Taxpayers Ass'n of Weymouth Tp., Inc. v. Weymouth Tp.

CourtUnited States State Supreme Court (New Jersey)
Citation364 A.2d 1016,80 N.J. 6
Parties, 83 A.L.R.3d 1051 The TAXPAYERS ASSOCIATION OF WEYMOUTH TOWNSHIP, INC., et al., Plaintiffs-Respondents, v. WEYMOUTH TOWNSHIP, a Municipal Corporation, Defendant-Appellant, and Sidney Simon t/a Weymouth Park Association, and M & M Land Co., a Corporation of the State of New Jersey, Defendants.
Decision Date28 September 1976

Page 6

80 N.J. 6
364 A.2d 1016, 83 A.L.R.3d 1051
al., Plaintiffs-Respondents,
WEYMOUTH TOWNSHIP, a Municipal Corporation, Defendant-Appellant,
Sidney Simon t/a Weymouth Park Association, and M & M Land
Co., a Corporation of the State of New Jersey, Defendants.
Supreme Court of New Jersey.
Argued Feb. 4, 1975.
Reargued Jan. 12 and 13, 1976.
Decided Sept. 28, 1976.

[364 A.2d 1021]

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Clement F. Lisitski, Vineland, for defendant-appellant (Shapiro, Eisenstat, Capizola, O'Neill, Lisitski & Gabage, Vineland, attorneys, Clement F. Lisitski on the brief).

David H. Romberger, Stone Harbor, for defendant developers.

Morton Feldman, Atlantic City, for plaintiffs-respondents.

Kenneth E. Meiser, Asst. Deputy Public Advocate, Camden, for amicus curiae Dept. of Public Advocate (Stanley C. Van Ness, Public Advocate, Trenton, attorney, Kenneth E. Meiser, Camden, Carl S. Bisgaier, Deputy Director, and Peter A. Buchsbaum, Asst. Deputy Public Advocate, Division of Public Interest Advocacy, Dept. of Public Advocate, Trenton, on the brief).

John J. DeVincens, Toms River, for amicus curiae, Leisure Technology Corp. (Giordano &

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Halleran, Toms River, attorneys, Francis John Badach, Toms River, of counsel and on the brief).

The opinion of the court was delivered by


This appeal raises the question whether a zoning ordinance may create a district in which one of the permitted uses is a mobile home park for the exclusive use of the elderly. The Appellate Division disagreed with the determination of the Law Division that such zoning is valid. Because this pattern of zoning developed in a rather roundabout way, it is helpful to state the following chronology and content of the relevant municipal legislation:

Prior to the adoption in 1971 of Ordinances Nos. 172--1971 ('No. 172') and 171--1971 ('No. 171'), whose validity we deal with here, the general zoning ordinance of Weymouth Township, Ordinance No. 144, adopted in 1966, established six zoning districts, one of which was designated 'T--Trailer and Mobile Districts.' In that district property was permitted to be used for any use allowed in an R-A Rural Residence District and also for 'trailer camps.' The ordinance contained specific regulations concerning such camps and the specifications of lots on which mobile homes or trailers could be placed.

Ordinances Nos. 171 and 172, adopted on July 7, 1971 and on June 25, 1971, respectively, were obviously conceived as a single legislative program and intended to be read together, even though No. 171 uses the terminology of Ordinance No. 144 in rezoning the property of the defendant property owner (Block 85, Lots 1, 2 and 3) as a 'Trailer and Mobile Home District.'

No. 172 is an unusual ordinance. Although its title indicates that it is merely a regulatory ordinance concerning the parking, location and licensing of 'mobile home parks,' it actually functions as a zoning ordinance as well. Specifically, it prohibits 'trailer parks . . . generally' within the township. However, it then provides that, upon recommendation

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of the planning board and approval by the township committee, mobile home parks may be established on tracts exceeding 140 acres. Moreover, each home site must be at least 5,000 square feet in area (section VI(b)), and no more than 20% Of all mobile homes in any park may contain more than two bedrooms. Section XXII. Most important, the ordinance restricts occupancy of all mobile home parks to 'elderly persons' or 'elderly families.' Section XXIII. Elderly persons are defined as persons 52 years of age or over, and elderly families as those 'the head of which, or his spouse is 52 years of age or over.' Section II. Occupancy of a mobile home or trailer outside an approved mobile home park is prohibited. Section XVII. Only three licenses for a mobile home park are permitted to be outstanding at any one time. Section XXI.

[364 A.2d 1022] No. 172 also contains a 'Declaration of Policy and Purpose,' reciting the need for decent, safe and moderately priced housing for the elderly, the suitability of mobile home parks to satisfy this need and the necessity for regulation of such parks by the detailed regulatory and licensing provisions contained in the ordinance. These provisions apparently supersede the regulatory provisions of No. 144 relative to trailers and mobile home residences and parks or camps, although No. 172 states that it is 'subject to the provisions of Ordinance No. 144 and amendments thereto * * *.'

The net effect of these ordinances is that defendant property owner's land now constitutes a zoning district which is restricted to use for mobile home parks (whose occupancy is limited exclusively to elderly persons or elderly families), or to any use permissible in an R-A Rural Residential District. Moreover, mobile homes or trailers are not permitted as residences anywhere in the municipality except as homes for the elderly or elderly families.

In July 1971, defendant property owner filed applications for a Mobile Home Park license and for a site plan review

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with the township committee and the township planning board as required by section V of No. 172. These applications were accompanied by the appropriate tender of fees. Because of the pendency of the instant litigation, no official action has been taken on these applications.

In October 1971, the Taxpayers' Association of Weymouth Township and several of its members who are individual property owners in Weymouth Township filed a joint complaint in lieu of prerogative writ challenging Ordinances Nos. 171 and 172 on a variety of grounds. Essentially, plaintiffs alleged that the ordinances were enacted improperly, have an unconstitutional effect on the rights of children, resulted from an unlawful conspiracy among the defendants and constituted illegal 'spot zoning.' After trial, the court ruled for defendants on all counts and dismissed the complaint with prejudice.

The Appellate Division reversed in a reported opinion and held that the age limitation of No. 172 was beyond the powers delegated to municipalities by the zoning enabling act, N.J.S.A. 40:55--30 Et seq. Taxpayers Ass'n of Weymouth Tp. v. Weymouth Tp., 125 N.J.Super. 376, 311 A.2d 187 (App.Div.1973). The court also found the ordinance to be an unreasonable exercise of the police power and violative of the equal protection clause of the fourteenth amendment to the federal constitution. We granted the municipality's petition for certification 1 and joined the case for oral argument with Shepard v. Woodland Tp. Comm., 71 N.J. 230, 364 A.2d 1005 (1976), also decided today, to consider the validity and constitutionality of planned housing developments for the elderly. Because of the broad implications of this case, the Public Advocate and Leisure Technology Corp., a developer of planned housing developments for senior citizens, were permitted to appear as Amici curiae.

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We note initially that the trial court properly dismissed the unlawful conspiracy and illegal spot zoning challenges. 2 We also agreed with its rejection of the claim that the Weymouth Township ordinances concern matters which should more properly arise through the variance procedure, N.J.S.A. 40:55--39(d) 3, and not by amendment to the zoning ordinance. Plaintiffs presented no evidence in support of the [364 A.2d 1023] first claim and their counsel frankly conceded in his arguments to the trial court that this contention was without factual support. In addition, the trial judge correctly held that the third claim was only a restatement of plaintiffs' allegation of 'spot zoning.'

' Spot zoning' is the use of the zoning power to benefit particular private interests rather than the collective interests of the community. It is zoning which disregards the requirement of N.J.S.A. 40:55--32 that regulation be accomplished in accordance with a comprehensive plan to promote the general welfare. Palisades Properties, Inc. v. Brunetti, 44 N.J. 117, 134, 207 A.2d 522 (1965); Kozesnik v. Montgomery Tp., 24 N.J. 154, 172--73, 131 A.2d 1 (1957); Hyland v. Mayor & Tp. Comm. of Morris Tp., 130 N.J.Super. 470, 477--78, 327 A.2d 675 (App.Div.1974), aff'd o.b. 66 N.J. 31, 327 A.2d 657 (1974). An ordinance enacted to advance the general welfare by means of a comprehensive plan is unobjectionable even if the ordinance was initially proposed by private parties and these parties are in fact its ultimate beneficiaries. Kozesnik v. Montgomery Tp., supra, 24 N.J. at 173--74, 131 A.2d 1; Hyland v. Mayor & Tp. Comm. of Morris Tp., supra, 130 N.J.Super. at 478--79, 327 A.2d 675.

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Plaintiffs bear the burden of proving that a zoning ordinance constitutes illegal 'spot zoning.' Ward v. Montgomery Tp., 28 N.J. 529, 539, 147 A.2d 248 (1959); Kozesnik v. Montgomery Tp., supra, 24 N.J. at 167, 131 A.2d 1. They have not successfully carried that burden in this case. In support of their claim, they could only establish (1) that the defendant property owner had initially suggested to the township committee that his land be rezoned for use as a trailer park and (2) that he would benefit by that rezoning. These isolated facts do not present a prima facie case of 'spot zoning.' Moreover, the uncontradicted testimony of the municipal officials established that, prior to the adoption of these ordinances, the planning board and the governing body gave conscientious consideration both to the appropriateness of this site as a mobile home park for the elderly and the effect of this use on the general well-being of the community. The law requires no more. Ward v. Montgomery Tp., supra, 28 N.J. 529, 147 A.2d 248.


The more important issues presented in this case were addressed by the Appellate Division in its opinion: whether the ordinances are beyond the authority delegated to municipalities by N.J.S.A. 40:55--30 Et seq. 4 and whether

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