Morris Pashman

“ There are certain important limitations on the scope of these affirmative obligations. While municipalities must plan and provide for regional housing needs, no municipality need assume responsibility for more than its fair share of these needs. The purpose of land use regulation is to create pleasant, well-balanced communities, not to recreate slums in new locations. It is beyond dispute that when the racial and socioeconomic composition of the population of a community shifts beyond a certain point, the white and affluent begin to abandon the community. ”

“ The flow of low and moderate income persons is toward urban areas, but the cities have neither the space nor the resources to house these people. The question is whether the suburbs will act to accommodate this growth in an orderly way or will simply and blindly resist. Two well-entrenched zoning objectives, low density land use and favorable fiscal balance, though sometimes at odds with each other, have on the whole cooperated to create a milieu of discriminatory zoning which threatens to make the next 30 years of suburban growth a disaster. ”

“ The motivations for exclusionary zoning practices are deeply embedded in the nature of suburban development. In part, these practices are motivated by fear of the fiscal consequences of opening the community to all social and economic classes. Residents of the municipality anticipate that higher density development will require the construction of additional roads, sewers, and water systems, the provision of additional municipal services, and the increase of school expenditures, all of which must be financed through local property taxes. ”

“ There is a real sense in which clean air belongs to everyone, a sense in which green trees and flowers are everyone's right to see and smell. The right to enjoy these is connected to a citizen's right to life, to pursue his own happiness as he sees fit provided his pursuit does not infringe another's rights. ”

“ Municipalities may not act to deter the future development of a diversified housing stock by establishing land use controls which are inherently exclusionary and which bear no substantial relationship to any legitimate zoning purpose. ”

“ In theory, low and moderate income families should benefit even from construction of new housing which they themselves cannot afford because such housing creates vacancies which ‘filter down.’ In reality, however, most of these vacancies are absorbed by the enormous lag between population growth and new housing construction. Sagalyn & Sternlieb, supra at 42. The housing which does ‘filter down’ to persons with low or moderate incomes is often badly dilapidated and in deteriorating neighborhoods. ”

“ There is a hazard that prolonged judicial inaction will permit exclusionary practices to continue to operate and will allow presently developing communities to acquire permanent exclusionary characteristics. The concern is not that New Jersey will soon be without developable land, but that large areas now in the process of development will have already acquired irrevocably exclusionary characteristics before the courts effectively intervene. ”

“ Forceful judicial intervention is necessitated not only by the already widespread use of exclusionary zoning practices and by the fact that the motivations for such are deeply ingrained in the suburban zoning and planning process, but also by certain extrinsic factors of which the Court may take notice.
First, the United States suffers from an acute national housing shortage. It has been estimated that over 10 million dwelling units would be needed to provide each family in the county with adequate housing. Building the American City, supra at 75. ”

“ To a greater or lesser degree, all of the programs require active municipal cooperation. Failure to actively cooperate in the implementation of such programs as effectively thwarts the meeting of regional needs for low and moderate income housing as does outright exclusion. ”

“ On 77% Of the land zoned for single family dwellings, houses must have 1,200 square feet or more of floor space. In the South Jersey outerring counties, Burlington, Camden, and Gloucester, the figures are 31.9% And 43.5% Respectively.
The effect on the cost of housing of such requirements is obvious. If one assumes construction costs of $20 per square foot of floor space, [6] a 1,000 square foot minimum imposes a corresponding minimum figure of $20,000 upon the portion of the cost of a new house attributable to construction. ”

“ It is, of course, neither practical nor wise to demand that such communities completely rezone established neighborhoods; to do so would in all likelihood contribute to neighborhood listability and permit certain property owners and developers to obtain windfalls rather than actually effecting construction of low or moderate income housing. ”

“ III It can hardly be denied that there are some suburban municipalities which have already developed in an exclusionary mold. These communities, which have benefited from regional development, have, by their land use controls, contributed to the regional housing shortages. ”

“ The brunt of this shortage is, of course, borne by persons with low or moderate incomes. As of 1970, it was estimated that not only were half of all low income families in the State obliged to live in inadequate housing, but so were approximately 125,000 families with moderate incomes. Housing Crisis in New Jersey, supra at iv. The median cost of a new single family detached house was $30,000 in the northeastern region of the country in 1969. ”

“ II I consider first the extent of the affirmative obligation to plan and provide for housing opportunities for persons with low and moderate incomes that municipalities assume when they choose to avail themselves of land use controls permitted by statute. ”

“ All are distant from the path of development and rural in character.↑ It should be noted that despite these restrictions a significant amount of multifamily housing has been built in the suburbs in recent years. ”

“ Against Discrimination in Housing, The Impact of Housing Patterns on Job Opportunities, supra at 27-30; Nat'l Comm. Against Discrimination in Housing, Jobs and Housing, supra at 23-26. See generally, Bobcock and Bosselman, Exclusionary Zoning: Land Use Regulation in the 1970s, 114-15 (1973) .
Third, even as we write, development proceeds apace. Once an area is developed, it becomes much more difficult to alter its social and economic character. ”

“ The majority has chosen not to explore in this case either the extent of the affirmative obligations upon developing municipalities or the role of the courts in enforcing those obligations. It has also chosen not to consider the degree to which the principles applicable to developing municipalities are also applicable to rural ones and to largely developed ones. ”

“ All of these considerations must be evaluated in terms of both present facts and projections of future development.↑ The following factors were considered in developing a fair share plan for the Dayton, Ohio area: (T) he needed low and moderate income dwelling units were assigned to the planning units using a composite of numbers resulting from six calculation methods: (1) equal share; (2) proportionate share of the county's households; (3) proportionate share of the county's households making less than $10,000 annually (or less than $7,000 in the three more rural counties) ”

“ See generally, Clawson, Suburban Land Conversion in the United States, 40 (1971) . Retail establishments have also relocated in the suburbs, taking advantage of the shift in the affluent population, the access provided by suburban highways, and the more attractive surroundings. Id. at 40-41. The result has been a shift of blue-collar jobs from the cities to the suburbs. Id. at 40. Thus in the New York metropolitan region, [12] 75% Of the 990,000 new jobs created between 1959 and 1967 were located outside of New York City. ”

“ Nor are these attitudes, however disappointing we may find them at this late date, wholly surprising. Many people who settle in suburban areas do so with the specific intention of living in affluent, socially homogeneous communities and of escaping what they perceive to be the problems of the cities. ”

“ Dep't of Community Affairs, The Housing Crisis in New Jersey, 1970 (1970) . [11] New Jersey, already the second most densely populated state in the country, is experiencing continuing population growth-it is estimated that by 1985 the total population will have increased from its 1970 figure of 7,200,000 to about 10,000,000. Special Message to the Legislature by Governor Cahill, A Blueprint for Housing in New [p204] Jersey, Dec. 7, 1970, at 1. Housing, particularly in urban areas, is deteriorating. ”