Urban League of Greater New Brunswick v. Mayor and Council of Borough of Carteret

• Decision Date: 04 May 1976
• Citation: 142 N.J.Super. 11,359 A.2d 526
• Parties: URBAN LEAGUE OF GREATER NEW BRUNSWICK, a non-profit corporation of the State of New Jersey, et al., Plaintiffs, v. The MAYOR AND COUNCIL OF the BOROUGH OF CARTERET et al., Defendants and Third-Party Plaintiffs, v. CITY OF NEW BRUNSWICK and City of Perth Amboy, Third-Party Defendants, and New Jersey League of Women Voters and Middlesex County League of Women Voters, Intervenors.
• Court: New Jersey Superior Court

Page 11

142 N.J.Super. 11

359 A.2d 526

URBAN LEAGUE OF GREATER NEW BRUNSWICK, a non-profit

corporation of the State of New Jersey, et al., Plaintiffs, v. The MAYOR AND COUNCIL OF the BOROUGH OF CARTERET et al., Defendants and Third-Party Plaintiffs, v. CITY OF NEW BRUNSWICK and City of Perth Amboy, Third-Party Defendants, and New Jersey League of Women Voters and Middlesex County

League of Women Voters, Intervenors.

Superior Court of New Jersey,

Chancery Division.

May 4, 1976.

Marilyn J. Morheuser, Newark, Martin E. Sloane, Washington, D.C., of the New York bar, admitted pro hac vice, and Daniel A. Searing, of the Maryland bar, admitted pro hac vice, Washington, D.C., for plaintiffs (Baumgart & Ben-Asher, East Orange, attorneys).

Peter J. Selesky, New Brunswick, for defendant Mayor and Council of Borough of Carteret.

William C. Moran, Jr., Cranbury, for defendant Tp. Committee of Tp. of Cranbury.

Dennis J. Cummins, Jr., Fair Lawn, for defendant Mayor and Council of Borough of Dunellen.

Bertram E. Busch, New Brunswick, for defendant Tp. Committee of Tp. of East Brunswick.

Roland A. Winter, Edison, for defendant Tp. Committee of Tp. of Edison.

Richard F. Plechner, Metuchen, for defendant Mayor and Council of Borough of Helmetta.

Lawrence Lerner, New Brunswick, for defendant Mayor and Council of Borough of Highland Park.

Guido J. Brigiani, Jamesburg, for defendants Mayor and Council of Borough of Jamesburg and Mayor and Council of Borough of Spotswood.

Louis J. Alfonso, Woodbridge, for defendant Tp. Committee of Tp. of Madison (Old Bridge).

Martin A. Spritzer, Metuchen, for defendant Mayor and Council of Borough of Metuchen.

Edward J. Johnson, Jr., Middlesex, for defendant Mayor and Council of Borough of Middlesex.

Charles V. Booream, Milltown, for defendant Mayor and Council of Borough of Milltown.

Thomas R. Farino, Jr., Jamesburg, for defendant Tp. Committee of Tp. of Monroe.

Joseph H. Burns and Leslie S. Lefkowitz, New Brunswick, for defendant Tp. Committee of Tp. of North Brunswick.

Daniel S. Bernstein, Plainfield, for defendant Tp. Committee of Tp. of Piscataway.

Joseph L. Stonaker, Princeton, for defendant Tp. Committee of Tp. of Plainsboro.

Alan J. Karcher, Sayreville, for defendant Mayor and Council of Borough of Sayreville.

John J. Vail, South Amboy, for defendant Mayor and Council of City of South Amboy.

Andre W. Gruber, New Brunswick, for defendant Tp. Committee of Tp. of South Brunswick.

Sanford E. Chernin, Somerset, for defendant Mayor and Council of Borough of South Plainfield.

Robert C. Rafano, South River, and Gary M. Schwartz, New Brunswick, for defendant Mayor and Council of Borough of South River.

Arthur W. Burgess, Woodbridge, and Barry H. Shapiro, Plainfield, for defendant Tp. Committee of Tp. of Woodbridge.

Gilbert L. Nelson, New Brunswick, for third party defendant City of New Brunswick.

Frank J. Jess, Perth Amboy, for third-party defendant City of Perth Amboy.

William J. O'Shaughnessy, Newark, for intervenors (Clapp & Eisenberg, Newark, attorneys).

FURMAN, J.S.C.

Plaintiffs attack the zoning ordinance of 23 of the 25 municipalities of Middlesex County as unconstitutionally exclusionary and discriminatory. Third-party complaints against the cities of New Brunswick and Perth Amboy were dismissed after trial. The remedy sought by plaintiffs is an allocation to each municipality of its fair share of low and moderate-income housing to meet the county-wide need. Plaintiffs rely on So. Burl. Cty. N.A.A.C.P. v. Mt. Laurel Tp., 67 N.J. 151, 336 A.2d 713, Cert. den. 423 U.S. 808, 96 S.Ct. 18, 46 L.Ed.2d 28 (1975), which imposes on a developing municipality the obligation to provide by land use regulations for its fair share of the present and prospective regional need for low and moderate-income housing.

Plaintiffs comprise an organization and five persons who sue individually and as representatives of others similarly situated. The standing of all plaintiffs is challenged. Under Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), the individual plaintiffs as nonresidents lack standing to urge federal constitutional and statutory infirmities in municipal zoning. But their standing as nonresidents to pursue state constitutional objections is sustained in Mt. Laurel, supra 67 N.J. at 159, 336 A.2d 713. The standing of the three organizations which were plaintiffs in Mt. Laurel was not at issue and not passed on in Justice Hall's opinion.

Plaintiff Urban League of Greater New Brunswick seeks housing for its members and others, mostly blacks and Hispanics, throughout the county and elsewhere nearby, encountering rebuffs and delays. Under the liberal criteria for standing which prevail in this State, standing must be accorded to plaintiff Urban League. Crescent Pk. Tenants Ass'n v. Realty Eq. Corp. of N.Y., 58 N.J. 98, 275 A.2d 433 (1971).

No monetary or other specific recovery and no counsel fee for maintaining class actions are sought. Unquestionably, some others are similarly situated to plaintiff Champion, a white, who cannot find adequate low-income housing in the county for her family of three; plaintiff Benson, a black, who cannot find adequate moderate-income housing in the county for his family of 11; plaintiff Tippett, a black, whose family of five is adequately housed in New Brunswick but who cannot find equivalent housing in an unsegregated neighborhood, and plaintiff Tuskey, a white, who objects to the racial and economic imbalance in South Brunswick, the predominately white municipality in which he resides with his family, including two children attending public school. The class actions are maintainable under R. 4:32--1(a) and (b)(3).

At the close of plaintiffs' proofs the court dismissed the cause of action for wilful racial discrimination. The impact of low-density zoning is most adverse to blacks and Hispanics, who are disproportionately of low and moderate-income. But no credible evidence of deliberate or systematic exclusion of minorities was before the court. That dismissal must result in the dismissal also of the specific count for violation of Federal Civil Rights Acts, 42 U.S.C.A. §§ 1981, 1982 and 3601 Et seq.

The challenge to the exclusionary aspects of defendants' zoning ordinances remains. All three branches of government have recognized overwhelming needs for low and moderate-income housing in the State as a whole.

In Executive Order No. 35, dated April 2, 1976, Governor Byrne stated that

* * * there exists a serious shortage of adequate, safe and sanitary housing accommodations for many households at rents and prices they can reasonably afford, especially for low and moderate income households, newly formed households, senior citizens, and households with children.

The Legislature in the preamble to the New Jersey Housing Assistance Bond Act of 1975, L.1975, c. 207 § 2(a), made a finding:

Despite the existence of numerous Federal programs designed to provide housing for senior citizens and families of low and moderate income, construction and rehabilitation of such housing units has not proceeded at a pace sufficient to provide for the housing need of the State.

In Mt. Laurel Justice Hall concluded that

There is not the slightest doubt that New Jersey has been, and continues to be, faced with a desperate need for housing, especially of decent living accommodations economically suitable for low and moderate income families. (67 N.J. at 158, 336 A.2d at 716)

Other recent legislation dealing with the housing shortage is set out in Mt. Laurel at 179, 336 A.2d 713.

In Middlesex County the shortage of low and moderate-income housing is critical. From 1960 to 1970 the number of new jobs in the county increased by 2.2 times the number of new housing units, and the number of employees in the county residing outside the county increased by 291%. In 1960 the total vacant land in the county was zoned 24.9% For industry, 22.7% For one-acre or larger single-family housing, 21.5% For less than one-quarter acre single-family housing, and 2.1% For multi-family housing. Ten years later the zoning countywide was markedly more exclusionary: 41.7% For industry, 38.7% For one-acre or larger single-family housing, 4.9% For less than one-quarter acre single-family housing, and .5% For multi-family housing.

The pattern of dwindling low and moderate housing opportunities has continued in the county since 1970. Minimal modest lot single-family housing has been built. Housing congestion is worsening in the urban ghettoes. New mobile homes are prohibited in all municipalities. Thirteen municipalities have enacted rent control ordinances in response to the multi-family housing shortage. ¹ Vacancy rates are low. Despite overzoning for industry, new industry is reluctant to settle in the county because of the shortage of housing for its workers. Experts for various defendants acknowledged a substantial market and a pressing need for new low and moderate housing.

The issue whether Middlesex County is a housing region is of significance because of the adoption of the term 'region' in Mt. Laurel. Housing which must be afforded by a developing municipality is defined as its fair share of the present and prospective regional need. In Oakwood at Madison Inc. v. Madison Tp., 117 N.J.Super. 11, 283 A.2d 353 (Law Div. 1971), certif. granted 62 N.J. 185, 299 A.2d 720 (1972), on remand 128 N.J.Super. 438, 320 A.2d 223 (Law Div. 1974), this court struck down a zoning ordinance which failed to provide for a fair proportion of the housing needs of the municipality's own population and of the region, holding that it was in derogation of the general welfare encompassing housing needs and therefore unconstitutional. Justice Hall noted in Mt. Laurel:

'The composition of the applicable 'region' will necessarily vary from situation to situation and probably no hard and fast rule will serve to furnish the answer in every case.' (67 N.J. at 189, 336 A.2d at...