point here is that we see every reason to modify what is generally regarded as one of the doctrines of Mount Laurel I, namely, that the Mount Laurel obligation applies only in developing municipalities, and no reason, either in the constitutional doctrine or in the Mount Laurel case itself, not to do so.
That we are not inhibited by the Constitution from making this change is apparent when one analyzes the constitutional obligation itself. Mount Laurel I held that in the exercise of the zoning power a municipality could not constitutionally limit to its own citizens those whose housing needs it would consider, but was required to consider the housing needs of all of the citizens of the region of which that municipality was a part. Put differently, the zoning power that the State exercised through its municipalities would have constitutional validity only if regional housing needs were addressed by the actions of the municipalities in the aggregate. The method selected by this Court in Mount Laurel I for achieving that constitutionally mandated goal was to impose the obligation on those municipalities that were "developing." Clearly, however, the method adopted was simply a judicial remedy to redress a constitutional injury. Achievement of the constitutional goal, rather than the method of relief selected to achieve it, was the constitutional requirement.
Since our imposition of the Mount Laurel obligation on municipalities containing growth areas as defined by the SDGP (rather than on "developing" municipalities) is just as clearly related to achieving the constitutional goal, it is equally constitutionally valid. Furthermore, it is significantly preferable for other reasons. The constitutional obligation of the State of New Jersey in exercising its zoning power through its municipal subdivisions to provide a realistic opportunity for lower income housing for its citizens can just as well be met by requiring housing in municipalities in conformance with sound planning concepts as with judicially devised characterizations that may or may not advance other important policies of the state.
As this Court pointed out in Mount Laurel I, it might be "sounder" to have one municipality in the region have more lower income housing than another "because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason" -- in other
words for the combination of reasons that add up to a sound planning decision. Though it might be sounder, we reluctantly concluded that " every municipality [in a region] must bear its fair share of the regional burden." 67 N.J. at 189 (emphasis supplied). We thought then that our hands were tied, that we could not distribute the Mount Laurel obligation in accordance with sound planning criteria both because of the method of distributing the tax burden in New Jersey and because zoning was not permitted on a regional basis. Id. at 189 & n. 22. Today, however, zoning in accordance with regional considerations is not only permissible, it is mandated as noted above. Furthermore, while we are far from achieving tax equality among all the municipalities of the state, our present programs of State aid to education (financed through an income tax that was not in effect at the time of our decision in Mount Laurel I) are designed to reduce significantly the differential school tax burden between municipalities that accept residential development and those that do not. As we view it, therefore, there is no reason today not to impose the Mount Laurel obligation in accordance with sound planning concepts, no reason in our Constitution to make every municipality a microcosm of the entire state in its housing pattern, and there are persuasive reasons based on sound planning not to do so.
The Constitution of the State of New Jersey does not require bad planning. It does not require suburban spread. It does not require rural municipalities to encourage large scale housing developments. It does not require wasteful extension of roads and needless construction of sewer and water facilities for the out-migration of people from the cities and the suburbs. There is nothing in our Constitution that says that we cannot satisfy our constitutional obligation to provide lower income housing and, at the same time, plan the future of the state intelligently.
Sound planning requires that municipalities containing "growth areas" have a Mount Laurel obligation and that, together, all of those municipalities affirmatively provide a
realistic opportunity for the construction of sufficient lower income housing to meet the needs of New Jersey's lower income population. And, as among those municipalities containing "growth areas," the Constitution does not prohibit further distinctions, some municipalities being required to take more than others because a combination of factors suggests that they are more suitable for such development. The thought that "suitability" may determine and validate distinctions in uses between municipalities was expressed by Chief Justice Vanderbilt in Duffcon Concrete Products v. Borough of Cresskill, 1 N.J. 509 (1949), one of the first cases to evaluate a zoning ordinance in the context of regional characteristics and needs.
There may be inequities between and among these municipalities located within growth areas, as there undoubtedly are between all of them and municipalities outside of growth areas, for the tax and other burdens caused by the location of lower income housing will not be fairly spread. The state, however, has made its decision as to where this development should occur. If location in accordance with that state plan has adverse economic consequences, it would be appropriate for the state, rather than this Court, to correct them.
As noted above, we have decided not to make the SDGP the absolute determinant of the locus of the Mount Laurel obligation. Our reluctance to give it conclusive effect is based on the fact that while it has the legitimacy of legislative authorization, the Legislature has neither explicitly authorized its use for Mount Laurel purposes nor mandated that the actual use of land, as permitted in zoning ordinances, conform to the SDGP. Given these circumstances, we deem it prudent to allow parties to attempt to persuade the trial court, in a particular case, that the SDGP should not determine whether the Mount Laurel doctrine applies to the particular municipality involved in the case. While we believe important policy considerations are involved in our decision not to make the SDGP conclusive, we think it even more important to point out that it will be the
unusual case that concludes the locus of the Mount Laurel obligation is different from that found in the SDGP. Subject to those cases, we hold that henceforth, only those municipalities containing "growth areas" as shown on the concept map of the SDGP (or any official revision thereof) shall be subject to the Mount Laurel prospective need obligation.*fn15
Any party in Mount Laurel litigation seeking a ruling that varies the locus of the Mount Laurel obligation from the SDGP growth areas will have to prove one of the following: (1) accepting the premises of the SDGP, the conclusion that the municipality includes any growth area, or as much growth area as is shown on the concept map, is arbitrary and capricious, or, alternatively, the conclusion that the municipality does not contain any growth area whatsoever is arbitrary and capricious; (2) since the preparation of the concept map (or any revision thereof) the municipality has undergone a significant transformation that renders the SDGP's characterization of it inappropriate, admitting that at the time of the preparation of the SDGP and the concept map (or any revision thereof) the classification of the municipality was correct; or (3) (and ...