Fobe Associates v. Mayor and Council and Bd. of Adjustment of Borough of Demarest

• Decision Date: 23 March 1977
• Citation: 74 N.J. 519,379 A.2d 31
• Parties: FOBE ASSOCIATES, a Partnership, Plaintiff-Appellant, v. The MAYOR AND COUNCIL AND the BOARD OF ADJUSTMENT OF the BOROUGH OF DEMAREST, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 519

74 N.J. 519

379 A.2d 31

FOBE ASSOCIATES, a Partnership, Plaintiff-Appellant, v. The MAYOR AND COUNCIL AND the BOARD OF ADJUSTMENT OF the BOROUGH OF DEMAREST, Defendants-Respondents.

Supreme Court of New Jersey.

Argued May 25, 1976.

Decided March 23, 1977.

Elliot W. Urdang, Hackensack, for plaintiff-appellant (Dorfman & Urdang, Hackensack, attorneys)

Marvin Olick, Hackensack, for respondents (Gruen, Sorkow & Sorkow, Hackensack, attorneys).

The opinion of the court was delivered by

CONFORD, P. J. A. D., Temporarily Assigned.

Plaintiff, a developer, was unsuccessful in the Law Division in seeking adjudications that (a) the denial by the Demarest Borough board of adjustment of a recommendation of a "d." variance (N.J.S.A. 40:55-39 d.) for erection of a garden apartment house in a restricted single-family residence district was illegal as arbitrary and unreasonable; and (b) that the zoning ordinance of the borough was invalid by reason of its absolute prohibition of multi-family- residential buildings. The Appellate Division affirmed the trial court judgment for defendants. We granted certification, 69 N.J. 74, 351 A.2d 2 (1975), and heard argument in this case and in Pascack Association v. Mayor and Council of Washington, 74 N.J. 470, 379 A.2d 6 (decided this day) together, similar questions being implicated. We affirm.

The Borough of Demarest is situated in northeast Bergen County in an area known as the Northern Valley. It is located within a few miles from, and is within easy commutation distance of, New York City and principal cities of northern New Jersey. It comprises approximately 1,345 acres. The borough's first zoning ordinance was adopted in 1941 and contained no provision for multi-family housing. With only a few minor changes it remained intact until 1966 when a new master plan and the present zoning ordinance were enacted, substantially upgrading minimum lot requirements.

Under the present ordinance, there are five single-family residential zones in the town with minimum lot sizes ranging from 10,000 square feet to 40,000 square feet. These residential zones account for 1,338 acres; the remaining It is not disputed that Demarest can be characterized as a developed or almost completely developed municipality. Of the total 1,345 acres in the borough, 35.5 acres are privately owned vacant residential land, 34.0 more privately held acres are underdeveloped and may be subdivided, and 228.5 acres are taken up by a privately owned school and an operating golf course. Hence, excluding the school and golf course areas as unavailable, Demarest is 97.5% developed. The area developed with single-family homes consists of about 1400 lots, about 550 being lots of from a quarter to a half acre and the remainder from a half acre to an acre.

seven acres are zoned as one single commercial district. This "business district" is of the neighborhood variety, consisting of a row of stores and a bank.

Plaintiff's property is a vacant parcel of approximately 8.15 acres situated between County Road and Piermont Road, both county roads. It is located in a BB residential zone requiring single-family development on minimum 30,000 square foot lots. It is a heavily wooded tract of relatively uniform topography, and municipal and public utilities are available. Plaintiff proposes to build a 120 unit garden apartment development. It would consist of five separate buildings, colonial styled of brick veneer, one building each facing County and Piermont Roads, the other three facing the interior of the property. Setbacks would vary from 50 to 120 feet. The net building coverage (deducting land to be dedicated) would be 16.5%. The proposed project would consist of 80 one-bedroom and 40 two-bedroom units, allegedly in the middle to moderate income range. Parking would be available for 185 automobiles.

I

The Validity of the Zoning Ordinance

At the trial in the Law Division it was agreed that the record before the board of adjustment on the variance application There is no essential difference between the facts here and those in Pascack Association in respect of the contention of invalidity advanced in both cases. That position was that in view of the essentiality of housing for all categories of people and families and the current shortage of multi-family housing in and around the environs and regions of Washington and Demarest, respectively, it is mandatory that every municipality in those regions, regardless of the nature and extent of its current development, provide by its zoning ordinance the opportunity for some degree of multi-family residential development. We rejected that contention in Pascack Association. We held that the reasonableness of exclusion by zoning of multi-family housing depended upon the nature and extent of development in the municipality. There, where the historical development of a small municipality over a period of time was one almost of total devotion to the provision of a homogeneous single-family residence community to satisfy the needs and desires of people most of whose household heads had occupations elsewhere, we concluded that there was nothing invidious in a zoning or general welfare sense about such development. We further held that it was not mandatory that any part of the small amount of vacant land left in the municipality be zoned for multi-family housing as against the municipal legislative judgment that the best interests of the municipality would be served by preserving its character and stabilizing its development as a single-family residential community.

would be stipulated as relevant to the issue of validity of the ordinance as well. However, in view of our conclusions on matters of law in our opinion in the companion Pascack Association case, supra, it will not be necessary fully to analyze either the testimony before the board of adjustment or that newly adduced before the Law Division for purposes of the present point.

We took notice of our intervening decision in So. Burl. Cty. N. A. A. C. P. v. Tp. of Mt. Laurel, 67 N.J. 151, 336 A.2d 173 app. We acknowledged in Pascack Association the serious current shortage of housing in Bergen County and elsewhere in the state and recommended legislative attention to the problem, possibly by creation of regional or state zoning agencies, functioning under corrective standards. But a sociological crisis not meeting the peculiar dimensions of the exigency which compelled our attention in Mount Laurel was not regarded as the appropriate occasion for imposing upon the judiciary "the role of an ad hoc super zoning legislature * * * " for every municipality in the State. Pascack Association v. Mayor and Council of Washington, supra, 74 N.J. pp. 487-488, 379 A.2d p. 15.

dism. and cert. den., 423 U.S. 803, 96 S.Ct. 18, 46 L.Ed.2d 28 (1975) ("Mount Laurel ", hereinafter), see also Oakwood at Madison, Inc. et al. v. The Township of Madison, 72 N.J. 481, 371 A.2d 1192 (1976), and held that case not authority for a different result. We pointed out that the gravamen of Mount Laurel was the fundamental illegality of zoning in a developing municipality, with sizable available areas of developable land, which denied to low and moderate income families the opportunity of obtaining new housing there. Washington Township was not of the character so delineated.

As noted above, we perceive no significant difference between the factual situations in Washington Township and Demarest Borough in relation to the application of the foregoing principles. Demarest is less than 2 1/2 square miles in area, with a 1970 population of 5,133 (as revised from an original incorrect census figure of 6,282). As cogently pointed out by a planning expert who testified for the township, virtually all of Demarest's housing has been built in response to regional needs and demands for precisely the kind of housing which eventuated. There is no industry and little commerce in Demarest. Thus local activities of the latter kinds have generated no correlative need for local housing, cf. Mount Laurel, 67 N.J. at 187, 336 A.2d 173, and an important and necessary regional purpose has been served

in providing suitable housing in a desired environment for those whose industrial, commercial and professional activities elsewhere have benefitted the social order. How best to use the few isolated parcels of vacant land remaining in Demarest is a matter for the local governmental bodies unless and until the Legislature expressly ordains any specific disposition (within constitutional limitations). The Demarest ordinance is not invalid on the grounds advanced by plaintiff.

II

Application for the Variance

A considerably more complex question is presented by the denial of a recommendation for a variance for plaintiff's project. ¹ It comprehends several sub-issues: (a) Is the alleged regional need for multi-family housing a proper "special reason" for granting a d. variance (N.J.S.A. 40:55-39 d.) in a single-family district on "general welfare" grounds? (b) If it is, is it a use "inherently" serving the general welfare, so as not to require a showing that the public welfare benefit is peculiarly dependent upon the location of the site of the variance, see Kohl v. Mayor and Council of Fair Lawn, 50 N.J. 268, 279-280, 234 A.2d 385 (1967)? (c) If it is not such an "inherently" beneficial use, is there the required showing specified in (b) supra ? (d) In any case, is a denial of variance by the board of adjustment on the grounds which it advanced so arbitrary, capricious or unreasonable as to require the court to mandate a recommendation for variance?

A more extended survey of the proofs before the board of adjustment, to which a reviewing court is confined in resolution of the issues, see Reinauer Realty Corp. v. Paramus, 34 N.J. 406, 416-417, 169 A.2d 814 (1961), is necessary at this point.

The property in question has access to two parallel roads, Piermont Road on the...