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Beyond the Mt. Laurel Doctrine
Third Source Narrative

This is the Source Narrative to accompany the first Mt. Laurel decision and the writings of its author, Justice Frederick W. Hall. Before looking at the writings of Justice Hall, we have another task to perform. It's time to recall that this podcast is a demonstration project for our Insight Engine problem-solving technique. One of the key steps in our process is identification of powerful false ideas that keep problems from being resolved. Our task is to deconstruct and dispel them. The first one we encounter is the idea of a "housing crisis" in New Jersey. This powerful false idea was the first justification for the actions in Mount Laurel I.

We begin by recognizing the enormous population growth of the "baby-boom" period. From 1940 to 1970 the Census shows the New Jersey population grew from more than 4.1 to over 7.1 million. Numerous studies by "experts" for major institutions projected continued similar growth.

In "The Housing Crisis in New Jersey" (1970) the issue is stated this way: "... there is wide agreement that the State's population will continue to grow at least at the present rate in the years to come." However, this document also includes a very important cautionary footnote that includes the recognition that housing growth drives population growth. It's not the other way around.

"The one significant factor on the horizon which may lead to a decline in the rate of population growth in New Jersey is, of course, the decline in the construction of housing units in the State. If present trends in housing production continue during the coming years to decline, population projections will undoubtedly have to be scaled downward. Furthermore, such a decline could well set in motion a "chain reaction" effect, which would result in further declines in the rate of growth."

The document also shows that building permits had peaked in 1964 at just over 68,000 and dropped to 43,661 by 1968, a four year decline of almost 36%. Such a decline could have been seen as the basis for a reconsideration of "population projections". That's not what happened.

On December 7th Governor Cahill went further in "A Blueprint for Housing in New Jersey". There he said "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985." No explanation is offered as to who these "experts"
were or what methodology they used to reach their astonishing total. He also says "According to reliable statistics, we require 100,000 additional housing units each year, but actually are building only 40,000." These statements remained unchallenged and became part of the major concurring opinion in Mt. Laurel I.

You might be asking "How wrong could the experts have been?" Here are the facts. Decide for yourself.

In 1988 the New Jersey Office of State Planning produced a Technical Document titled "Population Trends and Projections". In it they looked back over the period 1970 to 1985 and found that instead of the projected 2.8 million people from 1970, the actual increase came to 394,136, or less than one seventh of the projected amount. Simple math tells us that if 2.8 million people would require 100,000 units per year, a similar reduction would produce approximately 14,250 homes and the state was already seeing far more homes being built. Census numbers also show that in the decade of the 1970's the population grew by 196,847 while New Jersey added over 384,000 new homes, or 1.95 units for every additional person. Records of annual building permits show this rate of growth kept up through 1985. To fully appreciate the magnitude of this difference recall that the average household size at the time was approximately 3 persons which meant that in reality six homes were being built for every new household in New Jersey.

In conclusion, the population growth that was supposed to fuel the "housing crisis" never happened. The housing being built far exceeded any demand that the population that did come could absorb. If population projections had been adjusted based on the emerging downward trend in housing, the argument underpinning Mt. Laurel I would have had to be significantly altered if not abandoned altogether. But that didn't happen. Instead the Court relied on this badly flawed expert advice. That's the first false idea to be dispelled. There was no housing crisis.

Before we move on, if you're wondering who those unnamed experts could have been who led everyone so far astray, we found them. In a footnote in "Exclusionary Land Use Controls: The Case of North-eastern New Jersey" the authors praise Governor Cahill for his courage in delivering his Special Message and write "The technical specifications for the study were prepared by the authors of this article." The authors were Norman Williams, Jr. and Thomas Norman. Now you know. Now we move on and turn our attention to the second of the great revolutionary architects of the Mt. Laurel Doctrine.

The issues at the heart of the Mt. Laurel I decision - the question of Standing, the definition of the General Welfare and the requirement for Reasonableness - are dealt with in the Third podcast. We find the theories embodied in the writings of Norman Williams, Jr., discussed in the Second podcast, and we find them in the writings of New Jersey Supreme Court Justice Frederick W. Hall. Here we deal with those texts. We say "texts" because the Mt. Laurel decision, as its author freely admits, is about more than just Mt. Laurel. It is about the transformation of a legal theory into judicial practice. It attempts to set New Jersey apart from the long history of federal Supreme Court decisions that support the democratic diversity embodied in the New Jersey home rule tradition.

We have chosen four texts that we find most instructive. The first is a famous dissenting opinion written in 1962 in the case of Vickers v. Gloucester Twp. where his philosophies are clearly set forth and the second is DeSimone v. Greater Englewood Housing Corp. where he writes the majority opinion signaling a willingness on the part of the Court to support challenges to local zoning. The third is Mt. Laurel I and the fourth is a lecture given in 1977, two years after his retirement from the Court, amplifying his thinking about judicial prerogatives raising the issue of "standing" that was not addressed in the Court decision. That will complete our picture of his thinking.

We begin with a brief biographical note.

Frederick Wilson Hall

Frederick Wilson Hall was born in Pittsburgh in 1908. He graduated from Rutgers University where he was elected Phi Beta Kappa and from Harvard Law School Cum Laude in 1931. As a young lawyer he worked in the firm of New Jersey's first Chief Justice, Arthur T. Vanderbilt and then in 1941 he founded and practiced law at the firm of Wharton and Hall.
He was appointed to the New Jersey Superior Court in 1953 and served there until 1959 when he was appointed as an Associate Justice of the New Jersey Supreme Court where he served until 1975. Justice Hall was the last member of what was known as the "Weintraub Court" which served together for eleven years and was widely regarded as one of the most activist and progressive judicial bodies in the nation in the area of civil law.
He was known for his mastery of land use law and his great reputation in that field has tended to deflect attention from his important writings in other fields. He was completely at home in the entirely intricate field of municipal law; he wrote important opinions in the areas of torts, criminal law, constitutional law and many other subjects. Few judges possessed his extensive knowledge of procedure and the Rules of Court.
He remains most famous for writing the decision in the case known as Mt. Laurel I.
He died in 1984.
Vickers v. Gloucester Township

Now to the writings of Justice Frederick Hall. We begin in 1962 with his dissenting opinion in Vickers v. Gloucester Township, 37 N.J. 232 (1962). As we do, it's important to remember the federal statutory context. This is three years before the Voting Rights Act and six before the Fair Housing Act. The Civil Rights movement was growing stronger and a socioeconomic model seen as disproportionately benefiting White people was automatically treated as suspect by a certain school of social ideologues.

On its face this case is about the right of a municipality to ban mobile home parks, but Justice Hall sees it raising greater concerns.

"Of even greater concern is the judicial process by which it is reached and the breadth of the rationale. The import of the holding gives almost boundless freedom to developing municipalities to erect exclusionary walls on their boundaries, according to local whim or selfish desire, and to use the zoning power for aims beyond its legitimate purposes."

After this he goes on to describe the types of towns that are the object of his concern. He separates them from "the settled suburbs surrounding the cities" that should have the right to remain undisturbed and paints this picture of the targets of his distaste. :

"On the contrary these areas are sprawling, heterogeneous governmental units, mostly townships, each really amounting to a region of considerable size itself. Their present rural, semi-rural or mixed nature is about to change substantially and they are soon to become melded into the whole metropolitan area. Their political boundaries are artificial and hence of little significance beyond defining one unit of government."

"Such municipalities, above all others, vitally need and may legally exercise comprehensive planning and implement zoning techniques to avoid present haphazard development which can only bring future grief. They are entitled to aim thereby for a sound and balanced area, with varying uses confined to specific districts and appropriately regulated."

He then continues to describe a number of things towns can reasonably do to shape their future. Then he comes to this.

"And this gets to the nub of what this, and similar cases, are really all about, i.e. the outer limit of the zoning power to be enjoyed by these municipalities most in need of comprehensive authority. What action is not legitimately encompassed by that power and what is the proper role of courts in reviewing its exercise?"

"This inquiry involves important fundamentals. In the broad sense the considerations are well posed in Williams, "Planning Law and Democratic Living," 20 Law and Contemporary Problems 317 (1955):

"The main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society equality of opportunity and equality of treatment, freedom of thought and considerable freedom of action, and fairness. Under the American system, a more or less independent mechanism of judicial review is established to provide an independent check on whether specific governmental decisions conform to these standards. While controversy has often raged about judicial action in other areas, it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare."

"Constitutional law should serve to shed light upon thinking about local planning, by requiring those concerned to do what they should be doing anyway to work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity."

This is a set of breathtaking assertions.

First, while he offers a broad amorphous set of values, it might just as reasonably be said that the main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society as enshrined in the precise language of the U. S. Constitution.

Second, as to what he asserts as having "always been recognized" as "an essential part of the judicial function" and the "attitudes and policies" with which he is concerned, these must be compared to the values and actions consistently upheld for thirty-five years by the U. S. Supreme Court and flowing from sources like the Standard State Zoning Enabling Act that was a product of the federal government. And just who has been doing the recognizing, anyway?

Third, there is the need to "work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity." This lofty vision should be compared with the language found later in the text defining the role of zoning.

Next he expands to a broader vision of a seemingly boundless role for the courts and shares his disdain for those with less expansive views.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."

After this the discussion focuses closer to the case at hand and on the permitted or proper scope of judicial oversight. He finally comes to the definition of zoning quoted above and this statement that seemingly undercuts the argument he has been advancing for the expansiveness of judicial oversight of municipal actions.

"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

After all of his argument to the contrary, this language appears to make it clear that while there are great issues connected with human freedom and opportunity this is not the arena in which they can be constitutionally settled.

From this point the focus is on little more than repetition of the issues, arguing back and forth with elements of previous court decisions and finally a discussion of the actual issue of the case - the right to prohibit mobile homes.

DeSimone v. Greater Englewood Housing Corp.

We next hear his voice in the case of DeSimone v. Greater Englewood Housing Corp. 56 N. J. 428 (1970) 267 A.2d 31. While a seemingly small matter over issuance of a variance, it caught the emerging temper of its time. There had been racial disturbances in Englewood in July, 1967 and the town had become a focus of the Governor's Select Commission on Civil Disorder and its "Report for Action" issued the following year. This unanimous decision was seen by sympathizers as an opening for a renewed assault on municipal zoning. To understand this perspective we offer the assessment of Norman Williams, Jr. in The Background and Significance of Mount Laurel II from 1984:

"By the late 1960's, however, the world suddenly began to look rather different than it had when Justice Hall wrote his Vickers dissent, and other judges began to reexamine their tolerance of exclusionary zoning practices. In an otherwise relatively unimportant case, the New Jersey Supreme Court in 1970 upheld (against a challenge by neighbors) a New Jersey "d" variance approving a housing project in Englewood, which was (a) located in a "white area" and (b) clearly designed at least in part to accommodate blacks from the Englewood ghetto. In upholding the grant of the variance, the opinion-by Hall, and now unanimous--commented in dictum that under those circumstances such a variance could not have been denied. The only logical basis for this comment is that there must be some affirmative duty to plan on behalf of all sections of the population. Once those familiar with this field of law read the Englewood opinion, it was clear that the jig was up; the court seemed to be sending out signals that it was ready for a major reversal on the exclusionary problem." This led us to Mt. Laurel I.

Mt. Laurel I

Now we move on to the climactic document of the career of Frederick W. Hall. The first Mt. Laurel decision was written in 1975, thirteen years after his dissent in Vickers v. Gloucester Township and was his last great contribution to the activism of the court. The case, Southern Burlington County N. A. A. C. P. v. Mount Laurel 67 N. J. 151 (1975), began its course through the state judicial system in 1972 with a finding for the plaintiff which was subsequently appealed, not only by the township but by the plaintiffs as well seeking an expansion of the scope of the decision. It was then taken over by the state Supreme Court and transmuted from a case concerned with racial discrimination, which would have claimed a violation of the federal Fair Housing Act, into one focused on economic segregation which kept it within the state court system where it was argued in 1974 and decided in 1975. It begins by presenting the scope of the argument. We also find here Mr. Norman Williams, Jr. arguing the cause for amicus curiae The Public Interest Research Group of New Jersey twenty years after publishing his foundational document "Planning Law and Democratic Living" in 1955. Importantly, this comes seven years after the Fair Housing Act.

"This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipality. The trial court so found, 119 N.J. Super. 164 (Law Div. 1972), and declared the township zoning ordinance totally invalid. Its judgment went on, in line with the requests for affirmative relief, to order the municipality to make studies of the housing needs of low and moderate income persons presently or formerly residing in the community in substandard housing, as well as those in such income classifications presently employed in the township and living elsewhere or reasonably expected to be employed therein in the future ... The township appealed to the Appellate Division and those plaintiffs, not present or former residents, cross-appealed on the basis that the judgment should have directed that the prescribed plan take into account as well a fair share of the regional housing needs of low and moderate income families without limitation to those having, past, present or prospective connection with the township. The appeals were certified on our own motion before argument in the Division."

"The implications of the issue presented are indeed broad and far-reaching, extending much beyond these particular plaintiffs and the boundaries of this municipality."

"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."

"We will, therefore, consider the case from the wider viewpoint that the effect of Mount Laurel's land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

"Its candid position is that, conceding its land use regulation was intended to result and has resulted in economic discrimination and exclusion of substantial segments of the area population, its policies and practices are in the best present and future fiscal interest of the municipality and its inhabitants and are legally permissible and justified. It further asserts that the trial court was without power to direct the affirmative relief it did."

In these few opening quotes we find the whole argument showcased. It all begins with the "desperate need for housing" based on the horribly flawed assertion of a "housing crisis" that demonstrably never happened, to meet the needs of a population that still doesn't exist, most clearly expressed in this single sentence from "A Blueprint for Housing in New Jersey" (1970). "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985."

Based on this assumption the Court says they will consider the case from the "wider viewpoint" that the Mount Laurel ordinance has the effect of excluding people because of the "limited extent of their incomes and resources" which the municipality freely admits, and asserts they are "legally permissible and justified"in doing because it is in the "best present and future fiscal interest of the municipality and its inhabitants". And the Court accepts that "the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

To summarize, the township freely admits it did what it's accused of doing and says that it's legal and justified because it's in the interest of the town and the Court accepts that it wasn't done for any of the reasons made impermissible by the Fair Housing Act 42 U.S.C. 3602 et seq., which is the federally controlling statute and separates this case from the context of the dissent in Vickers v. Gloucester Township. That is the case. The rest of the decision is then divided into three parts.

I The Facts

This section begins with a lengthy recitation of the facts about Mount Laurel including its size and population and its various zones and the development that's taken place in them in a very straightforward manner. Then we come to the conclusion. "There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property ... and that the policy was carried out without regard for nonfiscal considerations with respect to people, either within or without its boundaries." In other words, they did exactly what they said they did and only for the reasons they said they did it.

The text then goes on to describe the reason for this. "This policy of land use regulation for a fiscal end derives from New Jersey's tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality's children." In other words, this is entirely the fault of the State and applies to all municipalities. As a logical result:

"This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost everyone acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing."

As proof of this practice"The Residential Land Supply" (April 1972) produced by The N. J. Department of Community Affairs and "Exclusionary Land Use Controls: The Case of North-Eastern New Jersey" (1971) by Norman Williams, Jr. and Thomas Norman are cited. What is not considered in this statement is that the municipal action benefits all of the residents of the municipality, including those who are low-and-moderate income homeowners who are most at risk of being driven from their homes by rising taxes.

The next thing shown is how the urban model also worked to maintain fiscal stability.

"The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing than the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing. Despite the municipally confined tax structure, commercial and industrial ratables generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas."

In other words, the cities provided for their fiscal stability by zoning for a substantial ratable base dominated by commercial and industrial uses. Their goal was the same as that of the developing municipalities but simply pursued by different means.

The final part of this section is devoted to the plight of the urban population after World War II as the commercial and industrial base left the cities for new locations in other towns, other counties and other states. At the same time the lure of home ownership in developing communities that promised to provide all of the benefits of urban life in terms of public services and economic opportunities, without the well recognized problems of urban life, drew the emerging middle class to the suburbs. This was compounded by the failure of the cities to find a new productive purpose.

"Much industry and retail business, and even professions, have left the cities."And as for the low income workers "These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a critical erosion of the city tax base and inability to provide the amount and quality of those governmental services education, health, police, fire, housing and the like so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing."

To summarize the facts. State tax policies placed the primary burden of funding municipal, county and educational services on the tax base of each municipality. In order to be able to carry this burden each municipality zoned itself to develop a ratable based that would provide for long-term fiscal stability. The cities did this by zoning for a large commercial and industrial base. "Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing." After World War II the urban model began to fail and many cities had difficulty reinventing themselves.

Instead of seeking to attract a tax base built on non-residential uses that relies on unskilled and semi-skilled workers, the suburbs did this by focusing on attracting a strong residential base that would provide for their future stability. The suburbs stand convicted of developing a well balanced, fiscally stable, socioeconomic model while the cities did not. They didn't attract employers of unskilled and semi-skilled workers and so did not seek to provide housing for a workforce that did not exist.

Now we come to the legal issue.

II The Legal Issue

"The legal question before us, as earlier indicated, is whether a developing municipality like Mount Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources."

"We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need thereof."

"We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs."

At this point we'll take a moment to recall previously expressed thoughts of Justice Hall with a pair of quotes from Vickers v. Gloucester Township cited above.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."
"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

The first quote could easily be applied to the Court in this case for focusing on the abstract need for housing without recognizing the real world reality that housing is only one aspect of the integrated socioeconomic need of the community. Logic argues that building housing for workers without work makes no more sense than building factories without workers to work in them.

The second challenges the expansive view of judicial prerogatives "to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes." Then the argument for this is presented.

"We begin with some fundamental principles as applied to the scene before us."

"Land use is encompassed within the state's police power."

"It is elementary theory that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws."

"It is required that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare (The last term seems broad enough to encompass the others.) Conversely, a zoning enactment which is contrary to the general welfare is invalid."

"Indeed these considerations are specifically set forth in the zoning enabling act as among the various purposes of zoning for which regulations must be designed. N. J. S. A. 40:55-32 ... If a zoning regulation violates the enabling act in this respect, it is also theoretically invalid under the state constitution. We say "theoretically" because, as a matter of policy, we do not treat the validity of most land use ordinance provisions as involving matters of constitutional dimension; that classification is confined to major questions of fundamental import."

"We consider the basic importance of housing and local regulations restricting its availability to substantial segments of the population to fall within the latter category."

"The demarcation between the valid and the invalid in the field of land use regulation is difficult to determine, not always clear and subject to change. This was recognized almost fifty years ago in the basic case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926):

"The ordinance now under review and all similar laws and regulations must find their justification in some aspect of police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. (272 U. S. at 387, 47 S. Ct. at 118, 71 L. Ed. at 310)."

It's nice to see the Court remembering the Ambler Realty case but it would be even nicer to see the Court recall The federal Fair Housing Act which clearly drew the line between legitimate and illegitimate. The Act prohibits discrimination in housing for a specific list of reasons: race, color, religion, sex, handicap, familial status or national origin. That is "precise delimitation". Counsel for Mt. Laurel Twp. made it clear that these were not the basis for their zoning and the Court accepted that that was the case. We would remind the Court of their own language.

"In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

The first thing Justice Hall needed to do to justify a need for change was find sources that, while supporting policies of deference to municipal decision-making, offer a warning that the future may be different and law may have to change. After offering a number of prior decisions as pointing in his direction he found it best said in Pierro v. Baxendale, 20 N. J. 17, 29 (1955) :

"If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed."

Having adding the sanctifying weight of precedent, he returns to his own thoughts.

"The warning implicates the matter of whose general welfare must be served or not violated in the field of land use regulation. Frequently the decisions in this state, including those just cited, have spoken only in terms of the interest of the enacting municipality, so that it has been thought, at least in some quarters, that such was the only welfare requiring consideration. It is, of course, true that many cases have dealt only with regulations having little, if any, outside impact where local decision is ordinarily entitled to prevail. However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state's citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served."

"This essential was distinctly pointed out in Euclid, where Mr. Justice Sutherland specifically referred to the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. Chief Justice Vanderbilt said essentially the same thing, in a different factual context, in the early leading case of Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949), when he spoke of the necessity of regional considerations in zoning and added this:

"The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. (1 N. J. at 513)."

Justice Hall offers this quote as supportive of his position but we see it pointing in exactly the opposite direction. The problem is one of perspective. For Justice Hall zoning in developing municipalities was an act of selfishness and a desire to isolate themselves from the needs of the broader region. We see it differently. We see the world from a dynamic perspective where forces that transcend transient social policy considerations are controlling and municipalities are simply responding to the greater market forces confronting them as they take their place in regions that are being redefined by evolving transportation and communications technologies. The sentence we have highlighted makes this point. Again, we're not asking you to take our viewpoint over that of Justice Hall. We have simply taken the quote he selected above and put it back in the paragraph where he found it. Once again we have added the highlighting for emphasis.

"What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as in living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

When read in this fuller context the vision of Justice Hall and the rest of the Court cannot stand. The "forces" cited in Duffcon are the dynamic forces we see shaping our world in various forms and with different names. In this case it is the economic force of the housing market and the social force of democratic diversity that together serve to create fiscally stable communities, each with a distinct face and character, and together advancing the general welfare of their region. The Court is seeking to impose housing diversity within every municipality, while the natural dynamic forces produce a vital diversity among municipalities.

After this a case supporting placement of a hospital for the emotionally disturbed as meeting a regional need superseding the rights of a municipality to reject it is presented. And then, having failed to find any substantive support for the action under consideration other than some mentions that at some point if circumstances change some alterations in judicial perspectives would be justified, the Court goes about doing what they clearly had decided to do all along.

"This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms of land use regulation which that relationship mandates. There cannot be the slightest doubt that shelter, along with food, are the most basic human needs."

"It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of such broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries. Negatively, it may not adopt regulations or policies which thwart or preclude that opportunity."

"In sum, we are satisfied beyond doubt that, by reason of the basic importance of appropriate housing and the long-standing pressing need for it, especially in the low and moderate cost housing category, and of the exclusionary zoning practices of so many municipalities, conditions have changed, and consistent with the warning in Pierro, supra, judicial attitudes must be altered from that espoused in that and other cases cited earlier, to require, as we have just said, a broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all."

"We have spoken of this obligation of such municipalities as "presumptive." The term has two aspects, procedural and substantive. Procedurally, we think the basic importance of appropriate housing for all dictates that, when it is shown that a developing municipality in its land use regulations has not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation of substantive due process or equal protection under the state constitution has been made out and the burden, and it is a heavy one, shifts to the municipality to establish a valid basis for its action or non-action. ... The substantive aspect of "presumptive" relates to the specifics, on the one hand, of what municipal land use regulation provisions, or the absence thereof, will evidence invalidity and shift the burden of proof and, on the other hand, of what bases and considerations will carry the municipality's burden and sustain what it has done or failed to do. Both kinds of specifics may well vary between municipalities according to peculiar circumstances."

"We turn to application of these principles in appraisal of Mount Laurel's zoning ordinance, useful as well, we think, as guidelines for future application in other municipalities."

With this the Court establishes a new concept in land-use litigation. It does so without constitutional, statutory or precedential support. It is nothing more than an act of will by the members of the Court and so effectively expands the boundaries of judicial authority beyond otherwise recognized bounds.

The focus then turns to the specific of Mount Laurel zoning.

"We have earlier stated that a developing municipality's obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to the municipality's fair share of the present and prospective regional need thereof. Some comment on that conclusion is in order at this point. Frequently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason. But, under present New Jersey legislation, zoning must be done on an individual municipal basis, rather than regionally. So long as that situation persists under the present tax structure, or in the absence of some kind of binding agreement among all the municipalities of a region, we feel that every municipality therein must bear its fair share of the regional burden. (In this respect our holding is broader than that of the trial court, which was limited to Mount Laurel-related low and moderate income housing needs.)"

This admission loudly echoes the language of Duffcon Concrete that supports putting different uses in different places based on any number of factors:

"Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

After this all that remains is the essential discussion of how to define a region.

"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. Confinement to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable."

There are any number of ways to define a region. The Northeast is a national region. The New York and Philadelphia metropolitan areas are regions. The Census Bureau provides journey-to-work data that shows where people who work in a given place live and conversely where people who live in a given area work. Worker housing tends to cluster around employment centers and regions tend to define themselves on an ongoing basis.

III The Remedy

This final section applies only to Mount Laurel and focuses only on mechanics.

This ends the majority opinion written by Justice Frederick Hall. All that remains is a consideration of his 1977 lecture.

We are presenting significant excerpts from this lecture by Justice Hall, delivered two years after his retirement, because it contains what we see as useful insights into his thinking about several important issues. These include his vision of the limits of judicial power, of which he see very few, and his idea of the basis for granting standing to the plaintiffs in the Mount Laurel case as "third- party non-beneficiaries" as defined by Professor Norman Williams, Jr. . He discusses the importance of defining a "fundamental interest" and the fact that for the federal courts housing is not one. We think the full lecture is well worth reading as a picture of the thinking of a man accustomed to wielding power and the public passions that drove him throughout his career on the bench.

The Judicial Role In Land-Use Regulation (excerpts)

Frederick W. Hall
Associate Justice of the New Jersey Supreme Court, retired
Arthur T. Vanderbilt Lecture
Harvard Law School Association of New Jersey
April 20, 1977

Modern land-use regulation has increasingly become a matter of vital interest and importance to the citizenry of large and small metropolitan areas and beyond, and bids fair to continue so for a considerable time to come. Its scope has changed immeasurably since constitutional approval was accorded about 50 years ago. The current major subjects and objects of regulation and the problems and issues arising from it have led to litigation of quite a different character than was formerly the case. What the proper judicial role in this field should be needs to be considered in the light of the broad changes that have likewise taken place in the kinds of litigation and the exercise of the judicial function in other fields of public law.


The United States Supreme Court has come to the point, in reviewing state action on claims of federal constitutional violation, of finding invalidity on equal-protection grounds only where the right involved is said to be a "fundamental interest" and the state cannot show a "compelling state interest." The subjects meeting the fundamental interest test have been strictly limited: voting, race, right to interstate travel and perhaps a couple of others. Housing is not one.
The courts recent forays into the land-use regulation field after an avoidance of about half a century have been, regardless of result, quite unsatisfactory, to say the least.

There have been deep changes in American life and philosophy and the place of government therein. These began to appear in quantity in the "New Deal" era of the 30's but developed much more strongly after World War II.
First, there was a vast increase in regulation of private affairs, both business and personal, by all levels of government. ....
Second, there has been a tremendous increase in the conferring or distribution by government of various kinds of benefits to aid the less fortunate members of our society.
Third, there has been a startling awakening and assertion of claims of human rights under constitutional guarantees, statutes and institutional arrangements especially on behalf of minorities of all varieties and the disadvantaged.
Fourth, we have witnessed a "law explosion," by which relief from all manner of alleged wrongs is sought in the courts in the belief that the judiciary is the only effective branch of government. Everyone sues about everything, ...

This type of litigation is quite different from the traditional model earlier described. It most frequently concerns public, rather than private, action or inaction. It may well attack a whole scheme of government activity. It very frequently is of a representative or class nature, affecting many more persons or entities than are parties or whose views are before the court.

It generally does not seek money damages, but rather declaratory or injunctive relief of a continuing and broadly remedial nature against some government entity or official. Equity jurisprudence very largely governs the ultimate result. ....

This relatively new category of public-law litigation, which includes as well certain kinds of land-use litigation shortly to be mentioned more specifically, presents important questions as to the extent of judicial power and the proper exercise of it. These queries generally arise about the remedy especially when the relief ordered or sought involves affirmative action by another branch of government or amounts to action by the judiciary in a form within the purview of or normally accomplished - even perhaps better handled - by either the local or state legislature or the executive branch.

The Courts Must Decide

Again, the courts are the sole and final arbiter of the constitutionality of local and state legislation, regulations or other governmental action. A declaration of invalidity is binding upon the legislature, the executive and all affected public officials. This is so whether or not the particular agency or government agrees with the decision. It may only be overturned by amendment through vote of the people according to specified procedures.

While considerations of constitutional claims require the greatest judicial circumspection, they cannot be decided on the basis of personal views of individual judges as to the advisability or wisdom of the governmental action under review or in accordance with what may appear to be the wish of an articulate or seeming majority of the affected populace on a particular question.

The judicial branch is the ultimate protector of the rights of all, and this of course includes those of minorities. Constitutional principles and the rights guaranteed by or arising under the documents must always be thought of as living and not static things, subject to enlargement and variation in interpretation and application as conditions and the needs of the body politic change. When this is to occur is, unless spelled out by amendment, the proper and exclusive province of the judiciary. This is fundamental in our form of government.

Land-Use Regulation

There remains the application of this discussion to the more specific matter of the appropriate judicial role in land-use regulation cases. Even more particularly, reference is confined to the currently active aspects of zoning for housing and the place of the regional concept and to the initial articulation of a new and constitutional approach thereto in the unanimous decision of our Supreme Court in Southern Burlington County NAACP v. Township of Mount Laurel, 67 N. J. 151 (1975).

The matter should be placed in historical perspective, both legal and factual. That history is thoroughly presented, state by state and overall, in Professor Norman William's recent comprehensive and thoroughly readable treatise, "American Land Planning Law." To summarize quickly, with special reference to this state, after zoning was constitutionally approved a half century ago, the authorizing legislation in New Jersey and most states, delegated the permissive power to each municipality under standards which, except for the broad health, morals and general welfare language, were directed to regulation of uses to avoid adverse physical impact and to safeguard property values.

The general language of the delegation necessarily left interpretation to the courts. The aim of the adopted ordinances was to keep industrial uses out of the residential areas of the cities and their close suburbs. The idea was revolutionary because it involved restrictions on the private use of one's land, which for centuries had received exceptional veneration and favored treatment at the hands of the law.

The attitudes of the courts in this state as elsewhere varied in periods during the course of the next few decades. Early judicial resistance to zoning largely favored landowners. From 1948 to recent times our courts swung quite perceptibly to the opposite extreme, upholding almost all municipal action.

The New Jersey factual picture changed drastically during this period. I am sure it is quite familiar to all of you. The population expanded greatly through the birth rate and immigration from other sections. Business and industry moved from the central cities to new locations farther out and the more affluent families followed to occupy newly-built single-family housing in developments in municipalities that had been substantially rural. The demand for municipal and educational services funded by real-property taxes became immense in these areas.

At the same time, the cities decayed and their tax bases eroded. They became populated largely by the poor. The available housing wore out and became substandard or worse. Government services deteriorated and we had the uprisings of the 60's.

During the same period, the character and aim of municipal zoning, especially in these municipalities that were growing, or experiencing market pressures for growth, changed radically, although the full significance was not apparent at once. The purpose shifted from protection against physical impact to socioeconomic designs with the clear purpose of safeguarding the particular municipality's welfare as it alone decided. A principal purpose was fiscal - to allow only that kind of growth that would pay its way taxwise, particularly with respect to school costs, or come close to it.

The result was almost universal prohibition through various zoning mechanisms against any but expensive, single-family housing. Multi-family rental units were allowed most meagerly overall. Generally, they too, were required to be expensive, and contained bedroom limitations restricting the number of school children. These provisions effectively excluded from municipality after municipality families of low-and moderate-income, whether they resided in the central cities and sought a better environment and living conditions or were young couples, elderly citizens and others not desiring large houses who already had some ties with the community.

The result too was a statewide shortage of decent low-and moderate-income housing in all types of municipalities, the existence and alarming consequences of which were repeatedly called to public attention by state-agency studies, gubernatorial messages, and recitals in state legislation providing some assistance in funding such housing, only, of course, available where local land-use regulations permitted. It became clear that local exclusionary ordinances were having a substantial impact outside the particular municipality.

At the same time, it was becoming obvious that use regulation of certain types of land had such an important impact beyond municipal lines that individual municipal regulation was harmful to the broader public welfare. So the legislature withdrew the delegation of zoning authority to municipalities with respect to ,among others, wetlands, coastal areas, and the Hackensack Meadowlands district and provided for use regulation by its own agencies. The advisability of the concept of regional land-use regulation was thus established.

In this state of affairs, the Mount Laurel case came to the Supreme Court. It projected a new class of land-use litigation. The suit was brought, not by neighbors protesting the zoning of a particular property or an owner seeking to develop his land contrary to the zoning ordinance, but by people whom Professor Williams calls "third-party non-beneficiaries" - resident and non-resident poor people who wanted to live in the township but could not afford the only type of housing permitted.

Their attack, which they clearly had standing to make, was on the whole zoning scheme of a typical growing municipality having adequate remaining land for further development. The plaintiffs' proofs and briefs well presented to the court the factual picture that has just been sketched.

For present purposes of the discussion of the judicial role, the rationale of the decision may be simplified as follows. Land-use regulation, like any other police power enactment, must enhance and not be contrary to the general welfare to be valid under the state constitution. The availability of adequate land and an appropriate variety and choice of housing for all categories of people is an absolute essential in promotion of the general welfare - in effect, a fundamental state interest.

It is so important to the public good that the general welfare that each so-called developing municipality must take into account in order to have a valid zoning ordinance extends beyond the claimed good of that particular governmental unit. So:

the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land-use regulation, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low-and moderate-cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries.

and may not adopt regulations or policies that thwart of preclude that opportunity. Exclusionary restrictions having the effect mentioned are unconstitutional unless the municipality can sustain the heavy burden of demonstrating peculiar circumstances dictating a contrary conclusion. This was not established by Mount Laurel, so its zoning ordinance is pro tanto invalid.

The conclusions were, of course, within the traditional power and obligation of a court to declare legislation unconstitutional. Deference to the Legislative branch, here the local governing body, requires that such a judgment be rendered only in a clear case, but when that plainly appears in a situation involving a fundamental state interest, a court would be derelict if it did not so act. We are, in essence, dealing with a moral issue.

Mount Laurel went on to indicate that, since housing needs, particularly for people of low and moderate income, do not necessarily suit or fit well in every municipality, a regional approach was desirable, and urged state legislative action to so provide. In the absence thereof, the court said that Mount Laurel would have to provide for its fair share of the present and prospective regional need for such housing.

This solution originated with Chief Justice Weintraub during court conferences, prior to the advent of new permanent justices, making it desirable to schedule a reargument. The idea was not new; several areas of the country have had voluntary plans in operation on this basis for some time, and the professional planning literature thereon is plentiful. The township was given the opportunity to revise its ordinance, using these and other guidelines mentioned in the opinion, with the right in the plaintiffs to seek court review of the revised product if it was claimed not to be in accord with the express or implied directions of the opinion.

There is certainly nothing here that could reasonably suggest an inappropriate judicial role. I submit that it is unthinkable that a court should stop short of giving litigants in the housing field all the guidelines it considers vital and to direct affirmative corrective action to the fullest extent that it can completely supervise and review simply because the defendant is a municipality, and one that might be recalcitrant or uncooperative in righting the constitutional wrong, or because some other entity might be able to do a better job.

Under New Jersey jurisprudence, a court must review any governmental action of the nature here involved, as the Supreme Court has since done in the Madison Township case. That opinion also clearly confirms the judicial power to seek the help of neutral experts where needed to decide questions beyond the ordinary sphere of judicial knowledge, which, of curse, occurs in many cases beside land use litigation.

And it is not to be forgotten that courts can bring about ultimate compliance with their judgments through negative orders. For example, a defiant municipality refusing to change its invalid zoning ordinance could be prohibited, until it did so, from issuing building permits or certificates of occupancy for any dwellings, or indeed for structures of any kind. this method of relief was effectively utilized recently in Morris County to bring about governmental action to provide adequate sewage disposal.

There are, of course, types of relief that courts should not order, regardless of their power to do so. I conceive, for example, that judicial tribunals ought not to direct municipalities to actually build housing. In some cases, they may have to stop and resort to judicial prodding of the public conscience to bring about remedial action.

Mount Laurel has spawned considerable litigation involving other municipalities. It is not within the scope of this presentation to discuss the various decisions, even if the author had had the time to digest the contents and implications of the great proliferation of paper representing the numerous opinions. One brief comment bearing on the judicial role may be in order.

I believe that the implications of Mount Laurel are clear enough that, where zoning for housing is involved, whether the municipality is strictly a developing one or not, a court should take a good, hard look and insist that the municipality justify its restrictions or be forced to change them.

Furthermore, the court ought to give real reasons in its decisions and not rely on unmeaningful boiler-plate shibboleths like arbitrariness, capriciousness, and dubious presumptions of validity. The housing issue is too important and too fundamental to be disposed of in any case by cursory judicial treatment, and we should not revert in such cases to any thesis that whatever the municipality has done is all right.

While the legislature has not yet responded to the Court's suggestion of provision for regional zoning, it did, after Mount Laurel, enact the new Municipal Land Use Law, various sections of which indicate an important shift in policy from the old individual-municipality emphasis of old enabling acts, and give statutory support to the constitutional bases of the decision. I refer to the purposes sections, where the intent of the Act is stated:

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 and preservation of the environment;
and:
to provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space ... in order to meet the needs of all New Jersey citizens.

In addition, the zoning ordinance of every municipality must conform to a master plan, which must contain a land-use plan element and a housing element. I submit that the latter, in order to ground a valid zoning ordinance, would have to make provision, appropriate to the particular municipality, for a variety and choice of housing.

While any home rule tradition is always subject to constitutional requirements and guarantees of rights for all people, as Mount Laurel in effect held, the land-use law provisions just referred to indicate to me a legislative recognition that the invisible walls of suburban communities must have many gates for entrance."

We have presented these portions of the lecture without comment. We believe it speaks for itself. It offers both information and insight into the thinking of a man, who, confronted with a world he didn't like, set out to change it with a seeming disregard for the interests of a great many of the people living in it. Whether this will ultimately be seen as heroic idealism or judicial tyranny will be left to the judgment of future generations who suffer or prosper as a result of it. Arguably, more than forty years on, we are such a generation.

Here we end the Third Source Narrative for Beyond the Mount Laurel Doctrine: From Forty Years of Failure To A Blueprint for Success.

Documents worth reading in addition to those quoted in the text above:

"The Housing Crisis In New Jersey" (1970)
"Land Use Regulation: The Residential Land Supply" (1972).
"A Blueprint For Housing In New Jersey" (1970)
"New Horizons In Housing" (1972).
Warth v. Seldin, 422 U. S. 490 (1975)
Pierro v. Baxendale, 20 N. J. 17, 29 (1955)
Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949)

Beyond the Mt. Laurel Doctrine
Third Source Narrative

This is the Source Narrative to accompany the first Mt. Laurel decision and the writings of its author, Justice Frederick W. Hall. Before looking at the writings of Justice Hall, we have another task to perform. It's time to recall that this podcast is a demonstration project for our Insight Engine problem-solving technique. One of the key steps in our process is identification of powerful false ideas that keep problems from being resolved. Our task is to deconstruct and dispel them. The first one we encounter is the idea of a "housing crisis" in New Jersey. This powerful false idea was the first justification for the actions in Mount Laurel I.

We begin by recognizing the enormous population growth of the "baby-boom" period. From 1940 to 1970 the Census shows the New Jersey population grew from more than 4.1 to over 7.1 million. Numerous studies by "experts" for major institutions projected continued similar growth.

In "The Housing Crisis in New Jersey" (1970) the issue is stated this way: "... there is wide agreement that the State's population will continue to grow at least at the present rate in the years to come." However, this document also includes a very important cautionary footnote that includes the recognition that housing growth drives population growth. It's not the other way around.

"The one significant factor on the horizon which may lead to a decline in the rate of population growth in New Jersey is, of course, the decline in the construction of housing units in the State. If present trends in housing production continue during the coming years to decline, population projections will undoubtedly have to be scaled downward. Furthermore, such a decline could well set in motion a "chain reaction" effect, which would result in further declines in the rate of growth."

The document also shows that building permits had peaked in 1964 at just over 68,000 and dropped to 43,661 by 1968, a four year decline of almost 36%. Such a decline could have been seen as the basis for a reconsideration of "population projections". That's not what happened.

On December 7th Governor Cahill went further in "A Blueprint for Housing in New Jersey". There he said "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985." No explanation is offered as to who these "experts"
were or what methodology they used to reach their astonishing total. He also says "According to reliable statistics, we require 100,000 additional housing units each year, but actually are building only 40,000." These statements remained unchallenged and became part of the major concurring opinion in Mt. Laurel I.

You might be asking "How wrong could the experts have been?" Here are the facts. Decide for yourself.

In 1988 the New Jersey Office of State Planning produced a Technical Document titled "Population Trends and Projections". In it they looked back over the period 1970 to 1985 and found that instead of the projected 2.8 million people from 1970, the actual increase came to 394,136, or less than one seventh of the projected amount. Simple math tells us that if 2.8 million people would require 100,000 units per year, a similar reduction would produce approximately 14,250 homes and the state was already seeing far more homes being built. Census numbers also show that in the decade of the 1970's the population grew by 196,847 while New Jersey added over 384,000 new homes, or 1.95 units for every additional person. Records of annual building permits show this rate of growth kept up through 1985. To fully appreciate the magnitude of this difference recall that the average household size at the time was approximately 3 persons which meant that in reality six homes were being built for every new household in New Jersey.

In conclusion, the population growth that was supposed to fuel the "housing crisis" never happened. The housing being built far exceeded any demand that the population that did come could absorb. If population projections had been adjusted based on the emerging downward trend in housing, the argument underpinning Mt. Laurel I would have had to be significantly altered if not abandoned altogether. But that didn't happen. Instead the Court relied on this badly flawed expert advice. That's the first false idea to be dispelled. There was no housing crisis.

Before we move on, if you're wondering who those unnamed experts could have been who led everyone so far astray, we found them. In a footnote in "Exclusionary Land Use Controls: The Case of North-eastern New Jersey" the authors praise Governor Cahill for his courage in delivering his Special Message and write "The technical specifications for the study were prepared by the authors of this article." The authors were Norman Williams, Jr. and Thomas Norman. Now you know. Now we move on and turn our attention to the second of the great revolutionary architects of the Mt. Laurel Doctrine.

The issues at the heart of the Mt. Laurel I decision - the question of Standing, the definition of the General Welfare and the requirement for Reasonableness - are dealt with in the Third podcast. We find the theories embodied in the writings of Norman Williams, Jr., discussed in the Second podcast, and we find them in the writings of New Jersey Supreme Court Justice Frederick W. Hall. Here we deal with those texts. We say "texts" because the Mt. Laurel decision, as its author freely admits, is about more than just Mt. Laurel. It is about the transformation of a legal theory into judicial practice. It attempts to set New Jersey apart from the long history of federal Supreme Court decisions that support the democratic diversity embodied in the New Jersey home rule tradition.

We have chosen four texts that we find most instructive. The first is a famous dissenting opinion written in 1962 in the case of Vickers v. Gloucester Twp. where his philosophies are clearly set forth and the second is DeSimone v. Greater Englewood Housing Corp. where he writes the majority opinion signaling a willingness on the part of the Court to support challenges to local zoning. The third is Mt. Laurel I and the fourth is a lecture given in 1977, two years after his retirement from the Court, amplifying his thinking about judicial prerogatives raising the issue of "standing" that was not addressed in the Court decision. That will complete our picture of his thinking.

We begin with a brief biographical note.

Frederick Wilson Hall

Frederick Wilson Hall was born in Pittsburgh in 1908. He graduated from Rutgers University where he was elected Phi Beta Kappa and from Harvard Law School Cum Laude in 1931. As a young lawyer he worked in the firm of New Jersey's first Chief Justice, Arthur T. Vanderbilt and then in 1941 he founded and practiced law at the firm of Wharton and Hall.
He was appointed to the New Jersey Superior Court in 1953 and served there until 1959 when he was appointed as an Associate Justice of the New Jersey Supreme Court where he served until 1975. Justice Hall was the last member of what was known as the "Weintraub Court" which served together for eleven years and was widely regarded as one of the most activist and progressive judicial bodies in the nation in the area of civil law.
He was known for his mastery of land use law and his great reputation in that field has tended to deflect attention from his important writings in other fields. He was completely at home in the entirely intricate field of municipal law; he wrote important opinions in the areas of torts, criminal law, constitutional law and many other subjects. Few judges possessed his extensive knowledge of procedure and the Rules of Court.
He remains most famous for writing the decision in the case known as Mt. Laurel I.
He died in 1984.
Vickers v. Gloucester Township

Now to the writings of Justice Frederick Hall. We begin in 1962 with his dissenting opinion in Vickers v. Gloucester Township, 37 N.J. 232 (1962). As we do, it's important to remember the federal statutory context. This is three years before the Voting Rights Act and six before the Fair Housing Act. The Civil Rights movement was growing stronger and a socioeconomic model seen as disproportionately benefiting White people was automatically treated as suspect by a certain school of social ideologues.

On its face this case is about the right of a municipality to ban mobile home parks, but Justice Hall sees it raising greater concerns.

"Of even greater concern is the judicial process by which it is reached and the breadth of the rationale. The import of the holding gives almost boundless freedom to developing municipalities to erect exclusionary walls on their boundaries, according to local whim or selfish desire, and to use the zoning power for aims beyond its legitimate purposes."

After this he goes on to describe the types of towns that are the object of his concern. He separates them from "the settled suburbs surrounding the cities" that should have the right to remain undisturbed and paints this picture of the targets of his distaste. :

"On the contrary these areas are sprawling, heterogeneous governmental units, mostly townships, each really amounting to a region of considerable size itself. Their present rural, semi-rural or mixed nature is about to change substantially and they are soon to become melded into the whole metropolitan area. Their political boundaries are artificial and hence of little significance beyond defining one unit of government."

"Such municipalities, above all others, vitally need and may legally exercise comprehensive planning and implement zoning techniques to avoid present haphazard development which can only bring future grief. They are entitled to aim thereby for a sound and balanced area, with varying uses confined to specific districts and appropriately regulated."

He then continues to describe a number of things towns can reasonably do to shape their future. Then he comes to this.

"And this gets to the nub of what this, and similar cases, are really all about, i.e. the outer limit of the zoning power to be enjoyed by these municipalities most in need of comprehensive authority. What action is not legitimately encompassed by that power and what is the proper role of courts in reviewing its exercise?"

"This inquiry involves important fundamentals. In the broad sense the considerations are well posed in Williams, "Planning Law and Democratic Living," 20 Law and Contemporary Problems 317 (1955):

"The main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society equality of opportunity and equality of treatment, freedom of thought and considerable freedom of action, and fairness. Under the American system, a more or less independent mechanism of judicial review is established to provide an independent check on whether specific governmental decisions conform to these standards. While controversy has often raged about judicial action in other areas, it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare."

"Constitutional law should serve to shed light upon thinking about local planning, by requiring those concerned to do what they should be doing anyway to work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity."

This is a set of breathtaking assertions.

First, while he offers a broad amorphous set of values, it might just as reasonably be said that the main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society as enshrined in the precise language of the U. S. Constitution.

Second, as to what he asserts as having "always been recognized" as "an essential part of the judicial function" and the "attitudes and policies" with which he is concerned, these must be compared to the values and actions consistently upheld for thirty-five years by the U. S. Supreme Court and flowing from sources like the Standard State Zoning Enabling Act that was a product of the federal government. And just who has been doing the recognizing, anyway?

Third, there is the need to "work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity." This lofty vision should be compared with the language found later in the text defining the role of zoning.

Next he expands to a broader vision of a seemingly boundless role for the courts and shares his disdain for those with less expansive views.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."

After this the discussion focuses closer to the case at hand and on the permitted or proper scope of judicial oversight. He finally comes to the definition of zoning quoted above and this statement that seemingly undercuts the argument he has been advancing for the expansiveness of judicial oversight of municipal actions.

"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

After all of his argument to the contrary, this language appears to make it clear that while there are great issues connected with human freedom and opportunity this is not the arena in which they can be constitutionally settled.

From this point the focus is on little more than repetition of the issues, arguing back and forth with elements of previous court decisions and finally a discussion of the actual issue of the case - the right to prohibit mobile homes.

DeSimone v. Greater Englewood Housing Corp.

We next hear his voice in the case of DeSimone v. Greater Englewood Housing Corp. 56 N. J. 428 (1970) 267 A.2d 31. While a seemingly small matter over issuance of a variance, it caught the emerging temper of its time. There had been racial disturbances in Englewood in July, 1967 and the town had become a focus of the Governor's Select Commission on Civil Disorder and its "Report for Action" issued the following year. This unanimous decision was seen by sympathizers as an opening for a renewed assault on municipal zoning. To understand this perspective we offer the assessment of Norman Williams, Jr. in The Background and Significance of Mount Laurel II from 1984:

"By the late 1960's, however, the world suddenly began to look rather different than it had when Justice Hall wrote his Vickers dissent, and other judges began to reexamine their tolerance of exclusionary zoning practices. In an otherwise relatively unimportant case, the New Jersey Supreme Court in 1970 upheld (against a challenge by neighbors) a New Jersey "d" variance approving a housing project in Englewood, which was (a) located in a "white area" and (b) clearly designed at least in part to accommodate blacks from the Englewood ghetto. In upholding the grant of the variance, the opinion-by Hall, and now unanimous--commented in dictum that under those circumstances such a variance could not have been denied. The only logical basis for this comment is that there must be some affirmative duty to plan on behalf of all sections of the population. Once those familiar with this field of law read the Englewood opinion, it was clear that the jig was up; the court seemed to be sending out signals that it was ready for a major reversal on the exclusionary problem." This led us to Mt. Laurel I.

Mt. Laurel I

Now we move on to the climactic document of the career of Frederick W. Hall. The first Mt. Laurel decision was written in 1975, thirteen years after his dissent in Vickers v. Gloucester Township and was his last great contribution to the activism of the court. The case, Southern Burlington County N. A. A. C. P. v. Mount Laurel 67 N. J. 151 (1975), began its course through the state judicial system in 1972 with a finding for the plaintiff which was subsequently appealed, not only by the township but by the plaintiffs as well seeking an expansion of the scope of the decision. It was then taken over by the state Supreme Court and transmuted from a case concerned with racial discrimination, which would have claimed a violation of the federal Fair Housing Act, into one focused on economic segregation which kept it within the state court system where it was argued in 1974 and decided in 1975. It begins by presenting the scope of the argument. We also find here Mr. Norman Williams, Jr. arguing the cause for amicus curiae The Public Interest Research Group of New Jersey twenty years after publishing his foundational document "Planning Law and Democratic Living" in 1955. Importantly, this comes seven years after the Fair Housing Act.

"This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipality. The trial court so found, 119 N.J. Super. 164 (Law Div. 1972), and declared the township zoning ordinance totally invalid. Its judgment went on, in line with the requests for affirmative relief, to order the municipality to make studies of the housing needs of low and moderate income persons presently or formerly residing in the community in substandard housing, as well as those in such income classifications presently employed in the township and living elsewhere or reasonably expected to be employed therein in the future ... The township appealed to the Appellate Division and those plaintiffs, not present or former residents, cross-appealed on the basis that the judgment should have directed that the prescribed plan take into account as well a fair share of the regional housing needs of low and moderate income families without limitation to those having, past, present or prospective connection with the township. The appeals were certified on our own motion before argument in the Division."

"The implications of the issue presented are indeed broad and far-reaching, extending much beyond these particular plaintiffs and the boundaries of this municipality."

"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."

"We will, therefore, consider the case from the wider viewpoint that the effect of Mount Laurel's land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

"Its candid position is that, conceding its land use regulation was intended to result and has resulted in economic discrimination and exclusion of substantial segments of the area population, its policies and practices are in the best present and future fiscal interest of the municipality and its inhabitants and are legally permissible and justified. It further asserts that the trial court was without power to direct the affirmative relief it did."

In these few opening quotes we find the whole argument showcased. It all begins with the "desperate need for housing" based on the horribly flawed assertion of a "housing crisis" that demonstrably never happened, to meet the needs of a population that still doesn't exist, most clearly expressed in this single sentence from "A Blueprint for Housing in New Jersey" (1970). "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985."

Based on this assumption the Court says they will consider the case from the "wider viewpoint" that the Mount Laurel ordinance has the effect of excluding people because of the "limited extent of their incomes and resources" which the municipality freely admits, and asserts they are "legally permissible and justified"in doing because it is in the "best present and future fiscal interest of the municipality and its inhabitants". And the Court accepts that "the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

To summarize, the township freely admits it did what it's accused of doing and says that it's legal and justified because it's in the interest of the town and the Court accepts that it wasn't done for any of the reasons made impermissible by the Fair Housing Act 42 U.S.C. 3602 et seq., which is the federally controlling statute and separates this case from the context of the dissent in Vickers v. Gloucester Township. That is the case. The rest of the decision is then divided into three parts.

I The Facts

This section begins with a lengthy recitation of the facts about Mount Laurel including its size and population and its various zones and the development that's taken place in them in a very straightforward manner. Then we come to the conclusion. "There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property ... and that the policy was carried out without regard for nonfiscal considerations with respect to people, either within or without its boundaries." In other words, they did exactly what they said they did and only for the reasons they said they did it.

The text then goes on to describe the reason for this. "This policy of land use regulation for a fiscal end derives from New Jersey's tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality's children." In other words, this is entirely the fault of the State and applies to all municipalities. As a logical result:

"This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost everyone acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing."

As proof of this practice"The Residential Land Supply" (April 1972) produced by The N. J. Department of Community Affairs and "Exclusionary Land Use Controls: The Case of North-Eastern New Jersey" (1971) by Norman Williams, Jr. and Thomas Norman are cited. What is not considered in this statement is that the municipal action benefits all of the residents of the municipality, including those who are low-and-moderate income homeowners who are most at risk of being driven from their homes by rising taxes.

The next thing shown is how the urban model also worked to maintain fiscal stability.

"The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing than the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing. Despite the municipally confined tax structure, commercial and industrial ratables generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas."

In other words, the cities provided for their fiscal stability by zoning for a substantial ratable base dominated by commercial and industrial uses. Their goal was the same as that of the developing municipalities but simply pursued by different means.

The final part of this section is devoted to the plight of the urban population after World War II as the commercial and industrial base left the cities for new locations in other towns, other counties and other states. At the same time the lure of home ownership in developing communities that promised to provide all of the benefits of urban life in terms of public services and economic opportunities, without the well recognized problems of urban life, drew the emerging middle class to the suburbs. This was compounded by the failure of the cities to find a new productive purpose.

"Much industry and retail business, and even professions, have left the cities."And as for the low income workers "These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a critical erosion of the city tax base and inability to provide the amount and quality of those governmental services education, health, police, fire, housing and the like so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing."

To summarize the facts. State tax policies placed the primary burden of funding municipal, county and educational services on the tax base of each municipality. In order to be able to carry this burden each municipality zoned itself to develop a ratable based that would provide for long-term fiscal stability. The cities did this by zoning for a large commercial and industrial base. "Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing." After World War II the urban model began to fail and many cities had difficulty reinventing themselves.

Instead of seeking to attract a tax base built on non-residential uses that relies on unskilled and semi-skilled workers, the suburbs did this by focusing on attracting a strong residential base that would provide for their future stability. The suburbs stand convicted of developing a well balanced, fiscally stable, socioeconomic model while the cities did not. They didn't attract employers of unskilled and semi-skilled workers and so did not seek to provide housing for a workforce that did not exist.

Now we come to the legal issue.

II The Legal Issue

"The legal question before us, as earlier indicated, is whether a developing municipality like Mount Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources."

"We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need thereof."

"We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs."

At this point we'll take a moment to recall previously expressed thoughts of Justice Hall with a pair of quotes from Vickers v. Gloucester Township cited above.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."
"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

The first quote could easily be applied to the Court in this case for focusing on the abstract need for housing without recognizing the real world reality that housing is only one aspect of the integrated socioeconomic need of the community. Logic argues that building housing for workers without work makes no more sense than building factories without workers to work in them.

The second challenges the expansive view of judicial prerogatives "to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes." Then the argument for this is presented.

"We begin with some fundamental principles as applied to the scene before us."

"Land use is encompassed within the state's police power."

"It is elementary theory that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws."

"It is required that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare (The last term seems broad enough to encompass the others.) Conversely, a zoning enactment which is contrary to the general welfare is invalid."

"Indeed these considerations are specifically set forth in the zoning enabling act as among the various purposes of zoning for which regulations must be designed. N. J. S. A. 40:55-32 ... If a zoning regulation violates the enabling act in this respect, it is also theoretically invalid under the state constitution. We say "theoretically" because, as a matter of policy, we do not treat the validity of most land use ordinance provisions as involving matters of constitutional dimension; that classification is confined to major questions of fundamental import."

"We consider the basic importance of housing and local regulations restricting its availability to substantial segments of the population to fall within the latter category."

"The demarcation between the valid and the invalid in the field of land use regulation is difficult to determine, not always clear and subject to change. This was recognized almost fifty years ago in the basic case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926):

"The ordinance now under review and all similar laws and regulations must find their justification in some aspect of police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. (272 U. S. at 387, 47 S. Ct. at 118, 71 L. Ed. at 310)."

It's nice to see the Court remembering the Ambler Realty case but it would be even nicer to see the Court recall The federal Fair Housing Act which clearly drew the line between legitimate and illegitimate. The Act prohibits discrimination in housing for a specific list of reasons: race, color, religion, sex, handicap, familial status or national origin. That is "precise delimitation". Counsel for Mt. Laurel Twp. made it clear that these were not the basis for their zoning and the Court accepted that that was the case. We would remind the Court of their own language.

"In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

The first thing Justice Hall needed to do to justify a need for change was find sources that, while supporting policies of deference to municipal decision-making, offer a warning that the future may be different and law may have to change. After offering a number of prior decisions as pointing in his direction he found it best said in Pierro v. Baxendale, 20 N. J. 17, 29 (1955) :

"If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed."

Having adding the sanctifying weight of precedent, he returns to his own thoughts.

"The warning implicates the matter of whose general welfare must be served or not violated in the field of land use regulation. Frequently the decisions in this state, including those just cited, have spoken only in terms of the interest of the enacting municipality, so that it has been thought, at least in some quarters, that such was the only welfare requiring consideration. It is, of course, true that many cases have dealt only with regulations having little, if any, outside impact where local decision is ordinarily entitled to prevail. However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state's citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served."

"This essential was distinctly pointed out in Euclid, where Mr. Justice Sutherland specifically referred to the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. Chief Justice Vanderbilt said essentially the same thing, in a different factual context, in the early leading case of Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949), when he spoke of the necessity of regional considerations in zoning and added this:

"The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. (1 N. J. at 513)."

Justice Hall offers this quote as supportive of his position but we see it pointing in exactly the opposite direction. The problem is one of perspective. For Justice Hall zoning in developing municipalities was an act of selfishness and a desire to isolate themselves from the needs of the broader region. We see it differently. We see the world from a dynamic perspective where forces that transcend transient social policy considerations are controlling and municipalities are simply responding to the greater market forces confronting them as they take their place in regions that are being redefined by evolving transportation and communications technologies. The sentence we have highlighted makes this point. Again, we're not asking you to take our viewpoint over that of Justice Hall. We have simply taken the quote he selected above and put it back in the paragraph where he found it. Once again we have added the highlighting for emphasis.

"What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as in living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

When read in this fuller context the vision of Justice Hall and the rest of the Court cannot stand. The "forces" cited in Duffcon are the dynamic forces we see shaping our world in various forms and with different names. In this case it is the economic force of the housing market and the social force of democratic diversity that together serve to create fiscally stable communities, each with a distinct face and character, and together advancing the general welfare of their region. The Court is seeking to impose housing diversity within every municipality, while the natural dynamic forces produce a vital diversity among municipalities.

After this a case supporting placement of a hospital for the emotionally disturbed as meeting a regional need superseding the rights of a municipality to reject it is presented. And then, having failed to find any substantive support for the action under consideration other than some mentions that at some point if circumstances change some alterations in judicial perspectives would be justified, the Court goes about doing what they clearly had decided to do all along.

"This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms of land use regulation which that relationship mandates. There cannot be the slightest doubt that shelter, along with food, are the most basic human needs."

"It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of such broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries. Negatively, it may not adopt regulations or policies which thwart or preclude that opportunity."

"In sum, we are satisfied beyond doubt that, by reason of the basic importance of appropriate housing and the long-standing pressing need for it, especially in the low and moderate cost housing category, and of the exclusionary zoning practices of so many municipalities, conditions have changed, and consistent with the warning in Pierro, supra, judicial attitudes must be altered from that espoused in that and other cases cited earlier, to require, as we have just said, a broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all."

"We have spoken of this obligation of such municipalities as "presumptive." The term has two aspects, procedural and substantive. Procedurally, we think the basic importance of appropriate housing for all dictates that, when it is shown that a developing municipality in its land use regulations has not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation of substantive due process or equal protection under the state constitution has been made out and the burden, and it is a heavy one, shifts to the municipality to establish a valid basis for its action or non-action. ... The substantive aspect of "presumptive" relates to the specifics, on the one hand, of what municipal land use regulation provisions, or the absence thereof, will evidence invalidity and shift the burden of proof and, on the other hand, of what bases and considerations will carry the municipality's burden and sustain what it has done or failed to do. Both kinds of specifics may well vary between municipalities according to peculiar circumstances."

"We turn to application of these principles in appraisal of Mount Laurel's zoning ordinance, useful as well, we think, as guidelines for future application in other municipalities."

With this the Court establishes a new concept in land-use litigation. It does so without constitutional, statutory or precedential support. It is nothing more than an act of will by the members of the Court and so effectively expands the boundaries of judicial authority beyond otherwise recognized bounds.

The focus then turns to the specific of Mount Laurel zoning.

"We have earlier stated that a developing municipality's obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to the municipality's fair share of the present and prospective regional need thereof. Some comment on that conclusion is in order at this point. Frequently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason. But, under present New Jersey legislation, zoning must be done on an individual municipal basis, rather than regionally. So long as that situation persists under the present tax structure, or in the absence of some kind of binding agreement among all the municipalities of a region, we feel that every municipality therein must bear its fair share of the regional burden. (In this respect our holding is broader than that of the trial court, which was limited to Mount Laurel-related low and moderate income housing needs.)"

This admission loudly echoes the language of Duffcon Concrete that supports putting different uses in different places based on any number of factors:

"Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

After this all that remains is the essential discussion of how to define a region.

"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. Confinement to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable."

There are any number of ways to define a region. The Northeast is a national region. The New York and Philadelphia metropolitan areas are regions. The Census Bureau provides journey-to-work data that shows where people who work in a given place live and conversely where people who live in a given area work. Worker housing tends to cluster around employment centers and regions tend to define themselves on an ongoing basis.

III The Remedy

This final section applies only to Mount Laurel and focuses only on mechanics.

This ends the majority opinion written by Justice Frederick Hall. All that remains is a consideration of his 1977 lecture.

We are presenting significant excerpts from this lecture by Justice Hall, delivered two years after his retirement, because it contains what we see as useful insights into his thinking about several important issues. These include his vision of the limits of judicial power, of which he see very few, and his idea of the basis for granting standing to the plaintiffs in the Mount Laurel case as "third- party non-beneficiaries" as defined by Professor Norman Williams, Jr. . He discusses the importance of defining a "fundamental interest" and the fact that for the federal courts housing is not one. We think the full lecture is well worth reading as a picture of the thinking of a man accustomed to wielding power and the public passions that drove him throughout his career on the bench.

The Judicial Role In Land-Use Regulation (excerpts)

Frederick W. Hall
Associate Justice of the New Jersey Supreme Court, retired
Arthur T. Vanderbilt Lecture
Harvard Law School Association of New Jersey
April 20, 1977

Modern land-use regulation has increasingly become a matter of vital interest and importance to the citizenry of large and small metropolitan areas and beyond, and bids fair to continue so for a considerable time to come. Its scope has changed immeasurably since constitutional approval was accorded about 50 years ago. The current major subjects and objects of regulation and the problems and issues arising from it have led to litigation of quite a different character than was formerly the case. What the proper judicial role in this field should be needs to be considered in the light of the broad changes that have likewise taken place in the kinds of litigation and the exercise of the judicial function in other fields of public law.


The United States Supreme Court has come to the point, in reviewing state action on claims of federal constitutional violation, of finding invalidity on equal-protection grounds only where the right involved is said to be a "fundamental interest" and the state cannot show a "compelling state interest." The subjects meeting the fundamental interest test have been strictly limited: voting, race, right to interstate travel and perhaps a couple of others. Housing is not one.
The courts recent forays into the land-use regulation field after an avoidance of about half a century have been, regardless of result, quite unsatisfactory, to say the least.

There have been deep changes in American life and philosophy and the place of government therein. These began to appear in quantity in the "New Deal" era of the 30's but developed much more strongly after World War II.
First, there was a vast increase in regulation of private affairs, both business and personal, by all levels of government. ....
Second, there has been a tremendous increase in the conferring or distribution by government of various kinds of benefits to aid the less fortunate members of our society.
Third, there has been a startling awakening and assertion of claims of human rights under constitutional guarantees, statutes and institutional arrangements especially on behalf of minorities of all varieties and the disadvantaged.
Fourth, we have witnessed a "law explosion," by which relief from all manner of alleged wrongs is sought in the courts in the belief that the judiciary is the only effective branch of government. Everyone sues about everything, ...

This type of litigation is quite different from the traditional model earlier described. It most frequently concerns public, rather than private, action or inaction. It may well attack a whole scheme of government activity. It very frequently is of a representative or class nature, affecting many more persons or entities than are parties or whose views are before the court.

It generally does not seek money damages, but rather declaratory or injunctive relief of a continuing and broadly remedial nature against some government entity or official. Equity jurisprudence very largely governs the ultimate result. ....

This relatively new category of public-law litigation, which includes as well certain kinds of land-use litigation shortly to be mentioned more specifically, presents important questions as to the extent of judicial power and the proper exercise of it. These queries generally arise about the remedy especially when the relief ordered or sought involves affirmative action by another branch of government or amounts to action by the judiciary in a form within the purview of or normally accomplished - even perhaps better handled - by either the local or state legislature or the executive branch.

The Courts Must Decide

Again, the courts are the sole and final arbiter of the constitutionality of local and state legislation, regulations or other governmental action. A declaration of invalidity is binding upon the legislature, the executive and all affected public officials. This is so whether or not the particular agency or government agrees with the decision. It may only be overturned by amendment through vote of the people according to specified procedures.

While considerations of constitutional claims require the greatest judicial circumspection, they cannot be decided on the basis of personal views of individual judges as to the advisability or wisdom of the governmental action under review or in accordance with what may appear to be the wish of an articulate or seeming majority of the affected populace on a particular question.

The judicial branch is the ultimate protector of the rights of all, and this of course includes those of minorities. Constitutional principles and the rights guaranteed by or arising under the documents must always be thought of as living and not static things, subject to enlargement and variation in interpretation and application as conditions and the needs of the body politic change. When this is to occur is, unless spelled out by amendment, the proper and exclusive province of the judiciary. This is fundamental in our form of government.

Land-Use Regulation

There remains the application of this discussion to the more specific matter of the appropriate judicial role in land-use regulation cases. Even more particularly, reference is confined to the currently active aspects of zoning for housing and the place of the regional concept and to the initial articulation of a new and constitutional approach thereto in the unanimous decision of our Supreme Court in Southern Burlington County NAACP v. Township of Mount Laurel, 67 N. J. 151 (1975).

The matter should be placed in historical perspective, both legal and factual. That history is thoroughly presented, state by state and overall, in Professor Norman William's recent comprehensive and thoroughly readable treatise, "American Land Planning Law." To summarize quickly, with special reference to this state, after zoning was constitutionally approved a half century ago, the authorizing legislation in New Jersey and most states, delegated the permissive power to each municipality under standards which, except for the broad health, morals and general welfare language, were directed to regulation of uses to avoid adverse physical impact and to safeguard property values.

The general language of the delegation necessarily left interpretation to the courts. The aim of the adopted ordinances was to keep industrial uses out of the residential areas of the cities and their close suburbs. The idea was revolutionary because it involved restrictions on the private use of one's land, which for centuries had received exceptional veneration and favored treatment at the hands of the law.

The attitudes of the courts in this state as elsewhere varied in periods during the course of the next few decades. Early judicial resistance to zoning largely favored landowners. From 1948 to recent times our courts swung quite perceptibly to the opposite extreme, upholding almost all municipal action.

The New Jersey factual picture changed drastically during this period. I am sure it is quite familiar to all of you. The population expanded greatly through the birth rate and immigration from other sections. Business and industry moved from the central cities to new locations farther out and the more affluent families followed to occupy newly-built single-family housing in developments in municipalities that had been substantially rural. The demand for municipal and educational services funded by real-property taxes became immense in these areas.

At the same time, the cities decayed and their tax bases eroded. They became populated largely by the poor. The available housing wore out and became substandard or worse. Government services deteriorated and we had the uprisings of the 60's.

During the same period, the character and aim of municipal zoning, especially in these municipalities that were growing, or experiencing market pressures for growth, changed radically, although the full significance was not apparent at once. The purpose shifted from protection against physical impact to socioeconomic designs with the clear purpose of safeguarding the particular municipality's welfare as it alone decided. A principal purpose was fiscal - to allow only that kind of growth that would pay its way taxwise, particularly with respect to school costs, or come close to it.

The result was almost universal prohibition through various zoning mechanisms against any but expensive, single-family housing. Multi-family rental units were allowed most meagerly overall. Generally, they too, were required to be expensive, and contained bedroom limitations restricting the number of school children. These provisions effectively excluded from municipality after municipality families of low-and moderate-income, whether they resided in the central cities and sought a better environment and living conditions or were young couples, elderly citizens and others not desiring large houses who already had some ties with the community.

The result too was a statewide shortage of decent low-and moderate-income housing in all types of municipalities, the existence and alarming consequences of which were repeatedly called to public attention by state-agency studies, gubernatorial messages, and recitals in state legislation providing some assistance in funding such housing, only, of course, available where local land-use regulations permitted. It became clear that local exclusionary ordinances were having a substantial impact outside the particular municipality.

At the same time, it was becoming obvious that use regulation of certain types of land had such an important impact beyond municipal lines that individual municipal regulation was harmful to the broader public welfare. So the legislature withdrew the delegation of zoning authority to municipalities with respect to ,among others, wetlands, coastal areas, and the Hackensack Meadowlands district and provided for use regulation by its own agencies. The advisability of the concept of regional land-use regulation was thus established.

In this state of affairs, the Mount Laurel case came to the Supreme Court. It projected a new class of land-use litigation. The suit was brought, not by neighbors protesting the zoning of a particular property or an owner seeking to develop his land contrary to the zoning ordinance, but by people whom Professor Williams calls "third-party non-beneficiaries" - resident and non-resident poor people who wanted to live in the township but could not afford the only type of housing permitted.

Their attack, which they clearly had standing to make, was on the whole zoning scheme of a typical growing municipality having adequate remaining land for further development. The plaintiffs' proofs and briefs well presented to the court the factual picture that has just been sketched.

For present purposes of the discussion of the judicial role, the rationale of the decision may be simplified as follows. Land-use regulation, like any other police power enactment, must enhance and not be contrary to the general welfare to be valid under the state constitution. The availability of adequate land and an appropriate variety and choice of housing for all categories of people is an absolute essential in promotion of the general welfare - in effect, a fundamental state interest.

It is so important to the public good that the general welfare that each so-called developing municipality must take into account in order to have a valid zoning ordinance extends beyond the claimed good of that particular governmental unit. So:

the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land-use regulation, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low-and moderate-cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries.

and may not adopt regulations or policies that thwart of preclude that opportunity. Exclusionary restrictions having the effect mentioned are unconstitutional unless the municipality can sustain the heavy burden of demonstrating peculiar circumstances dictating a contrary conclusion. This was not established by Mount Laurel, so its zoning ordinance is pro tanto invalid.

The conclusions were, of course, within the traditional power and obligation of a court to declare legislation unconstitutional. Deference to the Legislative branch, here the local governing body, requires that such a judgment be rendered only in a clear case, but when that plainly appears in a situation involving a fundamental state interest, a court would be derelict if it did not so act. We are, in essence, dealing with a moral issue.

Mount Laurel went on to indicate that, since housing needs, particularly for people of low and moderate income, do not necessarily suit or fit well in every municipality, a regional approach was desirable, and urged state legislative action to so provide. In the absence thereof, the court said that Mount Laurel would have to provide for its fair share of the present and prospective regional need for such housing.

This solution originated with Chief Justice Weintraub during court conferences, prior to the advent of new permanent justices, making it desirable to schedule a reargument. The idea was not new; several areas of the country have had voluntary plans in operation on this basis for some time, and the professional planning literature thereon is plentiful. The township was given the opportunity to revise its ordinance, using these and other guidelines mentioned in the opinion, with the right in the plaintiffs to seek court review of the revised product if it was claimed not to be in accord with the express or implied directions of the opinion.

There is certainly nothing here that could reasonably suggest an inappropriate judicial role. I submit that it is unthinkable that a court should stop short of giving litigants in the housing field all the guidelines it considers vital and to direct affirmative corrective action to the fullest extent that it can completely supervise and review simply because the defendant is a municipality, and one that might be recalcitrant or uncooperative in righting the constitutional wrong, or because some other entity might be able to do a better job.

Under New Jersey jurisprudence, a court must review any governmental action of the nature here involved, as the Supreme Court has since done in the Madison Township case. That opinion also clearly confirms the judicial power to seek the help of neutral experts where needed to decide questions beyond the ordinary sphere of judicial knowledge, which, of curse, occurs in many cases beside land use litigation.

And it is not to be forgotten that courts can bring about ultimate compliance with their judgments through negative orders. For example, a defiant municipality refusing to change its invalid zoning ordinance could be prohibited, until it did so, from issuing building permits or certificates of occupancy for any dwellings, or indeed for structures of any kind. this method of relief was effectively utilized recently in Morris County to bring about governmental action to provide adequate sewage disposal.

There are, of course, types of relief that courts should not order, regardless of their power to do so. I conceive, for example, that judicial tribunals ought not to direct municipalities to actually build housing. In some cases, they may have to stop and resort to judicial prodding of the public conscience to bring about remedial action.

Mount Laurel has spawned considerable litigation involving other municipalities. It is not within the scope of this presentation to discuss the various decisions, even if the author had had the time to digest the contents and implications of the great proliferation of paper representing the numerous opinions. One brief comment bearing on the judicial role may be in order.

I believe that the implications of Mount Laurel are clear enough that, where zoning for housing is involved, whether the municipality is strictly a developing one or not, a court should take a good, hard look and insist that the municipality justify its restrictions or be forced to change them.

Furthermore, the court ought to give real reasons in its decisions and not rely on unmeaningful boiler-plate shibboleths like arbitrariness, capriciousness, and dubious presumptions of validity. The housing issue is too important and too fundamental to be disposed of in any case by cursory judicial treatment, and we should not revert in such cases to any thesis that whatever the municipality has done is all right.

While the legislature has not yet responded to the Court's suggestion of provision for regional zoning, it did, after Mount Laurel, enact the new Municipal Land Use Law, various sections of which indicate an important shift in policy from the old individual-municipality emphasis of old enabling acts, and give statutory support to the constitutional bases of the decision. I refer to the purposes sections, where the intent of the Act is stated:

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 and preservation of the environment;
and:
to provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space ... in order to meet the needs of all New Jersey citizens.

In addition, the zoning ordinance of every municipality must conform to a master plan, which must contain a land-use plan element and a housing element. I submit that the latter, in order to ground a valid zoning ordinance, would have to make provision, appropriate to the particular municipality, for a variety and choice of housing.

While any home rule tradition is always subject to constitutional requirements and guarantees of rights for all people, as Mount Laurel in effect held, the land-use law provisions just referred to indicate to me a legislative recognition that the invisible walls of suburban communities must have many gates for entrance."

We have presented these portions of the lecture without comment. We believe it speaks for itself. It offers both information and insight into the thinking of a man, who, confronted with a world he didn't like, set out to change it with a seeming disregard for the interests of a great many of the people living in it. Whether this will ultimately be seen as heroic idealism or judicial tyranny will be left to the judgment of future generations who suffer or prosper as a result of it. Arguably, more than forty years on, we are such a generation.

Here we end the Third Source Narrative for Beyond the Mount Laurel Doctrine: From Forty Years of Failure To A Blueprint for Success.

Documents worth reading in addition to those quoted in the text above:

"The Housing Crisis In New Jersey" (1970)
"Land Use Regulation: The Residential Land Supply" (1972).
"A Blueprint For Housing In New Jersey" (1970)
"New Horizons In Housing" (1972).
Warth v. Seldin, 422 U. S. 490 (1975)
Pierro v. Baxendale, 20 N. J. 17, 29 (1955)
Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949)

Beyond the Mt. Laurel Doctrine
Third Source Narrative

This is the Source Narrative to accompany the first Mt. Laurel decision and the writings of its author, Justice Frederick W. Hall. Before looking at the writings of Justice Hall, we have another task to perform. It's time to recall that this podcast is a demonstration project for our Insight Engine problem-solving technique. One of the key steps in our process is identification of powerful false ideas that keep problems from being resolved. Our task is to deconstruct and dispel them. The first one we encounter is the idea of a "housing crisis" in New Jersey. This powerful false idea was the first justification for the actions in Mount Laurel I.

We begin by recognizing the enormous population growth of the "baby-boom" period. From 1940 to 1970 the Census shows the New Jersey population grew from more than 4.1 to over 7.1 million. Numerous studies by "experts" for major institutions projected continued similar growth.

In "The Housing Crisis in New Jersey" (1970) the issue is stated this way: "... there is wide agreement that the State's population will continue to grow at least at the present rate in the years to come." However, this document also includes a very important cautionary footnote that includes the recognition that housing growth drives population growth. It's not the other way around.

"The one significant factor on the horizon which may lead to a decline in the rate of population growth in New Jersey is, of course, the decline in the construction of housing units in the State. If present trends in housing production continue during the coming years to decline, population projections will undoubtedly have to be scaled downward. Furthermore, such a decline could well set in motion a "chain reaction" effect, which would result in further declines in the rate of growth."

The document also shows that building permits had peaked in 1964 at just over 68,000 and dropped to 43,661 by 1968, a four year decline of almost 36%. Such a decline could have been seen as the basis for a reconsideration of "population projections". That's not what happened.

On December 7th Governor Cahill went further in "A Blueprint for Housing in New Jersey". There he said "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985." No explanation is offered as to who these "experts"
were or what methodology they used to reach their astonishing total. He also says "According to reliable statistics, we require 100,000 additional housing units each year, but actually are building only 40,000." These statements remained unchallenged and became part of the major concurring opinion in Mt. Laurel I.

You might be asking "How wrong could the experts have been?" Here are the facts. Decide for yourself.

In 1988 the New Jersey Office of State Planning produced a Technical Document titled "Population Trends and Projections". In it they looked back over the period 1970 to 1985 and found that instead of the projected 2.8 million people from 1970, the actual increase came to 394,136, or less than one seventh of the projected amount. Simple math tells us that if 2.8 million people would require 100,000 units per year, a similar reduction would produce approximately 14,250 homes and the state was already seeing far more homes being built. Census numbers also show that in the decade of the 1970's the population grew by 196,847 while New Jersey added over 384,000 new homes, or 1.95 units for every additional person. Records of annual building permits show this rate of growth kept up through 1985. To fully appreciate the magnitude of this difference recall that the average household size at the time was approximately 3 persons which meant that in reality six homes were being built for every new household in New Jersey.

In conclusion, the population growth that was supposed to fuel the "housing crisis" never happened. The housing being built far exceeded any demand that the population that did come could absorb. If population projections had been adjusted based on the emerging downward trend in housing, the argument underpinning Mt. Laurel I would have had to be significantly altered if not abandoned altogether. But that didn't happen. Instead the Court relied on this badly flawed expert advice. That's the first false idea to be dispelled. There was no housing crisis.

Before we move on, if you're wondering who those unnamed experts could have been who led everyone so far astray, we found them. In a footnote in "Exclusionary Land Use Controls: The Case of North-eastern New Jersey" the authors praise Governor Cahill for his courage in delivering his Special Message and write "The technical specifications for the study were prepared by the authors of this article." The authors were Norman Williams, Jr. and Thomas Norman. Now you know. Now we move on and turn our attention to the second of the great revolutionary architects of the Mt. Laurel Doctrine.

The issues at the heart of the Mt. Laurel I decision - the question of Standing, the definition of the General Welfare and the requirement for Reasonableness - are dealt with in the Third podcast. We find the theories embodied in the writings of Norman Williams, Jr., discussed in the Second podcast, and we find them in the writings of New Jersey Supreme Court Justice Frederick W. Hall. Here we deal with those texts. We say "texts" because the Mt. Laurel decision, as its author freely admits, is about more than just Mt. Laurel. It is about the transformation of a legal theory into judicial practice. It attempts to set New Jersey apart from the long history of federal Supreme Court decisions that support the democratic diversity embodied in the New Jersey home rule tradition.

We have chosen four texts that we find most instructive. The first is a famous dissenting opinion written in 1962 in the case of Vickers v. Gloucester Twp. where his philosophies are clearly set forth and the second is DeSimone v. Greater Englewood Housing Corp. where he writes the majority opinion signaling a willingness on the part of the Court to support challenges to local zoning. The third is Mt. Laurel I and the fourth is a lecture given in 1977, two years after his retirement from the Court, amplifying his thinking about judicial prerogatives raising the issue of "standing" that was not addressed in the Court decision. That will complete our picture of his thinking.

We begin with a brief biographical note.

Frederick Wilson Hall

Frederick Wilson Hall was born in Pittsburgh in 1908. He graduated from Rutgers University where he was elected Phi Beta Kappa and from Harvard Law School Cum Laude in 1931. As a young lawyer he worked in the firm of New Jersey's first Chief Justice, Arthur T. Vanderbilt and then in 1941 he founded and practiced law at the firm of Wharton and Hall.
He was appointed to the New Jersey Superior Court in 1953 and served there until 1959 when he was appointed as an Associate Justice of the New Jersey Supreme Court where he served until 1975. Justice Hall was the last member of what was known as the "Weintraub Court" which served together for eleven years and was widely regarded as one of the most activist and progressive judicial bodies in the nation in the area of civil law.
He was known for his mastery of land use law and his great reputation in that field has tended to deflect attention from his important writings in other fields. He was completely at home in the entirely intricate field of municipal law; he wrote important opinions in the areas of torts, criminal law, constitutional law and many other subjects. Few judges possessed his extensive knowledge of procedure and the Rules of Court.
He remains most famous for writing the decision in the case known as Mt. Laurel I.
He died in 1984.
Vickers v. Gloucester Township

Now to the writings of Justice Frederick Hall. We begin in 1962 with his dissenting opinion in Vickers v. Gloucester Township, 37 N.J. 232 (1962). As we do, it's important to remember the federal statutory context. This is three years before the Voting Rights Act and six before the Fair Housing Act. The Civil Rights movement was growing stronger and a socioeconomic model seen as disproportionately benefiting White people was automatically treated as suspect by a certain school of social ideologues.

On its face this case is about the right of a municipality to ban mobile home parks, but Justice Hall sees it raising greater concerns.

"Of even greater concern is the judicial process by which it is reached and the breadth of the rationale. The import of the holding gives almost boundless freedom to developing municipalities to erect exclusionary walls on their boundaries, according to local whim or selfish desire, and to use the zoning power for aims beyond its legitimate purposes."

After this he goes on to describe the types of towns that are the object of his concern. He separates them from "the settled suburbs surrounding the cities" that should have the right to remain undisturbed and paints this picture of the targets of his distaste. :

"On the contrary these areas are sprawling, heterogeneous governmental units, mostly townships, each really amounting to a region of considerable size itself. Their present rural, semi-rural or mixed nature is about to change substantially and they are soon to become melded into the whole metropolitan area. Their political boundaries are artificial and hence of little significance beyond defining one unit of government."

"Such municipalities, above all others, vitally need and may legally exercise comprehensive planning and implement zoning techniques to avoid present haphazard development which can only bring future grief. They are entitled to aim thereby for a sound and balanced area, with varying uses confined to specific districts and appropriately regulated."

He then continues to describe a number of things towns can reasonably do to shape their future. Then he comes to this.

"And this gets to the nub of what this, and similar cases, are really all about, i.e. the outer limit of the zoning power to be enjoyed by these municipalities most in need of comprehensive authority. What action is not legitimately encompassed by that power and what is the proper role of courts in reviewing its exercise?"

"This inquiry involves important fundamentals. In the broad sense the considerations are well posed in Williams, "Planning Law and Democratic Living," 20 Law and Contemporary Problems 317 (1955):

"The main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society equality of opportunity and equality of treatment, freedom of thought and considerable freedom of action, and fairness. Under the American system, a more or less independent mechanism of judicial review is established to provide an independent check on whether specific governmental decisions conform to these standards. While controversy has often raged about judicial action in other areas, it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare."

"Constitutional law should serve to shed light upon thinking about local planning, by requiring those concerned to do what they should be doing anyway to work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity."

This is a set of breathtaking assertions.

First, while he offers a broad amorphous set of values, it might just as reasonably be said that the main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society as enshrined in the precise language of the U. S. Constitution.

Second, as to what he asserts as having "always been recognized" as "an essential part of the judicial function" and the "attitudes and policies" with which he is concerned, these must be compared to the values and actions consistently upheld for thirty-five years by the U. S. Supreme Court and flowing from sources like the Standard State Zoning Enabling Act that was a product of the federal government. And just who has been doing the recognizing, anyway?

Third, there is the need to "work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity." This lofty vision should be compared with the language found later in the text defining the role of zoning.

Next he expands to a broader vision of a seemingly boundless role for the courts and shares his disdain for those with less expansive views.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."

After this the discussion focuses closer to the case at hand and on the permitted or proper scope of judicial oversight. He finally comes to the definition of zoning quoted above and this statement that seemingly undercuts the argument he has been advancing for the expansiveness of judicial oversight of municipal actions.

"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

After all of his argument to the contrary, this language appears to make it clear that while there are great issues connected with human freedom and opportunity this is not the arena in which they can be constitutionally settled.

From this point the focus is on little more than repetition of the issues, arguing back and forth with elements of previous court decisions and finally a discussion of the actual issue of the case - the right to prohibit mobile homes.

DeSimone v. Greater Englewood Housing Corp.

We next hear his voice in the case of DeSimone v. Greater Englewood Housing Corp. 56 N. J. 428 (1970) 267 A.2d 31. While a seemingly small matter over issuance of a variance, it caught the emerging temper of its time. There had been racial disturbances in Englewood in July, 1967 and the town had become a focus of the Governor's Select Commission on Civil Disorder and its "Report for Action" issued the following year. This unanimous decision was seen by sympathizers as an opening for a renewed assault on municipal zoning. To understand this perspective we offer the assessment of Norman Williams, Jr. in The Background and Significance of Mount Laurel II from 1984:

"By the late 1960's, however, the world suddenly began to look rather different than it had when Justice Hall wrote his Vickers dissent, and other judges began to reexamine their tolerance of exclusionary zoning practices. In an otherwise relatively unimportant case, the New Jersey Supreme Court in 1970 upheld (against a challenge by neighbors) a New Jersey "d" variance approving a housing project in Englewood, which was (a) located in a "white area" and (b) clearly designed at least in part to accommodate blacks from the Englewood ghetto. In upholding the grant of the variance, the opinion-by Hall, and now unanimous--commented in dictum that under those circumstances such a variance could not have been denied. The only logical basis for this comment is that there must be some affirmative duty to plan on behalf of all sections of the population. Once those familiar with this field of law read the Englewood opinion, it was clear that the jig was up; the court seemed to be sending out signals that it was ready for a major reversal on the exclusionary problem." This led us to Mt. Laurel I.

Mt. Laurel I

Now we move on to the climactic document of the career of Frederick W. Hall. The first Mt. Laurel decision was written in 1975, thirteen years after his dissent in Vickers v. Gloucester Township and was his last great contribution to the activism of the court. The case, Southern Burlington County N. A. A. C. P. v. Mount Laurel 67 N. J. 151 (1975), began its course through the state judicial system in 1972 with a finding for the plaintiff which was subsequently appealed, not only by the township but by the plaintiffs as well seeking an expansion of the scope of the decision. It was then taken over by the state Supreme Court and transmuted from a case concerned with racial discrimination, which would have claimed a violation of the federal Fair Housing Act, into one focused on economic segregation which kept it within the state court system where it was argued in 1974 and decided in 1975. It begins by presenting the scope of the argument. We also find here Mr. Norman Williams, Jr. arguing the cause for amicus curiae The Public Interest Research Group of New Jersey twenty years after publishing his foundational document "Planning Law and Democratic Living" in 1955. Importantly, this comes seven years after the Fair Housing Act.

"This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipality. The trial court so found, 119 N.J. Super. 164 (Law Div. 1972), and declared the township zoning ordinance totally invalid. Its judgment went on, in line with the requests for affirmative relief, to order the municipality to make studies of the housing needs of low and moderate income persons presently or formerly residing in the community in substandard housing, as well as those in such income classifications presently employed in the township and living elsewhere or reasonably expected to be employed therein in the future ... The township appealed to the Appellate Division and those plaintiffs, not present or former residents, cross-appealed on the basis that the judgment should have directed that the prescribed plan take into account as well a fair share of the regional housing needs of low and moderate income families without limitation to those having, past, present or prospective connection with the township. The appeals were certified on our own motion before argument in the Division."

"The implications of the issue presented are indeed broad and far-reaching, extending much beyond these particular plaintiffs and the boundaries of this municipality."

"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."

"We will, therefore, consider the case from the wider viewpoint that the effect of Mount Laurel's land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

"Its candid position is that, conceding its land use regulation was intended to result and has resulted in economic discrimination and exclusion of substantial segments of the area population, its policies and practices are in the best present and future fiscal interest of the municipality and its inhabitants and are legally permissible and justified. It further asserts that the trial court was without power to direct the affirmative relief it did."

In these few opening quotes we find the whole argument showcased. It all begins with the "desperate need for housing" based on the horribly flawed assertion of a "housing crisis" that demonstrably never happened, to meet the needs of a population that still doesn't exist, most clearly expressed in this single sentence from "A Blueprint for Housing in New Jersey" (1970). "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985."

Based on this assumption the Court says they will consider the case from the "wider viewpoint" that the Mount Laurel ordinance has the effect of excluding people because of the "limited extent of their incomes and resources" which the municipality freely admits, and asserts they are "legally permissible and justified"in doing because it is in the "best present and future fiscal interest of the municipality and its inhabitants". And the Court accepts that "the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

To summarize, the township freely admits it did what it's accused of doing and says that it's legal and justified because it's in the interest of the town and the Court accepts that it wasn't done for any of the reasons made impermissible by the Fair Housing Act 42 U.S.C. 3602 et seq., which is the federally controlling statute and separates this case from the context of the dissent in Vickers v. Gloucester Township. That is the case. The rest of the decision is then divided into three parts.

I The Facts

This section begins with a lengthy recitation of the facts about Mount Laurel including its size and population and its various zones and the development that's taken place in them in a very straightforward manner. Then we come to the conclusion. "There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property ... and that the policy was carried out without regard for nonfiscal considerations with respect to people, either within or without its boundaries." In other words, they did exactly what they said they did and only for the reasons they said they did it.

The text then goes on to describe the reason for this. "This policy of land use regulation for a fiscal end derives from New Jersey's tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality's children." In other words, this is entirely the fault of the State and applies to all municipalities. As a logical result:

"This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost everyone acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing."

As proof of this practice"The Residential Land Supply" (April 1972) produced by The N. J. Department of Community Affairs and "Exclusionary Land Use Controls: The Case of North-Eastern New Jersey" (1971) by Norman Williams, Jr. and Thomas Norman are cited. What is not considered in this statement is that the municipal action benefits all of the residents of the municipality, including those who are low-and-moderate income homeowners who are most at risk of being driven from their homes by rising taxes.

The next thing shown is how the urban model also worked to maintain fiscal stability.

"The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing than the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing. Despite the municipally confined tax structure, commercial and industrial ratables generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas."

In other words, the cities provided for their fiscal stability by zoning for a substantial ratable base dominated by commercial and industrial uses. Their goal was the same as that of the developing municipalities but simply pursued by different means.

The final part of this section is devoted to the plight of the urban population after World War II as the commercial and industrial base left the cities for new locations in other towns, other counties and other states. At the same time the lure of home ownership in developing communities that promised to provide all of the benefits of urban life in terms of public services and economic opportunities, without the well recognized problems of urban life, drew the emerging middle class to the suburbs. This was compounded by the failure of the cities to find a new productive purpose.

"Much industry and retail business, and even professions, have left the cities."And as for the low income workers "These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a critical erosion of the city tax base and inability to provide the amount and quality of those governmental services education, health, police, fire, housing and the like so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing."

To summarize the facts. State tax policies placed the primary burden of funding municipal, county and educational services on the tax base of each municipality. In order to be able to carry this burden each municipality zoned itself to develop a ratable based that would provide for long-term fiscal stability. The cities did this by zoning for a large commercial and industrial base. "Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing." After World War II the urban model began to fail and many cities had difficulty reinventing themselves.

Instead of seeking to attract a tax base built on non-residential uses that relies on unskilled and semi-skilled workers, the suburbs did this by focusing on attracting a strong residential base that would provide for their future stability. The suburbs stand convicted of developing a well balanced, fiscally stable, socioeconomic model while the cities did not. They didn't attract employers of unskilled and semi-skilled workers and so did not seek to provide housing for a workforce that did not exist.

Now we come to the legal issue.

II The Legal Issue

"The legal question before us, as earlier indicated, is whether a developing municipality like Mount Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources."

"We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need thereof."

"We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs."

At this point we'll take a moment to recall previously expressed thoughts of Justice Hall with a pair of quotes from Vickers v. Gloucester Township cited above.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."
"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

The first quote could easily be applied to the Court in this case for focusing on the abstract need for housing without recognizing the real world reality that housing is only one aspect of the integrated socioeconomic need of the community. Logic argues that building housing for workers without work makes no more sense than building factories without workers to work in them.

The second challenges the expansive view of judicial prerogatives "to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes." Then the argument for this is presented.

"We begin with some fundamental principles as applied to the scene before us."

"Land use is encompassed within the state's police power."

"It is elementary theory that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws."

"It is required that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare (The last term seems broad enough to encompass the others.) Conversely, a zoning enactment which is contrary to the general welfare is invalid."

"Indeed these considerations are specifically set forth in the zoning enabling act as among the various purposes of zoning for which regulations must be designed. N. J. S. A. 40:55-32 ... If a zoning regulation violates the enabling act in this respect, it is also theoretically invalid under the state constitution. We say "theoretically" because, as a matter of policy, we do not treat the validity of most land use ordinance provisions as involving matters of constitutional dimension; that classification is confined to major questions of fundamental import."

"We consider the basic importance of housing and local regulations restricting its availability to substantial segments of the population to fall within the latter category."

"The demarcation between the valid and the invalid in the field of land use regulation is difficult to determine, not always clear and subject to change. This was recognized almost fifty years ago in the basic case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926):

"The ordinance now under review and all similar laws and regulations must find their justification in some aspect of police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. (272 U. S. at 387, 47 S. Ct. at 118, 71 L. Ed. at 310)."

It's nice to see the Court remembering the Ambler Realty case but it would be even nicer to see the Court recall The federal Fair Housing Act which clearly drew the line between legitimate and illegitimate. The Act prohibits discrimination in housing for a specific list of reasons: race, color, religion, sex, handicap, familial status or national origin. That is "precise delimitation". Counsel for Mt. Laurel Twp. made it clear that these were not the basis for their zoning and the Court accepted that that was the case. We would remind the Court of their own language.

"In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

The first thing Justice Hall needed to do to justify a need for change was find sources that, while supporting policies of deference to municipal decision-making, offer a warning that the future may be different and law may have to change. After offering a number of prior decisions as pointing in his direction he found it best said in Pierro v. Baxendale, 20 N. J. 17, 29 (1955) :

"If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed."

Having adding the sanctifying weight of precedent, he returns to his own thoughts.

"The warning implicates the matter of whose general welfare must be served or not violated in the field of land use regulation. Frequently the decisions in this state, including those just cited, have spoken only in terms of the interest of the enacting municipality, so that it has been thought, at least in some quarters, that such was the only welfare requiring consideration. It is, of course, true that many cases have dealt only with regulations having little, if any, outside impact where local decision is ordinarily entitled to prevail. However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state's citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served."

"This essential was distinctly pointed out in Euclid, where Mr. Justice Sutherland specifically referred to the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. Chief Justice Vanderbilt said essentially the same thing, in a different factual context, in the early leading case of Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949), when he spoke of the necessity of regional considerations in zoning and added this:

"The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. (1 N. J. at 513)."

Justice Hall offers this quote as supportive of his position but we see it pointing in exactly the opposite direction. The problem is one of perspective. For Justice Hall zoning in developing municipalities was an act of selfishness and a desire to isolate themselves from the needs of the broader region. We see it differently. We see the world from a dynamic perspective where forces that transcend transient social policy considerations are controlling and municipalities are simply responding to the greater market forces confronting them as they take their place in regions that are being redefined by evolving transportation and communications technologies. The sentence we have highlighted makes this point. Again, we're not asking you to take our viewpoint over that of Justice Hall. We have simply taken the quote he selected above and put it back in the paragraph where he found it. Once again we have added the highlighting for emphasis.

"What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as in living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

When read in this fuller context the vision of Justice Hall and the rest of the Court cannot stand. The "forces" cited in Duffcon are the dynamic forces we see shaping our world in various forms and with different names. In this case it is the economic force of the housing market and the social force of democratic diversity that together serve to create fiscally stable communities, each with a distinct face and character, and together advancing the general welfare of their region. The Court is seeking to impose housing diversity within every municipality, while the natural dynamic forces produce a vital diversity among municipalities.

After this a case supporting placement of a hospital for the emotionally disturbed as meeting a regional need superseding the rights of a municipality to reject it is presented. And then, having failed to find any substantive support for the action under consideration other than some mentions that at some point if circumstances change some alterations in judicial perspectives would be justified, the Court goes about doing what they clearly had decided to do all along.

"This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms of land use regulation which that relationship mandates. There cannot be the slightest doubt that shelter, along with food, are the most basic human needs."

"It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of such broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries. Negatively, it may not adopt regulations or policies which thwart or preclude that opportunity."

"In sum, we are satisfied beyond doubt that, by reason of the basic importance of appropriate housing and the long-standing pressing need for it, especially in the low and moderate cost housing category, and of the exclusionary zoning practices of so many municipalities, conditions have changed, and consistent with the warning in Pierro, supra, judicial attitudes must be altered from that espoused in that and other cases cited earlier, to require, as we have just said, a broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all."

"We have spoken of this obligation of such municipalities as "presumptive." The term has two aspects, procedural and substantive. Procedurally, we think the basic importance of appropriate housing for all dictates that, when it is shown that a developing municipality in its land use regulations has not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation of substantive due process or equal protection under the state constitution has been made out and the burden, and it is a heavy one, shifts to the municipality to establish a valid basis for its action or non-action. ... The substantive aspect of "presumptive" relates to the specifics, on the one hand, of what municipal land use regulation provisions, or the absence thereof, will evidence invalidity and shift the burden of proof and, on the other hand, of what bases and considerations will carry the municipality's burden and sustain what it has done or failed to do. Both kinds of specifics may well vary between municipalities according to peculiar circumstances."

"We turn to application of these principles in appraisal of Mount Laurel's zoning ordinance, useful as well, we think, as guidelines for future application in other municipalities."

With this the Court establishes a new concept in land-use litigation. It does so without constitutional, statutory or precedential support. It is nothing more than an act of will by the members of the Court and so effectively expands the boundaries of judicial authority beyond otherwise recognized bounds.

The focus then turns to the specific of Mount Laurel zoning.

"We have earlier stated that a developing municipality's obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to the municipality's fair share of the present and prospective regional need thereof. Some comment on that conclusion is in order at this point. Frequently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason. But, under present New Jersey legislation, zoning must be done on an individual municipal basis, rather than regionally. So long as that situation persists under the present tax structure, or in the absence of some kind of binding agreement among all the municipalities of a region, we feel that every municipality therein must bear its fair share of the regional burden. (In this respect our holding is broader than that of the trial court, which was limited to Mount Laurel-related low and moderate income housing needs.)"

This admission loudly echoes the language of Duffcon Concrete that supports putting different uses in different places based on any number of factors:

"Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

After this all that remains is the essential discussion of how to define a region.

"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. Confinement to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable."

There are any number of ways to define a region. The Northeast is a national region. The New York and Philadelphia metropolitan areas are regions. The Census Bureau provides journey-to-work data that shows where people who work in a given place live and conversely where people who live in a given area work. Worker housing tends to cluster around employment centers and regions tend to define themselves on an ongoing basis.

III The Remedy

This final section applies only to Mount Laurel and focuses only on mechanics.

This ends the majority opinion written by Justice Frederick Hall. All that remains is a consideration of his 1977 lecture.

We are presenting significant excerpts from this lecture by Justice Hall, delivered two years after his retirement, because it contains what we see as useful insights into his thinking about several important issues. These include his vision of the limits of judicial power, of which he see very few, and his idea of the basis for granting standing to the plaintiffs in the Mount Laurel case as "third- party non-beneficiaries" as defined by Professor Norman Williams, Jr. . He discusses the importance of defining a "fundamental interest" and the fact that for the federal courts housing is not one. We think the full lecture is well worth reading as a picture of the thinking of a man accustomed to wielding power and the public passions that drove him throughout his career on the bench.

The Judicial Role In Land-Use Regulation (excerpts)

Frederick W. Hall
Associate Justice of the New Jersey Supreme Court, retired
Arthur T. Vanderbilt Lecture
Harvard Law School Association of New Jersey
April 20, 1977

Modern land-use regulation has increasingly become a matter of vital interest and importance to the citizenry of large and small metropolitan areas and beyond, and bids fair to continue so for a considerable time to come. Its scope has changed immeasurably since constitutional approval was accorded about 50 years ago. The current major subjects and objects of regulation and the problems and issues arising from it have led to litigation of quite a different character than was formerly the case. What the proper judicial role in this field should be needs to be considered in the light of the broad changes that have likewise taken place in the kinds of litigation and the exercise of the judicial function in other fields of public law.


The United States Supreme Court has come to the point, in reviewing state action on claims of federal constitutional violation, of finding invalidity on equal-protection grounds only where the right involved is said to be a "fundamental interest" and the state cannot show a "compelling state interest." The subjects meeting the fundamental interest test have been strictly limited: voting, race, right to interstate travel and perhaps a couple of others. Housing is not one.
The courts recent forays into the land-use regulation field after an avoidance of about half a century have been, regardless of result, quite unsatisfactory, to say the least.

There have been deep changes in American life and philosophy and the place of government therein. These began to appear in quantity in the "New Deal" era of the 30's but developed much more strongly after World War II.
First, there was a vast increase in regulation of private affairs, both business and personal, by all levels of government. ....
Second, there has been a tremendous increase in the conferring or distribution by government of various kinds of benefits to aid the less fortunate members of our society.
Third, there has been a startling awakening and assertion of claims of human rights under constitutional guarantees, statutes and institutional arrangements especially on behalf of minorities of all varieties and the disadvantaged.
Fourth, we have witnessed a "law explosion," by which relief from all manner of alleged wrongs is sought in the courts in the belief that the judiciary is the only effective branch of government. Everyone sues about everything, ...

This type of litigation is quite different from the traditional model earlier described. It most frequently concerns public, rather than private, action or inaction. It may well attack a whole scheme of government activity. It very frequently is of a representative or class nature, affecting many more persons or entities than are parties or whose views are before the court.

It generally does not seek money damages, but rather declaratory or injunctive relief of a continuing and broadly remedial nature against some government entity or official. Equity jurisprudence very largely governs the ultimate result. ....

This relatively new category of public-law litigation, which includes as well certain kinds of land-use litigation shortly to be mentioned more specifically, presents important questions as to the extent of judicial power and the proper exercise of it. These queries generally arise about the remedy especially when the relief ordered or sought involves affirmative action by another branch of government or amounts to action by the judiciary in a form within the purview of or normally accomplished - even perhaps better handled - by either the local or state legislature or the executive branch.

The Courts Must Decide

Again, the courts are the sole and final arbiter of the constitutionality of local and state legislation, regulations or other governmental action. A declaration of invalidity is binding upon the legislature, the executive and all affected public officials. This is so whether or not the particular agency or government agrees with the decision. It may only be overturned by amendment through vote of the people according to specified procedures.

While considerations of constitutional claims require the greatest judicial circumspection, they cannot be decided on the basis of personal views of individual judges as to the advisability or wisdom of the governmental action under review or in accordance with what may appear to be the wish of an articulate or seeming majority of the affected populace on a particular question.

The judicial branch is the ultimate protector of the rights of all, and this of course includes those of minorities. Constitutional principles and the rights guaranteed by or arising under the documents must always be thought of as living and not static things, subject to enlargement and variation in interpretation and application as conditions and the needs of the body politic change. When this is to occur is, unless spelled out by amendment, the proper and exclusive province of the judiciary. This is fundamental in our form of government.

Land-Use Regulation

There remains the application of this discussion to the more specific matter of the appropriate judicial role in land-use regulation cases. Even more particularly, reference is confined to the currently active aspects of zoning for housing and the place of the regional concept and to the initial articulation of a new and constitutional approach thereto in the unanimous decision of our Supreme Court in Southern Burlington County NAACP v. Township of Mount Laurel, 67 N. J. 151 (1975).

The matter should be placed in historical perspective, both legal and factual. That history is thoroughly presented, state by state and overall, in Professor Norman William's recent comprehensive and thoroughly readable treatise, "American Land Planning Law." To summarize quickly, with special reference to this state, after zoning was constitutionally approved a half century ago, the authorizing legislation in New Jersey and most states, delegated the permissive power to each municipality under standards which, except for the broad health, morals and general welfare language, were directed to regulation of uses to avoid adverse physical impact and to safeguard property values.

The general language of the delegation necessarily left interpretation to the courts. The aim of the adopted ordinances was to keep industrial uses out of the residential areas of the cities and their close suburbs. The idea was revolutionary because it involved restrictions on the private use of one's land, which for centuries had received exceptional veneration and favored treatment at the hands of the law.

The attitudes of the courts in this state as elsewhere varied in periods during the course of the next few decades. Early judicial resistance to zoning largely favored landowners. From 1948 to recent times our courts swung quite perceptibly to the opposite extreme, upholding almost all municipal action.

The New Jersey factual picture changed drastically during this period. I am sure it is quite familiar to all of you. The population expanded greatly through the birth rate and immigration from other sections. Business and industry moved from the central cities to new locations farther out and the more affluent families followed to occupy newly-built single-family housing in developments in municipalities that had been substantially rural. The demand for municipal and educational services funded by real-property taxes became immense in these areas.

At the same time, the cities decayed and their tax bases eroded. They became populated largely by the poor. The available housing wore out and became substandard or worse. Government services deteriorated and we had the uprisings of the 60's.

During the same period, the character and aim of municipal zoning, especially in these municipalities that were growing, or experiencing market pressures for growth, changed radically, although the full significance was not apparent at once. The purpose shifted from protection against physical impact to socioeconomic designs with the clear purpose of safeguarding the particular municipality's welfare as it alone decided. A principal purpose was fiscal - to allow only that kind of growth that would pay its way taxwise, particularly with respect to school costs, or come close to it.

The result was almost universal prohibition through various zoning mechanisms against any but expensive, single-family housing. Multi-family rental units were allowed most meagerly overall. Generally, they too, were required to be expensive, and contained bedroom limitations restricting the number of school children. These provisions effectively excluded from municipality after municipality families of low-and moderate-income, whether they resided in the central cities and sought a better environment and living conditions or were young couples, elderly citizens and others not desiring large houses who already had some ties with the community.

The result too was a statewide shortage of decent low-and moderate-income housing in all types of municipalities, the existence and alarming consequences of which were repeatedly called to public attention by state-agency studies, gubernatorial messages, and recitals in state legislation providing some assistance in funding such housing, only, of course, available where local land-use regulations permitted. It became clear that local exclusionary ordinances were having a substantial impact outside the particular municipality.

At the same time, it was becoming obvious that use regulation of certain types of land had such an important impact beyond municipal lines that individual municipal regulation was harmful to the broader public welfare. So the legislature withdrew the delegation of zoning authority to municipalities with respect to ,among others, wetlands, coastal areas, and the Hackensack Meadowlands district and provided for use regulation by its own agencies. The advisability of the concept of regional land-use regulation was thus established.

In this state of affairs, the Mount Laurel case came to the Supreme Court. It projected a new class of land-use litigation. The suit was brought, not by neighbors protesting the zoning of a particular property or an owner seeking to develop his land contrary to the zoning ordinance, but by people whom Professor Williams calls "third-party non-beneficiaries" - resident and non-resident poor people who wanted to live in the township but could not afford the only type of housing permitted.

Their attack, which they clearly had standing to make, was on the whole zoning scheme of a typical growing municipality having adequate remaining land for further development. The plaintiffs' proofs and briefs well presented to the court the factual picture that has just been sketched.

For present purposes of the discussion of the judicial role, the rationale of the decision may be simplified as follows. Land-use regulation, like any other police power enactment, must enhance and not be contrary to the general welfare to be valid under the state constitution. The availability of adequate land and an appropriate variety and choice of housing for all categories of people is an absolute essential in promotion of the general welfare - in effect, a fundamental state interest.

It is so important to the public good that the general welfare that each so-called developing municipality must take into account in order to have a valid zoning ordinance extends beyond the claimed good of that particular governmental unit. So:

the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land-use regulation, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low-and moderate-cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries.

and may not adopt regulations or policies that thwart of preclude that opportunity. Exclusionary restrictions having the effect mentioned are unconstitutional unless the municipality can sustain the heavy burden of demonstrating peculiar circumstances dictating a contrary conclusion. This was not established by Mount Laurel, so its zoning ordinance is pro tanto invalid.

The conclusions were, of course, within the traditional power and obligation of a court to declare legislation unconstitutional. Deference to the Legislative branch, here the local governing body, requires that such a judgment be rendered only in a clear case, but when that plainly appears in a situation involving a fundamental state interest, a court would be derelict if it did not so act. We are, in essence, dealing with a moral issue.

Mount Laurel went on to indicate that, since housing needs, particularly for people of low and moderate income, do not necessarily suit or fit well in every municipality, a regional approach was desirable, and urged state legislative action to so provide. In the absence thereof, the court said that Mount Laurel would have to provide for its fair share of the present and prospective regional need for such housing.

This solution originated with Chief Justice Weintraub during court conferences, prior to the advent of new permanent justices, making it desirable to schedule a reargument. The idea was not new; several areas of the country have had voluntary plans in operation on this basis for some time, and the professional planning literature thereon is plentiful. The township was given the opportunity to revise its ordinance, using these and other guidelines mentioned in the opinion, with the right in the plaintiffs to seek court review of the revised product if it was claimed not to be in accord with the express or implied directions of the opinion.

There is certainly nothing here that could reasonably suggest an inappropriate judicial role. I submit that it is unthinkable that a court should stop short of giving litigants in the housing field all the guidelines it considers vital and to direct affirmative corrective action to the fullest extent that it can completely supervise and review simply because the defendant is a municipality, and one that might be recalcitrant or uncooperative in righting the constitutional wrong, or because some other entity might be able to do a better job.

Under New Jersey jurisprudence, a court must review any governmental action of the nature here involved, as the Supreme Court has since done in the Madison Township case. That opinion also clearly confirms the judicial power to seek the help of neutral experts where needed to decide questions beyond the ordinary sphere of judicial knowledge, which, of curse, occurs in many cases beside land use litigation.

And it is not to be forgotten that courts can bring about ultimate compliance with their judgments through negative orders. For example, a defiant municipality refusing to change its invalid zoning ordinance could be prohibited, until it did so, from issuing building permits or certificates of occupancy for any dwellings, or indeed for structures of any kind. this method of relief was effectively utilized recently in Morris County to bring about governmental action to provide adequate sewage disposal.

There are, of course, types of relief that courts should not order, regardless of their power to do so. I conceive, for example, that judicial tribunals ought not to direct municipalities to actually build housing. In some cases, they may have to stop and resort to judicial prodding of the public conscience to bring about remedial action.

Mount Laurel has spawned considerable litigation involving other municipalities. It is not within the scope of this presentation to discuss the various decisions, even if the author had had the time to digest the contents and implications of the great proliferation of paper representing the numerous opinions. One brief comment bearing on the judicial role may be in order.

I believe that the implications of Mount Laurel are clear enough that, where zoning for housing is involved, whether the municipality is strictly a developing one or not, a court should take a good, hard look and insist that the municipality justify its restrictions or be forced to change them.

Furthermore, the court ought to give real reasons in its decisions and not rely on unmeaningful boiler-plate shibboleths like arbitrariness, capriciousness, and dubious presumptions of validity. The housing issue is too important and too fundamental to be disposed of in any case by cursory judicial treatment, and we should not revert in such cases to any thesis that whatever the municipality has done is all right.

While the legislature has not yet responded to the Court's suggestion of provision for regional zoning, it did, after Mount Laurel, enact the new Municipal Land Use Law, various sections of which indicate an important shift in policy from the old individual-municipality emphasis of old enabling acts, and give statutory support to the constitutional bases of the decision. I refer to the purposes sections, where the intent of the Act is stated:

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 and preservation of the environment;
and:
to provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space ... in order to meet the needs of all New Jersey citizens.

In addition, the zoning ordinance of every municipality must conform to a master plan, which must contain a land-use plan element and a housing element. I submit that the latter, in order to ground a valid zoning ordinance, would have to make provision, appropriate to the particular municipality, for a variety and choice of housing.

While any home rule tradition is always subject to constitutional requirements and guarantees of rights for all people, as Mount Laurel in effect held, the land-use law provisions just referred to indicate to me a legislative recognition that the invisible walls of suburban communities must have many gates for entrance."

We have presented these portions of the lecture without comment. We believe it speaks for itself. It offers both information and insight into the thinking of a man, who, confronted with a world he didn't like, set out to change it with a seeming disregard for the interests of a great many of the people living in it. Whether this will ultimately be seen as heroic idealism or judicial tyranny will be left to the judgment of future generations who suffer or prosper as a result of it. Arguably, more than forty years on, we are such a generation.

Here we end the Third Source Narrative for Beyond the Mount Laurel Doctrine: From Forty Years of Failure To A Blueprint for Success.

Documents worth reading in addition to those quoted in the text above:

"The Housing Crisis In New Jersey" (1970)
"Land Use Regulation: The Residential Land Supply" (1972).
"A Blueprint For Housing In New Jersey" (1970)
"New Horizons In Housing" (1972).
Warth v. Seldin, 422 U. S. 490 (1975)
Pierro v. Baxendale, 20 N. J. 17, 29 (1955)
Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949)

Beyond the Mt. Laurel Doctrine
Third Source Narrative

This is the Source Narrative to accompany the first Mt. Laurel decision and the writings of its author, Justice Frederick W. Hall. Before looking at the writings of Justice Hall, we have another task to perform. It's time to recall that this podcast is a demonstration project for our Insight Engine problem-solving technique. One of the key steps in our process is identification of powerful false ideas that keep problems from being resolved. Our task is to deconstruct and dispel them. The first one we encounter is the idea of a "housing crisis" in New Jersey. This powerful false idea was the first justification for the actions in Mount Laurel I.

We begin by recognizing the enormous population growth of the "baby-boom" period. From 1940 to 1970 the Census shows the New Jersey population grew from more than 4.1 to over 7.1 million. Numerous studies by "experts" for major institutions projected continued similar growth.

In "The Housing Crisis in New Jersey" (1970) the issue is stated this way: "... there is wide agreement that the State's population will continue to grow at least at the present rate in the years to come." However, this document also includes a very important cautionary footnote that includes the recognition that housing growth drives population growth. It's not the other way around.

"The one significant factor on the horizon which may lead to a decline in the rate of population growth in New Jersey is, of course, the decline in the construction of housing units in the State. If present trends in housing production continue during the coming years to decline, population projections will undoubtedly have to be scaled downward. Furthermore, such a decline could well set in motion a "chain reaction" effect, which would result in further declines in the rate of growth."

The document also shows that building permits had peaked in 1964 at just over 68,000 and dropped to 43,661 by 1968, a four year decline of almost 36%. Such a decline could have been seen as the basis for a reconsideration of "population projections". That's not what happened.

On December 7th Governor Cahill went further in "A Blueprint for Housing in New Jersey". There he said "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985." No explanation is offered as to who these "experts"
were or what methodology they used to reach their astonishing total. He also says "According to reliable statistics, we require 100,000 additional housing units each year, but actually are building only 40,000." These statements remained unchallenged and became part of the major concurring opinion in Mt. Laurel I.

You might be asking "How wrong could the experts have been?" Here are the facts. Decide for yourself.

In 1988 the New Jersey Office of State Planning produced a Technical Document titled "Population Trends and Projections". In it they looked back over the period 1970 to 1985 and found that instead of the projected 2.8 million people from 1970, the actual increase came to 394,136, or less than one seventh of the projected amount. Simple math tells us that if 2.8 million people would require 100,000 units per year, a similar reduction would produce approximately 14,250 homes and the state was already seeing far more homes being built. Census numbers also show that in the decade of the 1970's the population grew by 196,847 while New Jersey added over 384,000 new homes, or 1.95 units for every additional person. Records of annual building permits show this rate of growth kept up through 1985. To fully appreciate the magnitude of this difference recall that the average household size at the time was approximately 3 persons which meant that in reality six homes were being built for every new household in New Jersey.

In conclusion, the population growth that was supposed to fuel the "housing crisis" never happened. The housing being built far exceeded any demand that the population that did come could absorb. If population projections had been adjusted based on the emerging downward trend in housing, the argument underpinning Mt. Laurel I would have had to be significantly altered if not abandoned altogether. But that didn't happen. Instead the Court relied on this badly flawed expert advice. That's the first false idea to be dispelled. There was no housing crisis.

Before we move on, if you're wondering who those unnamed experts could have been who led everyone so far astray, we found them. In a footnote in "Exclusionary Land Use Controls: The Case of North-eastern New Jersey" the authors praise Governor Cahill for his courage in delivering his Special Message and write "The technical specifications for the study were prepared by the authors of this article." The authors were Norman Williams, Jr. and Thomas Norman. Now you know. Now we move on and turn our attention to the second of the great revolutionary architects of the Mt. Laurel Doctrine.

The issues at the heart of the Mt. Laurel I decision - the question of Standing, the definition of the General Welfare and the requirement for Reasonableness - are dealt with in the Third podcast. We find the theories embodied in the writings of Norman Williams, Jr., discussed in the Second podcast, and we find them in the writings of New Jersey Supreme Court Justice Frederick W. Hall. Here we deal with those texts. We say "texts" because the Mt. Laurel decision, as its author freely admits, is about more than just Mt. Laurel. It is about the transformation of a legal theory into judicial practice. It attempts to set New Jersey apart from the long history of federal Supreme Court decisions that support the democratic diversity embodied in the New Jersey home rule tradition.

We have chosen four texts that we find most instructive. The first is a famous dissenting opinion written in 1962 in the case of Vickers v. Gloucester Twp. where his philosophies are clearly set forth and the second is DeSimone v. Greater Englewood Housing Corp. where he writes the majority opinion signaling a willingness on the part of the Court to support challenges to local zoning. The third is Mt. Laurel I and the fourth is a lecture given in 1977, two years after his retirement from the Court, amplifying his thinking about judicial prerogatives raising the issue of "standing" that was not addressed in the Court decision. That will complete our picture of his thinking.

We begin with a brief biographical note.

Frederick Wilson Hall

Frederick Wilson Hall was born in Pittsburgh in 1908. He graduated from Rutgers University where he was elected Phi Beta Kappa and from Harvard Law School Cum Laude in 1931. As a young lawyer he worked in the firm of New Jersey's first Chief Justice, Arthur T. Vanderbilt and then in 1941 he founded and practiced law at the firm of Wharton and Hall.
He was appointed to the New Jersey Superior Court in 1953 and served there until 1959 when he was appointed as an Associate Justice of the New Jersey Supreme Court where he served until 1975. Justice Hall was the last member of what was known as the "Weintraub Court" which served together for eleven years and was widely regarded as one of the most activist and progressive judicial bodies in the nation in the area of civil law.
He was known for his mastery of land use law and his great reputation in that field has tended to deflect attention from his important writings in other fields. He was completely at home in the entirely intricate field of municipal law; he wrote important opinions in the areas of torts, criminal law, constitutional law and many other subjects. Few judges possessed his extensive knowledge of procedure and the Rules of Court.
He remains most famous for writing the decision in the case known as Mt. Laurel I.
He died in 1984.
Vickers v. Gloucester Township

Now to the writings of Justice Frederick Hall. We begin in 1962 with his dissenting opinion in Vickers v. Gloucester Township, 37 N.J. 232 (1962). As we do, it's important to remember the federal statutory context. This is three years before the Voting Rights Act and six before the Fair Housing Act. The Civil Rights movement was growing stronger and a socioeconomic model seen as disproportionately benefiting White people was automatically treated as suspect by a certain school of social ideologues.

On its face this case is about the right of a municipality to ban mobile home parks, but Justice Hall sees it raising greater concerns.

"Of even greater concern is the judicial process by which it is reached and the breadth of the rationale. The import of the holding gives almost boundless freedom to developing municipalities to erect exclusionary walls on their boundaries, according to local whim or selfish desire, and to use the zoning power for aims beyond its legitimate purposes."

After this he goes on to describe the types of towns that are the object of his concern. He separates them from "the settled suburbs surrounding the cities" that should have the right to remain undisturbed and paints this picture of the targets of his distaste. :

"On the contrary these areas are sprawling, heterogeneous governmental units, mostly townships, each really amounting to a region of considerable size itself. Their present rural, semi-rural or mixed nature is about to change substantially and they are soon to become melded into the whole metropolitan area. Their political boundaries are artificial and hence of little significance beyond defining one unit of government."

"Such municipalities, above all others, vitally need and may legally exercise comprehensive planning and implement zoning techniques to avoid present haphazard development which can only bring future grief. They are entitled to aim thereby for a sound and balanced area, with varying uses confined to specific districts and appropriately regulated."

He then continues to describe a number of things towns can reasonably do to shape their future. Then he comes to this.

"And this gets to the nub of what this, and similar cases, are really all about, i.e. the outer limit of the zoning power to be enjoyed by these municipalities most in need of comprehensive authority. What action is not legitimately encompassed by that power and what is the proper role of courts in reviewing its exercise?"

"This inquiry involves important fundamentals. In the broad sense the considerations are well posed in Williams, "Planning Law and Democratic Living," 20 Law and Contemporary Problems 317 (1955):

"The main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society equality of opportunity and equality of treatment, freedom of thought and considerable freedom of action, and fairness. Under the American system, a more or less independent mechanism of judicial review is established to provide an independent check on whether specific governmental decisions conform to these standards. While controversy has often raged about judicial action in other areas, it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare."

"Constitutional law should serve to shed light upon thinking about local planning, by requiring those concerned to do what they should be doing anyway to work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity."

This is a set of breathtaking assertions.

First, while he offers a broad amorphous set of values, it might just as reasonably be said that the main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society as enshrined in the precise language of the U. S. Constitution.

Second, as to what he asserts as having "always been recognized" as "an essential part of the judicial function" and the "attitudes and policies" with which he is concerned, these must be compared to the values and actions consistently upheld for thirty-five years by the U. S. Supreme Court and flowing from sources like the Standard State Zoning Enabling Act that was a product of the federal government. And just who has been doing the recognizing, anyway?

Third, there is the need to "work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity." This lofty vision should be compared with the language found later in the text defining the role of zoning.

Next he expands to a broader vision of a seemingly boundless role for the courts and shares his disdain for those with less expansive views.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."

After this the discussion focuses closer to the case at hand and on the permitted or proper scope of judicial oversight. He finally comes to the definition of zoning quoted above and this statement that seemingly undercuts the argument he has been advancing for the expansiveness of judicial oversight of municipal actions.

"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

After all of his argument to the contrary, this language appears to make it clear that while there are great issues connected with human freedom and opportunity this is not the arena in which they can be constitutionally settled.

From this point the focus is on little more than repetition of the issues, arguing back and forth with elements of previous court decisions and finally a discussion of the actual issue of the case - the right to prohibit mobile homes.

DeSimone v. Greater Englewood Housing Corp.

We next hear his voice in the case of DeSimone v. Greater Englewood Housing Corp. 56 N. J. 428 (1970) 267 A.2d 31. While a seemingly small matter over issuance of a variance, it caught the emerging temper of its time. There had been racial disturbances in Englewood in July, 1967 and the town had become a focus of the Governor's Select Commission on Civil Disorder and its "Report for Action" issued the following year. This unanimous decision was seen by sympathizers as an opening for a renewed assault on municipal zoning. To understand this perspective we offer the assessment of Norman Williams, Jr. in The Background and Significance of Mount Laurel II from 1984:

"By the late 1960's, however, the world suddenly began to look rather different than it had when Justice Hall wrote his Vickers dissent, and other judges began to reexamine their tolerance of exclusionary zoning practices. In an otherwise relatively unimportant case, the New Jersey Supreme Court in 1970 upheld (against a challenge by neighbors) a New Jersey "d" variance approving a housing project in Englewood, which was (a) located in a "white area" and (b) clearly designed at least in part to accommodate blacks from the Englewood ghetto. In upholding the grant of the variance, the opinion-by Hall, and now unanimous--commented in dictum that under those circumstances such a variance could not have been denied. The only logical basis for this comment is that there must be some affirmative duty to plan on behalf of all sections of the population. Once those familiar with this field of law read the Englewood opinion, it was clear that the jig was up; the court seemed to be sending out signals that it was ready for a major reversal on the exclusionary problem." This led us to Mt. Laurel I.

Mt. Laurel I

Now we move on to the climactic document of the career of Frederick W. Hall. The first Mt. Laurel decision was written in 1975, thirteen years after his dissent in Vickers v. Gloucester Township and was his last great contribution to the activism of the court. The case, Southern Burlington County N. A. A. C. P. v. Mount Laurel 67 N. J. 151 (1975), began its course through the state judicial system in 1972 with a finding for the plaintiff which was subsequently appealed, not only by the township but by the plaintiffs as well seeking an expansion of the scope of the decision. It was then taken over by the state Supreme Court and transmuted from a case concerned with racial discrimination, which would have claimed a violation of the federal Fair Housing Act, into one focused on economic segregation which kept it within the state court system where it was argued in 1974 and decided in 1975. It begins by presenting the scope of the argument. We also find here Mr. Norman Williams, Jr. arguing the cause for amicus curiae The Public Interest Research Group of New Jersey twenty years after publishing his foundational document "Planning Law and Democratic Living" in 1955. Importantly, this comes seven years after the Fair Housing Act.

"This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipality. The trial court so found, 119 N.J. Super. 164 (Law Div. 1972), and declared the township zoning ordinance totally invalid. Its judgment went on, in line with the requests for affirmative relief, to order the municipality to make studies of the housing needs of low and moderate income persons presently or formerly residing in the community in substandard housing, as well as those in such income classifications presently employed in the township and living elsewhere or reasonably expected to be employed therein in the future ... The township appealed to the Appellate Division and those plaintiffs, not present or former residents, cross-appealed on the basis that the judgment should have directed that the prescribed plan take into account as well a fair share of the regional housing needs of low and moderate income families without limitation to those having, past, present or prospective connection with the township. The appeals were certified on our own motion before argument in the Division."

"The implications of the issue presented are indeed broad and far-reaching, extending much beyond these particular plaintiffs and the boundaries of this municipality."

"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."

"We will, therefore, consider the case from the wider viewpoint that the effect of Mount Laurel's land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

"Its candid position is that, conceding its land use regulation was intended to result and has resulted in economic discrimination and exclusion of substantial segments of the area population, its policies and practices are in the best present and future fiscal interest of the municipality and its inhabitants and are legally permissible and justified. It further asserts that the trial court was without power to direct the affirmative relief it did."

In these few opening quotes we find the whole argument showcased. It all begins with the "desperate need for housing" based on the horribly flawed assertion of a "housing crisis" that demonstrably never happened, to meet the needs of a population that still doesn't exist, most clearly expressed in this single sentence from "A Blueprint for Housing in New Jersey" (1970). "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985."

Based on this assumption the Court says they will consider the case from the "wider viewpoint" that the Mount Laurel ordinance has the effect of excluding people because of the "limited extent of their incomes and resources" which the municipality freely admits, and asserts they are "legally permissible and justified"in doing because it is in the "best present and future fiscal interest of the municipality and its inhabitants". And the Court accepts that "the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

To summarize, the township freely admits it did what it's accused of doing and says that it's legal and justified because it's in the interest of the town and the Court accepts that it wasn't done for any of the reasons made impermissible by the Fair Housing Act 42 U.S.C. 3602 et seq., which is the federally controlling statute and separates this case from the context of the dissent in Vickers v. Gloucester Township. That is the case. The rest of the decision is then divided into three parts.

I The Facts

This section begins with a lengthy recitation of the facts about Mount Laurel including its size and population and its various zones and the development that's taken place in them in a very straightforward manner. Then we come to the conclusion. "There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property ... and that the policy was carried out without regard for nonfiscal considerations with respect to people, either within or without its boundaries." In other words, they did exactly what they said they did and only for the reasons they said they did it.

The text then goes on to describe the reason for this. "This policy of land use regulation for a fiscal end derives from New Jersey's tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality's children." In other words, this is entirely the fault of the State and applies to all municipalities. As a logical result:

"This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost everyone acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing."

As proof of this practice"The Residential Land Supply" (April 1972) produced by The N. J. Department of Community Affairs and "Exclusionary Land Use Controls: The Case of North-Eastern New Jersey" (1971) by Norman Williams, Jr. and Thomas Norman are cited. What is not considered in this statement is that the municipal action benefits all of the residents of the municipality, including those who are low-and-moderate income homeowners who are most at risk of being driven from their homes by rising taxes.

The next thing shown is how the urban model also worked to maintain fiscal stability.

"The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing than the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing. Despite the municipally confined tax structure, commercial and industrial ratables generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas."

In other words, the cities provided for their fiscal stability by zoning for a substantial ratable base dominated by commercial and industrial uses. Their goal was the same as that of the developing municipalities but simply pursued by different means.

The final part of this section is devoted to the plight of the urban population after World War II as the commercial and industrial base left the cities for new locations in other towns, other counties and other states. At the same time the lure of home ownership in developing communities that promised to provide all of the benefits of urban life in terms of public services and economic opportunities, without the well recognized problems of urban life, drew the emerging middle class to the suburbs. This was compounded by the failure of the cities to find a new productive purpose.

"Much industry and retail business, and even professions, have left the cities."And as for the low income workers "These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a critical erosion of the city tax base and inability to provide the amount and quality of those governmental services education, health, police, fire, housing and the like so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing."

To summarize the facts. State tax policies placed the primary burden of funding municipal, county and educational services on the tax base of each municipality. In order to be able to carry this burden each municipality zoned itself to develop a ratable based that would provide for long-term fiscal stability. The cities did this by zoning for a large commercial and industrial base. "Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing." After World War II the urban model began to fail and many cities had difficulty reinventing themselves.

Instead of seeking to attract a tax base built on non-residential uses that relies on unskilled and semi-skilled workers, the suburbs did this by focusing on attracting a strong residential base that would provide for their future stability. The suburbs stand convicted of developing a well balanced, fiscally stable, socioeconomic model while the cities did not. They didn't attract employers of unskilled and semi-skilled workers and so did not seek to provide housing for a workforce that did not exist.

Now we come to the legal issue.

II The Legal Issue

"The legal question before us, as earlier indicated, is whether a developing municipality like Mount Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources."

"We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need thereof."

"We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs."

At this point we'll take a moment to recall previously expressed thoughts of Justice Hall with a pair of quotes from Vickers v. Gloucester Township cited above.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."
"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

The first quote could easily be applied to the Court in this case for focusing on the abstract need for housing without recognizing the real world reality that housing is only one aspect of the integrated socioeconomic need of the community. Logic argues that building housing for workers without work makes no more sense than building factories without workers to work in them.

The second challenges the expansive view of judicial prerogatives "to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes." Then the argument for this is presented.

"We begin with some fundamental principles as applied to the scene before us."

"Land use is encompassed within the state's police power."

"It is elementary theory that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws."

"It is required that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare (The last term seems broad enough to encompass the others.) Conversely, a zoning enactment which is contrary to the general welfare is invalid."

"Indeed these considerations are specifically set forth in the zoning enabling act as among the various purposes of zoning for which regulations must be designed. N. J. S. A. 40:55-32 ... If a zoning regulation violates the enabling act in this respect, it is also theoretically invalid under the state constitution. We say "theoretically" because, as a matter of policy, we do not treat the validity of most land use ordinance provisions as involving matters of constitutional dimension; that classification is confined to major questions of fundamental import."

"We consider the basic importance of housing and local regulations restricting its availability to substantial segments of the population to fall within the latter category."

"The demarcation between the valid and the invalid in the field of land use regulation is difficult to determine, not always clear and subject to change. This was recognized almost fifty years ago in the basic case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926):

"The ordinance now under review and all similar laws and regulations must find their justification in some aspect of police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. (272 U. S. at 387, 47 S. Ct. at 118, 71 L. Ed. at 310)."

It's nice to see the Court remembering the Ambler Realty case but it would be even nicer to see the Court recall The federal Fair Housing Act which clearly drew the line between legitimate and illegitimate. The Act prohibits discrimination in housing for a specific list of reasons: race, color, religion, sex, handicap, familial status or national origin. That is "precise delimitation". Counsel for Mt. Laurel Twp. made it clear that these were not the basis for their zoning and the Court accepted that that was the case. We would remind the Court of their own language.

"In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

The first thing Justice Hall needed to do to justify a need for change was find sources that, while supporting policies of deference to municipal decision-making, offer a warning that the future may be different and law may have to change. After offering a number of prior decisions as pointing in his direction he found it best said in Pierro v. Baxendale, 20 N. J. 17, 29 (1955) :

"If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed."

Having adding the sanctifying weight of precedent, he returns to his own thoughts.

"The warning implicates the matter of whose general welfare must be served or not violated in the field of land use regulation. Frequently the decisions in this state, including those just cited, have spoken only in terms of the interest of the enacting municipality, so that it has been thought, at least in some quarters, that such was the only welfare requiring consideration. It is, of course, true that many cases have dealt only with regulations having little, if any, outside impact where local decision is ordinarily entitled to prevail. However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state's citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served."

"This essential was distinctly pointed out in Euclid, where Mr. Justice Sutherland specifically referred to the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. Chief Justice Vanderbilt said essentially the same thing, in a different factual context, in the early leading case of Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949), when he spoke of the necessity of regional considerations in zoning and added this:

"The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. (1 N. J. at 513)."

Justice Hall offers this quote as supportive of his position but we see it pointing in exactly the opposite direction. The problem is one of perspective. For Justice Hall zoning in developing municipalities was an act of selfishness and a desire to isolate themselves from the needs of the broader region. We see it differently. We see the world from a dynamic perspective where forces that transcend transient social policy considerations are controlling and municipalities are simply responding to the greater market forces confronting them as they take their place in regions that are being redefined by evolving transportation and communications technologies. The sentence we have highlighted makes this point. Again, we're not asking you to take our viewpoint over that of Justice Hall. We have simply taken the quote he selected above and put it back in the paragraph where he found it. Once again we have added the highlighting for emphasis.

"What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as in living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

When read in this fuller context the vision of Justice Hall and the rest of the Court cannot stand. The "forces" cited in Duffcon are the dynamic forces we see shaping our world in various forms and with different names. In this case it is the economic force of the housing market and the social force of democratic diversity that together serve to create fiscally stable communities, each with a distinct face and character, and together advancing the general welfare of their region. The Court is seeking to impose housing diversity within every municipality, while the natural dynamic forces produce a vital diversity among municipalities.

After this a case supporting placement of a hospital for the emotionally disturbed as meeting a regional need superseding the rights of a municipality to reject it is presented. And then, having failed to find any substantive support for the action under consideration other than some mentions that at some point if circumstances change some alterations in judicial perspectives would be justified, the Court goes about doing what they clearly had decided to do all along.

"This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms of land use regulation which that relationship mandates. There cannot be the slightest doubt that shelter, along with food, are the most basic human needs."

"It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of such broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries. Negatively, it may not adopt regulations or policies which thwart or preclude that opportunity."

"In sum, we are satisfied beyond doubt that, by reason of the basic importance of appropriate housing and the long-standing pressing need for it, especially in the low and moderate cost housing category, and of the exclusionary zoning practices of so many municipalities, conditions have changed, and consistent with the warning in Pierro, supra, judicial attitudes must be altered from that espoused in that and other cases cited earlier, to require, as we have just said, a broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all."

"We have spoken of this obligation of such municipalities as "presumptive." The term has two aspects, procedural and substantive. Procedurally, we think the basic importance of appropriate housing for all dictates that, when it is shown that a developing municipality in its land use regulations has not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation of substantive due process or equal protection under the state constitution has been made out and the burden, and it is a heavy one, shifts to the municipality to establish a valid basis for its action or non-action. ... The substantive aspect of "presumptive" relates to the specifics, on the one hand, of what municipal land use regulation provisions, or the absence thereof, will evidence invalidity and shift the burden of proof and, on the other hand, of what bases and considerations will carry the municipality's burden and sustain what it has done or failed to do. Both kinds of specifics may well vary between municipalities according to peculiar circumstances."

"We turn to application of these principles in appraisal of Mount Laurel's zoning ordinance, useful as well, we think, as guidelines for future application in other municipalities."

With this the Court establishes a new concept in land-use litigation. It does so without constitutional, statutory or precedential support. It is nothing more than an act of will by the members of the Court and so effectively expands the boundaries of judicial authority beyond otherwise recognized bounds.

The focus then turns to the specific of Mount Laurel zoning.

"We have earlier stated that a developing municipality's obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to the municipality's fair share of the present and prospective regional need thereof. Some comment on that conclusion is in order at this point. Frequently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason. But, under present New Jersey legislation, zoning must be done on an individual municipal basis, rather than regionally. So long as that situation persists under the present tax structure, or in the absence of some kind of binding agreement among all the municipalities of a region, we feel that every municipality therein must bear its fair share of the regional burden. (In this respect our holding is broader than that of the trial court, which was limited to Mount Laurel-related low and moderate income housing needs.)"

This admission loudly echoes the language of Duffcon Concrete that supports putting different uses in different places based on any number of factors:

"Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

After this all that remains is the essential discussion of how to define a region.

"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. Confinement to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable."

There are any number of ways to define a region. The Northeast is a national region. The New York and Philadelphia metropolitan areas are regions. The Census Bureau provides journey-to-work data that shows where people who work in a given place live and conversely where people who live in a given area work. Worker housing tends to cluster around employment centers and regions tend to define themselves on an ongoing basis.

III The Remedy

This final section applies only to Mount Laurel and focuses only on mechanics.

This ends the majority opinion written by Justice Frederick Hall. All that remains is a consideration of his 1977 lecture.

We are presenting significant excerpts from this lecture by Justice Hall, delivered two years after his retirement, because it contains what we see as useful insights into his thinking about several important issues. These include his vision of the limits of judicial power, of which he see very few, and his idea of the basis for granting standing to the plaintiffs in the Mount Laurel case as "third- party non-beneficiaries" as defined by Professor Norman Williams, Jr. . He discusses the importance of defining a "fundamental interest" and the fact that for the federal courts housing is not one. We think the full lecture is well worth reading as a picture of the thinking of a man accustomed to wielding power and the public passions that drove him throughout his career on the bench.

The Judicial Role In Land-Use Regulation (excerpts)

Frederick W. Hall
Associate Justice of the New Jersey Supreme Court, retired
Arthur T. Vanderbilt Lecture
Harvard Law School Association of New Jersey
April 20, 1977

Modern land-use regulation has increasingly become a matter of vital interest and importance to the citizenry of large and small metropolitan areas and beyond, and bids fair to continue so for a considerable time to come. Its scope has changed immeasurably since constitutional approval was accorded about 50 years ago. The current major subjects and objects of regulation and the problems and issues arising from it have led to litigation of quite a different character than was formerly the case. What the proper judicial role in this field should be needs to be considered in the light of the broad changes that have likewise taken place in the kinds of litigation and the exercise of the judicial function in other fields of public law.


The United States Supreme Court has come to the point, in reviewing state action on claims of federal constitutional violation, of finding invalidity on equal-protection grounds only where the right involved is said to be a "fundamental interest" and the state cannot show a "compelling state interest." The subjects meeting the fundamental interest test have been strictly limited: voting, race, right to interstate travel and perhaps a couple of others. Housing is not one.
The courts recent forays into the land-use regulation field after an avoidance of about half a century have been, regardless of result, quite unsatisfactory, to say the least.

There have been deep changes in American life and philosophy and the place of government therein. These began to appear in quantity in the "New Deal" era of the 30's but developed much more strongly after World War II.
First, there was a vast increase in regulation of private affairs, both business and personal, by all levels of government. ....
Second, there has been a tremendous increase in the conferring or distribution by government of various kinds of benefits to aid the less fortunate members of our society.
Third, there has been a startling awakening and assertion of claims of human rights under constitutional guarantees, statutes and institutional arrangements especially on behalf of minorities of all varieties and the disadvantaged.
Fourth, we have witnessed a "law explosion," by which relief from all manner of alleged wrongs is sought in the courts in the belief that the judiciary is the only effective branch of government. Everyone sues about everything, ...

This type of litigation is quite different from the traditional model earlier described. It most frequently concerns public, rather than private, action or inaction. It may well attack a whole scheme of government activity. It very frequently is of a representative or class nature, affecting many more persons or entities than are parties or whose views are before the court.

It generally does not seek money damages, but rather declaratory or injunctive relief of a continuing and broadly remedial nature against some government entity or official. Equity jurisprudence very largely governs the ultimate result. ....

This relatively new category of public-law litigation, which includes as well certain kinds of land-use litigation shortly to be mentioned more specifically, presents important questions as to the extent of judicial power and the proper exercise of it. These queries generally arise about the remedy especially when the relief ordered or sought involves affirmative action by another branch of government or amounts to action by the judiciary in a form within the purview of or normally accomplished - even perhaps better handled - by either the local or state legislature or the executive branch.

The Courts Must Decide

Again, the courts are the sole and final arbiter of the constitutionality of local and state legislation, regulations or other governmental action. A declaration of invalidity is binding upon the legislature, the executive and all affected public officials. This is so whether or not the particular agency or government agrees with the decision. It may only be overturned by amendment through vote of the people according to specified procedures.

While considerations of constitutional claims require the greatest judicial circumspection, they cannot be decided on the basis of personal views of individual judges as to the advisability or wisdom of the governmental action under review or in accordance with what may appear to be the wish of an articulate or seeming majority of the affected populace on a particular question.

The judicial branch is the ultimate protector of the rights of all, and this of course includes those of minorities. Constitutional principles and the rights guaranteed by or arising under the documents must always be thought of as living and not static things, subject to enlargement and variation in interpretation and application as conditions and the needs of the body politic change. When this is to occur is, unless spelled out by amendment, the proper and exclusive province of the judiciary. This is fundamental in our form of government.

Land-Use Regulation

There remains the application of this discussion to the more specific matter of the appropriate judicial role in land-use regulation cases. Even more particularly, reference is confined to the currently active aspects of zoning for housing and the place of the regional concept and to the initial articulation of a new and constitutional approach thereto in the unanimous decision of our Supreme Court in Southern Burlington County NAACP v. Township of Mount Laurel, 67 N. J. 151 (1975).

The matter should be placed in historical perspective, both legal and factual. That history is thoroughly presented, state by state and overall, in Professor Norman William's recent comprehensive and thoroughly readable treatise, "American Land Planning Law." To summarize quickly, with special reference to this state, after zoning was constitutionally approved a half century ago, the authorizing legislation in New Jersey and most states, delegated the permissive power to each municipality under standards which, except for the broad health, morals and general welfare language, were directed to regulation of uses to avoid adverse physical impact and to safeguard property values.

The general language of the delegation necessarily left interpretation to the courts. The aim of the adopted ordinances was to keep industrial uses out of the residential areas of the cities and their close suburbs. The idea was revolutionary because it involved restrictions on the private use of one's land, which for centuries had received exceptional veneration and favored treatment at the hands of the law.

The attitudes of the courts in this state as elsewhere varied in periods during the course of the next few decades. Early judicial resistance to zoning largely favored landowners. From 1948 to recent times our courts swung quite perceptibly to the opposite extreme, upholding almost all municipal action.

The New Jersey factual picture changed drastically during this period. I am sure it is quite familiar to all of you. The population expanded greatly through the birth rate and immigration from other sections. Business and industry moved from the central cities to new locations farther out and the more affluent families followed to occupy newly-built single-family housing in developments in municipalities that had been substantially rural. The demand for municipal and educational services funded by real-property taxes became immense in these areas.

At the same time, the cities decayed and their tax bases eroded. They became populated largely by the poor. The available housing wore out and became substandard or worse. Government services deteriorated and we had the uprisings of the 60's.

During the same period, the character and aim of municipal zoning, especially in these municipalities that were growing, or experiencing market pressures for growth, changed radically, although the full significance was not apparent at once. The purpose shifted from protection against physical impact to socioeconomic designs with the clear purpose of safeguarding the particular municipality's welfare as it alone decided. A principal purpose was fiscal - to allow only that kind of growth that would pay its way taxwise, particularly with respect to school costs, or come close to it.

The result was almost universal prohibition through various zoning mechanisms against any but expensive, single-family housing. Multi-family rental units were allowed most meagerly overall. Generally, they too, were required to be expensive, and contained bedroom limitations restricting the number of school children. These provisions effectively excluded from municipality after municipality families of low-and moderate-income, whether they resided in the central cities and sought a better environment and living conditions or were young couples, elderly citizens and others not desiring large houses who already had some ties with the community.

The result too was a statewide shortage of decent low-and moderate-income housing in all types of municipalities, the existence and alarming consequences of which were repeatedly called to public attention by state-agency studies, gubernatorial messages, and recitals in state legislation providing some assistance in funding such housing, only, of course, available where local land-use regulations permitted. It became clear that local exclusionary ordinances were having a substantial impact outside the particular municipality.

At the same time, it was becoming obvious that use regulation of certain types of land had such an important impact beyond municipal lines that individual municipal regulation was harmful to the broader public welfare. So the legislature withdrew the delegation of zoning authority to municipalities with respect to ,among others, wetlands, coastal areas, and the Hackensack Meadowlands district and provided for use regulation by its own agencies. The advisability of the concept of regional land-use regulation was thus established.

In this state of affairs, the Mount Laurel case came to the Supreme Court. It projected a new class of land-use litigation. The suit was brought, not by neighbors protesting the zoning of a particular property or an owner seeking to develop his land contrary to the zoning ordinance, but by people whom Professor Williams calls "third-party non-beneficiaries" - resident and non-resident poor people who wanted to live in the township but could not afford the only type of housing permitted.

Their attack, which they clearly had standing to make, was on the whole zoning scheme of a typical growing municipality having adequate remaining land for further development. The plaintiffs' proofs and briefs well presented to the court the factual picture that has just been sketched.

For present purposes of the discussion of the judicial role, the rationale of the decision may be simplified as follows. Land-use regulation, like any other police power enactment, must enhance and not be contrary to the general welfare to be valid under the state constitution. The availability of adequate land and an appropriate variety and choice of housing for all categories of people is an absolute essential in promotion of the general welfare - in effect, a fundamental state interest.

It is so important to the public good that the general welfare that each so-called developing municipality must take into account in order to have a valid zoning ordinance extends beyond the claimed good of that particular governmental unit. So:

the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land-use regulation, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low-and moderate-cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries.

and may not adopt regulations or policies that thwart of preclude that opportunity. Exclusionary restrictions having the effect mentioned are unconstitutional unless the municipality can sustain the heavy burden of demonstrating peculiar circumstances dictating a contrary conclusion. This was not established by Mount Laurel, so its zoning ordinance is pro tanto invalid.

The conclusions were, of course, within the traditional power and obligation of a court to declare legislation unconstitutional. Deference to the Legislative branch, here the local governing body, requires that such a judgment be rendered only in a clear case, but when that plainly appears in a situation involving a fundamental state interest, a court would be derelict if it did not so act. We are, in essence, dealing with a moral issue.

Mount Laurel went on to indicate that, since housing needs, particularly for people of low and moderate income, do not necessarily suit or fit well in every municipality, a regional approach was desirable, and urged state legislative action to so provide. In the absence thereof, the court said that Mount Laurel would have to provide for its fair share of the present and prospective regional need for such housing.

This solution originated with Chief Justice Weintraub during court conferences, prior to the advent of new permanent justices, making it desirable to schedule a reargument. The idea was not new; several areas of the country have had voluntary plans in operation on this basis for some time, and the professional planning literature thereon is plentiful. The township was given the opportunity to revise its ordinance, using these and other guidelines mentioned in the opinion, with the right in the plaintiffs to seek court review of the revised product if it was claimed not to be in accord with the express or implied directions of the opinion.

There is certainly nothing here that could reasonably suggest an inappropriate judicial role. I submit that it is unthinkable that a court should stop short of giving litigants in the housing field all the guidelines it considers vital and to direct affirmative corrective action to the fullest extent that it can completely supervise and review simply because the defendant is a municipality, and one that might be recalcitrant or uncooperative in righting the constitutional wrong, or because some other entity might be able to do a better job.

Under New Jersey jurisprudence, a court must review any governmental action of the nature here involved, as the Supreme Court has since done in the Madison Township case. That opinion also clearly confirms the judicial power to seek the help of neutral experts where needed to decide questions beyond the ordinary sphere of judicial knowledge, which, of curse, occurs in many cases beside land use litigation.

And it is not to be forgotten that courts can bring about ultimate compliance with their judgments through negative orders. For example, a defiant municipality refusing to change its invalid zoning ordinance could be prohibited, until it did so, from issuing building permits or certificates of occupancy for any dwellings, or indeed for structures of any kind. this method of relief was effectively utilized recently in Morris County to bring about governmental action to provide adequate sewage disposal.

There are, of course, types of relief that courts should not order, regardless of their power to do so. I conceive, for example, that judicial tribunals ought not to direct municipalities to actually build housing. In some cases, they may have to stop and resort to judicial prodding of the public conscience to bring about remedial action.

Mount Laurel has spawned considerable litigation involving other municipalities. It is not within the scope of this presentation to discuss the various decisions, even if the author had had the time to digest the contents and implications of the great proliferation of paper representing the numerous opinions. One brief comment bearing on the judicial role may be in order.

I believe that the implications of Mount Laurel are clear enough that, where zoning for housing is involved, whether the municipality is strictly a developing one or not, a court should take a good, hard look and insist that the municipality justify its restrictions or be forced to change them.

Furthermore, the court ought to give real reasons in its decisions and not rely on unmeaningful boiler-plate shibboleths like arbitrariness, capriciousness, and dubious presumptions of validity. The housing issue is too important and too fundamental to be disposed of in any case by cursory judicial treatment, and we should not revert in such cases to any thesis that whatever the municipality has done is all right.

While the legislature has not yet responded to the Court's suggestion of provision for regional zoning, it did, after Mount Laurel, enact the new Municipal Land Use Law, various sections of which indicate an important shift in policy from the old individual-municipality emphasis of old enabling acts, and give statutory support to the constitutional bases of the decision. I refer to the purposes sections, where the intent of the Act is stated:

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 and preservation of the environment;
and:
to provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space ... in order to meet the needs of all New Jersey citizens.

In addition, the zoning ordinance of every municipality must conform to a master plan, which must contain a land-use plan element and a housing element. I submit that the latter, in order to ground a valid zoning ordinance, would have to make provision, appropriate to the particular municipality, for a variety and choice of housing.

While any home rule tradition is always subject to constitutional requirements and guarantees of rights for all people, as Mount Laurel in effect held, the land-use law provisions just referred to indicate to me a legislative recognition that the invisible walls of suburban communities must have many gates for entrance."

We have presented these portions of the lecture without comment. We believe it speaks for itself. It offers both information and insight into the thinking of a man, who, confronted with a world he didn't like, set out to change it with a seeming disregard for the interests of a great many of the people living in it. Whether this will ultimately be seen as heroic idealism or judicial tyranny will be left to the judgment of future generations who suffer or prosper as a result of it. Arguably, more than forty years on, we are such a generation.

Here we end the Third Source Narrative for Beyond the Mount Laurel Doctrine: From Forty Years of Failure To A Blueprint for Success.

Documents worth reading in addition to those quoted in the text above:

"The Housing Crisis In New Jersey" (1970)
"Land Use Regulation: The Residential Land Supply" (1972).
"A Blueprint For Housing In New Jersey" (1970)
"New Horizons In Housing" (1972).
Warth v. Seldin, 422 U. S. 490 (1975)
Pierro v. Baxendale, 20 N. J. 17, 29 (1955)
Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949)

Beyond the Mt. Laurel Doctrine
Third Source Narrative

This is the Source Narrative to accompany the first Mt. Laurel decision and the writings of its author, Justice Frederick W. Hall. Before looking at the writings of Justice Hall, we have another task to perform. It's time to recall that this podcast is a demonstration project for our Insight Engine problem-solving technique. One of the key steps in our process is identification of powerful false ideas that keep problems from being resolved. Our task is to deconstruct and dispel them. The first one we encounter is the idea of a "housing crisis" in New Jersey. This powerful false idea was the first justification for the actions in Mount Laurel I.

We begin by recognizing the enormous population growth of the "baby-boom" period. From 1940 to 1970 the Census shows the New Jersey population grew from more than 4.1 to over 7.1 million. Numerous studies by "experts" for major institutions projected continued similar growth.

In "The Housing Crisis in New Jersey" (1970) the issue is stated this way: "... there is wide agreement that the State's population will continue to grow at least at the present rate in the years to come." However, this document also includes a very important cautionary footnote that includes the recognition that housing growth drives population growth. It's not the other way around.

"The one significant factor on the horizon which may lead to a decline in the rate of population growth in New Jersey is, of course, the decline in the construction of housing units in the State. If present trends in housing production continue during the coming years to decline, population projections will undoubtedly have to be scaled downward. Furthermore, such a decline could well set in motion a "chain reaction" effect, which would result in further declines in the rate of growth."

The document also shows that building permits had peaked in 1964 at just over 68,000 and dropped to 43,661 by 1968, a four year decline of almost 36%. Such a decline could have been seen as the basis for a reconsideration of "population projections". That's not what happened.

On December 7th Governor Cahill went further in "A Blueprint for Housing in New Jersey". There he said "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985." No explanation is offered as to who these "experts"
were or what methodology they used to reach their astonishing total. He also says "According to reliable statistics, we require 100,000 additional housing units each year, but actually are building only 40,000." These statements remained unchallenged and became part of the major concurring opinion in Mt. Laurel I.

You might be asking "How wrong could the experts have been?" Here are the facts. Decide for yourself.

In 1988 the New Jersey Office of State Planning produced a Technical Document titled "Population Trends and Projections". In it they looked back over the period 1970 to 1985 and found that instead of the projected 2.8 million people from 1970, the actual increase came to 394,136, or less than one seventh of the projected amount. Simple math tells us that if 2.8 million people would require 100,000 units per year, a similar reduction would produce approximately 14,250 homes and the state was already seeing far more homes being built. Census numbers also show that in the decade of the 1970's the population grew by 196,847 while New Jersey added over 384,000 new homes, or 1.95 units for every additional person. Records of annual building permits show this rate of growth kept up through 1985. To fully appreciate the magnitude of this difference recall that the average household size at the time was approximately 3 persons which meant that in reality six homes were being built for every new household in New Jersey.

In conclusion, the population growth that was supposed to fuel the "housing crisis" never happened. The housing being built far exceeded any demand that the population that did come could absorb. If population projections had been adjusted based on the emerging downward trend in housing, the argument underpinning Mt. Laurel I would have had to be significantly altered if not abandoned altogether. But that didn't happen. Instead the Court relied on this badly flawed expert advice. That's the first false idea to be dispelled. There was no housing crisis.

Before we move on, if you're wondering who those unnamed experts could have been who led everyone so far astray, we found them. In a footnote in "Exclusionary Land Use Controls: The Case of North-eastern New Jersey" the authors praise Governor Cahill for his courage in delivering his Special Message and write "The technical specifications for the study were prepared by the authors of this article." The authors were Norman Williams, Jr. and Thomas Norman. Now you know. Now we move on and turn our attention to the second of the great revolutionary architects of the Mt. Laurel Doctrine.

The issues at the heart of the Mt. Laurel I decision - the question of Standing, the definition of the General Welfare and the requirement for Reasonableness - are dealt with in the Third podcast. We find the theories embodied in the writings of Norman Williams, Jr., discussed in the Second podcast, and we find them in the writings of New Jersey Supreme Court Justice Frederick W. Hall. Here we deal with those texts. We say "texts" because the Mt. Laurel decision, as its author freely admits, is about more than just Mt. Laurel. It is about the transformation of a legal theory into judicial practice. It attempts to set New Jersey apart from the long history of federal Supreme Court decisions that support the democratic diversity embodied in the New Jersey home rule tradition.

We have chosen four texts that we find most instructive. The first is a famous dissenting opinion written in 1962 in the case of Vickers v. Gloucester Twp. where his philosophies are clearly set forth and the second is DeSimone v. Greater Englewood Housing Corp. where he writes the majority opinion signaling a willingness on the part of the Court to support challenges to local zoning. The third is Mt. Laurel I and the fourth is a lecture given in 1977, two years after his retirement from the Court, amplifying his thinking about judicial prerogatives raising the issue of "standing" that was not addressed in the Court decision. That will complete our picture of his thinking.

We begin with a brief biographical note.

Frederick Wilson Hall

Frederick Wilson Hall was born in Pittsburgh in 1908. He graduated from Rutgers University where he was elected Phi Beta Kappa and from Harvard Law School Cum Laude in 1931. As a young lawyer he worked in the firm of New Jersey's first Chief Justice, Arthur T. Vanderbilt and then in 1941 he founded and practiced law at the firm of Wharton and Hall.
He was appointed to the New Jersey Superior Court in 1953 and served there until 1959 when he was appointed as an Associate Justice of the New Jersey Supreme Court where he served until 1975. Justice Hall was the last member of what was known as the "Weintraub Court" which served together for eleven years and was widely regarded as one of the most activist and progressive judicial bodies in the nation in the area of civil law.
He was known for his mastery of land use law and his great reputation in that field has tended to deflect attention from his important writings in other fields. He was completely at home in the entirely intricate field of municipal law; he wrote important opinions in the areas of torts, criminal law, constitutional law and many other subjects. Few judges possessed his extensive knowledge of procedure and the Rules of Court.
He remains most famous for writing the decision in the case known as Mt. Laurel I.
He died in 1984.
Vickers v. Gloucester Township

Now to the writings of Justice Frederick Hall. We begin in 1962 with his dissenting opinion in Vickers v. Gloucester Township, 37 N.J. 232 (1962). As we do, it's important to remember the federal statutory context. This is three years before the Voting Rights Act and six before the Fair Housing Act. The Civil Rights movement was growing stronger and a socioeconomic model seen as disproportionately benefiting White people was automatically treated as suspect by a certain school of social ideologues.

On its face this case is about the right of a municipality to ban mobile home parks, but Justice Hall sees it raising greater concerns.

"Of even greater concern is the judicial process by which it is reached and the breadth of the rationale. The import of the holding gives almost boundless freedom to developing municipalities to erect exclusionary walls on their boundaries, according to local whim or selfish desire, and to use the zoning power for aims beyond its legitimate purposes."

After this he goes on to describe the types of towns that are the object of his concern. He separates them from "the settled suburbs surrounding the cities" that should have the right to remain undisturbed and paints this picture of the targets of his distaste. :

"On the contrary these areas are sprawling, heterogeneous governmental units, mostly townships, each really amounting to a region of considerable size itself. Their present rural, semi-rural or mixed nature is about to change substantially and they are soon to become melded into the whole metropolitan area. Their political boundaries are artificial and hence of little significance beyond defining one unit of government."

"Such municipalities, above all others, vitally need and may legally exercise comprehensive planning and implement zoning techniques to avoid present haphazard development which can only bring future grief. They are entitled to aim thereby for a sound and balanced area, with varying uses confined to specific districts and appropriately regulated."

He then continues to describe a number of things towns can reasonably do to shape their future. Then he comes to this.

"And this gets to the nub of what this, and similar cases, are really all about, i.e. the outer limit of the zoning power to be enjoyed by these municipalities most in need of comprehensive authority. What action is not legitimately encompassed by that power and what is the proper role of courts in reviewing its exercise?"

"This inquiry involves important fundamentals. In the broad sense the considerations are well posed in Williams, "Planning Law and Democratic Living," 20 Law and Contemporary Problems 317 (1955):

"The main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society equality of opportunity and equality of treatment, freedom of thought and considerable freedom of action, and fairness. Under the American system, a more or less independent mechanism of judicial review is established to provide an independent check on whether specific governmental decisions conform to these standards. While controversy has often raged about judicial action in other areas, it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare."

"Constitutional law should serve to shed light upon thinking about local planning, by requiring those concerned to do what they should be doing anyway to work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity."

This is a set of breathtaking assertions.

First, while he offers a broad amorphous set of values, it might just as reasonably be said that the main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society as enshrined in the precise language of the U. S. Constitution.

Second, as to what he asserts as having "always been recognized" as "an essential part of the judicial function" and the "attitudes and policies" with which he is concerned, these must be compared to the values and actions consistently upheld for thirty-five years by the U. S. Supreme Court and flowing from sources like the Standard State Zoning Enabling Act that was a product of the federal government. And just who has been doing the recognizing, anyway?

Third, there is the need to "work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity." This lofty vision should be compared with the language found later in the text defining the role of zoning.

Next he expands to a broader vision of a seemingly boundless role for the courts and shares his disdain for those with less expansive views.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."

After this the discussion focuses closer to the case at hand and on the permitted or proper scope of judicial oversight. He finally comes to the definition of zoning quoted above and this statement that seemingly undercuts the argument he has been advancing for the expansiveness of judicial oversight of municipal actions.

"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

After all of his argument to the contrary, this language appears to make it clear that while there are great issues connected with human freedom and opportunity this is not the arena in which they can be constitutionally settled.

From this point the focus is on little more than repetition of the issues, arguing back and forth with elements of previous court decisions and finally a discussion of the actual issue of the case - the right to prohibit mobile homes.

DeSimone v. Greater Englewood Housing Corp.

We next hear his voice in the case of DeSimone v. Greater Englewood Housing Corp. 56 N. J. 428 (1970) 267 A.2d 31. While a seemingly small matter over issuance of a variance, it caught the emerging temper of its time. There had been racial disturbances in Englewood in July, 1967 and the town had become a focus of the Governor's Select Commission on Civil Disorder and its "Report for Action" issued the following year. This unanimous decision was seen by sympathizers as an opening for a renewed assault on municipal zoning. To understand this perspective we offer the assessment of Norman Williams, Jr. in The Background and Significance of Mount Laurel II from 1984:

"By the late 1960's, however, the world suddenly began to look rather different than it had when Justice Hall wrote his Vickers dissent, and other judges began to reexamine their tolerance of exclusionary zoning practices. In an otherwise relatively unimportant case, the New Jersey Supreme Court in 1970 upheld (against a challenge by neighbors) a New Jersey "d" variance approving a housing project in Englewood, which was (a) located in a "white area" and (b) clearly designed at least in part to accommodate blacks from the Englewood ghetto. In upholding the grant of the variance, the opinion-by Hall, and now unanimous--commented in dictum that under those circumstances such a variance could not have been denied. The only logical basis for this comment is that there must be some affirmative duty to plan on behalf of all sections of the population. Once those familiar with this field of law read the Englewood opinion, it was clear that the jig was up; the court seemed to be sending out signals that it was ready for a major reversal on the exclusionary problem." This led us to Mt. Laurel I.

Mt. Laurel I

Now we move on to the climactic document of the career of Frederick W. Hall. The first Mt. Laurel decision was written in 1975, thirteen years after his dissent in Vickers v. Gloucester Township and was his last great contribution to the activism of the court. The case, Southern Burlington County N. A. A. C. P. v. Mount Laurel 67 N. J. 151 (1975), began its course through the state judicial system in 1972 with a finding for the plaintiff which was subsequently appealed, not only by the township but by the plaintiffs as well seeking an expansion of the scope of the decision. It was then taken over by the state Supreme Court and transmuted from a case concerned with racial discrimination, which would have claimed a violation of the federal Fair Housing Act, into one focused on economic segregation which kept it within the state court system where it was argued in 1974 and decided in 1975. It begins by presenting the scope of the argument. We also find here Mr. Norman Williams, Jr. arguing the cause for amicus curiae The Public Interest Research Group of New Jersey twenty years after publishing his foundational document "Planning Law and Democratic Living" in 1955. Importantly, this comes seven years after the Fair Housing Act.

"This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipality. The trial court so found, 119 N.J. Super. 164 (Law Div. 1972), and declared the township zoning ordinance totally invalid. Its judgment went on, in line with the requests for affirmative relief, to order the municipality to make studies of the housing needs of low and moderate income persons presently or formerly residing in the community in substandard housing, as well as those in such income classifications presently employed in the township and living elsewhere or reasonably expected to be employed therein in the future ... The township appealed to the Appellate Division and those plaintiffs, not present or former residents, cross-appealed on the basis that the judgment should have directed that the prescribed plan take into account as well a fair share of the regional housing needs of low and moderate income families without limitation to those having, past, present or prospective connection with the township. The appeals were certified on our own motion before argument in the Division."

"The implications of the issue presented are indeed broad and far-reaching, extending much beyond these particular plaintiffs and the boundaries of this municipality."

"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."

"We will, therefore, consider the case from the wider viewpoint that the effect of Mount Laurel's land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

"Its candid position is that, conceding its land use regulation was intended to result and has resulted in economic discrimination and exclusion of substantial segments of the area population, its policies and practices are in the best present and future fiscal interest of the municipality and its inhabitants and are legally permissible and justified. It further asserts that the trial court was without power to direct the affirmative relief it did."

In these few opening quotes we find the whole argument showcased. It all begins with the "desperate need for housing" based on the horribly flawed assertion of a "housing crisis" that demonstrably never happened, to meet the needs of a population that still doesn't exist, most clearly expressed in this single sentence from "A Blueprint for Housing in New Jersey" (1970). "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985."

Based on this assumption the Court says they will consider the case from the "wider viewpoint" that the Mount Laurel ordinance has the effect of excluding people because of the "limited extent of their incomes and resources" which the municipality freely admits, and asserts they are "legally permissible and justified"in doing because it is in the "best present and future fiscal interest of the municipality and its inhabitants". And the Court accepts that "the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

To summarize, the township freely admits it did what it's accused of doing and says that it's legal and justified because it's in the interest of the town and the Court accepts that it wasn't done for any of the reasons made impermissible by the Fair Housing Act 42 U.S.C. 3602 et seq., which is the federally controlling statute and separates this case from the context of the dissent in Vickers v. Gloucester Township. That is the case. The rest of the decision is then divided into three parts.

I The Facts

This section begins with a lengthy recitation of the facts about Mount Laurel including its size and population and its various zones and the development that's taken place in them in a very straightforward manner. Then we come to the conclusion. "There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property ... and that the policy was carried out without regard for nonfiscal considerations with respect to people, either within or without its boundaries." In other words, they did exactly what they said they did and only for the reasons they said they did it.

The text then goes on to describe the reason for this. "This policy of land use regulation for a fiscal end derives from New Jersey's tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality's children." In other words, this is entirely the fault of the State and applies to all municipalities. As a logical result:

"This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost everyone acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing."

As proof of this practice"The Residential Land Supply" (April 1972) produced by The N. J. Department of Community Affairs and "Exclusionary Land Use Controls: The Case of North-Eastern New Jersey" (1971) by Norman Williams, Jr. and Thomas Norman are cited. What is not considered in this statement is that the municipal action benefits all of the residents of the municipality, including those who are low-and-moderate income homeowners who are most at risk of being driven from their homes by rising taxes.

The next thing shown is how the urban model also worked to maintain fiscal stability.

"The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing than the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing. Despite the municipally confined tax structure, commercial and industrial ratables generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas."

In other words, the cities provided for their fiscal stability by zoning for a substantial ratable base dominated by commercial and industrial uses. Their goal was the same as that of the developing municipalities but simply pursued by different means.

The final part of this section is devoted to the plight of the urban population after World War II as the commercial and industrial base left the cities for new locations in other towns, other counties and other states. At the same time the lure of home ownership in developing communities that promised to provide all of the benefits of urban life in terms of public services and economic opportunities, without the well recognized problems of urban life, drew the emerging middle class to the suburbs. This was compounded by the failure of the cities to find a new productive purpose.

"Much industry and retail business, and even professions, have left the cities."And as for the low income workers "These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a critical erosion of the city tax base and inability to provide the amount and quality of those governmental services education, health, police, fire, housing and the like so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing."

To summarize the facts. State tax policies placed the primary burden of funding municipal, county and educational services on the tax base of each municipality. In order to be able to carry this burden each municipality zoned itself to develop a ratable based that would provide for long-term fiscal stability. The cities did this by zoning for a large commercial and industrial base. "Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing." After World War II the urban model began to fail and many cities had difficulty reinventing themselves.

Instead of seeking to attract a tax base built on non-residential uses that relies on unskilled and semi-skilled workers, the suburbs did this by focusing on attracting a strong residential base that would provide for their future stability. The suburbs stand convicted of developing a well balanced, fiscally stable, socioeconomic model while the cities did not. They didn't attract employers of unskilled and semi-skilled workers and so did not seek to provide housing for a workforce that did not exist.

Now we come to the legal issue.

II The Legal Issue

"The legal question before us, as earlier indicated, is whether a developing municipality like Mount Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources."

"We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need thereof."

"We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs."

At this point we'll take a moment to recall previously expressed thoughts of Justice Hall with a pair of quotes from Vickers v. Gloucester Township cited above.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."
"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

The first quote could easily be applied to the Court in this case for focusing on the abstract need for housing without recognizing the real world reality that housing is only one aspect of the integrated socioeconomic need of the community. Logic argues that building housing for workers without work makes no more sense than building factories without workers to work in them.

The second challenges the expansive view of judicial prerogatives "to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes." Then the argument for this is presented.

"We begin with some fundamental principles as applied to the scene before us."

"Land use is encompassed within the state's police power."

"It is elementary theory that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws."

"It is required that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare (The last term seems broad enough to encompass the others.) Conversely, a zoning enactment which is contrary to the general welfare is invalid."

"Indeed these considerations are specifically set forth in the zoning enabling act as among the various purposes of zoning for which regulations must be designed. N. J. S. A. 40:55-32 ... If a zoning regulation violates the enabling act in this respect, it is also theoretically invalid under the state constitution. We say "theoretically" because, as a matter of policy, we do not treat the validity of most land use ordinance provisions as involving matters of constitutional dimension; that classification is confined to major questions of fundamental import."

"We consider the basic importance of housing and local regulations restricting its availability to substantial segments of the population to fall within the latter category."

"The demarcation between the valid and the invalid in the field of land use regulation is difficult to determine, not always clear and subject to change. This was recognized almost fifty years ago in the basic case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926):

"The ordinance now under review and all similar laws and regulations must find their justification in some aspect of police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. (272 U. S. at 387, 47 S. Ct. at 118, 71 L. Ed. at 310)."

It's nice to see the Court remembering the Ambler Realty case but it would be even nicer to see the Court recall The federal Fair Housing Act which clearly drew the line between legitimate and illegitimate. The Act prohibits discrimination in housing for a specific list of reasons: race, color, religion, sex, handicap, familial status or national origin. That is "precise delimitation". Counsel for Mt. Laurel Twp. made it clear that these were not the basis for their zoning and the Court accepted that that was the case. We would remind the Court of their own language.

"In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

The first thing Justice Hall needed to do to justify a need for change was find sources that, while supporting policies of deference to municipal decision-making, offer a warning that the future may be different and law may have to change. After offering a number of prior decisions as pointing in his direction he found it best said in Pierro v. Baxendale, 20 N. J. 17, 29 (1955) :

"If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed."

Having adding the sanctifying weight of precedent, he returns to his own thoughts.

"The warning implicates the matter of whose general welfare must be served or not violated in the field of land use regulation. Frequently the decisions in this state, including those just cited, have spoken only in terms of the interest of the enacting municipality, so that it has been thought, at least in some quarters, that such was the only welfare requiring consideration. It is, of course, true that many cases have dealt only with regulations having little, if any, outside impact where local decision is ordinarily entitled to prevail. However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state's citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served."

"This essential was distinctly pointed out in Euclid, where Mr. Justice Sutherland specifically referred to the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. Chief Justice Vanderbilt said essentially the same thing, in a different factual context, in the early leading case of Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949), when he spoke of the necessity of regional considerations in zoning and added this:

"The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. (1 N. J. at 513)."

Justice Hall offers this quote as supportive of his position but we see it pointing in exactly the opposite direction. The problem is one of perspective. For Justice Hall zoning in developing municipalities was an act of selfishness and a desire to isolate themselves from the needs of the broader region. We see it differently. We see the world from a dynamic perspective where forces that transcend transient social policy considerations are controlling and municipalities are simply responding to the greater market forces confronting them as they take their place in regions that are being redefined by evolving transportation and communications technologies. The sentence we have highlighted makes this point. Again, we're not asking you to take our viewpoint over that of Justice Hall. We have simply taken the quote he selected above and put it back in the paragraph where he found it. Once again we have added the highlighting for emphasis.

"What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as in living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

When read in this fuller context the vision of Justice Hall and the rest of the Court cannot stand. The "forces" cited in Duffcon are the dynamic forces we see shaping our world in various forms and with different names. In this case it is the economic force of the housing market and the social force of democratic diversity that together serve to create fiscally stable communities, each with a distinct face and character, and together advancing the general welfare of their region. The Court is seeking to impose housing diversity within every municipality, while the natural dynamic forces produce a vital diversity among municipalities.

After this a case supporting placement of a hospital for the emotionally disturbed as meeting a regional need superseding the rights of a municipality to reject it is presented. And then, having failed to find any substantive support for the action under consideration other than some mentions that at some point if circumstances change some alterations in judicial perspectives would be justified, the Court goes about doing what they clearly had decided to do all along.

"This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms of land use regulation which that relationship mandates. There cannot be the slightest doubt that shelter, along with food, are the most basic human needs."

"It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of such broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries. Negatively, it may not adopt regulations or policies which thwart or preclude that opportunity."

"In sum, we are satisfied beyond doubt that, by reason of the basic importance of appropriate housing and the long-standing pressing need for it, especially in the low and moderate cost housing category, and of the exclusionary zoning practices of so many municipalities, conditions have changed, and consistent with the warning in Pierro, supra, judicial attitudes must be altered from that espoused in that and other cases cited earlier, to require, as we have just said, a broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all."

"We have spoken of this obligation of such municipalities as "presumptive." The term has two aspects, procedural and substantive. Procedurally, we think the basic importance of appropriate housing for all dictates that, when it is shown that a developing municipality in its land use regulations has not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation of substantive due process or equal protection under the state constitution has been made out and the burden, and it is a heavy one, shifts to the municipality to establish a valid basis for its action or non-action. ... The substantive aspect of "presumptive" relates to the specifics, on the one hand, of what municipal land use regulation provisions, or the absence thereof, will evidence invalidity and shift the burden of proof and, on the other hand, of what bases and considerations will carry the municipality's burden and sustain what it has done or failed to do. Both kinds of specifics may well vary between municipalities according to peculiar circumstances."

"We turn to application of these principles in appraisal of Mount Laurel's zoning ordinance, useful as well, we think, as guidelines for future application in other municipalities."

With this the Court establishes a new concept in land-use litigation. It does so without constitutional, statutory or precedential support. It is nothing more than an act of will by the members of the Court and so effectively expands the boundaries of judicial authority beyond otherwise recognized bounds.

The focus then turns to the specific of Mount Laurel zoning.

"We have earlier stated that a developing municipality's obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to the municipality's fair share of the present and prospective regional need thereof. Some comment on that conclusion is in order at this point. Frequently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason. But, under present New Jersey legislation, zoning must be done on an individual municipal basis, rather than regionally. So long as that situation persists under the present tax structure, or in the absence of some kind of binding agreement among all the municipalities of a region, we feel that every municipality therein must bear its fair share of the regional burden. (In this respect our holding is broader than that of the trial court, which was limited to Mount Laurel-related low and moderate income housing needs.)"

This admission loudly echoes the language of Duffcon Concrete that supports putting different uses in different places based on any number of factors:

"Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

After this all that remains is the essential discussion of how to define a region.

"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. Confinement to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable."

There are any number of ways to define a region. The Northeast is a national region. The New York and Philadelphia metropolitan areas are regions. The Census Bureau provides journey-to-work data that shows where people who work in a given place live and conversely where people who live in a given area work. Worker housing tends to cluster around employment centers and regions tend to define themselves on an ongoing basis.

III The Remedy

This final section applies only to Mount Laurel and focuses only on mechanics.

This ends the majority opinion written by Justice Frederick Hall. All that remains is a consideration of his 1977 lecture.

We are presenting significant excerpts from this lecture by Justice Hall, delivered two years after his retirement, because it contains what we see as useful insights into his thinking about several important issues. These include his vision of the limits of judicial power, of which he see very few, and his idea of the basis for granting standing to the plaintiffs in the Mount Laurel case as "third- party non-beneficiaries" as defined by Professor Norman Williams, Jr. . He discusses the importance of defining a "fundamental interest" and the fact that for the federal courts housing is not one. We think the full lecture is well worth reading as a picture of the thinking of a man accustomed to wielding power and the public passions that drove him throughout his career on the bench.

The Judicial Role In Land-Use Regulation (excerpts)

Frederick W. Hall
Associate Justice of the New Jersey Supreme Court, retired
Arthur T. Vanderbilt Lecture
Harvard Law School Association of New Jersey
April 20, 1977

Modern land-use regulation has increasingly become a matter of vital interest and importance to the citizenry of large and small metropolitan areas and beyond, and bids fair to continue so for a considerable time to come. Its scope has changed immeasurably since constitutional approval was accorded about 50 years ago. The current major subjects and objects of regulation and the problems and issues arising from it have led to litigation of quite a different character than was formerly the case. What the proper judicial role in this field should be needs to be considered in the light of the broad changes that have likewise taken place in the kinds of litigation and the exercise of the judicial function in other fields of public law.


The United States Supreme Court has come to the point, in reviewing state action on claims of federal constitutional violation, of finding invalidity on equal-protection grounds only where the right involved is said to be a "fundamental interest" and the state cannot show a "compelling state interest." The subjects meeting the fundamental interest test have been strictly limited: voting, race, right to interstate travel and perhaps a couple of others. Housing is not one.
The courts recent forays into the land-use regulation field after an avoidance of about half a century have been, regardless of result, quite unsatisfactory, to say the least.

There have been deep changes in American life and philosophy and the place of government therein. These began to appear in quantity in the "New Deal" era of the 30's but developed much more strongly after World War II.
First, there was a vast increase in regulation of private affairs, both business and personal, by all levels of government. ....
Second, there has been a tremendous increase in the conferring or distribution by government of various kinds of benefits to aid the less fortunate members of our society.
Third, there has been a startling awakening and assertion of claims of human rights under constitutional guarantees, statutes and institutional arrangements especially on behalf of minorities of all varieties and the disadvantaged.
Fourth, we have witnessed a "law explosion," by which relief from all manner of alleged wrongs is sought in the courts in the belief that the judiciary is the only effective branch of government. Everyone sues about everything, ...

This type of litigation is quite different from the traditional model earlier described. It most frequently concerns public, rather than private, action or inaction. It may well attack a whole scheme of government activity. It very frequently is of a representative or class nature, affecting many more persons or entities than are parties or whose views are before the court.

It generally does not seek money damages, but rather declaratory or injunctive relief of a continuing and broadly remedial nature against some government entity or official. Equity jurisprudence very largely governs the ultimate result. ....

This relatively new category of public-law litigation, which includes as well certain kinds of land-use litigation shortly to be mentioned more specifically, presents important questions as to the extent of judicial power and the proper exercise of it. These queries generally arise about the remedy especially when the relief ordered or sought involves affirmative action by another branch of government or amounts to action by the judiciary in a form within the purview of or normally accomplished - even perhaps better handled - by either the local or state legislature or the executive branch.

The Courts Must Decide

Again, the courts are the sole and final arbiter of the constitutionality of local and state legislation, regulations or other governmental action. A declaration of invalidity is binding upon the legislature, the executive and all affected public officials. This is so whether or not the particular agency or government agrees with the decision. It may only be overturned by amendment through vote of the people according to specified procedures.

While considerations of constitutional claims require the greatest judicial circumspection, they cannot be decided on the basis of personal views of individual judges as to the advisability or wisdom of the governmental action under review or in accordance with what may appear to be the wish of an articulate or seeming majority of the affected populace on a particular question.

The judicial branch is the ultimate protector of the rights of all, and this of course includes those of minorities. Constitutional principles and the rights guaranteed by or arising under the documents must always be thought of as living and not static things, subject to enlargement and variation in interpretation and application as conditions and the needs of the body politic change. When this is to occur is, unless spelled out by amendment, the proper and exclusive province of the judiciary. This is fundamental in our form of government.

Land-Use Regulation

There remains the application of this discussion to the more specific matter of the appropriate judicial role in land-use regulation cases. Even more particularly, reference is confined to the currently active aspects of zoning for housing and the place of the regional concept and to the initial articulation of a new and constitutional approach thereto in the unanimous decision of our Supreme Court in Southern Burlington County NAACP v. Township of Mount Laurel, 67 N. J. 151 (1975).

The matter should be placed in historical perspective, both legal and factual. That history is thoroughly presented, state by state and overall, in Professor Norman William's recent comprehensive and thoroughly readable treatise, "American Land Planning Law." To summarize quickly, with special reference to this state, after zoning was constitutionally approved a half century ago, the authorizing legislation in New Jersey and most states, delegated the permissive power to each municipality under standards which, except for the broad health, morals and general welfare language, were directed to regulation of uses to avoid adverse physical impact and to safeguard property values.

The general language of the delegation necessarily left interpretation to the courts. The aim of the adopted ordinances was to keep industrial uses out of the residential areas of the cities and their close suburbs. The idea was revolutionary because it involved restrictions on the private use of one's land, which for centuries had received exceptional veneration and favored treatment at the hands of the law.

The attitudes of the courts in this state as elsewhere varied in periods during the course of the next few decades. Early judicial resistance to zoning largely favored landowners. From 1948 to recent times our courts swung quite perceptibly to the opposite extreme, upholding almost all municipal action.

The New Jersey factual picture changed drastically during this period. I am sure it is quite familiar to all of you. The population expanded greatly through the birth rate and immigration from other sections. Business and industry moved from the central cities to new locations farther out and the more affluent families followed to occupy newly-built single-family housing in developments in municipalities that had been substantially rural. The demand for municipal and educational services funded by real-property taxes became immense in these areas.

At the same time, the cities decayed and their tax bases eroded. They became populated largely by the poor. The available housing wore out and became substandard or worse. Government services deteriorated and we had the uprisings of the 60's.

During the same period, the character and aim of municipal zoning, especially in these municipalities that were growing, or experiencing market pressures for growth, changed radically, although the full significance was not apparent at once. The purpose shifted from protection against physical impact to socioeconomic designs with the clear purpose of safeguarding the particular municipality's welfare as it alone decided. A principal purpose was fiscal - to allow only that kind of growth that would pay its way taxwise, particularly with respect to school costs, or come close to it.

The result was almost universal prohibition through various zoning mechanisms against any but expensive, single-family housing. Multi-family rental units were allowed most meagerly overall. Generally, they too, were required to be expensive, and contained bedroom limitations restricting the number of school children. These provisions effectively excluded from municipality after municipality families of low-and moderate-income, whether they resided in the central cities and sought a better environment and living conditions or were young couples, elderly citizens and others not desiring large houses who already had some ties with the community.

The result too was a statewide shortage of decent low-and moderate-income housing in all types of municipalities, the existence and alarming consequences of which were repeatedly called to public attention by state-agency studies, gubernatorial messages, and recitals in state legislation providing some assistance in funding such housing, only, of course, available where local land-use regulations permitted. It became clear that local exclusionary ordinances were having a substantial impact outside the particular municipality.

At the same time, it was becoming obvious that use regulation of certain types of land had such an important impact beyond municipal lines that individual municipal regulation was harmful to the broader public welfare. So the legislature withdrew the delegation of zoning authority to municipalities with respect to ,among others, wetlands, coastal areas, and the Hackensack Meadowlands district and provided for use regulation by its own agencies. The advisability of the concept of regional land-use regulation was thus established.

In this state of affairs, the Mount Laurel case came to the Supreme Court. It projected a new class of land-use litigation. The suit was brought, not by neighbors protesting the zoning of a particular property or an owner seeking to develop his land contrary to the zoning ordinance, but by people whom Professor Williams calls "third-party non-beneficiaries" - resident and non-resident poor people who wanted to live in the township but could not afford the only type of housing permitted.

Their attack, which they clearly had standing to make, was on the whole zoning scheme of a typical growing municipality having adequate remaining land for further development. The plaintiffs' proofs and briefs well presented to the court the factual picture that has just been sketched.

For present purposes of the discussion of the judicial role, the rationale of the decision may be simplified as follows. Land-use regulation, like any other police power enactment, must enhance and not be contrary to the general welfare to be valid under the state constitution. The availability of adequate land and an appropriate variety and choice of housing for all categories of people is an absolute essential in promotion of the general welfare - in effect, a fundamental state interest.

It is so important to the public good that the general welfare that each so-called developing municipality must take into account in order to have a valid zoning ordinance extends beyond the claimed good of that particular governmental unit. So:

the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land-use regulation, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low-and moderate-cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries.

and may not adopt regulations or policies that thwart of preclude that opportunity. Exclusionary restrictions having the effect mentioned are unconstitutional unless the municipality can sustain the heavy burden of demonstrating peculiar circumstances dictating a contrary conclusion. This was not established by Mount Laurel, so its zoning ordinance is pro tanto invalid.

The conclusions were, of course, within the traditional power and obligation of a court to declare legislation unconstitutional. Deference to the Legislative branch, here the local governing body, requires that such a judgment be rendered only in a clear case, but when that plainly appears in a situation involving a fundamental state interest, a court would be derelict if it did not so act. We are, in essence, dealing with a moral issue.

Mount Laurel went on to indicate that, since housing needs, particularly for people of low and moderate income, do not necessarily suit or fit well in every municipality, a regional approach was desirable, and urged state legislative action to so provide. In the absence thereof, the court said that Mount Laurel would have to provide for its fair share of the present and prospective regional need for such housing.

This solution originated with Chief Justice Weintraub during court conferences, prior to the advent of new permanent justices, making it desirable to schedule a reargument. The idea was not new; several areas of the country have had voluntary plans in operation on this basis for some time, and the professional planning literature thereon is plentiful. The township was given the opportunity to revise its ordinance, using these and other guidelines mentioned in the opinion, with the right in the plaintiffs to seek court review of the revised product if it was claimed not to be in accord with the express or implied directions of the opinion.

There is certainly nothing here that could reasonably suggest an inappropriate judicial role. I submit that it is unthinkable that a court should stop short of giving litigants in the housing field all the guidelines it considers vital and to direct affirmative corrective action to the fullest extent that it can completely supervise and review simply because the defendant is a municipality, and one that might be recalcitrant or uncooperative in righting the constitutional wrong, or because some other entity might be able to do a better job.

Under New Jersey jurisprudence, a court must review any governmental action of the nature here involved, as the Supreme Court has since done in the Madison Township case. That opinion also clearly confirms the judicial power to seek the help of neutral experts where needed to decide questions beyond the ordinary sphere of judicial knowledge, which, of curse, occurs in many cases beside land use litigation.

And it is not to be forgotten that courts can bring about ultimate compliance with their judgments through negative orders. For example, a defiant municipality refusing to change its invalid zoning ordinance could be prohibited, until it did so, from issuing building permits or certificates of occupancy for any dwellings, or indeed for structures of any kind. this method of relief was effectively utilized recently in Morris County to bring about governmental action to provide adequate sewage disposal.

There are, of course, types of relief that courts should not order, regardless of their power to do so. I conceive, for example, that judicial tribunals ought not to direct municipalities to actually build housing. In some cases, they may have to stop and resort to judicial prodding of the public conscience to bring about remedial action.

Mount Laurel has spawned considerable litigation involving other municipalities. It is not within the scope of this presentation to discuss the various decisions, even if the author had had the time to digest the contents and implications of the great proliferation of paper representing the numerous opinions. One brief comment bearing on the judicial role may be in order.

I believe that the implications of Mount Laurel are clear enough that, where zoning for housing is involved, whether the municipality is strictly a developing one or not, a court should take a good, hard look and insist that the municipality justify its restrictions or be forced to change them.

Furthermore, the court ought to give real reasons in its decisions and not rely on unmeaningful boiler-plate shibboleths like arbitrariness, capriciousness, and dubious presumptions of validity. The housing issue is too important and too fundamental to be disposed of in any case by cursory judicial treatment, and we should not revert in such cases to any thesis that whatever the municipality has done is all right.

While the legislature has not yet responded to the Court's suggestion of provision for regional zoning, it did, after Mount Laurel, enact the new Municipal Land Use Law, various sections of which indicate an important shift in policy from the old individual-municipality emphasis of old enabling acts, and give statutory support to the constitutional bases of the decision. I refer to the purposes sections, where the intent of the Act is stated:

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 and preservation of the environment;
and:
to provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space ... in order to meet the needs of all New Jersey citizens.

In addition, the zoning ordinance of every municipality must conform to a master plan, which must contain a land-use plan element and a housing element. I submit that the latter, in order to ground a valid zoning ordinance, would have to make provision, appropriate to the particular municipality, for a variety and choice of housing.

While any home rule tradition is always subject to constitutional requirements and guarantees of rights for all people, as Mount Laurel in effect held, the land-use law provisions just referred to indicate to me a legislative recognition that the invisible walls of suburban communities must have many gates for entrance."

We have presented these portions of the lecture without comment. We believe it speaks for itself. It offers both information and insight into the thinking of a man, who, confronted with a world he didn't like, set out to change it with a seeming disregard for the interests of a great many of the people living in it. Whether this will ultimately be seen as heroic idealism or judicial tyranny will be left to the judgment of future generations who suffer or prosper as a result of it. Arguably, more than forty years on, we are such a generation.

Here we end the Third Source Narrative for Beyond the Mount Laurel Doctrine: From Forty Years of Failure To A Blueprint for Success.

Documents worth reading in addition to those quoted in the text above:

"The Housing Crisis In New Jersey" (1970)
"Land Use Regulation: The Residential Land Supply" (1972).
"A Blueprint For Housing In New Jersey" (1970)
"New Horizons In Housing" (1972).
Warth v. Seldin, 422 U. S. 490 (1975)
Pierro v. Baxendale, 20 N. J. 17, 29 (1955)
Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949)

Beyond the Mt. Laurel Doctrine
Third Source Narrative

This is the Source Narrative to accompany the first Mt. Laurel decision and the writings of its author, Justice Frederick W. Hall. Before looking at the writings of Justice Hall, we have another task to perform. It's time to recall that this podcast is a demonstration project for our Insight Engine problem-solving technique. One of the key steps in our process is identification of powerful false ideas that keep problems from being resolved. Our task is to deconstruct and dispel them. The first one we encounter is the idea of a "housing crisis" in New Jersey. This powerful false idea was the first justification for the actions in Mount Laurel I.

We begin by recognizing the enormous population growth of the "baby-boom" period. From 1940 to 1970 the Census shows the New Jersey population grew from more than 4.1 to over 7.1 million. Numerous studies by "experts" for major institutions projected continued similar growth.

In "The Housing Crisis in New Jersey" (1970) the issue is stated this way: "... there is wide agreement that the State's population will continue to grow at least at the present rate in the years to come." However, this document also includes a very important cautionary footnote that includes the recognition that housing growth drives population growth. It's not the other way around.

"The one significant factor on the horizon which may lead to a decline in the rate of population growth in New Jersey is, of course, the decline in the construction of housing units in the State. If present trends in housing production continue during the coming years to decline, population projections will undoubtedly have to be scaled downward. Furthermore, such a decline could well set in motion a "chain reaction" effect, which would result in further declines in the rate of growth."

The document also shows that building permits had peaked in 1964 at just over 68,000 and dropped to 43,661 by 1968, a four year decline of almost 36%. Such a decline could have been seen as the basis for a reconsideration of "population projections". That's not what happened.

On December 7th Governor Cahill went further in "A Blueprint for Housing in New Jersey". There he said "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985." No explanation is offered as to who these "experts"
were or what methodology they used to reach their astonishing total. He also says "According to reliable statistics, we require 100,000 additional housing units each year, but actually are building only 40,000." These statements remained unchallenged and became part of the major concurring opinion in Mt. Laurel I.

You might be asking "How wrong could the experts have been?" Here are the facts. Decide for yourself.

In 1988 the New Jersey Office of State Planning produced a Technical Document titled "Population Trends and Projections". In it they looked back over the period 1970 to 1985 and found that instead of the projected 2.8 million people from 1970, the actual increase came to 394,136, or less than one seventh of the projected amount. Simple math tells us that if 2.8 million people would require 100,000 units per year, a similar reduction would produce approximately 14,250 homes and the state was already seeing far more homes being built. Census numbers also show that in the decade of the 1970's the population grew by 196,847 while New Jersey added over 384,000 new homes, or 1.95 units for every additional person. Records of annual building permits show this rate of growth kept up through 1985. To fully appreciate the magnitude of this difference recall that the average household size at the time was approximately 3 persons which meant that in reality six homes were being built for every new household in New Jersey.

In conclusion, the population growth that was supposed to fuel the "housing crisis" never happened. The housing being built far exceeded any demand that the population that did come could absorb. If population projections had been adjusted based on the emerging downward trend in housing, the argument underpinning Mt. Laurel I would have had to be significantly altered if not abandoned altogether. But that didn't happen. Instead the Court relied on this badly flawed expert advice. That's the first false idea to be dispelled. There was no housing crisis.

Before we move on, if you're wondering who those unnamed experts could have been who led everyone so far astray, we found them. In a footnote in "Exclusionary Land Use Controls: The Case of North-eastern New Jersey" the authors praise Governor Cahill for his courage in delivering his Special Message and write "The technical specifications for the study were prepared by the authors of this article." The authors were Norman Williams, Jr. and Thomas Norman. Now you know. Now we move on and turn our attention to the second of the great revolutionary architects of the Mt. Laurel Doctrine.

The issues at the heart of the Mt. Laurel I decision - the question of Standing, the definition of the General Welfare and the requirement for Reasonableness - are dealt with in the Third podcast. We find the theories embodied in the writings of Norman Williams, Jr., discussed in the Second podcast, and we find them in the writings of New Jersey Supreme Court Justice Frederick W. Hall. Here we deal with those texts. We say "texts" because the Mt. Laurel decision, as its author freely admits, is about more than just Mt. Laurel. It is about the transformation of a legal theory into judicial practice. It attempts to set New Jersey apart from the long history of federal Supreme Court decisions that support the democratic diversity embodied in the New Jersey home rule tradition.

We have chosen four texts that we find most instructive. The first is a famous dissenting opinion written in 1962 in the case of Vickers v. Gloucester Twp. where his philosophies are clearly set forth and the second is DeSimone v. Greater Englewood Housing Corp. where he writes the majority opinion signaling a willingness on the part of the Court to support challenges to local zoning. The third is Mt. Laurel I and the fourth is a lecture given in 1977, two years after his retirement from the Court, amplifying his thinking about judicial prerogatives raising the issue of "standing" that was not addressed in the Court decision. That will complete our picture of his thinking.

We begin with a brief biographical note.

Frederick Wilson Hall

Frederick Wilson Hall was born in Pittsburgh in 1908. He graduated from Rutgers University where he was elected Phi Beta Kappa and from Harvard Law School Cum Laude in 1931. As a young lawyer he worked in the firm of New Jersey's first Chief Justice, Arthur T. Vanderbilt and then in 1941 he founded and practiced law at the firm of Wharton and Hall.
He was appointed to the New Jersey Superior Court in 1953 and served there until 1959 when he was appointed as an Associate Justice of the New Jersey Supreme Court where he served until 1975. Justice Hall was the last member of what was known as the "Weintraub Court" which served together for eleven years and was widely regarded as one of the most activist and progressive judicial bodies in the nation in the area of civil law.
He was known for his mastery of land use law and his great reputation in that field has tended to deflect attention from his important writings in other fields. He was completely at home in the entirely intricate field of municipal law; he wrote important opinions in the areas of torts, criminal law, constitutional law and many other subjects. Few judges possessed his extensive knowledge of procedure and the Rules of Court.
He remains most famous for writing the decision in the case known as Mt. Laurel I.
He died in 1984.
Vickers v. Gloucester Township

Now to the writings of Justice Frederick Hall. We begin in 1962 with his dissenting opinion in Vickers v. Gloucester Township, 37 N.J. 232 (1962). As we do, it's important to remember the federal statutory context. This is three years before the Voting Rights Act and six before the Fair Housing Act. The Civil Rights movement was growing stronger and a socioeconomic model seen as disproportionately benefiting White people was automatically treated as suspect by a certain school of social ideologues.

On its face this case is about the right of a municipality to ban mobile home parks, but Justice Hall sees it raising greater concerns.

"Of even greater concern is the judicial process by which it is reached and the breadth of the rationale. The import of the holding gives almost boundless freedom to developing municipalities to erect exclusionary walls on their boundaries, according to local whim or selfish desire, and to use the zoning power for aims beyond its legitimate purposes."

After this he goes on to describe the types of towns that are the object of his concern. He separates them from "the settled suburbs surrounding the cities" that should have the right to remain undisturbed and paints this picture of the targets of his distaste. :

"On the contrary these areas are sprawling, heterogeneous governmental units, mostly townships, each really amounting to a region of considerable size itself. Their present rural, semi-rural or mixed nature is about to change substantially and they are soon to become melded into the whole metropolitan area. Their political boundaries are artificial and hence of little significance beyond defining one unit of government."

"Such municipalities, above all others, vitally need and may legally exercise comprehensive planning and implement zoning techniques to avoid present haphazard development which can only bring future grief. They are entitled to aim thereby for a sound and balanced area, with varying uses confined to specific districts and appropriately regulated."

He then continues to describe a number of things towns can reasonably do to shape their future. Then he comes to this.

"And this gets to the nub of what this, and similar cases, are really all about, i.e. the outer limit of the zoning power to be enjoyed by these municipalities most in need of comprehensive authority. What action is not legitimately encompassed by that power and what is the proper role of courts in reviewing its exercise?"

"This inquiry involves important fundamentals. In the broad sense the considerations are well posed in Williams, "Planning Law and Democratic Living," 20 Law and Contemporary Problems 317 (1955):

"The main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society equality of opportunity and equality of treatment, freedom of thought and considerable freedom of action, and fairness. Under the American system, a more or less independent mechanism of judicial review is established to provide an independent check on whether specific governmental decisions conform to these standards. While controversy has often raged about judicial action in other areas, it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare."

"Constitutional law should serve to shed light upon thinking about local planning, by requiring those concerned to do what they should be doing anyway to work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity."

This is a set of breathtaking assertions.

First, while he offers a broad amorphous set of values, it might just as reasonably be said that the main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society as enshrined in the precise language of the U. S. Constitution.

Second, as to what he asserts as having "always been recognized" as "an essential part of the judicial function" and the "attitudes and policies" with which he is concerned, these must be compared to the values and actions consistently upheld for thirty-five years by the U. S. Supreme Court and flowing from sources like the Standard State Zoning Enabling Act that was a product of the federal government. And just who has been doing the recognizing, anyway?

Third, there is the need to "work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity." This lofty vision should be compared with the language found later in the text defining the role of zoning.

Next he expands to a broader vision of a seemingly boundless role for the courts and shares his disdain for those with less expansive views.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."

After this the discussion focuses closer to the case at hand and on the permitted or proper scope of judicial oversight. He finally comes to the definition of zoning quoted above and this statement that seemingly undercuts the argument he has been advancing for the expansiveness of judicial oversight of municipal actions.

"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

After all of his argument to the contrary, this language appears to make it clear that while there are great issues connected with human freedom and opportunity this is not the arena in which they can be constitutionally settled.

From this point the focus is on little more than repetition of the issues, arguing back and forth with elements of previous court decisions and finally a discussion of the actual issue of the case - the right to prohibit mobile homes.

DeSimone v. Greater Englewood Housing Corp.

We next hear his voice in the case of DeSimone v. Greater Englewood Housing Corp. 56 N. J. 428 (1970) 267 A.2d 31. While a seemingly small matter over issuance of a variance, it caught the emerging temper of its time. There had been racial disturbances in Englewood in July, 1967 and the town had become a focus of the Governor's Select Commission on Civil Disorder and its "Report for Action" issued the following year. This unanimous decision was seen by sympathizers as an opening for a renewed assault on municipal zoning. To understand this perspective we offer the assessment of Norman Williams, Jr. in The Background and Significance of Mount Laurel II from 1984:

"By the late 1960's, however, the world suddenly began to look rather different than it had when Justice Hall wrote his Vickers dissent, and other judges began to reexamine their tolerance of exclusionary zoning practices. In an otherwise relatively unimportant case, the New Jersey Supreme Court in 1970 upheld (against a challenge by neighbors) a New Jersey "d" variance approving a housing project in Englewood, which was (a) located in a "white area" and (b) clearly designed at least in part to accommodate blacks from the Englewood ghetto. In upholding the grant of the variance, the opinion-by Hall, and now unanimous--commented in dictum that under those circumstances such a variance could not have been denied. The only logical basis for this comment is that there must be some affirmative duty to plan on behalf of all sections of the population. Once those familiar with this field of law read the Englewood opinion, it was clear that the jig was up; the court seemed to be sending out signals that it was ready for a major reversal on the exclusionary problem." This led us to Mt. Laurel I.

Mt. Laurel I

Now we move on to the climactic document of the career of Frederick W. Hall. The first Mt. Laurel decision was written in 1975, thirteen years after his dissent in Vickers v. Gloucester Township and was his last great contribution to the activism of the court. The case, Southern Burlington County N. A. A. C. P. v. Mount Laurel 67 N. J. 151 (1975), began its course through the state judicial system in 1972 with a finding for the plaintiff which was subsequently appealed, not only by the township but by the plaintiffs as well seeking an expansion of the scope of the decision. It was then taken over by the state Supreme Court and transmuted from a case concerned with racial discrimination, which would have claimed a violation of the federal Fair Housing Act, into one focused on economic segregation which kept it within the state court system where it was argued in 1974 and decided in 1975. It begins by presenting the scope of the argument. We also find here Mr. Norman Williams, Jr. arguing the cause for amicus curiae The Public Interest Research Group of New Jersey twenty years after publishing his foundational document "Planning Law and Democratic Living" in 1955. Importantly, this comes seven years after the Fair Housing Act.

"This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipality. The trial court so found, 119 N.J. Super. 164 (Law Div. 1972), and declared the township zoning ordinance totally invalid. Its judgment went on, in line with the requests for affirmative relief, to order the municipality to make studies of the housing needs of low and moderate income persons presently or formerly residing in the community in substandard housing, as well as those in such income classifications presently employed in the township and living elsewhere or reasonably expected to be employed therein in the future ... The township appealed to the Appellate Division and those plaintiffs, not present or former residents, cross-appealed on the basis that the judgment should have directed that the prescribed plan take into account as well a fair share of the regional housing needs of low and moderate income families without limitation to those having, past, present or prospective connection with the township. The appeals were certified on our own motion before argument in the Division."

"The implications of the issue presented are indeed broad and far-reaching, extending much beyond these particular plaintiffs and the boundaries of this municipality."

"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."

"We will, therefore, consider the case from the wider viewpoint that the effect of Mount Laurel's land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

"Its candid position is that, conceding its land use regulation was intended to result and has resulted in economic discrimination and exclusion of substantial segments of the area population, its policies and practices are in the best present and future fiscal interest of the municipality and its inhabitants and are legally permissible and justified. It further asserts that the trial court was without power to direct the affirmative relief it did."

In these few opening quotes we find the whole argument showcased. It all begins with the "desperate need for housing" based on the horribly flawed assertion of a "housing crisis" that demonstrably never happened, to meet the needs of a population that still doesn't exist, most clearly expressed in this single sentence from "A Blueprint for Housing in New Jersey" (1970). "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985."

Based on this assumption the Court says they will consider the case from the "wider viewpoint" that the Mount Laurel ordinance has the effect of excluding people because of the "limited extent of their incomes and resources" which the municipality freely admits, and asserts they are "legally permissible and justified"in doing because it is in the "best present and future fiscal interest of the municipality and its inhabitants". And the Court accepts that "the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

To summarize, the township freely admits it did what it's accused of doing and says that it's legal and justified because it's in the interest of the town and the Court accepts that it wasn't done for any of the reasons made impermissible by the Fair Housing Act 42 U.S.C. 3602 et seq., which is the federally controlling statute and separates this case from the context of the dissent in Vickers v. Gloucester Township. That is the case. The rest of the decision is then divided into three parts.

I The Facts

This section begins with a lengthy recitation of the facts about Mount Laurel including its size and population and its various zones and the development that's taken place in them in a very straightforward manner. Then we come to the conclusion. "There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property ... and that the policy was carried out without regard for nonfiscal considerations with respect to people, either within or without its boundaries." In other words, they did exactly what they said they did and only for the reasons they said they did it.

The text then goes on to describe the reason for this. "This policy of land use regulation for a fiscal end derives from New Jersey's tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality's children." In other words, this is entirely the fault of the State and applies to all municipalities. As a logical result:

"This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost everyone acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing."

As proof of this practice"The Residential Land Supply" (April 1972) produced by The N. J. Department of Community Affairs and "Exclusionary Land Use Controls: The Case of North-Eastern New Jersey" (1971) by Norman Williams, Jr. and Thomas Norman are cited. What is not considered in this statement is that the municipal action benefits all of the residents of the municipality, including those who are low-and-moderate income homeowners who are most at risk of being driven from their homes by rising taxes.

The next thing shown is how the urban model also worked to maintain fiscal stability.

"The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing than the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing. Despite the municipally confined tax structure, commercial and industrial ratables generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas."

In other words, the cities provided for their fiscal stability by zoning for a substantial ratable base dominated by commercial and industrial uses. Their goal was the same as that of the developing municipalities but simply pursued by different means.

The final part of this section is devoted to the plight of the urban population after World War II as the commercial and industrial base left the cities for new locations in other towns, other counties and other states. At the same time the lure of home ownership in developing communities that promised to provide all of the benefits of urban life in terms of public services and economic opportunities, without the well recognized problems of urban life, drew the emerging middle class to the suburbs. This was compounded by the failure of the cities to find a new productive purpose.

"Much industry and retail business, and even professions, have left the cities."And as for the low income workers "These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a critical erosion of the city tax base and inability to provide the amount and quality of those governmental services education, health, police, fire, housing and the like so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing."

To summarize the facts. State tax policies placed the primary burden of funding municipal, county and educational services on the tax base of each municipality. In order to be able to carry this burden each municipality zoned itself to develop a ratable based that would provide for long-term fiscal stability. The cities did this by zoning for a large commercial and industrial base. "Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing." After World War II the urban model began to fail and many cities had difficulty reinventing themselves.

Instead of seeking to attract a tax base built on non-residential uses that relies on unskilled and semi-skilled workers, the suburbs did this by focusing on attracting a strong residential base that would provide for their future stability. The suburbs stand convicted of developing a well balanced, fiscally stable, socioeconomic model while the cities did not. They didn't attract employers of unskilled and semi-skilled workers and so did not seek to provide housing for a workforce that did not exist.

Now we come to the legal issue.

II The Legal Issue

"The legal question before us, as earlier indicated, is whether a developing municipality like Mount Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources."

"We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need thereof."

"We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs."

At this point we'll take a moment to recall previously expressed thoughts of Justice Hall with a pair of quotes from Vickers v. Gloucester Township cited above.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."
"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

The first quote could easily be applied to the Court in this case for focusing on the abstract need for housing without recognizing the real world reality that housing is only one aspect of the integrated socioeconomic need of the community. Logic argues that building housing for workers without work makes no more sense than building factories without workers to work in them.

The second challenges the expansive view of judicial prerogatives "to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes." Then the argument for this is presented.

"We begin with some fundamental principles as applied to the scene before us."

"Land use is encompassed within the state's police power."

"It is elementary theory that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws."

"It is required that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare (The last term seems broad enough to encompass the others.) Conversely, a zoning enactment which is contrary to the general welfare is invalid."

"Indeed these considerations are specifically set forth in the zoning enabling act as among the various purposes of zoning for which regulations must be designed. N. J. S. A. 40:55-32 ... If a zoning regulation violates the enabling act in this respect, it is also theoretically invalid under the state constitution. We say "theoretically" because, as a matter of policy, we do not treat the validity of most land use ordinance provisions as involving matters of constitutional dimension; that classification is confined to major questions of fundamental import."

"We consider the basic importance of housing and local regulations restricting its availability to substantial segments of the population to fall within the latter category."

"The demarcation between the valid and the invalid in the field of land use regulation is difficult to determine, not always clear and subject to change. This was recognized almost fifty years ago in the basic case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926):

"The ordinance now under review and all similar laws and regulations must find their justification in some aspect of police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. (272 U. S. at 387, 47 S. Ct. at 118, 71 L. Ed. at 310)."

It's nice to see the Court remembering the Ambler Realty case but it would be even nicer to see the Court recall The federal Fair Housing Act which clearly drew the line between legitimate and illegitimate. The Act prohibits discrimination in housing for a specific list of reasons: race, color, religion, sex, handicap, familial status or national origin. That is "precise delimitation". Counsel for Mt. Laurel Twp. made it clear that these were not the basis for their zoning and the Court accepted that that was the case. We would remind the Court of their own language.

"In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

The first thing Justice Hall needed to do to justify a need for change was find sources that, while supporting policies of deference to municipal decision-making, offer a warning that the future may be different and law may have to change. After offering a number of prior decisions as pointing in his direction he found it best said in Pierro v. Baxendale, 20 N. J. 17, 29 (1955) :

"If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed."

Having adding the sanctifying weight of precedent, he returns to his own thoughts.

"The warning implicates the matter of whose general welfare must be served or not violated in the field of land use regulation. Frequently the decisions in this state, including those just cited, have spoken only in terms of the interest of the enacting municipality, so that it has been thought, at least in some quarters, that such was the only welfare requiring consideration. It is, of course, true that many cases have dealt only with regulations having little, if any, outside impact where local decision is ordinarily entitled to prevail. However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state's citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served."

"This essential was distinctly pointed out in Euclid, where Mr. Justice Sutherland specifically referred to the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. Chief Justice Vanderbilt said essentially the same thing, in a different factual context, in the early leading case of Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949), when he spoke of the necessity of regional considerations in zoning and added this:

"The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. (1 N. J. at 513)."

Justice Hall offers this quote as supportive of his position but we see it pointing in exactly the opposite direction. The problem is one of perspective. For Justice Hall zoning in developing municipalities was an act of selfishness and a desire to isolate themselves from the needs of the broader region. We see it differently. We see the world from a dynamic perspective where forces that transcend transient social policy considerations are controlling and municipalities are simply responding to the greater market forces confronting them as they take their place in regions that are being redefined by evolving transportation and communications technologies. The sentence we have highlighted makes this point. Again, we're not asking you to take our viewpoint over that of Justice Hall. We have simply taken the quote he selected above and put it back in the paragraph where he found it. Once again we have added the highlighting for emphasis.

"What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as in living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

When read in this fuller context the vision of Justice Hall and the rest of the Court cannot stand. The "forces" cited in Duffcon are the dynamic forces we see shaping our world in various forms and with different names. In this case it is the economic force of the housing market and the social force of democratic diversity that together serve to create fiscally stable communities, each with a distinct face and character, and together advancing the general welfare of their region. The Court is seeking to impose housing diversity within every municipality, while the natural dynamic forces produce a vital diversity among municipalities.

After this a case supporting placement of a hospital for the emotionally disturbed as meeting a regional need superseding the rights of a municipality to reject it is presented. And then, having failed to find any substantive support for the action under consideration other than some mentions that at some point if circumstances change some alterations in judicial perspectives would be justified, the Court goes about doing what they clearly had decided to do all along.

"This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms of land use regulation which that relationship mandates. There cannot be the slightest doubt that shelter, along with food, are the most basic human needs."

"It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of such broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries. Negatively, it may not adopt regulations or policies which thwart or preclude that opportunity."

"In sum, we are satisfied beyond doubt that, by reason of the basic importance of appropriate housing and the long-standing pressing need for it, especially in the low and moderate cost housing category, and of the exclusionary zoning practices of so many municipalities, conditions have changed, and consistent with the warning in Pierro, supra, judicial attitudes must be altered from that espoused in that and other cases cited earlier, to require, as we have just said, a broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all."

"We have spoken of this obligation of such municipalities as "presumptive." The term has two aspects, procedural and substantive. Procedurally, we think the basic importance of appropriate housing for all dictates that, when it is shown that a developing municipality in its land use regulations has not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation of substantive due process or equal protection under the state constitution has been made out and the burden, and it is a heavy one, shifts to the municipality to establish a valid basis for its action or non-action. ... The substantive aspect of "presumptive" relates to the specifics, on the one hand, of what municipal land use regulation provisions, or the absence thereof, will evidence invalidity and shift the burden of proof and, on the other hand, of what bases and considerations will carry the municipality's burden and sustain what it has done or failed to do. Both kinds of specifics may well vary between municipalities according to peculiar circumstances."

"We turn to application of these principles in appraisal of Mount Laurel's zoning ordinance, useful as well, we think, as guidelines for future application in other municipalities."

With this the Court establishes a new concept in land-use litigation. It does so without constitutional, statutory or precedential support. It is nothing more than an act of will by the members of the Court and so effectively expands the boundaries of judicial authority beyond otherwise recognized bounds.

The focus then turns to the specific of Mount Laurel zoning.

"We have earlier stated that a developing municipality's obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to the municipality's fair share of the present and prospective regional need thereof. Some comment on that conclusion is in order at this point. Frequently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason. But, under present New Jersey legislation, zoning must be done on an individual municipal basis, rather than regionally. So long as that situation persists under the present tax structure, or in the absence of some kind of binding agreement among all the municipalities of a region, we feel that every municipality therein must bear its fair share of the regional burden. (In this respect our holding is broader than that of the trial court, which was limited to Mount Laurel-related low and moderate income housing needs.)"

This admission loudly echoes the language of Duffcon Concrete that supports putting different uses in different places based on any number of factors:

"Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

After this all that remains is the essential discussion of how to define a region.

"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. Confinement to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable."

There are any number of ways to define a region. The Northeast is a national region. The New York and Philadelphia metropolitan areas are regions. The Census Bureau provides journey-to-work data that shows where people who work in a given place live and conversely where people who live in a given area work. Worker housing tends to cluster around employment centers and regions tend to define themselves on an ongoing basis.

III The Remedy

This final section applies only to Mount Laurel and focuses only on mechanics.

This ends the majority opinion written by Justice Frederick Hall. All that remains is a consideration of his 1977 lecture.

We are presenting significant excerpts from this lecture by Justice Hall, delivered two years after his retirement, because it contains what we see as useful insights into his thinking about several important issues. These include his vision of the limits of judicial power, of which he see very few, and his idea of the basis for granting standing to the plaintiffs in the Mount Laurel case as "third- party non-beneficiaries" as defined by Professor Norman Williams, Jr. . He discusses the importance of defining a "fundamental interest" and the fact that for the federal courts housing is not one. We think the full lecture is well worth reading as a picture of the thinking of a man accustomed to wielding power and the public passions that drove him throughout his career on the bench.

The Judicial Role In Land-Use Regulation (excerpts)

Frederick W. Hall
Associate Justice of the New Jersey Supreme Court, retired
Arthur T. Vanderbilt Lecture
Harvard Law School Association of New Jersey
April 20, 1977

Modern land-use regulation has increasingly become a matter of vital interest and importance to the citizenry of large and small metropolitan areas and beyond, and bids fair to continue so for a considerable time to come. Its scope has changed immeasurably since constitutional approval was accorded about 50 years ago. The current major subjects and objects of regulation and the problems and issues arising from it have led to litigation of quite a different character than was formerly the case. What the proper judicial role in this field should be needs to be considered in the light of the broad changes that have likewise taken place in the kinds of litigation and the exercise of the judicial function in other fields of public law.


The United States Supreme Court has come to the point, in reviewing state action on claims of federal constitutional violation, of finding invalidity on equal-protection grounds only where the right involved is said to be a "fundamental interest" and the state cannot show a "compelling state interest." The subjects meeting the fundamental interest test have been strictly limited: voting, race, right to interstate travel and perhaps a couple of others. Housing is not one.
The courts recent forays into the land-use regulation field after an avoidance of about half a century have been, regardless of result, quite unsatisfactory, to say the least.

There have been deep changes in American life and philosophy and the place of government therein. These began to appear in quantity in the "New Deal" era of the 30's but developed much more strongly after World War II.
First, there was a vast increase in regulation of private affairs, both business and personal, by all levels of government. ....
Second, there has been a tremendous increase in the conferring or distribution by government of various kinds of benefits to aid the less fortunate members of our society.
Third, there has been a startling awakening and assertion of claims of human rights under constitutional guarantees, statutes and institutional arrangements especially on behalf of minorities of all varieties and the disadvantaged.
Fourth, we have witnessed a "law explosion," by which relief from all manner of alleged wrongs is sought in the courts in the belief that the judiciary is the only effective branch of government. Everyone sues about everything, ...

This type of litigation is quite different from the traditional model earlier described. It most frequently concerns public, rather than private, action or inaction. It may well attack a whole scheme of government activity. It very frequently is of a representative or class nature, affecting many more persons or entities than are parties or whose views are before the court.

It generally does not seek money damages, but rather declaratory or injunctive relief of a continuing and broadly remedial nature against some government entity or official. Equity jurisprudence very largely governs the ultimate result. ....

This relatively new category of public-law litigation, which includes as well certain kinds of land-use litigation shortly to be mentioned more specifically, presents important questions as to the extent of judicial power and the proper exercise of it. These queries generally arise about the remedy especially when the relief ordered or sought involves affirmative action by another branch of government or amounts to action by the judiciary in a form within the purview of or normally accomplished - even perhaps better handled - by either the local or state legislature or the executive branch.

The Courts Must Decide

Again, the courts are the sole and final arbiter of the constitutionality of local and state legislation, regulations or other governmental action. A declaration of invalidity is binding upon the legislature, the executive and all affected public officials. This is so whether or not the particular agency or government agrees with the decision. It may only be overturned by amendment through vote of the people according to specified procedures.

While considerations of constitutional claims require the greatest judicial circumspection, they cannot be decided on the basis of personal views of individual judges as to the advisability or wisdom of the governmental action under review or in accordance with what may appear to be the wish of an articulate or seeming majority of the affected populace on a particular question.

The judicial branch is the ultimate protector of the rights of all, and this of course includes those of minorities. Constitutional principles and the rights guaranteed by or arising under the documents must always be thought of as living and not static things, subject to enlargement and variation in interpretation and application as conditions and the needs of the body politic change. When this is to occur is, unless spelled out by amendment, the proper and exclusive province of the judiciary. This is fundamental in our form of government.

Land-Use Regulation

There remains the application of this discussion to the more specific matter of the appropriate judicial role in land-use regulation cases. Even more particularly, reference is confined to the currently active aspects of zoning for housing and the place of the regional concept and to the initial articulation of a new and constitutional approach thereto in the unanimous decision of our Supreme Court in Southern Burlington County NAACP v. Township of Mount Laurel, 67 N. J. 151 (1975).

The matter should be placed in historical perspective, both legal and factual. That history is thoroughly presented, state by state and overall, in Professor Norman William's recent comprehensive and thoroughly readable treatise, "American Land Planning Law." To summarize quickly, with special reference to this state, after zoning was constitutionally approved a half century ago, the authorizing legislation in New Jersey and most states, delegated the permissive power to each municipality under standards which, except for the broad health, morals and general welfare language, were directed to regulation of uses to avoid adverse physical impact and to safeguard property values.

The general language of the delegation necessarily left interpretation to the courts. The aim of the adopted ordinances was to keep industrial uses out of the residential areas of the cities and their close suburbs. The idea was revolutionary because it involved restrictions on the private use of one's land, which for centuries had received exceptional veneration and favored treatment at the hands of the law.

The attitudes of the courts in this state as elsewhere varied in periods during the course of the next few decades. Early judicial resistance to zoning largely favored landowners. From 1948 to recent times our courts swung quite perceptibly to the opposite extreme, upholding almost all municipal action.

The New Jersey factual picture changed drastically during this period. I am sure it is quite familiar to all of you. The population expanded greatly through the birth rate and immigration from other sections. Business and industry moved from the central cities to new locations farther out and the more affluent families followed to occupy newly-built single-family housing in developments in municipalities that had been substantially rural. The demand for municipal and educational services funded by real-property taxes became immense in these areas.

At the same time, the cities decayed and their tax bases eroded. They became populated largely by the poor. The available housing wore out and became substandard or worse. Government services deteriorated and we had the uprisings of the 60's.

During the same period, the character and aim of municipal zoning, especially in these municipalities that were growing, or experiencing market pressures for growth, changed radically, although the full significance was not apparent at once. The purpose shifted from protection against physical impact to socioeconomic designs with the clear purpose of safeguarding the particular municipality's welfare as it alone decided. A principal purpose was fiscal - to allow only that kind of growth that would pay its way taxwise, particularly with respect to school costs, or come close to it.

The result was almost universal prohibition through various zoning mechanisms against any but expensive, single-family housing. Multi-family rental units were allowed most meagerly overall. Generally, they too, were required to be expensive, and contained bedroom limitations restricting the number of school children. These provisions effectively excluded from municipality after municipality families of low-and moderate-income, whether they resided in the central cities and sought a better environment and living conditions or were young couples, elderly citizens and others not desiring large houses who already had some ties with the community.

The result too was a statewide shortage of decent low-and moderate-income housing in all types of municipalities, the existence and alarming consequences of which were repeatedly called to public attention by state-agency studies, gubernatorial messages, and recitals in state legislation providing some assistance in funding such housing, only, of course, available where local land-use regulations permitted. It became clear that local exclusionary ordinances were having a substantial impact outside the particular municipality.

At the same time, it was becoming obvious that use regulation of certain types of land had such an important impact beyond municipal lines that individual municipal regulation was harmful to the broader public welfare. So the legislature withdrew the delegation of zoning authority to municipalities with respect to ,among others, wetlands, coastal areas, and the Hackensack Meadowlands district and provided for use regulation by its own agencies. The advisability of the concept of regional land-use regulation was thus established.

In this state of affairs, the Mount Laurel case came to the Supreme Court. It projected a new class of land-use litigation. The suit was brought, not by neighbors protesting the zoning of a particular property or an owner seeking to develop his land contrary to the zoning ordinance, but by people whom Professor Williams calls "third-party non-beneficiaries" - resident and non-resident poor people who wanted to live in the township but could not afford the only type of housing permitted.

Their attack, which they clearly had standing to make, was on the whole zoning scheme of a typical growing municipality having adequate remaining land for further development. The plaintiffs' proofs and briefs well presented to the court the factual picture that has just been sketched.

For present purposes of the discussion of the judicial role, the rationale of the decision may be simplified as follows. Land-use regulation, like any other police power enactment, must enhance and not be contrary to the general welfare to be valid under the state constitution. The availability of adequate land and an appropriate variety and choice of housing for all categories of people is an absolute essential in promotion of the general welfare - in effect, a fundamental state interest.

It is so important to the public good that the general welfare that each so-called developing municipality must take into account in order to have a valid zoning ordinance extends beyond the claimed good of that particular governmental unit. So:

the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land-use regulation, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low-and moderate-cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries.

and may not adopt regulations or policies that thwart of preclude that opportunity. Exclusionary restrictions having the effect mentioned are unconstitutional unless the municipality can sustain the heavy burden of demonstrating peculiar circumstances dictating a contrary conclusion. This was not established by Mount Laurel, so its zoning ordinance is pro tanto invalid.

The conclusions were, of course, within the traditional power and obligation of a court to declare legislation unconstitutional. Deference to the Legislative branch, here the local governing body, requires that such a judgment be rendered only in a clear case, but when that plainly appears in a situation involving a fundamental state interest, a court would be derelict if it did not so act. We are, in essence, dealing with a moral issue.

Mount Laurel went on to indicate that, since housing needs, particularly for people of low and moderate income, do not necessarily suit or fit well in every municipality, a regional approach was desirable, and urged state legislative action to so provide. In the absence thereof, the court said that Mount Laurel would have to provide for its fair share of the present and prospective regional need for such housing.

This solution originated with Chief Justice Weintraub during court conferences, prior to the advent of new permanent justices, making it desirable to schedule a reargument. The idea was not new; several areas of the country have had voluntary plans in operation on this basis for some time, and the professional planning literature thereon is plentiful. The township was given the opportunity to revise its ordinance, using these and other guidelines mentioned in the opinion, with the right in the plaintiffs to seek court review of the revised product if it was claimed not to be in accord with the express or implied directions of the opinion.

There is certainly nothing here that could reasonably suggest an inappropriate judicial role. I submit that it is unthinkable that a court should stop short of giving litigants in the housing field all the guidelines it considers vital and to direct affirmative corrective action to the fullest extent that it can completely supervise and review simply because the defendant is a municipality, and one that might be recalcitrant or uncooperative in righting the constitutional wrong, or because some other entity might be able to do a better job.

Under New Jersey jurisprudence, a court must review any governmental action of the nature here involved, as the Supreme Court has since done in the Madison Township case. That opinion also clearly confirms the judicial power to seek the help of neutral experts where needed to decide questions beyond the ordinary sphere of judicial knowledge, which, of curse, occurs in many cases beside land use litigation.

And it is not to be forgotten that courts can bring about ultimate compliance with their judgments through negative orders. For example, a defiant municipality refusing to change its invalid zoning ordinance could be prohibited, until it did so, from issuing building permits or certificates of occupancy for any dwellings, or indeed for structures of any kind. this method of relief was effectively utilized recently in Morris County to bring about governmental action to provide adequate sewage disposal.

There are, of course, types of relief that courts should not order, regardless of their power to do so. I conceive, for example, that judicial tribunals ought not to direct municipalities to actually build housing. In some cases, they may have to stop and resort to judicial prodding of the public conscience to bring about remedial action.

Mount Laurel has spawned considerable litigation involving other municipalities. It is not within the scope of this presentation to discuss the various decisions, even if the author had had the time to digest the contents and implications of the great proliferation of paper representing the numerous opinions. One brief comment bearing on the judicial role may be in order.

I believe that the implications of Mount Laurel are clear enough that, where zoning for housing is involved, whether the municipality is strictly a developing one or not, a court should take a good, hard look and insist that the municipality justify its restrictions or be forced to change them.

Furthermore, the court ought to give real reasons in its decisions and not rely on unmeaningful boiler-plate shibboleths like arbitrariness, capriciousness, and dubious presumptions of validity. The housing issue is too important and too fundamental to be disposed of in any case by cursory judicial treatment, and we should not revert in such cases to any thesis that whatever the municipality has done is all right.

While the legislature has not yet responded to the Court's suggestion of provision for regional zoning, it did, after Mount Laurel, enact the new Municipal Land Use Law, various sections of which indicate an important shift in policy from the old individual-municipality emphasis of old enabling acts, and give statutory support to the constitutional bases of the decision. I refer to the purposes sections, where the intent of the Act is stated:

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 and preservation of the environment;
and:
to provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space ... in order to meet the needs of all New Jersey citizens.

In addition, the zoning ordinance of every municipality must conform to a master plan, which must contain a land-use plan element and a housing element. I submit that the latter, in order to ground a valid zoning ordinance, would have to make provision, appropriate to the particular municipality, for a variety and choice of housing.

While any home rule tradition is always subject to constitutional requirements and guarantees of rights for all people, as Mount Laurel in effect held, the land-use law provisions just referred to indicate to me a legislative recognition that the invisible walls of suburban communities must have many gates for entrance."

We have presented these portions of the lecture without comment. We believe it speaks for itself. It offers both information and insight into the thinking of a man, who, confronted with a world he didn't like, set out to change it with a seeming disregard for the interests of a great many of the people living in it. Whether this will ultimately be seen as heroic idealism or judicial tyranny will be left to the judgment of future generations who suffer or prosper as a result of it. Arguably, more than forty years on, we are such a generation.

Here we end the Third Source Narrative for Beyond the Mount Laurel Doctrine: From Forty Years of Failure To A Blueprint for Success.

Documents worth reading in addition to those quoted in the text above:

"The Housing Crisis In New Jersey" (1970)
"Land Use Regulation: The Residential Land Supply" (1972).
"A Blueprint For Housing In New Jersey" (1970)
"New Horizons In Housing" (1972).
Warth v. Seldin, 422 U. S. 490 (1975)
Pierro v. Baxendale, 20 N. J. 17, 29 (1955)
Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949)

Beyond the Mt. Laurel Doctrine
Third Source Narrative

This is the Source Narrative to accompany the first Mt. Laurel decision and the writings of its author, Justice Frederick W. Hall. Before looking at the writings of Justice Hall, we have another task to perform. It's time to recall that this podcast is a demonstration project for our Insight Engine problem-solving technique. One of the key steps in our process is identification of powerful false ideas that keep problems from being resolved. Our task is to deconstruct and dispel them. The first one we encounter is the idea of a "housing crisis" in New Jersey. This powerful false idea was the first justification for the actions in Mount Laurel I.

We begin by recognizing the enormous population growth of the "baby-boom" period. From 1940 to 1970 the Census shows the New Jersey population grew from more than 4.1 to over 7.1 million. Numerous studies by "experts" for major institutions projected continued similar growth.

In "The Housing Crisis in New Jersey" (1970) the issue is stated this way: "... there is wide agreement that the State's population will continue to grow at least at the present rate in the years to come." However, this document also includes a very important cautionary footnote that includes the recognition that housing growth drives population growth. It's not the other way around.

"The one significant factor on the horizon which may lead to a decline in the rate of population growth in New Jersey is, of course, the decline in the construction of housing units in the State. If present trends in housing production continue during the coming years to decline, population projections will undoubtedly have to be scaled downward. Furthermore, such a decline could well set in motion a "chain reaction" effect, which would result in further declines in the rate of growth."

The document also shows that building permits had peaked in 1964 at just over 68,000 and dropped to 43,661 by 1968, a four year decline of almost 36%. Such a decline could have been seen as the basis for a reconsideration of "population projections". That's not what happened.

On December 7th Governor Cahill went further in "A Blueprint for Housing in New Jersey". There he said "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985." No explanation is offered as to who these "experts"
were or what methodology they used to reach their astonishing total. He also says "According to reliable statistics, we require 100,000 additional housing units each year, but actually are building only 40,000." These statements remained unchallenged and became part of the major concurring opinion in Mt. Laurel I.

You might be asking "How wrong could the experts have been?" Here are the facts. Decide for yourself.

In 1988 the New Jersey Office of State Planning produced a Technical Document titled "Population Trends and Projections". In it they looked back over the period 1970 to 1985 and found that instead of the projected 2.8 million people from 1970, the actual increase came to 394,136, or less than one seventh of the projected amount. Simple math tells us that if 2.8 million people would require 100,000 units per year, a similar reduction would produce approximately 14,250 homes and the state was already seeing far more homes being built. Census numbers also show that in the decade of the 1970's the population grew by 196,847 while New Jersey added over 384,000 new homes, or 1.95 units for every additional person. Records of annual building permits show this rate of growth kept up through 1985. To fully appreciate the magnitude of this difference recall that the average household size at the time was approximately 3 persons which meant that in reality six homes were being built for every new household in New Jersey.

In conclusion, the population growth that was supposed to fuel the "housing crisis" never happened. The housing being built far exceeded any demand that the population that did come could absorb. If population projections had been adjusted based on the emerging downward trend in housing, the argument underpinning Mt. Laurel I would have had to be significantly altered if not abandoned altogether. But that didn't happen. Instead the Court relied on this badly flawed expert advice. That's the first false idea to be dispelled. There was no housing crisis.

Before we move on, if you're wondering who those unnamed experts could have been who led everyone so far astray, we found them. In a footnote in "Exclusionary Land Use Controls: The Case of North-eastern New Jersey" the authors praise Governor Cahill for his courage in delivering his Special Message and write "The technical specifications for the study were prepared by the authors of this article." The authors were Norman Williams, Jr. and Thomas Norman. Now you know. Now we move on and turn our attention to the second of the great revolutionary architects of the Mt. Laurel Doctrine.

The issues at the heart of the Mt. Laurel I decision - the question of Standing, the definition of the General Welfare and the requirement for Reasonableness - are dealt with in the Third podcast. We find the theories embodied in the writings of Norman Williams, Jr., discussed in the Second podcast, and we find them in the writings of New Jersey Supreme Court Justice Frederick W. Hall. Here we deal with those texts. We say "texts" because the Mt. Laurel decision, as its author freely admits, is about more than just Mt. Laurel. It is about the transformation of a legal theory into judicial practice. It attempts to set New Jersey apart from the long history of federal Supreme Court decisions that support the democratic diversity embodied in the New Jersey home rule tradition.

We have chosen four texts that we find most instructive. The first is a famous dissenting opinion written in 1962 in the case of Vickers v. Gloucester Twp. where his philosophies are clearly set forth and the second is DeSimone v. Greater Englewood Housing Corp. where he writes the majority opinion signaling a willingness on the part of the Court to support challenges to local zoning. The third is Mt. Laurel I and the fourth is a lecture given in 1977, two years after his retirement from the Court, amplifying his thinking about judicial prerogatives raising the issue of "standing" that was not addressed in the Court decision. That will complete our picture of his thinking.

We begin with a brief biographical note.

Frederick Wilson Hall

Frederick Wilson Hall was born in Pittsburgh in 1908. He graduated from Rutgers University where he was elected Phi Beta Kappa and from Harvard Law School Cum Laude in 1931. As a young lawyer he worked in the firm of New Jersey's first Chief Justice, Arthur T. Vanderbilt and then in 1941 he founded and practiced law at the firm of Wharton and Hall.
He was appointed to the New Jersey Superior Court in 1953 and served there until 1959 when he was appointed as an Associate Justice of the New Jersey Supreme Court where he served until 1975. Justice Hall was the last member of what was known as the "Weintraub Court" which served together for eleven years and was widely regarded as one of the most activist and progressive judicial bodies in the nation in the area of civil law.
He was known for his mastery of land use law and his great reputation in that field has tended to deflect attention from his important writings in other fields. He was completely at home in the entirely intricate field of municipal law; he wrote important opinions in the areas of torts, criminal law, constitutional law and many other subjects. Few judges possessed his extensive knowledge of procedure and the Rules of Court.
He remains most famous for writing the decision in the case known as Mt. Laurel I.
He died in 1984.
Vickers v. Gloucester Township

Now to the writings of Justice Frederick Hall. We begin in 1962 with his dissenting opinion in Vickers v. Gloucester Township, 37 N.J. 232 (1962). As we do, it's important to remember the federal statutory context. This is three years before the Voting Rights Act and six before the Fair Housing Act. The Civil Rights movement was growing stronger and a socioeconomic model seen as disproportionately benefiting White people was automatically treated as suspect by a certain school of social ideologues.

On its face this case is about the right of a municipality to ban mobile home parks, but Justice Hall sees it raising greater concerns.

"Of even greater concern is the judicial process by which it is reached and the breadth of the rationale. The import of the holding gives almost boundless freedom to developing municipalities to erect exclusionary walls on their boundaries, according to local whim or selfish desire, and to use the zoning power for aims beyond its legitimate purposes."

After this he goes on to describe the types of towns that are the object of his concern. He separates them from "the settled suburbs surrounding the cities" that should have the right to remain undisturbed and paints this picture of the targets of his distaste. :

"On the contrary these areas are sprawling, heterogeneous governmental units, mostly townships, each really amounting to a region of considerable size itself. Their present rural, semi-rural or mixed nature is about to change substantially and they are soon to become melded into the whole metropolitan area. Their political boundaries are artificial and hence of little significance beyond defining one unit of government."

"Such municipalities, above all others, vitally need and may legally exercise comprehensive planning and implement zoning techniques to avoid present haphazard development which can only bring future grief. They are entitled to aim thereby for a sound and balanced area, with varying uses confined to specific districts and appropriately regulated."

He then continues to describe a number of things towns can reasonably do to shape their future. Then he comes to this.

"And this gets to the nub of what this, and similar cases, are really all about, i.e. the outer limit of the zoning power to be enjoyed by these municipalities most in need of comprehensive authority. What action is not legitimately encompassed by that power and what is the proper role of courts in reviewing its exercise?"

"This inquiry involves important fundamentals. In the broad sense the considerations are well posed in Williams, "Planning Law and Democratic Living," 20 Law and Contemporary Problems 317 (1955):

"The main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society equality of opportunity and equality of treatment, freedom of thought and considerable freedom of action, and fairness. Under the American system, a more or less independent mechanism of judicial review is established to provide an independent check on whether specific governmental decisions conform to these standards. While controversy has often raged about judicial action in other areas, it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare."

"Constitutional law should serve to shed light upon thinking about local planning, by requiring those concerned to do what they should be doing anyway to work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity."

This is a set of breathtaking assertions.

First, while he offers a broad amorphous set of values, it might just as reasonably be said that the main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society as enshrined in the precise language of the U. S. Constitution.

Second, as to what he asserts as having "always been recognized" as "an essential part of the judicial function" and the "attitudes and policies" with which he is concerned, these must be compared to the values and actions consistently upheld for thirty-five years by the U. S. Supreme Court and flowing from sources like the Standard State Zoning Enabling Act that was a product of the federal government. And just who has been doing the recognizing, anyway?

Third, there is the need to "work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity." This lofty vision should be compared with the language found later in the text defining the role of zoning.

Next he expands to a broader vision of a seemingly boundless role for the courts and shares his disdain for those with less expansive views.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."

After this the discussion focuses closer to the case at hand and on the permitted or proper scope of judicial oversight. He finally comes to the definition of zoning quoted above and this statement that seemingly undercuts the argument he has been advancing for the expansiveness of judicial oversight of municipal actions.

"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

After all of his argument to the contrary, this language appears to make it clear that while there are great issues connected with human freedom and opportunity this is not the arena in which they can be constitutionally settled.

From this point the focus is on little more than repetition of the issues, arguing back and forth with elements of previous court decisions and finally a discussion of the actual issue of the case - the right to prohibit mobile homes.

DeSimone v. Greater Englewood Housing Corp.

We next hear his voice in the case of DeSimone v. Greater Englewood Housing Corp. 56 N. J. 428 (1970) 267 A.2d 31. While a seemingly small matter over issuance of a variance, it caught the emerging temper of its time. There had been racial disturbances in Englewood in July, 1967 and the town had become a focus of the Governor's Select Commission on Civil Disorder and its "Report for Action" issued the following year. This unanimous decision was seen by sympathizers as an opening for a renewed assault on municipal zoning. To understand this perspective we offer the assessment of Norman Williams, Jr. in The Background and Significance of Mount Laurel II from 1984:

"By the late 1960's, however, the world suddenly began to look rather different than it had when Justice Hall wrote his Vickers dissent, and other judges began to reexamine their tolerance of exclusionary zoning practices. In an otherwise relatively unimportant case, the New Jersey Supreme Court in 1970 upheld (against a challenge by neighbors) a New Jersey "d" variance approving a housing project in Englewood, which was (a) located in a "white area" and (b) clearly designed at least in part to accommodate blacks from the Englewood ghetto. In upholding the grant of the variance, the opinion-by Hall, and now unanimous--commented in dictum that under those circumstances such a variance could not have been denied. The only logical basis for this comment is that there must be some affirmative duty to plan on behalf of all sections of the population. Once those familiar with this field of law read the Englewood opinion, it was clear that the jig was up; the court seemed to be sending out signals that it was ready for a major reversal on the exclusionary problem." This led us to Mt. Laurel I.

Mt. Laurel I

Now we move on to the climactic document of the career of Frederick W. Hall. The first Mt. Laurel decision was written in 1975, thirteen years after his dissent in Vickers v. Gloucester Township and was his last great contribution to the activism of the court. The case, Southern Burlington County N. A. A. C. P. v. Mount Laurel 67 N. J. 151 (1975), began its course through the state judicial system in 1972 with a finding for the plaintiff which was subsequently appealed, not only by the township but by the plaintiffs as well seeking an expansion of the scope of the decision. It was then taken over by the state Supreme Court and transmuted from a case concerned with racial discrimination, which would have claimed a violation of the federal Fair Housing Act, into one focused on economic segregation which kept it within the state court system where it was argued in 1974 and decided in 1975. It begins by presenting the scope of the argument. We also find here Mr. Norman Williams, Jr. arguing the cause for amicus curiae The Public Interest Research Group of New Jersey twenty years after publishing his foundational document "Planning Law and Democratic Living" in 1955. Importantly, this comes seven years after the Fair Housing Act.

"This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipality. The trial court so found, 119 N.J. Super. 164 (Law Div. 1972), and declared the township zoning ordinance totally invalid. Its judgment went on, in line with the requests for affirmative relief, to order the municipality to make studies of the housing needs of low and moderate income persons presently or formerly residing in the community in substandard housing, as well as those in such income classifications presently employed in the township and living elsewhere or reasonably expected to be employed therein in the future ... The township appealed to the Appellate Division and those plaintiffs, not present or former residents, cross-appealed on the basis that the judgment should have directed that the prescribed plan take into account as well a fair share of the regional housing needs of low and moderate income families without limitation to those having, past, present or prospective connection with the township. The appeals were certified on our own motion before argument in the Division."

"The implications of the issue presented are indeed broad and far-reaching, extending much beyond these particular plaintiffs and the boundaries of this municipality."

"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."

"We will, therefore, consider the case from the wider viewpoint that the effect of Mount Laurel's land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

"Its candid position is that, conceding its land use regulation was intended to result and has resulted in economic discrimination and exclusion of substantial segments of the area population, its policies and practices are in the best present and future fiscal interest of the municipality and its inhabitants and are legally permissible and justified. It further asserts that the trial court was without power to direct the affirmative relief it did."

In these few opening quotes we find the whole argument showcased. It all begins with the "desperate need for housing" based on the horribly flawed assertion of a "housing crisis" that demonstrably never happened, to meet the needs of a population that still doesn't exist, most clearly expressed in this single sentence from "A Blueprint for Housing in New Jersey" (1970). "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985."

Based on this assumption the Court says they will consider the case from the "wider viewpoint" that the Mount Laurel ordinance has the effect of excluding people because of the "limited extent of their incomes and resources" which the municipality freely admits, and asserts they are "legally permissible and justified"in doing because it is in the "best present and future fiscal interest of the municipality and its inhabitants". And the Court accepts that "the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

To summarize, the township freely admits it did what it's accused of doing and says that it's legal and justified because it's in the interest of the town and the Court accepts that it wasn't done for any of the reasons made impermissible by the Fair Housing Act 42 U.S.C. 3602 et seq., which is the federally controlling statute and separates this case from the context of the dissent in Vickers v. Gloucester Township. That is the case. The rest of the decision is then divided into three parts.

I The Facts

This section begins with a lengthy recitation of the facts about Mount Laurel including its size and population and its various zones and the development that's taken place in them in a very straightforward manner. Then we come to the conclusion. "There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property ... and that the policy was carried out without regard for nonfiscal considerations with respect to people, either within or without its boundaries." In other words, they did exactly what they said they did and only for the reasons they said they did it.

The text then goes on to describe the reason for this. "This policy of land use regulation for a fiscal end derives from New Jersey's tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality's children." In other words, this is entirely the fault of the State and applies to all municipalities. As a logical result:

"This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost everyone acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing."

As proof of this practice"The Residential Land Supply" (April 1972) produced by The N. J. Department of Community Affairs and "Exclusionary Land Use Controls: The Case of North-Eastern New Jersey" (1971) by Norman Williams, Jr. and Thomas Norman are cited. What is not considered in this statement is that the municipal action benefits all of the residents of the municipality, including those who are low-and-moderate income homeowners who are most at risk of being driven from their homes by rising taxes.

The next thing shown is how the urban model also worked to maintain fiscal stability.

"The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing than the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing. Despite the municipally confined tax structure, commercial and industrial ratables generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas."

In other words, the cities provided for their fiscal stability by zoning for a substantial ratable base dominated by commercial and industrial uses. Their goal was the same as that of the developing municipalities but simply pursued by different means.

The final part of this section is devoted to the plight of the urban population after World War II as the commercial and industrial base left the cities for new locations in other towns, other counties and other states. At the same time the lure of home ownership in developing communities that promised to provide all of the benefits of urban life in terms of public services and economic opportunities, without the well recognized problems of urban life, drew the emerging middle class to the suburbs. This was compounded by the failure of the cities to find a new productive purpose.

"Much industry and retail business, and even professions, have left the cities."And as for the low income workers "These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a critical erosion of the city tax base and inability to provide the amount and quality of those governmental services education, health, police, fire, housing and the like so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing."

To summarize the facts. State tax policies placed the primary burden of funding municipal, county and educational services on the tax base of each municipality. In order to be able to carry this burden each municipality zoned itself to develop a ratable based that would provide for long-term fiscal stability. The cities did this by zoning for a large commercial and industrial base. "Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing." After World War II the urban model began to fail and many cities had difficulty reinventing themselves.

Instead of seeking to attract a tax base built on non-residential uses that relies on unskilled and semi-skilled workers, the suburbs did this by focusing on attracting a strong residential base that would provide for their future stability. The suburbs stand convicted of developing a well balanced, fiscally stable, socioeconomic model while the cities did not. They didn't attract employers of unskilled and semi-skilled workers and so did not seek to provide housing for a workforce that did not exist.

Now we come to the legal issue.

II The Legal Issue

"The legal question before us, as earlier indicated, is whether a developing municipality like Mount Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources."

"We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need thereof."

"We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs."

At this point we'll take a moment to recall previously expressed thoughts of Justice Hall with a pair of quotes from Vickers v. Gloucester Township cited above.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."
"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

The first quote could easily be applied to the Court in this case for focusing on the abstract need for housing without recognizing the real world reality that housing is only one aspect of the integrated socioeconomic need of the community. Logic argues that building housing for workers without work makes no more sense than building factories without workers to work in them.

The second challenges the expansive view of judicial prerogatives "to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes." Then the argument for this is presented.

"We begin with some fundamental principles as applied to the scene before us."

"Land use is encompassed within the state's police power."

"It is elementary theory that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws."

"It is required that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare (The last term seems broad enough to encompass the others.) Conversely, a zoning enactment which is contrary to the general welfare is invalid."

"Indeed these considerations are specifically set forth in the zoning enabling act as among the various purposes of zoning for which regulations must be designed. N. J. S. A. 40:55-32 ... If a zoning regulation violates the enabling act in this respect, it is also theoretically invalid under the state constitution. We say "theoretically" because, as a matter of policy, we do not treat the validity of most land use ordinance provisions as involving matters of constitutional dimension; that classification is confined to major questions of fundamental import."

"We consider the basic importance of housing and local regulations restricting its availability to substantial segments of the population to fall within the latter category."

"The demarcation between the valid and the invalid in the field of land use regulation is difficult to determine, not always clear and subject to change. This was recognized almost fifty years ago in the basic case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926):

"The ordinance now under review and all similar laws and regulations must find their justification in some aspect of police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. (272 U. S. at 387, 47 S. Ct. at 118, 71 L. Ed. at 310)."

It's nice to see the Court remembering the Ambler Realty case but it would be even nicer to see the Court recall The federal Fair Housing Act which clearly drew the line between legitimate and illegitimate. The Act prohibits discrimination in housing for a specific list of reasons: race, color, religion, sex, handicap, familial status or national origin. That is "precise delimitation". Counsel for Mt. Laurel Twp. made it clear that these were not the basis for their zoning and the Court accepted that that was the case. We would remind the Court of their own language.

"In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

The first thing Justice Hall needed to do to justify a need for change was find sources that, while supporting policies of deference to municipal decision-making, offer a warning that the future may be different and law may have to change. After offering a number of prior decisions as pointing in his direction he found it best said in Pierro v. Baxendale, 20 N. J. 17, 29 (1955) :

"If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed."

Having adding the sanctifying weight of precedent, he returns to his own thoughts.

"The warning implicates the matter of whose general welfare must be served or not violated in the field of land use regulation. Frequently the decisions in this state, including those just cited, have spoken only in terms of the interest of the enacting municipality, so that it has been thought, at least in some quarters, that such was the only welfare requiring consideration. It is, of course, true that many cases have dealt only with regulations having little, if any, outside impact where local decision is ordinarily entitled to prevail. However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state's citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served."

"This essential was distinctly pointed out in Euclid, where Mr. Justice Sutherland specifically referred to the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. Chief Justice Vanderbilt said essentially the same thing, in a different factual context, in the early leading case of Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949), when he spoke of the necessity of regional considerations in zoning and added this:

"The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. (1 N. J. at 513)."

Justice Hall offers this quote as supportive of his position but we see it pointing in exactly the opposite direction. The problem is one of perspective. For Justice Hall zoning in developing municipalities was an act of selfishness and a desire to isolate themselves from the needs of the broader region. We see it differently. We see the world from a dynamic perspective where forces that transcend transient social policy considerations are controlling and municipalities are simply responding to the greater market forces confronting them as they take their place in regions that are being redefined by evolving transportation and communications technologies. The sentence we have highlighted makes this point. Again, we're not asking you to take our viewpoint over that of Justice Hall. We have simply taken the quote he selected above and put it back in the paragraph where he found it. Once again we have added the highlighting for emphasis.

"What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as in living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

When read in this fuller context the vision of Justice Hall and the rest of the Court cannot stand. The "forces" cited in Duffcon are the dynamic forces we see shaping our world in various forms and with different names. In this case it is the economic force of the housing market and the social force of democratic diversity that together serve to create fiscally stable communities, each with a distinct face and character, and together advancing the general welfare of their region. The Court is seeking to impose housing diversity within every municipality, while the natural dynamic forces produce a vital diversity among municipalities.

After this a case supporting placement of a hospital for the emotionally disturbed as meeting a regional need superseding the rights of a municipality to reject it is presented. And then, having failed to find any substantive support for the action under consideration other than some mentions that at some point if circumstances change some alterations in judicial perspectives would be justified, the Court goes about doing what they clearly had decided to do all along.

"This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms of land use regulation which that relationship mandates. There cannot be the slightest doubt that shelter, along with food, are the most basic human needs."

"It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of such broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries. Negatively, it may not adopt regulations or policies which thwart or preclude that opportunity."

"In sum, we are satisfied beyond doubt that, by reason of the basic importance of appropriate housing and the long-standing pressing need for it, especially in the low and moderate cost housing category, and of the exclusionary zoning practices of so many municipalities, conditions have changed, and consistent with the warning in Pierro, supra, judicial attitudes must be altered from that espoused in that and other cases cited earlier, to require, as we have just said, a broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all."

"We have spoken of this obligation of such municipalities as "presumptive." The term has two aspects, procedural and substantive. Procedurally, we think the basic importance of appropriate housing for all dictates that, when it is shown that a developing municipality in its land use regulations has not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation of substantive due process or equal protection under the state constitution has been made out and the burden, and it is a heavy one, shifts to the municipality to establish a valid basis for its action or non-action. ... The substantive aspect of "presumptive" relates to the specifics, on the one hand, of what municipal land use regulation provisions, or the absence thereof, will evidence invalidity and shift the burden of proof and, on the other hand, of what bases and considerations will carry the municipality's burden and sustain what it has done or failed to do. Both kinds of specifics may well vary between municipalities according to peculiar circumstances."

"We turn to application of these principles in appraisal of Mount Laurel's zoning ordinance, useful as well, we think, as guidelines for future application in other municipalities."

With this the Court establishes a new concept in land-use litigation. It does so without constitutional, statutory or precedential support. It is nothing more than an act of will by the members of the Court and so effectively expands the boundaries of judicial authority beyond otherwise recognized bounds.

The focus then turns to the specific of Mount Laurel zoning.

"We have earlier stated that a developing municipality's obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to the municipality's fair share of the present and prospective regional need thereof. Some comment on that conclusion is in order at this point. Frequently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason. But, under present New Jersey legislation, zoning must be done on an individual municipal basis, rather than regionally. So long as that situation persists under the present tax structure, or in the absence of some kind of binding agreement among all the municipalities of a region, we feel that every municipality therein must bear its fair share of the regional burden. (In this respect our holding is broader than that of the trial court, which was limited to Mount Laurel-related low and moderate income housing needs.)"

This admission loudly echoes the language of Duffcon Concrete that supports putting different uses in different places based on any number of factors:

"Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

After this all that remains is the essential discussion of how to define a region.

"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. Confinement to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable."

There are any number of ways to define a region. The Northeast is a national region. The New York and Philadelphia metropolitan areas are regions. The Census Bureau provides journey-to-work data that shows where people who work in a given place live and conversely where people who live in a given area work. Worker housing tends to cluster around employment centers and regions tend to define themselves on an ongoing basis.

III The Remedy

This final section applies only to Mount Laurel and focuses only on mechanics.

This ends the majority opinion written by Justice Frederick Hall. All that remains is a consideration of his 1977 lecture.

We are presenting significant excerpts from this lecture by Justice Hall, delivered two years after his retirement, because it contains what we see as useful insights into his thinking about several important issues. These include his vision of the limits of judicial power, of which he see very few, and his idea of the basis for granting standing to the plaintiffs in the Mount Laurel case as "third- party non-beneficiaries" as defined by Professor Norman Williams, Jr. . He discusses the importance of defining a "fundamental interest" and the fact that for the federal courts housing is not one. We think the full lecture is well worth reading as a picture of the thinking of a man accustomed to wielding power and the public passions that drove him throughout his career on the bench.

The Judicial Role In Land-Use Regulation (excerpts)

Frederick W. Hall
Associate Justice of the New Jersey Supreme Court, retired
Arthur T. Vanderbilt Lecture
Harvard Law School Association of New Jersey
April 20, 1977

Modern land-use regulation has increasingly become a matter of vital interest and importance to the citizenry of large and small metropolitan areas and beyond, and bids fair to continue so for a considerable time to come. Its scope has changed immeasurably since constitutional approval was accorded about 50 years ago. The current major subjects and objects of regulation and the problems and issues arising from it have led to litigation of quite a different character than was formerly the case. What the proper judicial role in this field should be needs to be considered in the light of the broad changes that have likewise taken place in the kinds of litigation and the exercise of the judicial function in other fields of public law.


The United States Supreme Court has come to the point, in reviewing state action on claims of federal constitutional violation, of finding invalidity on equal-protection grounds only where the right involved is said to be a "fundamental interest" and the state cannot show a "compelling state interest." The subjects meeting the fundamental interest test have been strictly limited: voting, race, right to interstate travel and perhaps a couple of others. Housing is not one.
The courts recent forays into the land-use regulation field after an avoidance of about half a century have been, regardless of result, quite unsatisfactory, to say the least.

There have been deep changes in American life and philosophy and the place of government therein. These began to appear in quantity in the "New Deal" era of the 30's but developed much more strongly after World War II.
First, there was a vast increase in regulation of private affairs, both business and personal, by all levels of government. ....
Second, there has been a tremendous increase in the conferring or distribution by government of various kinds of benefits to aid the less fortunate members of our society.
Third, there has been a startling awakening and assertion of claims of human rights under constitutional guarantees, statutes and institutional arrangements especially on behalf of minorities of all varieties and the disadvantaged.
Fourth, we have witnessed a "law explosion," by which relief from all manner of alleged wrongs is sought in the courts in the belief that the judiciary is the only effective branch of government. Everyone sues about everything, ...

This type of litigation is quite different from the traditional model earlier described. It most frequently concerns public, rather than private, action or inaction. It may well attack a whole scheme of government activity. It very frequently is of a representative or class nature, affecting many more persons or entities than are parties or whose views are before the court.

It generally does not seek money damages, but rather declaratory or injunctive relief of a continuing and broadly remedial nature against some government entity or official. Equity jurisprudence very largely governs the ultimate result. ....

This relatively new category of public-law litigation, which includes as well certain kinds of land-use litigation shortly to be mentioned more specifically, presents important questions as to the extent of judicial power and the proper exercise of it. These queries generally arise about the remedy especially when the relief ordered or sought involves affirmative action by another branch of government or amounts to action by the judiciary in a form within the purview of or normally accomplished - even perhaps better handled - by either the local or state legislature or the executive branch.

The Courts Must Decide

Again, the courts are the sole and final arbiter of the constitutionality of local and state legislation, regulations or other governmental action. A declaration of invalidity is binding upon the legislature, the executive and all affected public officials. This is so whether or not the particular agency or government agrees with the decision. It may only be overturned by amendment through vote of the people according to specified procedures.

While considerations of constitutional claims require the greatest judicial circumspection, they cannot be decided on the basis of personal views of individual judges as to the advisability or wisdom of the governmental action under review or in accordance with what may appear to be the wish of an articulate or seeming majority of the affected populace on a particular question.

The judicial branch is the ultimate protector of the rights of all, and this of course includes those of minorities. Constitutional principles and the rights guaranteed by or arising under the documents must always be thought of as living and not static things, subject to enlargement and variation in interpretation and application as conditions and the needs of the body politic change. When this is to occur is, unless spelled out by amendment, the proper and exclusive province of the judiciary. This is fundamental in our form of government.

Land-Use Regulation

There remains the application of this discussion to the more specific matter of the appropriate judicial role in land-use regulation cases. Even more particularly, reference is confined to the currently active aspects of zoning for housing and the place of the regional concept and to the initial articulation of a new and constitutional approach thereto in the unanimous decision of our Supreme Court in Southern Burlington County NAACP v. Township of Mount Laurel, 67 N. J. 151 (1975).

The matter should be placed in historical perspective, both legal and factual. That history is thoroughly presented, state by state and overall, in Professor Norman William's recent comprehensive and thoroughly readable treatise, "American Land Planning Law." To summarize quickly, with special reference to this state, after zoning was constitutionally approved a half century ago, the authorizing legislation in New Jersey and most states, delegated the permissive power to each municipality under standards which, except for the broad health, morals and general welfare language, were directed to regulation of uses to avoid adverse physical impact and to safeguard property values.

The general language of the delegation necessarily left interpretation to the courts. The aim of the adopted ordinances was to keep industrial uses out of the residential areas of the cities and their close suburbs. The idea was revolutionary because it involved restrictions on the private use of one's land, which for centuries had received exceptional veneration and favored treatment at the hands of the law.

The attitudes of the courts in this state as elsewhere varied in periods during the course of the next few decades. Early judicial resistance to zoning largely favored landowners. From 1948 to recent times our courts swung quite perceptibly to the opposite extreme, upholding almost all municipal action.

The New Jersey factual picture changed drastically during this period. I am sure it is quite familiar to all of you. The population expanded greatly through the birth rate and immigration from other sections. Business and industry moved from the central cities to new locations farther out and the more affluent families followed to occupy newly-built single-family housing in developments in municipalities that had been substantially rural. The demand for municipal and educational services funded by real-property taxes became immense in these areas.

At the same time, the cities decayed and their tax bases eroded. They became populated largely by the poor. The available housing wore out and became substandard or worse. Government services deteriorated and we had the uprisings of the 60's.

During the same period, the character and aim of municipal zoning, especially in these municipalities that were growing, or experiencing market pressures for growth, changed radically, although the full significance was not apparent at once. The purpose shifted from protection against physical impact to socioeconomic designs with the clear purpose of safeguarding the particular municipality's welfare as it alone decided. A principal purpose was fiscal - to allow only that kind of growth that would pay its way taxwise, particularly with respect to school costs, or come close to it.

The result was almost universal prohibition through various zoning mechanisms against any but expensive, single-family housing. Multi-family rental units were allowed most meagerly overall. Generally, they too, were required to be expensive, and contained bedroom limitations restricting the number of school children. These provisions effectively excluded from municipality after municipality families of low-and moderate-income, whether they resided in the central cities and sought a better environment and living conditions or were young couples, elderly citizens and others not desiring large houses who already had some ties with the community.

The result too was a statewide shortage of decent low-and moderate-income housing in all types of municipalities, the existence and alarming consequences of which were repeatedly called to public attention by state-agency studies, gubernatorial messages, and recitals in state legislation providing some assistance in funding such housing, only, of course, available where local land-use regulations permitted. It became clear that local exclusionary ordinances were having a substantial impact outside the particular municipality.

At the same time, it was becoming obvious that use regulation of certain types of land had such an important impact beyond municipal lines that individual municipal regulation was harmful to the broader public welfare. So the legislature withdrew the delegation of zoning authority to municipalities with respect to ,among others, wetlands, coastal areas, and the Hackensack Meadowlands district and provided for use regulation by its own agencies. The advisability of the concept of regional land-use regulation was thus established.

In this state of affairs, the Mount Laurel case came to the Supreme Court. It projected a new class of land-use litigation. The suit was brought, not by neighbors protesting the zoning of a particular property or an owner seeking to develop his land contrary to the zoning ordinance, but by people whom Professor Williams calls "third-party non-beneficiaries" - resident and non-resident poor people who wanted to live in the township but could not afford the only type of housing permitted.

Their attack, which they clearly had standing to make, was on the whole zoning scheme of a typical growing municipality having adequate remaining land for further development. The plaintiffs' proofs and briefs well presented to the court the factual picture that has just been sketched.

For present purposes of the discussion of the judicial role, the rationale of the decision may be simplified as follows. Land-use regulation, like any other police power enactment, must enhance and not be contrary to the general welfare to be valid under the state constitution. The availability of adequate land and an appropriate variety and choice of housing for all categories of people is an absolute essential in promotion of the general welfare - in effect, a fundamental state interest.

It is so important to the public good that the general welfare that each so-called developing municipality must take into account in order to have a valid zoning ordinance extends beyond the claimed good of that particular governmental unit. So:

the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land-use regulation, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low-and moderate-cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries.

and may not adopt regulations or policies that thwart of preclude that opportunity. Exclusionary restrictions having the effect mentioned are unconstitutional unless the municipality can sustain the heavy burden of demonstrating peculiar circumstances dictating a contrary conclusion. This was not established by Mount Laurel, so its zoning ordinance is pro tanto invalid.

The conclusions were, of course, within the traditional power and obligation of a court to declare legislation unconstitutional. Deference to the Legislative branch, here the local governing body, requires that such a judgment be rendered only in a clear case, but when that plainly appears in a situation involving a fundamental state interest, a court would be derelict if it did not so act. We are, in essence, dealing with a moral issue.

Mount Laurel went on to indicate that, since housing needs, particularly for people of low and moderate income, do not necessarily suit or fit well in every municipality, a regional approach was desirable, and urged state legislative action to so provide. In the absence thereof, the court said that Mount Laurel would have to provide for its fair share of the present and prospective regional need for such housing.

This solution originated with Chief Justice Weintraub during court conferences, prior to the advent of new permanent justices, making it desirable to schedule a reargument. The idea was not new; several areas of the country have had voluntary plans in operation on this basis for some time, and the professional planning literature thereon is plentiful. The township was given the opportunity to revise its ordinance, using these and other guidelines mentioned in the opinion, with the right in the plaintiffs to seek court review of the revised product if it was claimed not to be in accord with the express or implied directions of the opinion.

There is certainly nothing here that could reasonably suggest an inappropriate judicial role. I submit that it is unthinkable that a court should stop short of giving litigants in the housing field all the guidelines it considers vital and to direct affirmative corrective action to the fullest extent that it can completely supervise and review simply because the defendant is a municipality, and one that might be recalcitrant or uncooperative in righting the constitutional wrong, or because some other entity might be able to do a better job.

Under New Jersey jurisprudence, a court must review any governmental action of the nature here involved, as the Supreme Court has since done in the Madison Township case. That opinion also clearly confirms the judicial power to seek the help of neutral experts where needed to decide questions beyond the ordinary sphere of judicial knowledge, which, of curse, occurs in many cases beside land use litigation.

And it is not to be forgotten that courts can bring about ultimate compliance with their judgments through negative orders. For example, a defiant municipality refusing to change its invalid zoning ordinance could be prohibited, until it did so, from issuing building permits or certificates of occupancy for any dwellings, or indeed for structures of any kind. this method of relief was effectively utilized recently in Morris County to bring about governmental action to provide adequate sewage disposal.

There are, of course, types of relief that courts should not order, regardless of their power to do so. I conceive, for example, that judicial tribunals ought not to direct municipalities to actually build housing. In some cases, they may have to stop and resort to judicial prodding of the public conscience to bring about remedial action.

Mount Laurel has spawned considerable litigation involving other municipalities. It is not within the scope of this presentation to discuss the various decisions, even if the author had had the time to digest the contents and implications of the great proliferation of paper representing the numerous opinions. One brief comment bearing on the judicial role may be in order.

I believe that the implications of Mount Laurel are clear enough that, where zoning for housing is involved, whether the municipality is strictly a developing one or not, a court should take a good, hard look and insist that the municipality justify its restrictions or be forced to change them.

Furthermore, the court ought to give real reasons in its decisions and not rely on unmeaningful boiler-plate shibboleths like arbitrariness, capriciousness, and dubious presumptions of validity. The housing issue is too important and too fundamental to be disposed of in any case by cursory judicial treatment, and we should not revert in such cases to any thesis that whatever the municipality has done is all right.

While the legislature has not yet responded to the Court's suggestion of provision for regional zoning, it did, after Mount Laurel, enact the new Municipal Land Use Law, various sections of which indicate an important shift in policy from the old individual-municipality emphasis of old enabling acts, and give statutory support to the constitutional bases of the decision. I refer to the purposes sections, where the intent of the Act is stated:

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 and preservation of the environment;
and:
to provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space ... in order to meet the needs of all New Jersey citizens.

In addition, the zoning ordinance of every municipality must conform to a master plan, which must contain a land-use plan element and a housing element. I submit that the latter, in order to ground a valid zoning ordinance, would have to make provision, appropriate to the particular municipality, for a variety and choice of housing.

While any home rule tradition is always subject to constitutional requirements and guarantees of rights for all people, as Mount Laurel in effect held, the land-use law provisions just referred to indicate to me a legislative recognition that the invisible walls of suburban communities must have many gates for entrance."

We have presented these portions of the lecture without comment. We believe it speaks for itself. It offers both information and insight into the thinking of a man, who, confronted with a world he didn't like, set out to change it with a seeming disregard for the interests of a great many of the people living in it. Whether this will ultimately be seen as heroic idealism or judicial tyranny will be left to the judgment of future generations who suffer or prosper as a result of it. Arguably, more than forty years on, we are such a generation.

Here we end the Third Source Narrative for Beyond the Mount Laurel Doctrine: From Forty Years of Failure To A Blueprint for Success.

Documents worth reading in addition to those quoted in the text above:

"The Housing Crisis In New Jersey" (1970)
"Land Use Regulation: The Residential Land Supply" (1972).
"A Blueprint For Housing In New Jersey" (1970)
"New Horizons In Housing" (1972).
Warth v. Seldin, 422 U. S. 490 (1975)
Pierro v. Baxendale, 20 N. J. 17, 29 (1955)
Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949)

Beyond the Mt. Laurel Doctrine
Third Source Narrative

This is the Source Narrative to accompany the first Mt. Laurel decision and the writings of its author, Justice Frederick W. Hall. Before looking at the writings of Justice Hall, we have another task to perform. It's time to recall that this podcast is a demonstration project for our Insight Engine problem-solving technique. One of the key steps in our process is identification of powerful false ideas that keep problems from being resolved. Our task is to deconstruct and dispel them. The first one we encounter is the idea of a "housing crisis" in New Jersey. This powerful false idea was the first justification for the actions in Mount Laurel I.

We begin by recognizing the enormous population growth of the "baby-boom" period. From 1940 to 1970 the Census shows the New Jersey population grew from more than 4.1 to over 7.1 million. Numerous studies by "experts" for major institutions projected continued similar growth.

In "The Housing Crisis in New Jersey" (1970) the issue is stated this way: "... there is wide agreement that the State's population will continue to grow at least at the present rate in the years to come." However, this document also includes a very important cautionary footnote that includes the recognition that housing growth drives population growth. It's not the other way around.

"The one significant factor on the horizon which may lead to a decline in the rate of population growth in New Jersey is, of course, the decline in the construction of housing units in the State. If present trends in housing production continue during the coming years to decline, population projections will undoubtedly have to be scaled downward. Furthermore, such a decline could well set in motion a "chain reaction" effect, which would result in further declines in the rate of growth."

The document also shows that building permits had peaked in 1964 at just over 68,000 and dropped to 43,661 by 1968, a four year decline of almost 36%. Such a decline could have been seen as the basis for a reconsideration of "population projections". That's not what happened.

On December 7th Governor Cahill went further in "A Blueprint for Housing in New Jersey". There he said "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985." No explanation is offered as to who these "experts"
were or what methodology they used to reach their astonishing total. He also says "According to reliable statistics, we require 100,000 additional housing units each year, but actually are building only 40,000." These statements remained unchallenged and became part of the major concurring opinion in Mt. Laurel I.

You might be asking "How wrong could the experts have been?" Here are the facts. Decide for yourself.

In 1988 the New Jersey Office of State Planning produced a Technical Document titled "Population Trends and Projections". In it they looked back over the period 1970 to 1985 and found that instead of the projected 2.8 million people from 1970, the actual increase came to 394,136, or less than one seventh of the projected amount. Simple math tells us that if 2.8 million people would require 100,000 units per year, a similar reduction would produce approximately 14,250 homes and the state was already seeing far more homes being built. Census numbers also show that in the decade of the 1970's the population grew by 196,847 while New Jersey added over 384,000 new homes, or 1.95 units for every additional person. Records of annual building permits show this rate of growth kept up through 1985. To fully appreciate the magnitude of this difference recall that the average household size at the time was approximately 3 persons which meant that in reality six homes were being built for every new household in New Jersey.

In conclusion, the population growth that was supposed to fuel the "housing crisis" never happened. The housing being built far exceeded any demand that the population that did come could absorb. If population projections had been adjusted based on the emerging downward trend in housing, the argument underpinning Mt. Laurel I would have had to be significantly altered if not abandoned altogether. But that didn't happen. Instead the Court relied on this badly flawed expert advice. That's the first false idea to be dispelled. There was no housing crisis.

Before we move on, if you're wondering who those unnamed experts could have been who led everyone so far astray, we found them. In a footnote in "Exclusionary Land Use Controls: The Case of North-eastern New Jersey" the authors praise Governor Cahill for his courage in delivering his Special Message and write "The technical specifications for the study were prepared by the authors of this article." The authors were Norman Williams, Jr. and Thomas Norman. Now you know. Now we move on and turn our attention to the second of the great revolutionary architects of the Mt. Laurel Doctrine.

The issues at the heart of the Mt. Laurel I decision - the question of Standing, the definition of the General Welfare and the requirement for Reasonableness - are dealt with in the Third podcast. We find the theories embodied in the writings of Norman Williams, Jr., discussed in the Second podcast, and we find them in the writings of New Jersey Supreme Court Justice Frederick W. Hall. Here we deal with those texts. We say "texts" because the Mt. Laurel decision, as its author freely admits, is about more than just Mt. Laurel. It is about the transformation of a legal theory into judicial practice. It attempts to set New Jersey apart from the long history of federal Supreme Court decisions that support the democratic diversity embodied in the New Jersey home rule tradition.

We have chosen four texts that we find most instructive. The first is a famous dissenting opinion written in 1962 in the case of Vickers v. Gloucester Twp. where his philosophies are clearly set forth and the second is DeSimone v. Greater Englewood Housing Corp. where he writes the majority opinion signaling a willingness on the part of the Court to support challenges to local zoning. The third is Mt. Laurel I and the fourth is a lecture given in 1977, two years after his retirement from the Court, amplifying his thinking about judicial prerogatives raising the issue of "standing" that was not addressed in the Court decision. That will complete our picture of his thinking.

We begin with a brief biographical note.

Frederick Wilson Hall

Frederick Wilson Hall was born in Pittsburgh in 1908. He graduated from Rutgers University where he was elected Phi Beta Kappa and from Harvard Law School Cum Laude in 1931. As a young lawyer he worked in the firm of New Jersey's first Chief Justice, Arthur T. Vanderbilt and then in 1941 he founded and practiced law at the firm of Wharton and Hall.
He was appointed to the New Jersey Superior Court in 1953 and served there until 1959 when he was appointed as an Associate Justice of the New Jersey Supreme Court where he served until 1975. Justice Hall was the last member of what was known as the "Weintraub Court" which served together for eleven years and was widely regarded as one of the most activist and progressive judicial bodies in the nation in the area of civil law.
He was known for his mastery of land use law and his great reputation in that field has tended to deflect attention from his important writings in other fields. He was completely at home in the entirely intricate field of municipal law; he wrote important opinions in the areas of torts, criminal law, constitutional law and many other subjects. Few judges possessed his extensive knowledge of procedure and the Rules of Court.
He remains most famous for writing the decision in the case known as Mt. Laurel I.
He died in 1984.
Vickers v. Gloucester Township

Now to the writings of Justice Frederick Hall. We begin in 1962 with his dissenting opinion in Vickers v. Gloucester Township, 37 N.J. 232 (1962). As we do, it's important to remember the federal statutory context. This is three years before the Voting Rights Act and six before the Fair Housing Act. The Civil Rights movement was growing stronger and a socioeconomic model seen as disproportionately benefiting White people was automatically treated as suspect by a certain school of social ideologues.

On its face this case is about the right of a municipality to ban mobile home parks, but Justice Hall sees it raising greater concerns.

"Of even greater concern is the judicial process by which it is reached and the breadth of the rationale. The import of the holding gives almost boundless freedom to developing municipalities to erect exclusionary walls on their boundaries, according to local whim or selfish desire, and to use the zoning power for aims beyond its legitimate purposes."

After this he goes on to describe the types of towns that are the object of his concern. He separates them from "the settled suburbs surrounding the cities" that should have the right to remain undisturbed and paints this picture of the targets of his distaste. :

"On the contrary these areas are sprawling, heterogeneous governmental units, mostly townships, each really amounting to a region of considerable size itself. Their present rural, semi-rural or mixed nature is about to change substantially and they are soon to become melded into the whole metropolitan area. Their political boundaries are artificial and hence of little significance beyond defining one unit of government."

"Such municipalities, above all others, vitally need and may legally exercise comprehensive planning and implement zoning techniques to avoid present haphazard development which can only bring future grief. They are entitled to aim thereby for a sound and balanced area, with varying uses confined to specific districts and appropriately regulated."

He then continues to describe a number of things towns can reasonably do to shape their future. Then he comes to this.

"And this gets to the nub of what this, and similar cases, are really all about, i.e. the outer limit of the zoning power to be enjoyed by these municipalities most in need of comprehensive authority. What action is not legitimately encompassed by that power and what is the proper role of courts in reviewing its exercise?"

"This inquiry involves important fundamentals. In the broad sense the considerations are well posed in Williams, "Planning Law and Democratic Living," 20 Law and Contemporary Problems 317 (1955):

"The main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society equality of opportunity and equality of treatment, freedom of thought and considerable freedom of action, and fairness. Under the American system, a more or less independent mechanism of judicial review is established to provide an independent check on whether specific governmental decisions conform to these standards. While controversy has often raged about judicial action in other areas, it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare."

"Constitutional law should serve to shed light upon thinking about local planning, by requiring those concerned to do what they should be doing anyway to work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity."

This is a set of breathtaking assertions.

First, while he offers a broad amorphous set of values, it might just as reasonably be said that the main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society as enshrined in the precise language of the U. S. Constitution.

Second, as to what he asserts as having "always been recognized" as "an essential part of the judicial function" and the "attitudes and policies" with which he is concerned, these must be compared to the values and actions consistently upheld for thirty-five years by the U. S. Supreme Court and flowing from sources like the Standard State Zoning Enabling Act that was a product of the federal government. And just who has been doing the recognizing, anyway?

Third, there is the need to "work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity." This lofty vision should be compared with the language found later in the text defining the role of zoning.

Next he expands to a broader vision of a seemingly boundless role for the courts and shares his disdain for those with less expansive views.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."

After this the discussion focuses closer to the case at hand and on the permitted or proper scope of judicial oversight. He finally comes to the definition of zoning quoted above and this statement that seemingly undercuts the argument he has been advancing for the expansiveness of judicial oversight of municipal actions.

"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

After all of his argument to the contrary, this language appears to make it clear that while there are great issues connected with human freedom and opportunity this is not the arena in which they can be constitutionally settled.

From this point the focus is on little more than repetition of the issues, arguing back and forth with elements of previous court decisions and finally a discussion of the actual issue of the case - the right to prohibit mobile homes.

DeSimone v. Greater Englewood Housing Corp.

We next hear his voice in the case of DeSimone v. Greater Englewood Housing Corp. 56 N. J. 428 (1970) 267 A.2d 31. While a seemingly small matter over issuance of a variance, it caught the emerging temper of its time. There had been racial disturbances in Englewood in July, 1967 and the town had become a focus of the Governor's Select Commission on Civil Disorder and its "Report for Action" issued the following year. This unanimous decision was seen by sympathizers as an opening for a renewed assault on municipal zoning. To understand this perspective we offer the assessment of Norman Williams, Jr. in The Background and Significance of Mount Laurel II from 1984:

"By the late 1960's, however, the world suddenly began to look rather different than it had when Justice Hall wrote his Vickers dissent, and other judges began to reexamine their tolerance of exclusionary zoning practices. In an otherwise relatively unimportant case, the New Jersey Supreme Court in 1970 upheld (against a challenge by neighbors) a New Jersey "d" variance approving a housing project in Englewood, which was (a) located in a "white area" and (b) clearly designed at least in part to accommodate blacks from the Englewood ghetto. In upholding the grant of the variance, the opinion-by Hall, and now unanimous--commented in dictum that under those circumstances such a variance could not have been denied. The only logical basis for this comment is that there must be some affirmative duty to plan on behalf of all sections of the population. Once those familiar with this field of law read the Englewood opinion, it was clear that the jig was up; the court seemed to be sending out signals that it was ready for a major reversal on the exclusionary problem." This led us to Mt. Laurel I.

Mt. Laurel I

Now we move on to the climactic document of the career of Frederick W. Hall. The first Mt. Laurel decision was written in 1975, thirteen years after his dissent in Vickers v. Gloucester Township and was his last great contribution to the activism of the court. The case, Southern Burlington County N. A. A. C. P. v. Mount Laurel 67 N. J. 151 (1975), began its course through the state judicial system in 1972 with a finding for the plaintiff which was subsequently appealed, not only by the township but by the plaintiffs as well seeking an expansion of the scope of the decision. It was then taken over by the state Supreme Court and transmuted from a case concerned with racial discrimination, which would have claimed a violation of the federal Fair Housing Act, into one focused on economic segregation which kept it within the state court system where it was argued in 1974 and decided in 1975. It begins by presenting the scope of the argument. We also find here Mr. Norman Williams, Jr. arguing the cause for amicus curiae The Public Interest Research Group of New Jersey twenty years after publishing his foundational document "Planning Law and Democratic Living" in 1955. Importantly, this comes seven years after the Fair Housing Act.

"This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipality. The trial court so found, 119 N.J. Super. 164 (Law Div. 1972), and declared the township zoning ordinance totally invalid. Its judgment went on, in line with the requests for affirmative relief, to order the municipality to make studies of the housing needs of low and moderate income persons presently or formerly residing in the community in substandard housing, as well as those in such income classifications presently employed in the township and living elsewhere or reasonably expected to be employed therein in the future ... The township appealed to the Appellate Division and those plaintiffs, not present or former residents, cross-appealed on the basis that the judgment should have directed that the prescribed plan take into account as well a fair share of the regional housing needs of low and moderate income families without limitation to those having, past, present or prospective connection with the township. The appeals were certified on our own motion before argument in the Division."

"The implications of the issue presented are indeed broad and far-reaching, extending much beyond these particular plaintiffs and the boundaries of this municipality."

"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."

"We will, therefore, consider the case from the wider viewpoint that the effect of Mount Laurel's land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

"Its candid position is that, conceding its land use regulation was intended to result and has resulted in economic discrimination and exclusion of substantial segments of the area population, its policies and practices are in the best present and future fiscal interest of the municipality and its inhabitants and are legally permissible and justified. It further asserts that the trial court was without power to direct the affirmative relief it did."

In these few opening quotes we find the whole argument showcased. It all begins with the "desperate need for housing" based on the horribly flawed assertion of a "housing crisis" that demonstrably never happened, to meet the needs of a population that still doesn't exist, most clearly expressed in this single sentence from "A Blueprint for Housing in New Jersey" (1970). "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985."

Based on this assumption the Court says they will consider the case from the "wider viewpoint" that the Mount Laurel ordinance has the effect of excluding people because of the "limited extent of their incomes and resources" which the municipality freely admits, and asserts they are "legally permissible and justified"in doing because it is in the "best present and future fiscal interest of the municipality and its inhabitants". And the Court accepts that "the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

To summarize, the township freely admits it did what it's accused of doing and says that it's legal and justified because it's in the interest of the town and the Court accepts that it wasn't done for any of the reasons made impermissible by the Fair Housing Act 42 U.S.C. 3602 et seq., which is the federally controlling statute and separates this case from the context of the dissent in Vickers v. Gloucester Township. That is the case. The rest of the decision is then divided into three parts.

I The Facts

This section begins with a lengthy recitation of the facts about Mount Laurel including its size and population and its various zones and the development that's taken place in them in a very straightforward manner. Then we come to the conclusion. "There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property ... and that the policy was carried out without regard for nonfiscal considerations with respect to people, either within or without its boundaries." In other words, they did exactly what they said they did and only for the reasons they said they did it.

The text then goes on to describe the reason for this. "This policy of land use regulation for a fiscal end derives from New Jersey's tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality's children." In other words, this is entirely the fault of the State and applies to all municipalities. As a logical result:

"This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost everyone acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing."

As proof of this practice"The Residential Land Supply" (April 1972) produced by The N. J. Department of Community Affairs and "Exclusionary Land Use Controls: The Case of North-Eastern New Jersey" (1971) by Norman Williams, Jr. and Thomas Norman are cited. What is not considered in this statement is that the municipal action benefits all of the residents of the municipality, including those who are low-and-moderate income homeowners who are most at risk of being driven from their homes by rising taxes.

The next thing shown is how the urban model also worked to maintain fiscal stability.

"The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing than the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing. Despite the municipally confined tax structure, commercial and industrial ratables generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas."

In other words, the cities provided for their fiscal stability by zoning for a substantial ratable base dominated by commercial and industrial uses. Their goal was the same as that of the developing municipalities but simply pursued by different means.

The final part of this section is devoted to the plight of the urban population after World War II as the commercial and industrial base left the cities for new locations in other towns, other counties and other states. At the same time the lure of home ownership in developing communities that promised to provide all of the benefits of urban life in terms of public services and economic opportunities, without the well recognized problems of urban life, drew the emerging middle class to the suburbs. This was compounded by the failure of the cities to find a new productive purpose.

"Much industry and retail business, and even professions, have left the cities."And as for the low income workers "These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a critical erosion of the city tax base and inability to provide the amount and quality of those governmental services education, health, police, fire, housing and the like so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing."

To summarize the facts. State tax policies placed the primary burden of funding municipal, county and educational services on the tax base of each municipality. In order to be able to carry this burden each municipality zoned itself to develop a ratable based that would provide for long-term fiscal stability. The cities did this by zoning for a large commercial and industrial base. "Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing." After World War II the urban model began to fail and many cities had difficulty reinventing themselves.

Instead of seeking to attract a tax base built on non-residential uses that relies on unskilled and semi-skilled workers, the suburbs did this by focusing on attracting a strong residential base that would provide for their future stability. The suburbs stand convicted of developing a well balanced, fiscally stable, socioeconomic model while the cities did not. They didn't attract employers of unskilled and semi-skilled workers and so did not seek to provide housing for a workforce that did not exist.

Now we come to the legal issue.

II The Legal Issue

"The legal question before us, as earlier indicated, is whether a developing municipality like Mount Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources."

"We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need thereof."

"We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs."

At this point we'll take a moment to recall previously expressed thoughts of Justice Hall with a pair of quotes from Vickers v. Gloucester Township cited above.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."
"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

The first quote could easily be applied to the Court in this case for focusing on the abstract need for housing without recognizing the real world reality that housing is only one aspect of the integrated socioeconomic need of the community. Logic argues that building housing for workers without work makes no more sense than building factories without workers to work in them.

The second challenges the expansive view of judicial prerogatives "to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes." Then the argument for this is presented.

"We begin with some fundamental principles as applied to the scene before us."

"Land use is encompassed within the state's police power."

"It is elementary theory that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws."

"It is required that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare (The last term seems broad enough to encompass the others.) Conversely, a zoning enactment which is contrary to the general welfare is invalid."

"Indeed these considerations are specifically set forth in the zoning enabling act as among the various purposes of zoning for which regulations must be designed. N. J. S. A. 40:55-32 ... If a zoning regulation violates the enabling act in this respect, it is also theoretically invalid under the state constitution. We say "theoretically" because, as a matter of policy, we do not treat the validity of most land use ordinance provisions as involving matters of constitutional dimension; that classification is confined to major questions of fundamental import."

"We consider the basic importance of housing and local regulations restricting its availability to substantial segments of the population to fall within the latter category."

"The demarcation between the valid and the invalid in the field of land use regulation is difficult to determine, not always clear and subject to change. This was recognized almost fifty years ago in the basic case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926):

"The ordinance now under review and all similar laws and regulations must find their justification in some aspect of police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. (272 U. S. at 387, 47 S. Ct. at 118, 71 L. Ed. at 310)."

It's nice to see the Court remembering the Ambler Realty case but it would be even nicer to see the Court recall The federal Fair Housing Act which clearly drew the line between legitimate and illegitimate. The Act prohibits discrimination in housing for a specific list of reasons: race, color, religion, sex, handicap, familial status or national origin. That is "precise delimitation". Counsel for Mt. Laurel Twp. made it clear that these were not the basis for their zoning and the Court accepted that that was the case. We would remind the Court of their own language.

"In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

The first thing Justice Hall needed to do to justify a need for change was find sources that, while supporting policies of deference to municipal decision-making, offer a warning that the future may be different and law may have to change. After offering a number of prior decisions as pointing in his direction he found it best said in Pierro v. Baxendale, 20 N. J. 17, 29 (1955) :

"If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed."

Having adding the sanctifying weight of precedent, he returns to his own thoughts.

"The warning implicates the matter of whose general welfare must be served or not violated in the field of land use regulation. Frequently the decisions in this state, including those just cited, have spoken only in terms of the interest of the enacting municipality, so that it has been thought, at least in some quarters, that such was the only welfare requiring consideration. It is, of course, true that many cases have dealt only with regulations having little, if any, outside impact where local decision is ordinarily entitled to prevail. However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state's citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served."

"This essential was distinctly pointed out in Euclid, where Mr. Justice Sutherland specifically referred to the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. Chief Justice Vanderbilt said essentially the same thing, in a different factual context, in the early leading case of Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949), when he spoke of the necessity of regional considerations in zoning and added this:

"The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. (1 N. J. at 513)."

Justice Hall offers this quote as supportive of his position but we see it pointing in exactly the opposite direction. The problem is one of perspective. For Justice Hall zoning in developing municipalities was an act of selfishness and a desire to isolate themselves from the needs of the broader region. We see it differently. We see the world from a dynamic perspective where forces that transcend transient social policy considerations are controlling and municipalities are simply responding to the greater market forces confronting them as they take their place in regions that are being redefined by evolving transportation and communications technologies. The sentence we have highlighted makes this point. Again, we're not asking you to take our viewpoint over that of Justice Hall. We have simply taken the quote he selected above and put it back in the paragraph where he found it. Once again we have added the highlighting for emphasis.

"What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as in living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

When read in this fuller context the vision of Justice Hall and the rest of the Court cannot stand. The "forces" cited in Duffcon are the dynamic forces we see shaping our world in various forms and with different names. In this case it is the economic force of the housing market and the social force of democratic diversity that together serve to create fiscally stable communities, each with a distinct face and character, and together advancing the general welfare of their region. The Court is seeking to impose housing diversity within every municipality, while the natural dynamic forces produce a vital diversity among municipalities.

After this a case supporting placement of a hospital for the emotionally disturbed as meeting a regional need superseding the rights of a municipality to reject it is presented. And then, having failed to find any substantive support for the action under consideration other than some mentions that at some point if circumstances change some alterations in judicial perspectives would be justified, the Court goes about doing what they clearly had decided to do all along.

"This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms of land use regulation which that relationship mandates. There cannot be the slightest doubt that shelter, along with food, are the most basic human needs."

"It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of such broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries. Negatively, it may not adopt regulations or policies which thwart or preclude that opportunity."

"In sum, we are satisfied beyond doubt that, by reason of the basic importance of appropriate housing and the long-standing pressing need for it, especially in the low and moderate cost housing category, and of the exclusionary zoning practices of so many municipalities, conditions have changed, and consistent with the warning in Pierro, supra, judicial attitudes must be altered from that espoused in that and other cases cited earlier, to require, as we have just said, a broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all."

"We have spoken of this obligation of such municipalities as "presumptive." The term has two aspects, procedural and substantive. Procedurally, we think the basic importance of appropriate housing for all dictates that, when it is shown that a developing municipality in its land use regulations has not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation of substantive due process or equal protection under the state constitution has been made out and the burden, and it is a heavy one, shifts to the municipality to establish a valid basis for its action or non-action. ... The substantive aspect of "presumptive" relates to the specifics, on the one hand, of what municipal land use regulation provisions, or the absence thereof, will evidence invalidity and shift the burden of proof and, on the other hand, of what bases and considerations will carry the municipality's burden and sustain what it has done or failed to do. Both kinds of specifics may well vary between municipalities according to peculiar circumstances."

"We turn to application of these principles in appraisal of Mount Laurel's zoning ordinance, useful as well, we think, as guidelines for future application in other municipalities."

With this the Court establishes a new concept in land-use litigation. It does so without constitutional, statutory or precedential support. It is nothing more than an act of will by the members of the Court and so effectively expands the boundaries of judicial authority beyond otherwise recognized bounds.

The focus then turns to the specific of Mount Laurel zoning.

"We have earlier stated that a developing municipality's obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to the municipality's fair share of the present and prospective regional need thereof. Some comment on that conclusion is in order at this point. Frequently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason. But, under present New Jersey legislation, zoning must be done on an individual municipal basis, rather than regionally. So long as that situation persists under the present tax structure, or in the absence of some kind of binding agreement among all the municipalities of a region, we feel that every municipality therein must bear its fair share of the regional burden. (In this respect our holding is broader than that of the trial court, which was limited to Mount Laurel-related low and moderate income housing needs.)"

This admission loudly echoes the language of Duffcon Concrete that supports putting different uses in different places based on any number of factors:

"Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

After this all that remains is the essential discussion of how to define a region.

"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. Confinement to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable."

There are any number of ways to define a region. The Northeast is a national region. The New York and Philadelphia metropolitan areas are regions. The Census Bureau provides journey-to-work data that shows where people who work in a given place live and conversely where people who live in a given area work. Worker housing tends to cluster around employment centers and regions tend to define themselves on an ongoing basis.

III The Remedy

This final section applies only to Mount Laurel and focuses only on mechanics.

This ends the majority opinion written by Justice Frederick Hall. All that remains is a consideration of his 1977 lecture.

We are presenting significant excerpts from this lecture by Justice Hall, delivered two years after his retirement, because it contains what we see as useful insights into his thinking about several important issues. These include his vision of the limits of judicial power, of which he see very few, and his idea of the basis for granting standing to the plaintiffs in the Mount Laurel case as "third- party non-beneficiaries" as defined by Professor Norman Williams, Jr. . He discusses the importance of defining a "fundamental interest" and the fact that for the federal courts housing is not one. We think the full lecture is well worth reading as a picture of the thinking of a man accustomed to wielding power and the public passions that drove him throughout his career on the bench.

The Judicial Role In Land-Use Regulation (excerpts)

Frederick W. Hall
Associate Justice of the New Jersey Supreme Court, retired
Arthur T. Vanderbilt Lecture
Harvard Law School Association of New Jersey
April 20, 1977

Modern land-use regulation has increasingly become a matter of vital interest and importance to the citizenry of large and small metropolitan areas and beyond, and bids fair to continue so for a considerable time to come. Its scope has changed immeasurably since constitutional approval was accorded about 50 years ago. The current major subjects and objects of regulation and the problems and issues arising from it have led to litigation of quite a different character than was formerly the case. What the proper judicial role in this field should be needs to be considered in the light of the broad changes that have likewise taken place in the kinds of litigation and the exercise of the judicial function in other fields of public law.


The United States Supreme Court has come to the point, in reviewing state action on claims of federal constitutional violation, of finding invalidity on equal-protection grounds only where the right involved is said to be a "fundamental interest" and the state cannot show a "compelling state interest." The subjects meeting the fundamental interest test have been strictly limited: voting, race, right to interstate travel and perhaps a couple of others. Housing is not one.
The courts recent forays into the land-use regulation field after an avoidance of about half a century have been, regardless of result, quite unsatisfactory, to say the least.

There have been deep changes in American life and philosophy and the place of government therein. These began to appear in quantity in the "New Deal" era of the 30's but developed much more strongly after World War II.
First, there was a vast increase in regulation of private affairs, both business and personal, by all levels of government. ....
Second, there has been a tremendous increase in the conferring or distribution by government of various kinds of benefits to aid the less fortunate members of our society.
Third, there has been a startling awakening and assertion of claims of human rights under constitutional guarantees, statutes and institutional arrangements especially on behalf of minorities of all varieties and the disadvantaged.
Fourth, we have witnessed a "law explosion," by which relief from all manner of alleged wrongs is sought in the courts in the belief that the judiciary is the only effective branch of government. Everyone sues about everything, ...

This type of litigation is quite different from the traditional model earlier described. It most frequently concerns public, rather than private, action or inaction. It may well attack a whole scheme of government activity. It very frequently is of a representative or class nature, affecting many more persons or entities than are parties or whose views are before the court.

It generally does not seek money damages, but rather declaratory or injunctive relief of a continuing and broadly remedial nature against some government entity or official. Equity jurisprudence very largely governs the ultimate result. ....

This relatively new category of public-law litigation, which includes as well certain kinds of land-use litigation shortly to be mentioned more specifically, presents important questions as to the extent of judicial power and the proper exercise of it. These queries generally arise about the remedy especially when the relief ordered or sought involves affirmative action by another branch of government or amounts to action by the judiciary in a form within the purview of or normally accomplished - even perhaps better handled - by either the local or state legislature or the executive branch.

The Courts Must Decide

Again, the courts are the sole and final arbiter of the constitutionality of local and state legislation, regulations or other governmental action. A declaration of invalidity is binding upon the legislature, the executive and all affected public officials. This is so whether or not the particular agency or government agrees with the decision. It may only be overturned by amendment through vote of the people according to specified procedures.

While considerations of constitutional claims require the greatest judicial circumspection, they cannot be decided on the basis of personal views of individual judges as to the advisability or wisdom of the governmental action under review or in accordance with what may appear to be the wish of an articulate or seeming majority of the affected populace on a particular question.

The judicial branch is the ultimate protector of the rights of all, and this of course includes those of minorities. Constitutional principles and the rights guaranteed by or arising under the documents must always be thought of as living and not static things, subject to enlargement and variation in interpretation and application as conditions and the needs of the body politic change. When this is to occur is, unless spelled out by amendment, the proper and exclusive province of the judiciary. This is fundamental in our form of government.

Land-Use Regulation

There remains the application of this discussion to the more specific matter of the appropriate judicial role in land-use regulation cases. Even more particularly, reference is confined to the currently active aspects of zoning for housing and the place of the regional concept and to the initial articulation of a new and constitutional approach thereto in the unanimous decision of our Supreme Court in Southern Burlington County NAACP v. Township of Mount Laurel, 67 N. J. 151 (1975).

The matter should be placed in historical perspective, both legal and factual. That history is thoroughly presented, state by state and overall, in Professor Norman William's recent comprehensive and thoroughly readable treatise, "American Land Planning Law." To summarize quickly, with special reference to this state, after zoning was constitutionally approved a half century ago, the authorizing legislation in New Jersey and most states, delegated the permissive power to each municipality under standards which, except for the broad health, morals and general welfare language, were directed to regulation of uses to avoid adverse physical impact and to safeguard property values.

The general language of the delegation necessarily left interpretation to the courts. The aim of the adopted ordinances was to keep industrial uses out of the residential areas of the cities and their close suburbs. The idea was revolutionary because it involved restrictions on the private use of one's land, which for centuries had received exceptional veneration and favored treatment at the hands of the law.

The attitudes of the courts in this state as elsewhere varied in periods during the course of the next few decades. Early judicial resistance to zoning largely favored landowners. From 1948 to recent times our courts swung quite perceptibly to the opposite extreme, upholding almost all municipal action.

The New Jersey factual picture changed drastically during this period. I am sure it is quite familiar to all of you. The population expanded greatly through the birth rate and immigration from other sections. Business and industry moved from the central cities to new locations farther out and the more affluent families followed to occupy newly-built single-family housing in developments in municipalities that had been substantially rural. The demand for municipal and educational services funded by real-property taxes became immense in these areas.

At the same time, the cities decayed and their tax bases eroded. They became populated largely by the poor. The available housing wore out and became substandard or worse. Government services deteriorated and we had the uprisings of the 60's.

During the same period, the character and aim of municipal zoning, especially in these municipalities that were growing, or experiencing market pressures for growth, changed radically, although the full significance was not apparent at once. The purpose shifted from protection against physical impact to socioeconomic designs with the clear purpose of safeguarding the particular municipality's welfare as it alone decided. A principal purpose was fiscal - to allow only that kind of growth that would pay its way taxwise, particularly with respect to school costs, or come close to it.

The result was almost universal prohibition through various zoning mechanisms against any but expensive, single-family housing. Multi-family rental units were allowed most meagerly overall. Generally, they too, were required to be expensive, and contained bedroom limitations restricting the number of school children. These provisions effectively excluded from municipality after municipality families of low-and moderate-income, whether they resided in the central cities and sought a better environment and living conditions or were young couples, elderly citizens and others not desiring large houses who already had some ties with the community.

The result too was a statewide shortage of decent low-and moderate-income housing in all types of municipalities, the existence and alarming consequences of which were repeatedly called to public attention by state-agency studies, gubernatorial messages, and recitals in state legislation providing some assistance in funding such housing, only, of course, available where local land-use regulations permitted. It became clear that local exclusionary ordinances were having a substantial impact outside the particular municipality.

At the same time, it was becoming obvious that use regulation of certain types of land had such an important impact beyond municipal lines that individual municipal regulation was harmful to the broader public welfare. So the legislature withdrew the delegation of zoning authority to municipalities with respect to ,among others, wetlands, coastal areas, and the Hackensack Meadowlands district and provided for use regulation by its own agencies. The advisability of the concept of regional land-use regulation was thus established.

In this state of affairs, the Mount Laurel case came to the Supreme Court. It projected a new class of land-use litigation. The suit was brought, not by neighbors protesting the zoning of a particular property or an owner seeking to develop his land contrary to the zoning ordinance, but by people whom Professor Williams calls "third-party non-beneficiaries" - resident and non-resident poor people who wanted to live in the township but could not afford the only type of housing permitted.

Their attack, which they clearly had standing to make, was on the whole zoning scheme of a typical growing municipality having adequate remaining land for further development. The plaintiffs' proofs and briefs well presented to the court the factual picture that has just been sketched.

For present purposes of the discussion of the judicial role, the rationale of the decision may be simplified as follows. Land-use regulation, like any other police power enactment, must enhance and not be contrary to the general welfare to be valid under the state constitution. The availability of adequate land and an appropriate variety and choice of housing for all categories of people is an absolute essential in promotion of the general welfare - in effect, a fundamental state interest.

It is so important to the public good that the general welfare that each so-called developing municipality must take into account in order to have a valid zoning ordinance extends beyond the claimed good of that particular governmental unit. So:

the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land-use regulation, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low-and moderate-cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries.

and may not adopt regulations or policies that thwart of preclude that opportunity. Exclusionary restrictions having the effect mentioned are unconstitutional unless the municipality can sustain the heavy burden of demonstrating peculiar circumstances dictating a contrary conclusion. This was not established by Mount Laurel, so its zoning ordinance is pro tanto invalid.

The conclusions were, of course, within the traditional power and obligation of a court to declare legislation unconstitutional. Deference to the Legislative branch, here the local governing body, requires that such a judgment be rendered only in a clear case, but when that plainly appears in a situation involving a fundamental state interest, a court would be derelict if it did not so act. We are, in essence, dealing with a moral issue.

Mount Laurel went on to indicate that, since housing needs, particularly for people of low and moderate income, do not necessarily suit or fit well in every municipality, a regional approach was desirable, and urged state legislative action to so provide. In the absence thereof, the court said that Mount Laurel would have to provide for its fair share of the present and prospective regional need for such housing.

This solution originated with Chief Justice Weintraub during court conferences, prior to the advent of new permanent justices, making it desirable to schedule a reargument. The idea was not new; several areas of the country have had voluntary plans in operation on this basis for some time, and the professional planning literature thereon is plentiful. The township was given the opportunity to revise its ordinance, using these and other guidelines mentioned in the opinion, with the right in the plaintiffs to seek court review of the revised product if it was claimed not to be in accord with the express or implied directions of the opinion.

There is certainly nothing here that could reasonably suggest an inappropriate judicial role. I submit that it is unthinkable that a court should stop short of giving litigants in the housing field all the guidelines it considers vital and to direct affirmative corrective action to the fullest extent that it can completely supervise and review simply because the defendant is a municipality, and one that might be recalcitrant or uncooperative in righting the constitutional wrong, or because some other entity might be able to do a better job.

Under New Jersey jurisprudence, a court must review any governmental action of the nature here involved, as the Supreme Court has since done in the Madison Township case. That opinion also clearly confirms the judicial power to seek the help of neutral experts where needed to decide questions beyond the ordinary sphere of judicial knowledge, which, of curse, occurs in many cases beside land use litigation.

And it is not to be forgotten that courts can bring about ultimate compliance with their judgments through negative orders. For example, a defiant municipality refusing to change its invalid zoning ordinance could be prohibited, until it did so, from issuing building permits or certificates of occupancy for any dwellings, or indeed for structures of any kind. this method of relief was effectively utilized recently in Morris County to bring about governmental action to provide adequate sewage disposal.

There are, of course, types of relief that courts should not order, regardless of their power to do so. I conceive, for example, that judicial tribunals ought not to direct municipalities to actually build housing. In some cases, they may have to stop and resort to judicial prodding of the public conscience to bring about remedial action.

Mount Laurel has spawned considerable litigation involving other municipalities. It is not within the scope of this presentation to discuss the various decisions, even if the author had had the time to digest the contents and implications of the great proliferation of paper representing the numerous opinions. One brief comment bearing on the judicial role may be in order.

I believe that the implications of Mount Laurel are clear enough that, where zoning for housing is involved, whether the municipality is strictly a developing one or not, a court should take a good, hard look and insist that the municipality justify its restrictions or be forced to change them.

Furthermore, the court ought to give real reasons in its decisions and not rely on unmeaningful boiler-plate shibboleths like arbitrariness, capriciousness, and dubious presumptions of validity. The housing issue is too important and too fundamental to be disposed of in any case by cursory judicial treatment, and we should not revert in such cases to any thesis that whatever the municipality has done is all right.

While the legislature has not yet responded to the Court's suggestion of provision for regional zoning, it did, after Mount Laurel, enact the new Municipal Land Use Law, various sections of which indicate an important shift in policy from the old individual-municipality emphasis of old enabling acts, and give statutory support to the constitutional bases of the decision. I refer to the purposes sections, where the intent of the Act is stated:

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 and preservation of the environment;
and:
to provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space ... in order to meet the needs of all New Jersey citizens.

In addition, the zoning ordinance of every municipality must conform to a master plan, which must contain a land-use plan element and a housing element. I submit that the latter, in order to ground a valid zoning ordinance, would have to make provision, appropriate to the particular municipality, for a variety and choice of housing.

While any home rule tradition is always subject to constitutional requirements and guarantees of rights for all people, as Mount Laurel in effect held, the land-use law provisions just referred to indicate to me a legislative recognition that the invisible walls of suburban communities must have many gates for entrance."

We have presented these portions of the lecture without comment. We believe it speaks for itself. It offers both information and insight into the thinking of a man, who, confronted with a world he didn't like, set out to change it with a seeming disregard for the interests of a great many of the people living in it. Whether this will ultimately be seen as heroic idealism or judicial tyranny will be left to the judgment of future generations who suffer or prosper as a result of it. Arguably, more than forty years on, we are such a generation.

Here we end the Third Source Narrative for Beyond the Mount Laurel Doctrine: From Forty Years of Failure To A Blueprint for Success.

Documents worth reading in addition to those quoted in the text above:

"The Housing Crisis In New Jersey" (1970)
"Land Use Regulation: The Residential Land Supply" (1972).
"A Blueprint For Housing In New Jersey" (1970)
"New Horizons In Housing" (1972).
Warth v. Seldin, 422 U. S. 490 (1975)
Pierro v. Baxendale, 20 N. J. 17, 29 (1955)
Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949)

Beyond the Mt. Laurel Doctrine
Third Source Narrative

This is the Source Narrative to accompany the first Mt. Laurel decision and the writings of its author, Justice Frederick W. Hall. Before looking at the writings of Justice Hall, we have another task to perform. It's time to recall that this podcast is a demonstration project for our Insight Engine problem-solving technique. One of the key steps in our process is identification of powerful false ideas that keep problems from being resolved. Our task is to deconstruct and dispel them. The first one we encounter is the idea of a "housing crisis" in New Jersey. This powerful false idea was the first justification for the actions in Mount Laurel I.

We begin by recognizing the enormous population growth of the "baby-boom" period. From 1940 to 1970 the Census shows the New Jersey population grew from more than 4.1 to over 7.1 million. Numerous studies by "experts" for major institutions projected continued similar growth.

In "The Housing Crisis in New Jersey" (1970) the issue is stated this way: "... there is wide agreement that the State's population will continue to grow at least at the present rate in the years to come." However, this document also includes a very important cautionary footnote that includes the recognition that housing growth drives population growth. It's not the other way around.

"The one significant factor on the horizon which may lead to a decline in the rate of population growth in New Jersey is, of course, the decline in the construction of housing units in the State. If present trends in housing production continue during the coming years to decline, population projections will undoubtedly have to be scaled downward. Furthermore, such a decline could well set in motion a "chain reaction" effect, which would result in further declines in the rate of growth."

The document also shows that building permits had peaked in 1964 at just over 68,000 and dropped to 43,661 by 1968, a four year decline of almost 36%. Such a decline could have been seen as the basis for a reconsideration of "population projections". That's not what happened.

On December 7th Governor Cahill went further in "A Blueprint for Housing in New Jersey". There he said "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985." No explanation is offered as to who these "experts"
were or what methodology they used to reach their astonishing total. He also says "According to reliable statistics, we require 100,000 additional housing units each year, but actually are building only 40,000." These statements remained unchallenged and became part of the major concurring opinion in Mt. Laurel I.

You might be asking "How wrong could the experts have been?" Here are the facts. Decide for yourself.

In 1988 the New Jersey Office of State Planning produced a Technical Document titled "Population Trends and Projections". In it they looked back over the period 1970 to 1985 and found that instead of the projected 2.8 million people from 1970, the actual increase came to 394,136, or less than one seventh of the projected amount. Simple math tells us that if 2.8 million people would require 100,000 units per year, a similar reduction would produce approximately 14,250 homes and the state was already seeing far more homes being built. Census numbers also show that in the decade of the 1970's the population grew by 196,847 while New Jersey added over 384,000 new homes, or 1.95 units for every additional person. Records of annual building permits show this rate of growth kept up through 1985. To fully appreciate the magnitude of this difference recall that the average household size at the time was approximately 3 persons which meant that in reality six homes were being built for every new household in New Jersey.

In conclusion, the population growth that was supposed to fuel the "housing crisis" never happened. The housing being built far exceeded any demand that the population that did come could absorb. If population projections had been adjusted based on the emerging downward trend in housing, the argument underpinning Mt. Laurel I would have had to be significantly altered if not abandoned altogether. But that didn't happen. Instead the Court relied on this badly flawed expert advice. That's the first false idea to be dispelled. There was no housing crisis.

Before we move on, if you're wondering who those unnamed experts could have been who led everyone so far astray, we found them. In a footnote in "Exclusionary Land Use Controls: The Case of North-eastern New Jersey" the authors praise Governor Cahill for his courage in delivering his Special Message and write "The technical specifications for the study were prepared by the authors of this article." The authors were Norman Williams, Jr. and Thomas Norman. Now you know. Now we move on and turn our attention to the second of the great revolutionary architects of the Mt. Laurel Doctrine.

The issues at the heart of the Mt. Laurel I decision - the question of Standing, the definition of the General Welfare and the requirement for Reasonableness - are dealt with in the Third podcast. We find the theories embodied in the writings of Norman Williams, Jr., discussed in the Second podcast, and we find them in the writings of New Jersey Supreme Court Justice Frederick W. Hall. Here we deal with those texts. We say "texts" because the Mt. Laurel decision, as its author freely admits, is about more than just Mt. Laurel. It is about the transformation of a legal theory into judicial practice. It attempts to set New Jersey apart from the long history of federal Supreme Court decisions that support the democratic diversity embodied in the New Jersey home rule tradition.

We have chosen four texts that we find most instructive. The first is a famous dissenting opinion written in 1962 in the case of Vickers v. Gloucester Twp. where his philosophies are clearly set forth and the second is DeSimone v. Greater Englewood Housing Corp. where he writes the majority opinion signaling a willingness on the part of the Court to support challenges to local zoning. The third is Mt. Laurel I and the fourth is a lecture given in 1977, two years after his retirement from the Court, amplifying his thinking about judicial prerogatives raising the issue of "standing" that was not addressed in the Court decision. That will complete our picture of his thinking.

We begin with a brief biographical note.

Frederick Wilson Hall

Frederick Wilson Hall was born in Pittsburgh in 1908. He graduated from Rutgers University where he was elected Phi Beta Kappa and from Harvard Law School Cum Laude in 1931. As a young lawyer he worked in the firm of New Jersey's first Chief Justice, Arthur T. Vanderbilt and then in 1941 he founded and practiced law at the firm of Wharton and Hall.
He was appointed to the New Jersey Superior Court in 1953 and served there until 1959 when he was appointed as an Associate Justice of the New Jersey Supreme Court where he served until 1975. Justice Hall was the last member of what was known as the "Weintraub Court" which served together for eleven years and was widely regarded as one of the most activist and progressive judicial bodies in the nation in the area of civil law.
He was known for his mastery of land use law and his great reputation in that field has tended to deflect attention from his important writings in other fields. He was completely at home in the entirely intricate field of municipal law; he wrote important opinions in the areas of torts, criminal law, constitutional law and many other subjects. Few judges possessed his extensive knowledge of procedure and the Rules of Court.
He remains most famous for writing the decision in the case known as Mt. Laurel I.
He died in 1984.
Vickers v. Gloucester Township

Now to the writings of Justice Frederick Hall. We begin in 1962 with his dissenting opinion in Vickers v. Gloucester Township, 37 N.J. 232 (1962). As we do, it's important to remember the federal statutory context. This is three years before the Voting Rights Act and six before the Fair Housing Act. The Civil Rights movement was growing stronger and a socioeconomic model seen as disproportionately benefiting White people was automatically treated as suspect by a certain school of social ideologues.

On its face this case is about the right of a municipality to ban mobile home parks, but Justice Hall sees it raising greater concerns.

"Of even greater concern is the judicial process by which it is reached and the breadth of the rationale. The import of the holding gives almost boundless freedom to developing municipalities to erect exclusionary walls on their boundaries, according to local whim or selfish desire, and to use the zoning power for aims beyond its legitimate purposes."

After this he goes on to describe the types of towns that are the object of his concern. He separates them from "the settled suburbs surrounding the cities" that should have the right to remain undisturbed and paints this picture of the targets of his distaste. :

"On the contrary these areas are sprawling, heterogeneous governmental units, mostly townships, each really amounting to a region of considerable size itself. Their present rural, semi-rural or mixed nature is about to change substantially and they are soon to become melded into the whole metropolitan area. Their political boundaries are artificial and hence of little significance beyond defining one unit of government."

"Such municipalities, above all others, vitally need and may legally exercise comprehensive planning and implement zoning techniques to avoid present haphazard development which can only bring future grief. They are entitled to aim thereby for a sound and balanced area, with varying uses confined to specific districts and appropriately regulated."

He then continues to describe a number of things towns can reasonably do to shape their future. Then he comes to this.

"And this gets to the nub of what this, and similar cases, are really all about, i.e. the outer limit of the zoning power to be enjoyed by these municipalities most in need of comprehensive authority. What action is not legitimately encompassed by that power and what is the proper role of courts in reviewing its exercise?"

"This inquiry involves important fundamentals. In the broad sense the considerations are well posed in Williams, "Planning Law and Democratic Living," 20 Law and Contemporary Problems 317 (1955):

"The main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society equality of opportunity and equality of treatment, freedom of thought and considerable freedom of action, and fairness. Under the American system, a more or less independent mechanism of judicial review is established to provide an independent check on whether specific governmental decisions conform to these standards. While controversy has often raged about judicial action in other areas, it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare."

"Constitutional law should serve to shed light upon thinking about local planning, by requiring those concerned to do what they should be doing anyway to work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity."

This is a set of breathtaking assertions.

First, while he offers a broad amorphous set of values, it might just as reasonably be said that the main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society as enshrined in the precise language of the U. S. Constitution.

Second, as to what he asserts as having "always been recognized" as "an essential part of the judicial function" and the "attitudes and policies" with which he is concerned, these must be compared to the values and actions consistently upheld for thirty-five years by the U. S. Supreme Court and flowing from sources like the Standard State Zoning Enabling Act that was a product of the federal government. And just who has been doing the recognizing, anyway?

Third, there is the need to "work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity." This lofty vision should be compared with the language found later in the text defining the role of zoning.

Next he expands to a broader vision of a seemingly boundless role for the courts and shares his disdain for those with less expansive views.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."

After this the discussion focuses closer to the case at hand and on the permitted or proper scope of judicial oversight. He finally comes to the definition of zoning quoted above and this statement that seemingly undercuts the argument he has been advancing for the expansiveness of judicial oversight of municipal actions.

"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

After all of his argument to the contrary, this language appears to make it clear that while there are great issues connected with human freedom and opportunity this is not the arena in which they can be constitutionally settled.

From this point the focus is on little more than repetition of the issues, arguing back and forth with elements of previous court decisions and finally a discussion of the actual issue of the case - the right to prohibit mobile homes.

DeSimone v. Greater Englewood Housing Corp.

We next hear his voice in the case of DeSimone v. Greater Englewood Housing Corp. 56 N. J. 428 (1970) 267 A.2d 31. While a seemingly small matter over issuance of a variance, it caught the emerging temper of its time. There had been racial disturbances in Englewood in July, 1967 and the town had become a focus of the Governor's Select Commission on Civil Disorder and its "Report for Action" issued the following year. This unanimous decision was seen by sympathizers as an opening for a renewed assault on municipal zoning. To understand this perspective we offer the assessment of Norman Williams, Jr. in The Background and Significance of Mount Laurel II from 1984:

"By the late 1960's, however, the world suddenly began to look rather different than it had when Justice Hall wrote his Vickers dissent, and other judges began to reexamine their tolerance of exclusionary zoning practices. In an otherwise relatively unimportant case, the New Jersey Supreme Court in 1970 upheld (against a challenge by neighbors) a New Jersey "d" variance approving a housing project in Englewood, which was (a) located in a "white area" and (b) clearly designed at least in part to accommodate blacks from the Englewood ghetto. In upholding the grant of the variance, the opinion-by Hall, and now unanimous--commented in dictum that under those circumstances such a variance could not have been denied. The only logical basis for this comment is that there must be some affirmative duty to plan on behalf of all sections of the population. Once those familiar with this field of law read the Englewood opinion, it was clear that the jig was up; the court seemed to be sending out signals that it was ready for a major reversal on the exclusionary problem." This led us to Mt. Laurel I.

Mt. Laurel I

Now we move on to the climactic document of the career of Frederick W. Hall. The first Mt. Laurel decision was written in 1975, thirteen years after his dissent in Vickers v. Gloucester Township and was his last great contribution to the activism of the court. The case, Southern Burlington County N. A. A. C. P. v. Mount Laurel 67 N. J. 151 (1975), began its course through the state judicial system in 1972 with a finding for the plaintiff which was subsequently appealed, not only by the township but by the plaintiffs as well seeking an expansion of the scope of the decision. It was then taken over by the state Supreme Court and transmuted from a case concerned with racial discrimination, which would have claimed a violation of the federal Fair Housing Act, into one focused on economic segregation which kept it within the state court system where it was argued in 1974 and decided in 1975. It begins by presenting the scope of the argument. We also find here Mr. Norman Williams, Jr. arguing the cause for amicus curiae The Public Interest Research Group of New Jersey twenty years after publishing his foundational document "Planning Law and Democratic Living" in 1955. Importantly, this comes seven years after the Fair Housing Act.

"This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipality. The trial court so found, 119 N.J. Super. 164 (Law Div. 1972), and declared the township zoning ordinance totally invalid. Its judgment went on, in line with the requests for affirmative relief, to order the municipality to make studies of the housing needs of low and moderate income persons presently or formerly residing in the community in substandard housing, as well as those in such income classifications presently employed in the township and living elsewhere or reasonably expected to be employed therein in the future ... The township appealed to the Appellate Division and those plaintiffs, not present or former residents, cross-appealed on the basis that the judgment should have directed that the prescribed plan take into account as well a fair share of the regional housing needs of low and moderate income families without limitation to those having, past, present or prospective connection with the township. The appeals were certified on our own motion before argument in the Division."

"The implications of the issue presented are indeed broad and far-reaching, extending much beyond these particular plaintiffs and the boundaries of this municipality."

"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."

"We will, therefore, consider the case from the wider viewpoint that the effect of Mount Laurel's land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

"Its candid position is that, conceding its land use regulation was intended to result and has resulted in economic discrimination and exclusion of substantial segments of the area population, its policies and practices are in the best present and future fiscal interest of the municipality and its inhabitants and are legally permissible and justified. It further asserts that the trial court was without power to direct the affirmative relief it did."

In these few opening quotes we find the whole argument showcased. It all begins with the "desperate need for housing" based on the horribly flawed assertion of a "housing crisis" that demonstrably never happened, to meet the needs of a population that still doesn't exist, most clearly expressed in this single sentence from "A Blueprint for Housing in New Jersey" (1970). "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985."

Based on this assumption the Court says they will consider the case from the "wider viewpoint" that the Mount Laurel ordinance has the effect of excluding people because of the "limited extent of their incomes and resources" which the municipality freely admits, and asserts they are "legally permissible and justified"in doing because it is in the "best present and future fiscal interest of the municipality and its inhabitants". And the Court accepts that "the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

To summarize, the township freely admits it did what it's accused of doing and says that it's legal and justified because it's in the interest of the town and the Court accepts that it wasn't done for any of the reasons made impermissible by the Fair Housing Act 42 U.S.C. 3602 et seq., which is the federally controlling statute and separates this case from the context of the dissent in Vickers v. Gloucester Township. That is the case. The rest of the decision is then divided into three parts.

I The Facts

This section begins with a lengthy recitation of the facts about Mount Laurel including its size and population and its various zones and the development that's taken place in them in a very straightforward manner. Then we come to the conclusion. "There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property ... and that the policy was carried out without regard for nonfiscal considerations with respect to people, either within or without its boundaries." In other words, they did exactly what they said they did and only for the reasons they said they did it.

The text then goes on to describe the reason for this. "This policy of land use regulation for a fiscal end derives from New Jersey's tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality's children." In other words, this is entirely the fault of the State and applies to all municipalities. As a logical result:

"This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost everyone acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing."

As proof of this practice"The Residential Land Supply" (April 1972) produced by The N. J. Department of Community Affairs and "Exclusionary Land Use Controls: The Case of North-Eastern New Jersey" (1971) by Norman Williams, Jr. and Thomas Norman are cited. What is not considered in this statement is that the municipal action benefits all of the residents of the municipality, including those who are low-and-moderate income homeowners who are most at risk of being driven from their homes by rising taxes.

The next thing shown is how the urban model also worked to maintain fiscal stability.

"The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing than the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing. Despite the municipally confined tax structure, commercial and industrial ratables generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas."

In other words, the cities provided for their fiscal stability by zoning for a substantial ratable base dominated by commercial and industrial uses. Their goal was the same as that of the developing municipalities but simply pursued by different means.

The final part of this section is devoted to the plight of the urban population after World War II as the commercial and industrial base left the cities for new locations in other towns, other counties and other states. At the same time the lure of home ownership in developing communities that promised to provide all of the benefits of urban life in terms of public services and economic opportunities, without the well recognized problems of urban life, drew the emerging middle class to the suburbs. This was compounded by the failure of the cities to find a new productive purpose.

"Much industry and retail business, and even professions, have left the cities."And as for the low income workers "These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a critical erosion of the city tax base and inability to provide the amount and quality of those governmental services education, health, police, fire, housing and the like so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing."

To summarize the facts. State tax policies placed the primary burden of funding municipal, county and educational services on the tax base of each municipality. In order to be able to carry this burden each municipality zoned itself to develop a ratable based that would provide for long-term fiscal stability. The cities did this by zoning for a large commercial and industrial base. "Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing." After World War II the urban model began to fail and many cities had difficulty reinventing themselves.

Instead of seeking to attract a tax base built on non-residential uses that relies on unskilled and semi-skilled workers, the suburbs did this by focusing on attracting a strong residential base that would provide for their future stability. The suburbs stand convicted of developing a well balanced, fiscally stable, socioeconomic model while the cities did not. They didn't attract employers of unskilled and semi-skilled workers and so did not seek to provide housing for a workforce that did not exist.

Now we come to the legal issue.

II The Legal Issue

"The legal question before us, as earlier indicated, is whether a developing municipality like Mount Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources."

"We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need thereof."

"We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs."

At this point we'll take a moment to recall previously expressed thoughts of Justice Hall with a pair of quotes from Vickers v. Gloucester Township cited above.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."
"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

The first quote could easily be applied to the Court in this case for focusing on the abstract need for housing without recognizing the real world reality that housing is only one aspect of the integrated socioeconomic need of the community. Logic argues that building housing for workers without work makes no more sense than building factories without workers to work in them.

The second challenges the expansive view of judicial prerogatives "to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes." Then the argument for this is presented.

"We begin with some fundamental principles as applied to the scene before us."

"Land use is encompassed within the state's police power."

"It is elementary theory that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws."

"It is required that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare (The last term seems broad enough to encompass the others.) Conversely, a zoning enactment which is contrary to the general welfare is invalid."

"Indeed these considerations are specifically set forth in the zoning enabling act as among the various purposes of zoning for which regulations must be designed. N. J. S. A. 40:55-32 ... If a zoning regulation violates the enabling act in this respect, it is also theoretically invalid under the state constitution. We say "theoretically" because, as a matter of policy, we do not treat the validity of most land use ordinance provisions as involving matters of constitutional dimension; that classification is confined to major questions of fundamental import."

"We consider the basic importance of housing and local regulations restricting its availability to substantial segments of the population to fall within the latter category."

"The demarcation between the valid and the invalid in the field of land use regulation is difficult to determine, not always clear and subject to change. This was recognized almost fifty years ago in the basic case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926):

"The ordinance now under review and all similar laws and regulations must find their justification in some aspect of police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. (272 U. S. at 387, 47 S. Ct. at 118, 71 L. Ed. at 310)."

It's nice to see the Court remembering the Ambler Realty case but it would be even nicer to see the Court recall The federal Fair Housing Act which clearly drew the line between legitimate and illegitimate. The Act prohibits discrimination in housing for a specific list of reasons: race, color, religion, sex, handicap, familial status or national origin. That is "precise delimitation". Counsel for Mt. Laurel Twp. made it clear that these were not the basis for their zoning and the Court accepted that that was the case. We would remind the Court of their own language.

"In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

The first thing Justice Hall needed to do to justify a need for change was find sources that, while supporting policies of deference to municipal decision-making, offer a warning that the future may be different and law may have to change. After offering a number of prior decisions as pointing in his direction he found it best said in Pierro v. Baxendale, 20 N. J. 17, 29 (1955) :

"If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed."

Having adding the sanctifying weight of precedent, he returns to his own thoughts.

"The warning implicates the matter of whose general welfare must be served or not violated in the field of land use regulation. Frequently the decisions in this state, including those just cited, have spoken only in terms of the interest of the enacting municipality, so that it has been thought, at least in some quarters, that such was the only welfare requiring consideration. It is, of course, true that many cases have dealt only with regulations having little, if any, outside impact where local decision is ordinarily entitled to prevail. However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state's citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served."

"This essential was distinctly pointed out in Euclid, where Mr. Justice Sutherland specifically referred to the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. Chief Justice Vanderbilt said essentially the same thing, in a different factual context, in the early leading case of Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949), when he spoke of the necessity of regional considerations in zoning and added this:

"The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. (1 N. J. at 513)."

Justice Hall offers this quote as supportive of his position but we see it pointing in exactly the opposite direction. The problem is one of perspective. For Justice Hall zoning in developing municipalities was an act of selfishness and a desire to isolate themselves from the needs of the broader region. We see it differently. We see the world from a dynamic perspective where forces that transcend transient social policy considerations are controlling and municipalities are simply responding to the greater market forces confronting them as they take their place in regions that are being redefined by evolving transportation and communications technologies. The sentence we have highlighted makes this point. Again, we're not asking you to take our viewpoint over that of Justice Hall. We have simply taken the quote he selected above and put it back in the paragraph where he found it. Once again we have added the highlighting for emphasis.

"What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as in living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

When read in this fuller context the vision of Justice Hall and the rest of the Court cannot stand. The "forces" cited in Duffcon are the dynamic forces we see shaping our world in various forms and with different names. In this case it is the economic force of the housing market and the social force of democratic diversity that together serve to create fiscally stable communities, each with a distinct face and character, and together advancing the general welfare of their region. The Court is seeking to impose housing diversity within every municipality, while the natural dynamic forces produce a vital diversity among municipalities.

After this a case supporting placement of a hospital for the emotionally disturbed as meeting a regional need superseding the rights of a municipality to reject it is presented. And then, having failed to find any substantive support for the action under consideration other than some mentions that at some point if circumstances change some alterations in judicial perspectives would be justified, the Court goes about doing what they clearly had decided to do all along.

"This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms of land use regulation which that relationship mandates. There cannot be the slightest doubt that shelter, along with food, are the most basic human needs."

"It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of such broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries. Negatively, it may not adopt regulations or policies which thwart or preclude that opportunity."

"In sum, we are satisfied beyond doubt that, by reason of the basic importance of appropriate housing and the long-standing pressing need for it, especially in the low and moderate cost housing category, and of the exclusionary zoning practices of so many municipalities, conditions have changed, and consistent with the warning in Pierro, supra, judicial attitudes must be altered from that espoused in that and other cases cited earlier, to require, as we have just said, a broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all."

"We have spoken of this obligation of such municipalities as "presumptive." The term has two aspects, procedural and substantive. Procedurally, we think the basic importance of appropriate housing for all dictates that, when it is shown that a developing municipality in its land use regulations has not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation of substantive due process or equal protection under the state constitution has been made out and the burden, and it is a heavy one, shifts to the municipality to establish a valid basis for its action or non-action. ... The substantive aspect of "presumptive" relates to the specifics, on the one hand, of what municipal land use regulation provisions, or the absence thereof, will evidence invalidity and shift the burden of proof and, on the other hand, of what bases and considerations will carry the municipality's burden and sustain what it has done or failed to do. Both kinds of specifics may well vary between municipalities according to peculiar circumstances."

"We turn to application of these principles in appraisal of Mount Laurel's zoning ordinance, useful as well, we think, as guidelines for future application in other municipalities."

With this the Court establishes a new concept in land-use litigation. It does so without constitutional, statutory or precedential support. It is nothing more than an act of will by the members of the Court and so effectively expands the boundaries of judicial authority beyond otherwise recognized bounds.

The focus then turns to the specific of Mount Laurel zoning.

"We have earlier stated that a developing municipality's obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to the municipality's fair share of the present and prospective regional need thereof. Some comment on that conclusion is in order at this point. Frequently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason. But, under present New Jersey legislation, zoning must be done on an individual municipal basis, rather than regionally. So long as that situation persists under the present tax structure, or in the absence of some kind of binding agreement among all the municipalities of a region, we feel that every municipality therein must bear its fair share of the regional burden. (In this respect our holding is broader than that of the trial court, which was limited to Mount Laurel-related low and moderate income housing needs.)"

This admission loudly echoes the language of Duffcon Concrete that supports putting different uses in different places based on any number of factors:

"Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

After this all that remains is the essential discussion of how to define a region.

"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. Confinement to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable."

There are any number of ways to define a region. The Northeast is a national region. The New York and Philadelphia metropolitan areas are regions. The Census Bureau provides journey-to-work data that shows where people who work in a given place live and conversely where people who live in a given area work. Worker housing tends to cluster around employment centers and regions tend to define themselves on an ongoing basis.

III The Remedy

This final section applies only to Mount Laurel and focuses only on mechanics.

This ends the majority opinion written by Justice Frederick Hall. All that remains is a consideration of his 1977 lecture.

We are presenting significant excerpts from this lecture by Justice Hall, delivered two years after his retirement, because it contains what we see as useful insights into his thinking about several important issues. These include his vision of the limits of judicial power, of which he see very few, and his idea of the basis for granting standing to the plaintiffs in the Mount Laurel case as "third- party non-beneficiaries" as defined by Professor Norman Williams, Jr. . He discusses the importance of defining a "fundamental interest" and the fact that for the federal courts housing is not one. We think the full lecture is well worth reading as a picture of the thinking of a man accustomed to wielding power and the public passions that drove him throughout his career on the bench.

The Judicial Role In Land-Use Regulation (excerpts)

Frederick W. Hall
Associate Justice of the New Jersey Supreme Court, retired
Arthur T. Vanderbilt Lecture
Harvard Law School Association of New Jersey
April 20, 1977

Modern land-use regulation has increasingly become a matter of vital interest and importance to the citizenry of large and small metropolitan areas and beyond, and bids fair to continue so for a considerable time to come. Its scope has changed immeasurably since constitutional approval was accorded about 50 years ago. The current major subjects and objects of regulation and the problems and issues arising from it have led to litigation of quite a different character than was formerly the case. What the proper judicial role in this field should be needs to be considered in the light of the broad changes that have likewise taken place in the kinds of litigation and the exercise of the judicial function in other fields of public law.


The United States Supreme Court has come to the point, in reviewing state action on claims of federal constitutional violation, of finding invalidity on equal-protection grounds only where the right involved is said to be a "fundamental interest" and the state cannot show a "compelling state interest." The subjects meeting the fundamental interest test have been strictly limited: voting, race, right to interstate travel and perhaps a couple of others. Housing is not one.
The courts recent forays into the land-use regulation field after an avoidance of about half a century have been, regardless of result, quite unsatisfactory, to say the least.

There have been deep changes in American life and philosophy and the place of government therein. These began to appear in quantity in the "New Deal" era of the 30's but developed much more strongly after World War II.
First, there was a vast increase in regulation of private affairs, both business and personal, by all levels of government. ....
Second, there has been a tremendous increase in the conferring or distribution by government of various kinds of benefits to aid the less fortunate members of our society.
Third, there has been a startling awakening and assertion of claims of human rights under constitutional guarantees, statutes and institutional arrangements especially on behalf of minorities of all varieties and the disadvantaged.
Fourth, we have witnessed a "law explosion," by which relief from all manner of alleged wrongs is sought in the courts in the belief that the judiciary is the only effective branch of government. Everyone sues about everything, ...

This type of litigation is quite different from the traditional model earlier described. It most frequently concerns public, rather than private, action or inaction. It may well attack a whole scheme of government activity. It very frequently is of a representative or class nature, affecting many more persons or entities than are parties or whose views are before the court.

It generally does not seek money damages, but rather declaratory or injunctive relief of a continuing and broadly remedial nature against some government entity or official. Equity jurisprudence very largely governs the ultimate result. ....

This relatively new category of public-law litigation, which includes as well certain kinds of land-use litigation shortly to be mentioned more specifically, presents important questions as to the extent of judicial power and the proper exercise of it. These queries generally arise about the remedy especially when the relief ordered or sought involves affirmative action by another branch of government or amounts to action by the judiciary in a form within the purview of or normally accomplished - even perhaps better handled - by either the local or state legislature or the executive branch.

The Courts Must Decide

Again, the courts are the sole and final arbiter of the constitutionality of local and state legislation, regulations or other governmental action. A declaration of invalidity is binding upon the legislature, the executive and all affected public officials. This is so whether or not the particular agency or government agrees with the decision. It may only be overturned by amendment through vote of the people according to specified procedures.

While considerations of constitutional claims require the greatest judicial circumspection, they cannot be decided on the basis of personal views of individual judges as to the advisability or wisdom of the governmental action under review or in accordance with what may appear to be the wish of an articulate or seeming majority of the affected populace on a particular question.

The judicial branch is the ultimate protector of the rights of all, and this of course includes those of minorities. Constitutional principles and the rights guaranteed by or arising under the documents must always be thought of as living and not static things, subject to enlargement and variation in interpretation and application as conditions and the needs of the body politic change. When this is to occur is, unless spelled out by amendment, the proper and exclusive province of the judiciary. This is fundamental in our form of government.

Land-Use Regulation

There remains the application of this discussion to the more specific matter of the appropriate judicial role in land-use regulation cases. Even more particularly, reference is confined to the currently active aspects of zoning for housing and the place of the regional concept and to the initial articulation of a new and constitutional approach thereto in the unanimous decision of our Supreme Court in Southern Burlington County NAACP v. Township of Mount Laurel, 67 N. J. 151 (1975).

The matter should be placed in historical perspective, both legal and factual. That history is thoroughly presented, state by state and overall, in Professor Norman William's recent comprehensive and thoroughly readable treatise, "American Land Planning Law." To summarize quickly, with special reference to this state, after zoning was constitutionally approved a half century ago, the authorizing legislation in New Jersey and most states, delegated the permissive power to each municipality under standards which, except for the broad health, morals and general welfare language, were directed to regulation of uses to avoid adverse physical impact and to safeguard property values.

The general language of the delegation necessarily left interpretation to the courts. The aim of the adopted ordinances was to keep industrial uses out of the residential areas of the cities and their close suburbs. The idea was revolutionary because it involved restrictions on the private use of one's land, which for centuries had received exceptional veneration and favored treatment at the hands of the law.

The attitudes of the courts in this state as elsewhere varied in periods during the course of the next few decades. Early judicial resistance to zoning largely favored landowners. From 1948 to recent times our courts swung quite perceptibly to the opposite extreme, upholding almost all municipal action.

The New Jersey factual picture changed drastically during this period. I am sure it is quite familiar to all of you. The population expanded greatly through the birth rate and immigration from other sections. Business and industry moved from the central cities to new locations farther out and the more affluent families followed to occupy newly-built single-family housing in developments in municipalities that had been substantially rural. The demand for municipal and educational services funded by real-property taxes became immense in these areas.

At the same time, the cities decayed and their tax bases eroded. They became populated largely by the poor. The available housing wore out and became substandard or worse. Government services deteriorated and we had the uprisings of the 60's.

During the same period, the character and aim of municipal zoning, especially in these municipalities that were growing, or experiencing market pressures for growth, changed radically, although the full significance was not apparent at once. The purpose shifted from protection against physical impact to socioeconomic designs with the clear purpose of safeguarding the particular municipality's welfare as it alone decided. A principal purpose was fiscal - to allow only that kind of growth that would pay its way taxwise, particularly with respect to school costs, or come close to it.

The result was almost universal prohibition through various zoning mechanisms against any but expensive, single-family housing. Multi-family rental units were allowed most meagerly overall. Generally, they too, were required to be expensive, and contained bedroom limitations restricting the number of school children. These provisions effectively excluded from municipality after municipality families of low-and moderate-income, whether they resided in the central cities and sought a better environment and living conditions or were young couples, elderly citizens and others not desiring large houses who already had some ties with the community.

The result too was a statewide shortage of decent low-and moderate-income housing in all types of municipalities, the existence and alarming consequences of which were repeatedly called to public attention by state-agency studies, gubernatorial messages, and recitals in state legislation providing some assistance in funding such housing, only, of course, available where local land-use regulations permitted. It became clear that local exclusionary ordinances were having a substantial impact outside the particular municipality.

At the same time, it was becoming obvious that use regulation of certain types of land had such an important impact beyond municipal lines that individual municipal regulation was harmful to the broader public welfare. So the legislature withdrew the delegation of zoning authority to municipalities with respect to ,among others, wetlands, coastal areas, and the Hackensack Meadowlands district and provided for use regulation by its own agencies. The advisability of the concept of regional land-use regulation was thus established.

In this state of affairs, the Mount Laurel case came to the Supreme Court. It projected a new class of land-use litigation. The suit was brought, not by neighbors protesting the zoning of a particular property or an owner seeking to develop his land contrary to the zoning ordinance, but by people whom Professor Williams calls "third-party non-beneficiaries" - resident and non-resident poor people who wanted to live in the township but could not afford the only type of housing permitted.

Their attack, which they clearly had standing to make, was on the whole zoning scheme of a typical growing municipality having adequate remaining land for further development. The plaintiffs' proofs and briefs well presented to the court the factual picture that has just been sketched.

For present purposes of the discussion of the judicial role, the rationale of the decision may be simplified as follows. Land-use regulation, like any other police power enactment, must enhance and not be contrary to the general welfare to be valid under the state constitution. The availability of adequate land and an appropriate variety and choice of housing for all categories of people is an absolute essential in promotion of the general welfare - in effect, a fundamental state interest.

It is so important to the public good that the general welfare that each so-called developing municipality must take into account in order to have a valid zoning ordinance extends beyond the claimed good of that particular governmental unit. So:

the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land-use regulation, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low-and moderate-cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries.

and may not adopt regulations or policies that thwart of preclude that opportunity. Exclusionary restrictions having the effect mentioned are unconstitutional unless the municipality can sustain the heavy burden of demonstrating peculiar circumstances dictating a contrary conclusion. This was not established by Mount Laurel, so its zoning ordinance is pro tanto invalid.

The conclusions were, of course, within the traditional power and obligation of a court to declare legislation unconstitutional. Deference to the Legislative branch, here the local governing body, requires that such a judgment be rendered only in a clear case, but when that plainly appears in a situation involving a fundamental state interest, a court would be derelict if it did not so act. We are, in essence, dealing with a moral issue.

Mount Laurel went on to indicate that, since housing needs, particularly for people of low and moderate income, do not necessarily suit or fit well in every municipality, a regional approach was desirable, and urged state legislative action to so provide. In the absence thereof, the court said that Mount Laurel would have to provide for its fair share of the present and prospective regional need for such housing.

This solution originated with Chief Justice Weintraub during court conferences, prior to the advent of new permanent justices, making it desirable to schedule a reargument. The idea was not new; several areas of the country have had voluntary plans in operation on this basis for some time, and the professional planning literature thereon is plentiful. The township was given the opportunity to revise its ordinance, using these and other guidelines mentioned in the opinion, with the right in the plaintiffs to seek court review of the revised product if it was claimed not to be in accord with the express or implied directions of the opinion.

There is certainly nothing here that could reasonably suggest an inappropriate judicial role. I submit that it is unthinkable that a court should stop short of giving litigants in the housing field all the guidelines it considers vital and to direct affirmative corrective action to the fullest extent that it can completely supervise and review simply because the defendant is a municipality, and one that might be recalcitrant or uncooperative in righting the constitutional wrong, or because some other entity might be able to do a better job.

Under New Jersey jurisprudence, a court must review any governmental action of the nature here involved, as the Supreme Court has since done in the Madison Township case. That opinion also clearly confirms the judicial power to seek the help of neutral experts where needed to decide questions beyond the ordinary sphere of judicial knowledge, which, of curse, occurs in many cases beside land use litigation.

And it is not to be forgotten that courts can bring about ultimate compliance with their judgments through negative orders. For example, a defiant municipality refusing to change its invalid zoning ordinance could be prohibited, until it did so, from issuing building permits or certificates of occupancy for any dwellings, or indeed for structures of any kind. this method of relief was effectively utilized recently in Morris County to bring about governmental action to provide adequate sewage disposal.

There are, of course, types of relief that courts should not order, regardless of their power to do so. I conceive, for example, that judicial tribunals ought not to direct municipalities to actually build housing. In some cases, they may have to stop and resort to judicial prodding of the public conscience to bring about remedial action.

Mount Laurel has spawned considerable litigation involving other municipalities. It is not within the scope of this presentation to discuss the various decisions, even if the author had had the time to digest the contents and implications of the great proliferation of paper representing the numerous opinions. One brief comment bearing on the judicial role may be in order.

I believe that the implications of Mount Laurel are clear enough that, where zoning for housing is involved, whether the municipality is strictly a developing one or not, a court should take a good, hard look and insist that the municipality justify its restrictions or be forced to change them.

Furthermore, the court ought to give real reasons in its decisions and not rely on unmeaningful boiler-plate shibboleths like arbitrariness, capriciousness, and dubious presumptions of validity. The housing issue is too important and too fundamental to be disposed of in any case by cursory judicial treatment, and we should not revert in such cases to any thesis that whatever the municipality has done is all right.

While the legislature has not yet responded to the Court's suggestion of provision for regional zoning, it did, after Mount Laurel, enact the new Municipal Land Use Law, various sections of which indicate an important shift in policy from the old individual-municipality emphasis of old enabling acts, and give statutory support to the constitutional bases of the decision. I refer to the purposes sections, where the intent of the Act is stated:

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 and preservation of the environment;
and:
to provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space ... in order to meet the needs of all New Jersey citizens.

In addition, the zoning ordinance of every municipality must conform to a master plan, which must contain a land-use plan element and a housing element. I submit that the latter, in order to ground a valid zoning ordinance, would have to make provision, appropriate to the particular municipality, for a variety and choice of housing.

While any home rule tradition is always subject to constitutional requirements and guarantees of rights for all people, as Mount Laurel in effect held, the land-use law provisions just referred to indicate to me a legislative recognition that the invisible walls of suburban communities must have many gates for entrance."

We have presented these portions of the lecture without comment. We believe it speaks for itself. It offers both information and insight into the thinking of a man, who, confronted with a world he didn't like, set out to change it with a seeming disregard for the interests of a great many of the people living in it. Whether this will ultimately be seen as heroic idealism or judicial tyranny will be left to the judgment of future generations who suffer or prosper as a result of it. Arguably, more than forty years on, we are such a generation.

Here we end the Third Source Narrative for Beyond the Mount Laurel Doctrine: From Forty Years of Failure To A Blueprint for Success.

Documents worth reading in addition to those quoted in the text above:

"The Housing Crisis In New Jersey" (1970)
"Land Use Regulation: The Residential Land Supply" (1972).
"A Blueprint For Housing In New Jersey" (1970)
"New Horizons In Housing" (1972).
Warth v. Seldin, 422 U. S. 490 (1975)
Pierro v. Baxendale, 20 N. J. 17, 29 (1955)
Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949)

Beyond the Mt. Laurel Doctrine
Third Source Narrative

This is the Source Narrative to accompany the first Mt. Laurel decision and the writings of its author, Justice Frederick W. Hall. Before looking at the writings of Justice Hall, we have another task to perform. It's time to recall that this podcast is a demonstration project for our Insight Engine problem-solving technique. One of the key steps in our process is identification of powerful false ideas that keep problems from being resolved. Our task is to deconstruct and dispel them. The first one we encounter is the idea of a "housing crisis" in New Jersey. This powerful false idea was the first justification for the actions in Mount Laurel I.

We begin by recognizing the enormous population growth of the "baby-boom" period. From 1940 to 1970 the Census shows the New Jersey population grew from more than 4.1 to over 7.1 million. Numerous studies by "experts" for major institutions projected continued similar growth.

In "The Housing Crisis in New Jersey" (1970) the issue is stated this way: "... there is wide agreement that the State's population will continue to grow at least at the present rate in the years to come." However, this document also includes a very important cautionary footnote that includes the recognition that housing growth drives population growth. It's not the other way around.

"The one significant factor on the horizon which may lead to a decline in the rate of population growth in New Jersey is, of course, the decline in the construction of housing units in the State. If present trends in housing production continue during the coming years to decline, population projections will undoubtedly have to be scaled downward. Furthermore, such a decline could well set in motion a "chain reaction" effect, which would result in further declines in the rate of growth."

The document also shows that building permits had peaked in 1964 at just over 68,000 and dropped to 43,661 by 1968, a four year decline of almost 36%. Such a decline could have been seen as the basis for a reconsideration of "population projections". That's not what happened.

On December 7th Governor Cahill went further in "A Blueprint for Housing in New Jersey". There he said "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985." No explanation is offered as to who these "experts"
were or what methodology they used to reach their astonishing total. He also says "According to reliable statistics, we require 100,000 additional housing units each year, but actually are building only 40,000." These statements remained unchallenged and became part of the major concurring opinion in Mt. Laurel I.

You might be asking "How wrong could the experts have been?" Here are the facts. Decide for yourself.

In 1988 the New Jersey Office of State Planning produced a Technical Document titled "Population Trends and Projections". In it they looked back over the period 1970 to 1985 and found that instead of the projected 2.8 million people from 1970, the actual increase came to 394,136, or less than one seventh of the projected amount. Simple math tells us that if 2.8 million people would require 100,000 units per year, a similar reduction would produce approximately 14,250 homes and the state was already seeing far more homes being built. Census numbers also show that in the decade of the 1970's the population grew by 196,847 while New Jersey added over 384,000 new homes, or 1.95 units for every additional person. Records of annual building permits show this rate of growth kept up through 1985. To fully appreciate the magnitude of this difference recall that the average household size at the time was approximately 3 persons which meant that in reality six homes were being built for every new household in New Jersey.

In conclusion, the population growth that was supposed to fuel the "housing crisis" never happened. The housing being built far exceeded any demand that the population that did come could absorb. If population projections had been adjusted based on the emerging downward trend in housing, the argument underpinning Mt. Laurel I would have had to be significantly altered if not abandoned altogether. But that didn't happen. Instead the Court relied on this badly flawed expert advice. That's the first false idea to be dispelled. There was no housing crisis.

Before we move on, if you're wondering who those unnamed experts could have been who led everyone so far astray, we found them. In a footnote in "Exclusionary Land Use Controls: The Case of North-eastern New Jersey" the authors praise Governor Cahill for his courage in delivering his Special Message and write "The technical specifications for the study were prepared by the authors of this article." The authors were Norman Williams, Jr. and Thomas Norman. Now you know. Now we move on and turn our attention to the second of the great revolutionary architects of the Mt. Laurel Doctrine.

The issues at the heart of the Mt. Laurel I decision - the question of Standing, the definition of the General Welfare and the requirement for Reasonableness - are dealt with in the Third podcast. We find the theories embodied in the writings of Norman Williams, Jr., discussed in the Second podcast, and we find them in the writings of New Jersey Supreme Court Justice Frederick W. Hall. Here we deal with those texts. We say "texts" because the Mt. Laurel decision, as its author freely admits, is about more than just Mt. Laurel. It is about the transformation of a legal theory into judicial practice. It attempts to set New Jersey apart from the long history of federal Supreme Court decisions that support the democratic diversity embodied in the New Jersey home rule tradition.

We have chosen four texts that we find most instructive. The first is a famous dissenting opinion written in 1962 in the case of Vickers v. Gloucester Twp. where his philosophies are clearly set forth and the second is DeSimone v. Greater Englewood Housing Corp. where he writes the majority opinion signaling a willingness on the part of the Court to support challenges to local zoning. The third is Mt. Laurel I and the fourth is a lecture given in 1977, two years after his retirement from the Court, amplifying his thinking about judicial prerogatives raising the issue of "standing" that was not addressed in the Court decision. That will complete our picture of his thinking.

We begin with a brief biographical note.

Frederick Wilson Hall

Frederick Wilson Hall was born in Pittsburgh in 1908. He graduated from Rutgers University where he was elected Phi Beta Kappa and from Harvard Law School Cum Laude in 1931. As a young lawyer he worked in the firm of New Jersey's first Chief Justice, Arthur T. Vanderbilt and then in 1941 he founded and practiced law at the firm of Wharton and Hall.
He was appointed to the New Jersey Superior Court in 1953 and served there until 1959 when he was appointed as an Associate Justice of the New Jersey Supreme Court where he served until 1975. Justice Hall was the last member of what was known as the "Weintraub Court" which served together for eleven years and was widely regarded as one of the most activist and progressive judicial bodies in the nation in the area of civil law.
He was known for his mastery of land use law and his great reputation in that field has tended to deflect attention from his important writings in other fields. He was completely at home in the entirely intricate field of municipal law; he wrote important opinions in the areas of torts, criminal law, constitutional law and many other subjects. Few judges possessed his extensive knowledge of procedure and the Rules of Court.
He remains most famous for writing the decision in the case known as Mt. Laurel I.
He died in 1984.
Vickers v. Gloucester Township

Now to the writings of Justice Frederick Hall. We begin in 1962 with his dissenting opinion in Vickers v. Gloucester Township, 37 N.J. 232 (1962). As we do, it's important to remember the federal statutory context. This is three years before the Voting Rights Act and six before the Fair Housing Act. The Civil Rights movement was growing stronger and a socioeconomic model seen as disproportionately benefiting White people was automatically treated as suspect by a certain school of social ideologues.

On its face this case is about the right of a municipality to ban mobile home parks, but Justice Hall sees it raising greater concerns.

"Of even greater concern is the judicial process by which it is reached and the breadth of the rationale. The import of the holding gives almost boundless freedom to developing municipalities to erect exclusionary walls on their boundaries, according to local whim or selfish desire, and to use the zoning power for aims beyond its legitimate purposes."

After this he goes on to describe the types of towns that are the object of his concern. He separates them from "the settled suburbs surrounding the cities" that should have the right to remain undisturbed and paints this picture of the targets of his distaste. :

"On the contrary these areas are sprawling, heterogeneous governmental units, mostly townships, each really amounting to a region of considerable size itself. Their present rural, semi-rural or mixed nature is about to change substantially and they are soon to become melded into the whole metropolitan area. Their political boundaries are artificial and hence of little significance beyond defining one unit of government."

"Such municipalities, above all others, vitally need and may legally exercise comprehensive planning and implement zoning techniques to avoid present haphazard development which can only bring future grief. They are entitled to aim thereby for a sound and balanced area, with varying uses confined to specific districts and appropriately regulated."

He then continues to describe a number of things towns can reasonably do to shape their future. Then he comes to this.

"And this gets to the nub of what this, and similar cases, are really all about, i.e. the outer limit of the zoning power to be enjoyed by these municipalities most in need of comprehensive authority. What action is not legitimately encompassed by that power and what is the proper role of courts in reviewing its exercise?"

"This inquiry involves important fundamentals. In the broad sense the considerations are well posed in Williams, "Planning Law and Democratic Living," 20 Law and Contemporary Problems 317 (1955):

"The main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society equality of opportunity and equality of treatment, freedom of thought and considerable freedom of action, and fairness. Under the American system, a more or less independent mechanism of judicial review is established to provide an independent check on whether specific governmental decisions conform to these standards. While controversy has often raged about judicial action in other areas, it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare."

"Constitutional law should serve to shed light upon thinking about local planning, by requiring those concerned to do what they should be doing anyway to work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity."

This is a set of breathtaking assertions.

First, while he offers a broad amorphous set of values, it might just as reasonably be said that the main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society as enshrined in the precise language of the U. S. Constitution.

Second, as to what he asserts as having "always been recognized" as "an essential part of the judicial function" and the "attitudes and policies" with which he is concerned, these must be compared to the values and actions consistently upheld for thirty-five years by the U. S. Supreme Court and flowing from sources like the Standard State Zoning Enabling Act that was a product of the federal government. And just who has been doing the recognizing, anyway?

Third, there is the need to "work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity." This lofty vision should be compared with the language found later in the text defining the role of zoning.

Next he expands to a broader vision of a seemingly boundless role for the courts and shares his disdain for those with less expansive views.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."

After this the discussion focuses closer to the case at hand and on the permitted or proper scope of judicial oversight. He finally comes to the definition of zoning quoted above and this statement that seemingly undercuts the argument he has been advancing for the expansiveness of judicial oversight of municipal actions.

"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

After all of his argument to the contrary, this language appears to make it clear that while there are great issues connected with human freedom and opportunity this is not the arena in which they can be constitutionally settled.

From this point the focus is on little more than repetition of the issues, arguing back and forth with elements of previous court decisions and finally a discussion of the actual issue of the case - the right to prohibit mobile homes.

DeSimone v. Greater Englewood Housing Corp.

We next hear his voice in the case of DeSimone v. Greater Englewood Housing Corp. 56 N. J. 428 (1970) 267 A.2d 31. While a seemingly small matter over issuance of a variance, it caught the emerging temper of its time. There had been racial disturbances in Englewood in July, 1967 and the town had become a focus of the Governor's Select Commission on Civil Disorder and its "Report for Action" issued the following year. This unanimous decision was seen by sympathizers as an opening for a renewed assault on municipal zoning. To understand this perspective we offer the assessment of Norman Williams, Jr. in The Background and Significance of Mount Laurel II from 1984:

"By the late 1960's, however, the world suddenly began to look rather different than it had when Justice Hall wrote his Vickers dissent, and other judges began to reexamine their tolerance of exclusionary zoning practices. In an otherwise relatively unimportant case, the New Jersey Supreme Court in 1970 upheld (against a challenge by neighbors) a New Jersey "d" variance approving a housing project in Englewood, which was (a) located in a "white area" and (b) clearly designed at least in part to accommodate blacks from the Englewood ghetto. In upholding the grant of the variance, the opinion-by Hall, and now unanimous--commented in dictum that under those circumstances such a variance could not have been denied. The only logical basis for this comment is that there must be some affirmative duty to plan on behalf of all sections of the population. Once those familiar with this field of law read the Englewood opinion, it was clear that the jig was up; the court seemed to be sending out signals that it was ready for a major reversal on the exclusionary problem." This led us to Mt. Laurel I.

Mt. Laurel I

Now we move on to the climactic document of the career of Frederick W. Hall. The first Mt. Laurel decision was written in 1975, thirteen years after his dissent in Vickers v. Gloucester Township and was his last great contribution to the activism of the court. The case, Southern Burlington County N. A. A. C. P. v. Mount Laurel 67 N. J. 151 (1975), began its course through the state judicial system in 1972 with a finding for the plaintiff which was subsequently appealed, not only by the township but by the plaintiffs as well seeking an expansion of the scope of the decision. It was then taken over by the state Supreme Court and transmuted from a case concerned with racial discrimination, which would have claimed a violation of the federal Fair Housing Act, into one focused on economic segregation which kept it within the state court system where it was argued in 1974 and decided in 1975. It begins by presenting the scope of the argument. We also find here Mr. Norman Williams, Jr. arguing the cause for amicus curiae The Public Interest Research Group of New Jersey twenty years after publishing his foundational document "Planning Law and Democratic Living" in 1955. Importantly, this comes seven years after the Fair Housing Act.

"This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipality. The trial court so found, 119 N.J. Super. 164 (Law Div. 1972), and declared the township zoning ordinance totally invalid. Its judgment went on, in line with the requests for affirmative relief, to order the municipality to make studies of the housing needs of low and moderate income persons presently or formerly residing in the community in substandard housing, as well as those in such income classifications presently employed in the township and living elsewhere or reasonably expected to be employed therein in the future ... The township appealed to the Appellate Division and those plaintiffs, not present or former residents, cross-appealed on the basis that the judgment should have directed that the prescribed plan take into account as well a fair share of the regional housing needs of low and moderate income families without limitation to those having, past, present or prospective connection with the township. The appeals were certified on our own motion before argument in the Division."

"The implications of the issue presented are indeed broad and far-reaching, extending much beyond these particular plaintiffs and the boundaries of this municipality."

"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."

"We will, therefore, consider the case from the wider viewpoint that the effect of Mount Laurel's land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

"Its candid position is that, conceding its land use regulation was intended to result and has resulted in economic discrimination and exclusion of substantial segments of the area population, its policies and practices are in the best present and future fiscal interest of the municipality and its inhabitants and are legally permissible and justified. It further asserts that the trial court was without power to direct the affirmative relief it did."

In these few opening quotes we find the whole argument showcased. It all begins with the "desperate need for housing" based on the horribly flawed assertion of a "housing crisis" that demonstrably never happened, to meet the needs of a population that still doesn't exist, most clearly expressed in this single sentence from "A Blueprint for Housing in New Jersey" (1970). "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985."

Based on this assumption the Court says they will consider the case from the "wider viewpoint" that the Mount Laurel ordinance has the effect of excluding people because of the "limited extent of their incomes and resources" which the municipality freely admits, and asserts they are "legally permissible and justified"in doing because it is in the "best present and future fiscal interest of the municipality and its inhabitants". And the Court accepts that "the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

To summarize, the township freely admits it did what it's accused of doing and says that it's legal and justified because it's in the interest of the town and the Court accepts that it wasn't done for any of the reasons made impermissible by the Fair Housing Act 42 U.S.C. 3602 et seq., which is the federally controlling statute and separates this case from the context of the dissent in Vickers v. Gloucester Township. That is the case. The rest of the decision is then divided into three parts.

I The Facts

This section begins with a lengthy recitation of the facts about Mount Laurel including its size and population and its various zones and the development that's taken place in them in a very straightforward manner. Then we come to the conclusion. "There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property ... and that the policy was carried out without regard for nonfiscal considerations with respect to people, either within or without its boundaries." In other words, they did exactly what they said they did and only for the reasons they said they did it.

The text then goes on to describe the reason for this. "This policy of land use regulation for a fiscal end derives from New Jersey's tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality's children." In other words, this is entirely the fault of the State and applies to all municipalities. As a logical result:

"This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost everyone acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing."

As proof of this practice"The Residential Land Supply" (April 1972) produced by The N. J. Department of Community Affairs and "Exclusionary Land Use Controls: The Case of North-Eastern New Jersey" (1971) by Norman Williams, Jr. and Thomas Norman are cited. What is not considered in this statement is that the municipal action benefits all of the residents of the municipality, including those who are low-and-moderate income homeowners who are most at risk of being driven from their homes by rising taxes.

The next thing shown is how the urban model also worked to maintain fiscal stability.

"The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing than the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing. Despite the municipally confined tax structure, commercial and industrial ratables generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas."

In other words, the cities provided for their fiscal stability by zoning for a substantial ratable base dominated by commercial and industrial uses. Their goal was the same as that of the developing municipalities but simply pursued by different means.

The final part of this section is devoted to the plight of the urban population after World War II as the commercial and industrial base left the cities for new locations in other towns, other counties and other states. At the same time the lure of home ownership in developing communities that promised to provide all of the benefits of urban life in terms of public services and economic opportunities, without the well recognized problems of urban life, drew the emerging middle class to the suburbs. This was compounded by the failure of the cities to find a new productive purpose.

"Much industry and retail business, and even professions, have left the cities."And as for the low income workers "These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a critical erosion of the city tax base and inability to provide the amount and quality of those governmental services education, health, police, fire, housing and the like so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing."

To summarize the facts. State tax policies placed the primary burden of funding municipal, county and educational services on the tax base of each municipality. In order to be able to carry this burden each municipality zoned itself to develop a ratable based that would provide for long-term fiscal stability. The cities did this by zoning for a large commercial and industrial base. "Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing." After World War II the urban model began to fail and many cities had difficulty reinventing themselves.

Instead of seeking to attract a tax base built on non-residential uses that relies on unskilled and semi-skilled workers, the suburbs did this by focusing on attracting a strong residential base that would provide for their future stability. The suburbs stand convicted of developing a well balanced, fiscally stable, socioeconomic model while the cities did not. They didn't attract employers of unskilled and semi-skilled workers and so did not seek to provide housing for a workforce that did not exist.

Now we come to the legal issue.

II The Legal Issue

"The legal question before us, as earlier indicated, is whether a developing municipality like Mount Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources."

"We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need thereof."

"We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs."

At this point we'll take a moment to recall previously expressed thoughts of Justice Hall with a pair of quotes from Vickers v. Gloucester Township cited above.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."
"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

The first quote could easily be applied to the Court in this case for focusing on the abstract need for housing without recognizing the real world reality that housing is only one aspect of the integrated socioeconomic need of the community. Logic argues that building housing for workers without work makes no more sense than building factories without workers to work in them.

The second challenges the expansive view of judicial prerogatives "to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes." Then the argument for this is presented.

"We begin with some fundamental principles as applied to the scene before us."

"Land use is encompassed within the state's police power."

"It is elementary theory that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws."

"It is required that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare (The last term seems broad enough to encompass the others.) Conversely, a zoning enactment which is contrary to the general welfare is invalid."

"Indeed these considerations are specifically set forth in the zoning enabling act as among the various purposes of zoning for which regulations must be designed. N. J. S. A. 40:55-32 ... If a zoning regulation violates the enabling act in this respect, it is also theoretically invalid under the state constitution. We say "theoretically" because, as a matter of policy, we do not treat the validity of most land use ordinance provisions as involving matters of constitutional dimension; that classification is confined to major questions of fundamental import."

"We consider the basic importance of housing and local regulations restricting its availability to substantial segments of the population to fall within the latter category."

"The demarcation between the valid and the invalid in the field of land use regulation is difficult to determine, not always clear and subject to change. This was recognized almost fifty years ago in the basic case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926):

"The ordinance now under review and all similar laws and regulations must find their justification in some aspect of police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. (272 U. S. at 387, 47 S. Ct. at 118, 71 L. Ed. at 310)."

It's nice to see the Court remembering the Ambler Realty case but it would be even nicer to see the Court recall The federal Fair Housing Act which clearly drew the line between legitimate and illegitimate. The Act prohibits discrimination in housing for a specific list of reasons: race, color, religion, sex, handicap, familial status or national origin. That is "precise delimitation". Counsel for Mt. Laurel Twp. made it clear that these were not the basis for their zoning and the Court accepted that that was the case. We would remind the Court of their own language.

"In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

The first thing Justice Hall needed to do to justify a need for change was find sources that, while supporting policies of deference to municipal decision-making, offer a warning that the future may be different and law may have to change. After offering a number of prior decisions as pointing in his direction he found it best said in Pierro v. Baxendale, 20 N. J. 17, 29 (1955) :

"If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed."

Having adding the sanctifying weight of precedent, he returns to his own thoughts.

"The warning implicates the matter of whose general welfare must be served or not violated in the field of land use regulation. Frequently the decisions in this state, including those just cited, have spoken only in terms of the interest of the enacting municipality, so that it has been thought, at least in some quarters, that such was the only welfare requiring consideration. It is, of course, true that many cases have dealt only with regulations having little, if any, outside impact where local decision is ordinarily entitled to prevail. However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state's citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served."

"This essential was distinctly pointed out in Euclid, where Mr. Justice Sutherland specifically referred to the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. Chief Justice Vanderbilt said essentially the same thing, in a different factual context, in the early leading case of Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949), when he spoke of the necessity of regional considerations in zoning and added this:

"The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. (1 N. J. at 513)."

Justice Hall offers this quote as supportive of his position but we see it pointing in exactly the opposite direction. The problem is one of perspective. For Justice Hall zoning in developing municipalities was an act of selfishness and a desire to isolate themselves from the needs of the broader region. We see it differently. We see the world from a dynamic perspective where forces that transcend transient social policy considerations are controlling and municipalities are simply responding to the greater market forces confronting them as they take their place in regions that are being redefined by evolving transportation and communications technologies. The sentence we have highlighted makes this point. Again, we're not asking you to take our viewpoint over that of Justice Hall. We have simply taken the quote he selected above and put it back in the paragraph where he found it. Once again we have added the highlighting for emphasis.

"What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as in living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

When read in this fuller context the vision of Justice Hall and the rest of the Court cannot stand. The "forces" cited in Duffcon are the dynamic forces we see shaping our world in various forms and with different names. In this case it is the economic force of the housing market and the social force of democratic diversity that together serve to create fiscally stable communities, each with a distinct face and character, and together advancing the general welfare of their region. The Court is seeking to impose housing diversity within every municipality, while the natural dynamic forces produce a vital diversity among municipalities.

After this a case supporting placement of a hospital for the emotionally disturbed as meeting a regional need superseding the rights of a municipality to reject it is presented. And then, having failed to find any substantive support for the action under consideration other than some mentions that at some point if circumstances change some alterations in judicial perspectives would be justified, the Court goes about doing what they clearly had decided to do all along.

"This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms of land use regulation which that relationship mandates. There cannot be the slightest doubt that shelter, along with food, are the most basic human needs."

"It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of such broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries. Negatively, it may not adopt regulations or policies which thwart or preclude that opportunity."

"In sum, we are satisfied beyond doubt that, by reason of the basic importance of appropriate housing and the long-standing pressing need for it, especially in the low and moderate cost housing category, and of the exclusionary zoning practices of so many municipalities, conditions have changed, and consistent with the warning in Pierro, supra, judicial attitudes must be altered from that espoused in that and other cases cited earlier, to require, as we have just said, a broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all."

"We have spoken of this obligation of such municipalities as "presumptive." The term has two aspects, procedural and substantive. Procedurally, we think the basic importance of appropriate housing for all dictates that, when it is shown that a developing municipality in its land use regulations has not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation of substantive due process or equal protection under the state constitution has been made out and the burden, and it is a heavy one, shifts to the municipality to establish a valid basis for its action or non-action. ... The substantive aspect of "presumptive" relates to the specifics, on the one hand, of what municipal land use regulation provisions, or the absence thereof, will evidence invalidity and shift the burden of proof and, on the other hand, of what bases and considerations will carry the municipality's burden and sustain what it has done or failed to do. Both kinds of specifics may well vary between municipalities according to peculiar circumstances."

"We turn to application of these principles in appraisal of Mount Laurel's zoning ordinance, useful as well, we think, as guidelines for future application in other municipalities."

With this the Court establishes a new concept in land-use litigation. It does so without constitutional, statutory or precedential support. It is nothing more than an act of will by the members of the Court and so effectively expands the boundaries of judicial authority beyond otherwise recognized bounds.

The focus then turns to the specific of Mount Laurel zoning.

"We have earlier stated that a developing municipality's obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to the municipality's fair share of the present and prospective regional need thereof. Some comment on that conclusion is in order at this point. Frequently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason. But, under present New Jersey legislation, zoning must be done on an individual municipal basis, rather than regionally. So long as that situation persists under the present tax structure, or in the absence of some kind of binding agreement among all the municipalities of a region, we feel that every municipality therein must bear its fair share of the regional burden. (In this respect our holding is broader than that of the trial court, which was limited to Mount Laurel-related low and moderate income housing needs.)"

This admission loudly echoes the language of Duffcon Concrete that supports putting different uses in different places based on any number of factors:

"Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

After this all that remains is the essential discussion of how to define a region.

"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. Confinement to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable."

There are any number of ways to define a region. The Northeast is a national region. The New York and Philadelphia metropolitan areas are regions. The Census Bureau provides journey-to-work data that shows where people who work in a given place live and conversely where people who live in a given area work. Worker housing tends to cluster around employment centers and regions tend to define themselves on an ongoing basis.

III The Remedy

This final section applies only to Mount Laurel and focuses only on mechanics.

This ends the majority opinion written by Justice Frederick Hall. All that remains is a consideration of his 1977 lecture.

We are presenting significant excerpts from this lecture by Justice Hall, delivered two years after his retirement, because it contains what we see as useful insights into his thinking about several important issues. These include his vision of the limits of judicial power, of which he see very few, and his idea of the basis for granting standing to the plaintiffs in the Mount Laurel case as "third- party non-beneficiaries" as defined by Professor Norman Williams, Jr. . He discusses the importance of defining a "fundamental interest" and the fact that for the federal courts housing is not one. We think the full lecture is well worth reading as a picture of the thinking of a man accustomed to wielding power and the public passions that drove him throughout his career on the bench.

The Judicial Role In Land-Use Regulation (excerpts)

Frederick W. Hall
Associate Justice of the New Jersey Supreme Court, retired
Arthur T. Vanderbilt Lecture
Harvard Law School Association of New Jersey
April 20, 1977

Modern land-use regulation has increasingly become a matter of vital interest and importance to the citizenry of large and small metropolitan areas and beyond, and bids fair to continue so for a considerable time to come. Its scope has changed immeasurably since constitutional approval was accorded about 50 years ago. The current major subjects and objects of regulation and the problems and issues arising from it have led to litigation of quite a different character than was formerly the case. What the proper judicial role in this field should be needs to be considered in the light of the broad changes that have likewise taken place in the kinds of litigation and the exercise of the judicial function in other fields of public law.


The United States Supreme Court has come to the point, in reviewing state action on claims of federal constitutional violation, of finding invalidity on equal-protection grounds only where the right involved is said to be a "fundamental interest" and the state cannot show a "compelling state interest." The subjects meeting the fundamental interest test have been strictly limited: voting, race, right to interstate travel and perhaps a couple of others. Housing is not one.
The courts recent forays into the land-use regulation field after an avoidance of about half a century have been, regardless of result, quite unsatisfactory, to say the least.

There have been deep changes in American life and philosophy and the place of government therein. These began to appear in quantity in the "New Deal" era of the 30's but developed much more strongly after World War II.
First, there was a vast increase in regulation of private affairs, both business and personal, by all levels of government. ....
Second, there has been a tremendous increase in the conferring or distribution by government of various kinds of benefits to aid the less fortunate members of our society.
Third, there has been a startling awakening and assertion of claims of human rights under constitutional guarantees, statutes and institutional arrangements especially on behalf of minorities of all varieties and the disadvantaged.
Fourth, we have witnessed a "law explosion," by which relief from all manner of alleged wrongs is sought in the courts in the belief that the judiciary is the only effective branch of government. Everyone sues about everything, ...

This type of litigation is quite different from the traditional model earlier described. It most frequently concerns public, rather than private, action or inaction. It may well attack a whole scheme of government activity. It very frequently is of a representative or class nature, affecting many more persons or entities than are parties or whose views are before the court.

It generally does not seek money damages, but rather declaratory or injunctive relief of a continuing and broadly remedial nature against some government entity or official. Equity jurisprudence very largely governs the ultimate result. ....

This relatively new category of public-law litigation, which includes as well certain kinds of land-use litigation shortly to be mentioned more specifically, presents important questions as to the extent of judicial power and the proper exercise of it. These queries generally arise about the remedy especially when the relief ordered or sought involves affirmative action by another branch of government or amounts to action by the judiciary in a form within the purview of or normally accomplished - even perhaps better handled - by either the local or state legislature or the executive branch.

The Courts Must Decide

Again, the courts are the sole and final arbiter of the constitutionality of local and state legislation, regulations or other governmental action. A declaration of invalidity is binding upon the legislature, the executive and all affected public officials. This is so whether or not the particular agency or government agrees with the decision. It may only be overturned by amendment through vote of the people according to specified procedures.

While considerations of constitutional claims require the greatest judicial circumspection, they cannot be decided on the basis of personal views of individual judges as to the advisability or wisdom of the governmental action under review or in accordance with what may appear to be the wish of an articulate or seeming majority of the affected populace on a particular question.

The judicial branch is the ultimate protector of the rights of all, and this of course includes those of minorities. Constitutional principles and the rights guaranteed by or arising under the documents must always be thought of as living and not static things, subject to enlargement and variation in interpretation and application as conditions and the needs of the body politic change. When this is to occur is, unless spelled out by amendment, the proper and exclusive province of the judiciary. This is fundamental in our form of government.

Land-Use Regulation

There remains the application of this discussion to the more specific matter of the appropriate judicial role in land-use regulation cases. Even more particularly, reference is confined to the currently active aspects of zoning for housing and the place of the regional concept and to the initial articulation of a new and constitutional approach thereto in the unanimous decision of our Supreme Court in Southern Burlington County NAACP v. Township of Mount Laurel, 67 N. J. 151 (1975).

The matter should be placed in historical perspective, both legal and factual. That history is thoroughly presented, state by state and overall, in Professor Norman William's recent comprehensive and thoroughly readable treatise, "American Land Planning Law." To summarize quickly, with special reference to this state, after zoning was constitutionally approved a half century ago, the authorizing legislation in New Jersey and most states, delegated the permissive power to each municipality under standards which, except for the broad health, morals and general welfare language, were directed to regulation of uses to avoid adverse physical impact and to safeguard property values.

The general language of the delegation necessarily left interpretation to the courts. The aim of the adopted ordinances was to keep industrial uses out of the residential areas of the cities and their close suburbs. The idea was revolutionary because it involved restrictions on the private use of one's land, which for centuries had received exceptional veneration and favored treatment at the hands of the law.

The attitudes of the courts in this state as elsewhere varied in periods during the course of the next few decades. Early judicial resistance to zoning largely favored landowners. From 1948 to recent times our courts swung quite perceptibly to the opposite extreme, upholding almost all municipal action.

The New Jersey factual picture changed drastically during this period. I am sure it is quite familiar to all of you. The population expanded greatly through the birth rate and immigration from other sections. Business and industry moved from the central cities to new locations farther out and the more affluent families followed to occupy newly-built single-family housing in developments in municipalities that had been substantially rural. The demand for municipal and educational services funded by real-property taxes became immense in these areas.

At the same time, the cities decayed and their tax bases eroded. They became populated largely by the poor. The available housing wore out and became substandard or worse. Government services deteriorated and we had the uprisings of the 60's.

During the same period, the character and aim of municipal zoning, especially in these municipalities that were growing, or experiencing market pressures for growth, changed radically, although the full significance was not apparent at once. The purpose shifted from protection against physical impact to socioeconomic designs with the clear purpose of safeguarding the particular municipality's welfare as it alone decided. A principal purpose was fiscal - to allow only that kind of growth that would pay its way taxwise, particularly with respect to school costs, or come close to it.

The result was almost universal prohibition through various zoning mechanisms against any but expensive, single-family housing. Multi-family rental units were allowed most meagerly overall. Generally, they too, were required to be expensive, and contained bedroom limitations restricting the number of school children. These provisions effectively excluded from municipality after municipality families of low-and moderate-income, whether they resided in the central cities and sought a better environment and living conditions or were young couples, elderly citizens and others not desiring large houses who already had some ties with the community.

The result too was a statewide shortage of decent low-and moderate-income housing in all types of municipalities, the existence and alarming consequences of which were repeatedly called to public attention by state-agency studies, gubernatorial messages, and recitals in state legislation providing some assistance in funding such housing, only, of course, available where local land-use regulations permitted. It became clear that local exclusionary ordinances were having a substantial impact outside the particular municipality.

At the same time, it was becoming obvious that use regulation of certain types of land had such an important impact beyond municipal lines that individual municipal regulation was harmful to the broader public welfare. So the legislature withdrew the delegation of zoning authority to municipalities with respect to ,among others, wetlands, coastal areas, and the Hackensack Meadowlands district and provided for use regulation by its own agencies. The advisability of the concept of regional land-use regulation was thus established.

In this state of affairs, the Mount Laurel case came to the Supreme Court. It projected a new class of land-use litigation. The suit was brought, not by neighbors protesting the zoning of a particular property or an owner seeking to develop his land contrary to the zoning ordinance, but by people whom Professor Williams calls "third-party non-beneficiaries" - resident and non-resident poor people who wanted to live in the township but could not afford the only type of housing permitted.

Their attack, which they clearly had standing to make, was on the whole zoning scheme of a typical growing municipality having adequate remaining land for further development. The plaintiffs' proofs and briefs well presented to the court the factual picture that has just been sketched.

For present purposes of the discussion of the judicial role, the rationale of the decision may be simplified as follows. Land-use regulation, like any other police power enactment, must enhance and not be contrary to the general welfare to be valid under the state constitution. The availability of adequate land and an appropriate variety and choice of housing for all categories of people is an absolute essential in promotion of the general welfare - in effect, a fundamental state interest.

It is so important to the public good that the general welfare that each so-called developing municipality must take into account in order to have a valid zoning ordinance extends beyond the claimed good of that particular governmental unit. So:

the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land-use regulation, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low-and moderate-cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries.

and may not adopt regulations or policies that thwart of preclude that opportunity. Exclusionary restrictions having the effect mentioned are unconstitutional unless the municipality can sustain the heavy burden of demonstrating peculiar circumstances dictating a contrary conclusion. This was not established by Mount Laurel, so its zoning ordinance is pro tanto invalid.

The conclusions were, of course, within the traditional power and obligation of a court to declare legislation unconstitutional. Deference to the Legislative branch, here the local governing body, requires that such a judgment be rendered only in a clear case, but when that plainly appears in a situation involving a fundamental state interest, a court would be derelict if it did not so act. We are, in essence, dealing with a moral issue.

Mount Laurel went on to indicate that, since housing needs, particularly for people of low and moderate income, do not necessarily suit or fit well in every municipality, a regional approach was desirable, and urged state legislative action to so provide. In the absence thereof, the court said that Mount Laurel would have to provide for its fair share of the present and prospective regional need for such housing.

This solution originated with Chief Justice Weintraub during court conferences, prior to the advent of new permanent justices, making it desirable to schedule a reargument. The idea was not new; several areas of the country have had voluntary plans in operation on this basis for some time, and the professional planning literature thereon is plentiful. The township was given the opportunity to revise its ordinance, using these and other guidelines mentioned in the opinion, with the right in the plaintiffs to seek court review of the revised product if it was claimed not to be in accord with the express or implied directions of the opinion.

There is certainly nothing here that could reasonably suggest an inappropriate judicial role. I submit that it is unthinkable that a court should stop short of giving litigants in the housing field all the guidelines it considers vital and to direct affirmative corrective action to the fullest extent that it can completely supervise and review simply because the defendant is a municipality, and one that might be recalcitrant or uncooperative in righting the constitutional wrong, or because some other entity might be able to do a better job.

Under New Jersey jurisprudence, a court must review any governmental action of the nature here involved, as the Supreme Court has since done in the Madison Township case. That opinion also clearly confirms the judicial power to seek the help of neutral experts where needed to decide questions beyond the ordinary sphere of judicial knowledge, which, of curse, occurs in many cases beside land use litigation.

And it is not to be forgotten that courts can bring about ultimate compliance with their judgments through negative orders. For example, a defiant municipality refusing to change its invalid zoning ordinance could be prohibited, until it did so, from issuing building permits or certificates of occupancy for any dwellings, or indeed for structures of any kind. this method of relief was effectively utilized recently in Morris County to bring about governmental action to provide adequate sewage disposal.

There are, of course, types of relief that courts should not order, regardless of their power to do so. I conceive, for example, that judicial tribunals ought not to direct municipalities to actually build housing. In some cases, they may have to stop and resort to judicial prodding of the public conscience to bring about remedial action.

Mount Laurel has spawned considerable litigation involving other municipalities. It is not within the scope of this presentation to discuss the various decisions, even if the author had had the time to digest the contents and implications of the great proliferation of paper representing the numerous opinions. One brief comment bearing on the judicial role may be in order.

I believe that the implications of Mount Laurel are clear enough that, where zoning for housing is involved, whether the municipality is strictly a developing one or not, a court should take a good, hard look and insist that the municipality justify its restrictions or be forced to change them.

Furthermore, the court ought to give real reasons in its decisions and not rely on unmeaningful boiler-plate shibboleths like arbitrariness, capriciousness, and dubious presumptions of validity. The housing issue is too important and too fundamental to be disposed of in any case by cursory judicial treatment, and we should not revert in such cases to any thesis that whatever the municipality has done is all right.

While the legislature has not yet responded to the Court's suggestion of provision for regional zoning, it did, after Mount Laurel, enact the new Municipal Land Use Law, various sections of which indicate an important shift in policy from the old individual-municipality emphasis of old enabling acts, and give statutory support to the constitutional bases of the decision. I refer to the purposes sections, where the intent of the Act is stated:

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 and preservation of the environment;
and:
to provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space ... in order to meet the needs of all New Jersey citizens.

In addition, the zoning ordinance of every municipality must conform to a master plan, which must contain a land-use plan element and a housing element. I submit that the latter, in order to ground a valid zoning ordinance, would have to make provision, appropriate to the particular municipality, for a variety and choice of housing.

While any home rule tradition is always subject to constitutional requirements and guarantees of rights for all people, as Mount Laurel in effect held, the land-use law provisions just referred to indicate to me a legislative recognition that the invisible walls of suburban communities must have many gates for entrance."

We have presented these portions of the lecture without comment. We believe it speaks for itself. It offers both information and insight into the thinking of a man, who, confronted with a world he didn't like, set out to change it with a seeming disregard for the interests of a great many of the people living in it. Whether this will ultimately be seen as heroic idealism or judicial tyranny will be left to the judgment of future generations who suffer or prosper as a result of it. Arguably, more than forty years on, we are such a generation.

Here we end the Third Source Narrative for Beyond the Mount Laurel Doctrine: From Forty Years of Failure To A Blueprint for Success.

Documents worth reading in addition to those quoted in the text above:

"The Housing Crisis In New Jersey" (1970)
"Land Use Regulation: The Residential Land Supply" (1972).
"A Blueprint For Housing In New Jersey" (1970)
"New Horizons In Housing" (1972).
Warth v. Seldin, 422 U. S. 490 (1975)
Pierro v. Baxendale, 20 N. J. 17, 29 (1955)
Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949)

Beyond the Mt. Laurel Doctrine
Third Source Narrative

This is the Source Narrative to accompany the first Mt. Laurel decision and the writings of its author, Justice Frederick W. Hall. Before looking at the writings of Justice Hall, we have another task to perform. It's time to recall that this podcast is a demonstration project for our Insight Engine problem-solving technique. One of the key steps in our process is identification of powerful false ideas that keep problems from being resolved. Our task is to deconstruct and dispel them. The first one we encounter is the idea of a "housing crisis" in New Jersey. This powerful false idea was the first justification for the actions in Mount Laurel I.

We begin by recognizing the enormous population growth of the "baby-boom" period. From 1940 to 1970 the Census shows the New Jersey population grew from more than 4.1 to over 7.1 million. Numerous studies by "experts" for major institutions projected continued similar growth.

In "The Housing Crisis in New Jersey" (1970) the issue is stated this way: "... there is wide agreement that the State's population will continue to grow at least at the present rate in the years to come." However, this document also includes a very important cautionary footnote that includes the recognition that housing growth drives population growth. It's not the other way around.

"The one significant factor on the horizon which may lead to a decline in the rate of population growth in New Jersey is, of course, the decline in the construction of housing units in the State. If present trends in housing production continue during the coming years to decline, population projections will undoubtedly have to be scaled downward. Furthermore, such a decline could well set in motion a "chain reaction" effect, which would result in further declines in the rate of growth."

The document also shows that building permits had peaked in 1964 at just over 68,000 and dropped to 43,661 by 1968, a four year decline of almost 36%. Such a decline could have been seen as the basis for a reconsideration of "population projections". That's not what happened.

On December 7th Governor Cahill went further in "A Blueprint for Housing in New Jersey". There he said "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985." No explanation is offered as to who these "experts"
were or what methodology they used to reach their astonishing total. He also says "According to reliable statistics, we require 100,000 additional housing units each year, but actually are building only 40,000." These statements remained unchallenged and became part of the major concurring opinion in Mt. Laurel I.

You might be asking "How wrong could the experts have been?" Here are the facts. Decide for yourself.

In 1988 the New Jersey Office of State Planning produced a Technical Document titled "Population Trends and Projections". In it they looked back over the period 1970 to 1985 and found that instead of the projected 2.8 million people from 1970, the actual increase came to 394,136, or less than one seventh of the projected amount. Simple math tells us that if 2.8 million people would require 100,000 units per year, a similar reduction would produce approximately 14,250 homes and the state was already seeing far more homes being built. Census numbers also show that in the decade of the 1970's the population grew by 196,847 while New Jersey added over 384,000 new homes, or 1.95 units for every additional person. Records of annual building permits show this rate of growth kept up through 1985. To fully appreciate the magnitude of this difference recall that the average household size at the time was approximately 3 persons which meant that in reality six homes were being built for every new household in New Jersey.

In conclusion, the population growth that was supposed to fuel the "housing crisis" never happened. The housing being built far exceeded any demand that the population that did come could absorb. If population projections had been adjusted based on the emerging downward trend in housing, the argument underpinning Mt. Laurel I would have had to be significantly altered if not abandoned altogether. But that didn't happen. Instead the Court relied on this badly flawed expert advice. That's the first false idea to be dispelled. There was no housing crisis.

Before we move on, if you're wondering who those unnamed experts could have been who led everyone so far astray, we found them. In a footnote in "Exclusionary Land Use Controls: The Case of North-eastern New Jersey" the authors praise Governor Cahill for his courage in delivering his Special Message and write "The technical specifications for the study were prepared by the authors of this article." The authors were Norman Williams, Jr. and Thomas Norman. Now you know. Now we move on and turn our attention to the second of the great revolutionary architects of the Mt. Laurel Doctrine.

The issues at the heart of the Mt. Laurel I decision - the question of Standing, the definition of the General Welfare and the requirement for Reasonableness - are dealt with in the Third podcast. We find the theories embodied in the writings of Norman Williams, Jr., discussed in the Second podcast, and we find them in the writings of New Jersey Supreme Court Justice Frederick W. Hall. Here we deal with those texts. We say "texts" because the Mt. Laurel decision, as its author freely admits, is about more than just Mt. Laurel. It is about the transformation of a legal theory into judicial practice. It attempts to set New Jersey apart from the long history of federal Supreme Court decisions that support the democratic diversity embodied in the New Jersey home rule tradition.

We have chosen four texts that we find most instructive. The first is a famous dissenting opinion written in 1962 in the case of Vickers v. Gloucester Twp. where his philosophies are clearly set forth and the second is DeSimone v. Greater Englewood Housing Corp. where he writes the majority opinion signaling a willingness on the part of the Court to support challenges to local zoning. The third is Mt. Laurel I and the fourth is a lecture given in 1977, two years after his retirement from the Court, amplifying his thinking about judicial prerogatives raising the issue of "standing" that was not addressed in the Court decision. That will complete our picture of his thinking.

We begin with a brief biographical note.

Frederick Wilson Hall

Frederick Wilson Hall was born in Pittsburgh in 1908. He graduated from Rutgers University where he was elected Phi Beta Kappa and from Harvard Law School Cum Laude in 1931. As a young lawyer he worked in the firm of New Jersey's first Chief Justice, Arthur T. Vanderbilt and then in 1941 he founded and practiced law at the firm of Wharton and Hall.
He was appointed to the New Jersey Superior Court in 1953 and served there until 1959 when he was appointed as an Associate Justice of the New Jersey Supreme Court where he served until 1975. Justice Hall was the last member of what was known as the "Weintraub Court" which served together for eleven years and was widely regarded as one of the most activist and progressive judicial bodies in the nation in the area of civil law.
He was known for his mastery of land use law and his great reputation in that field has tended to deflect attention from his important writings in other fields. He was completely at home in the entirely intricate field of municipal law; he wrote important opinions in the areas of torts, criminal law, constitutional law and many other subjects. Few judges possessed his extensive knowledge of procedure and the Rules of Court.
He remains most famous for writing the decision in the case known as Mt. Laurel I.
He died in 1984.
Vickers v. Gloucester Township

Now to the writings of Justice Frederick Hall. We begin in 1962 with his dissenting opinion in Vickers v. Gloucester Township, 37 N.J. 232 (1962). As we do, it's important to remember the federal statutory context. This is three years before the Voting Rights Act and six before the Fair Housing Act. The Civil Rights movement was growing stronger and a socioeconomic model seen as disproportionately benefiting White people was automatically treated as suspect by a certain school of social ideologues.

On its face this case is about the right of a municipality to ban mobile home parks, but Justice Hall sees it raising greater concerns.

"Of even greater concern is the judicial process by which it is reached and the breadth of the rationale. The import of the holding gives almost boundless freedom to developing municipalities to erect exclusionary walls on their boundaries, according to local whim or selfish desire, and to use the zoning power for aims beyond its legitimate purposes."

After this he goes on to describe the types of towns that are the object of his concern. He separates them from "the settled suburbs surrounding the cities" that should have the right to remain undisturbed and paints this picture of the targets of his distaste. :

"On the contrary these areas are sprawling, heterogeneous governmental units, mostly townships, each really amounting to a region of considerable size itself. Their present rural, semi-rural or mixed nature is about to change substantially and they are soon to become melded into the whole metropolitan area. Their political boundaries are artificial and hence of little significance beyond defining one unit of government."

"Such municipalities, above all others, vitally need and may legally exercise comprehensive planning and implement zoning techniques to avoid present haphazard development which can only bring future grief. They are entitled to aim thereby for a sound and balanced area, with varying uses confined to specific districts and appropriately regulated."

He then continues to describe a number of things towns can reasonably do to shape their future. Then he comes to this.

"And this gets to the nub of what this, and similar cases, are really all about, i.e. the outer limit of the zoning power to be enjoyed by these municipalities most in need of comprehensive authority. What action is not legitimately encompassed by that power and what is the proper role of courts in reviewing its exercise?"

"This inquiry involves important fundamentals. In the broad sense the considerations are well posed in Williams, "Planning Law and Democratic Living," 20 Law and Contemporary Problems 317 (1955):

"The main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society equality of opportunity and equality of treatment, freedom of thought and considerable freedom of action, and fairness. Under the American system, a more or less independent mechanism of judicial review is established to provide an independent check on whether specific governmental decisions conform to these standards. While controversy has often raged about judicial action in other areas, it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare."

"Constitutional law should serve to shed light upon thinking about local planning, by requiring those concerned to do what they should be doing anyway to work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity."

This is a set of breathtaking assertions.

First, while he offers a broad amorphous set of values, it might just as reasonably be said that the main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society as enshrined in the precise language of the U. S. Constitution.

Second, as to what he asserts as having "always been recognized" as "an essential part of the judicial function" and the "attitudes and policies" with which he is concerned, these must be compared to the values and actions consistently upheld for thirty-five years by the U. S. Supreme Court and flowing from sources like the Standard State Zoning Enabling Act that was a product of the federal government. And just who has been doing the recognizing, anyway?

Third, there is the need to "work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity." This lofty vision should be compared with the language found later in the text defining the role of zoning.

Next he expands to a broader vision of a seemingly boundless role for the courts and shares his disdain for those with less expansive views.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."

After this the discussion focuses closer to the case at hand and on the permitted or proper scope of judicial oversight. He finally comes to the definition of zoning quoted above and this statement that seemingly undercuts the argument he has been advancing for the expansiveness of judicial oversight of municipal actions.

"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

After all of his argument to the contrary, this language appears to make it clear that while there are great issues connected with human freedom and opportunity this is not the arena in which they can be constitutionally settled.

From this point the focus is on little more than repetition of the issues, arguing back and forth with elements of previous court decisions and finally a discussion of the actual issue of the case - the right to prohibit mobile homes.

DeSimone v. Greater Englewood Housing Corp.

We next hear his voice in the case of DeSimone v. Greater Englewood Housing Corp. 56 N. J. 428 (1970) 267 A.2d 31. While a seemingly small matter over issuance of a variance, it caught the emerging temper of its time. There had been racial disturbances in Englewood in July, 1967 and the town had become a focus of the Governor's Select Commission on Civil Disorder and its "Report for Action" issued the following year. This unanimous decision was seen by sympathizers as an opening for a renewed assault on municipal zoning. To understand this perspective we offer the assessment of Norman Williams, Jr. in The Background and Significance of Mount Laurel II from 1984:

"By the late 1960's, however, the world suddenly began to look rather different than it had when Justice Hall wrote his Vickers dissent, and other judges began to reexamine their tolerance of exclusionary zoning practices. In an otherwise relatively unimportant case, the New Jersey Supreme Court in 1970 upheld (against a challenge by neighbors) a New Jersey "d" variance approving a housing project in Englewood, which was (a) located in a "white area" and (b) clearly designed at least in part to accommodate blacks from the Englewood ghetto. In upholding the grant of the variance, the opinion-by Hall, and now unanimous--commented in dictum that under those circumstances such a variance could not have been denied. The only logical basis for this comment is that there must be some affirmative duty to plan on behalf of all sections of the population. Once those familiar with this field of law read the Englewood opinion, it was clear that the jig was up; the court seemed to be sending out signals that it was ready for a major reversal on the exclusionary problem." This led us to Mt. Laurel I.

Mt. Laurel I

Now we move on to the climactic document of the career of Frederick W. Hall. The first Mt. Laurel decision was written in 1975, thirteen years after his dissent in Vickers v. Gloucester Township and was his last great contribution to the activism of the court. The case, Southern Burlington County N. A. A. C. P. v. Mount Laurel 67 N. J. 151 (1975), began its course through the state judicial system in 1972 with a finding for the plaintiff which was subsequently appealed, not only by the township but by the plaintiffs as well seeking an expansion of the scope of the decision. It was then taken over by the state Supreme Court and transmuted from a case concerned with racial discrimination, which would have claimed a violation of the federal Fair Housing Act, into one focused on economic segregation which kept it within the state court system where it was argued in 1974 and decided in 1975. It begins by presenting the scope of the argument. We also find here Mr. Norman Williams, Jr. arguing the cause for amicus curiae The Public Interest Research Group of New Jersey twenty years after publishing his foundational document "Planning Law and Democratic Living" in 1955. Importantly, this comes seven years after the Fair Housing Act.

"This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipality. The trial court so found, 119 N.J. Super. 164 (Law Div. 1972), and declared the township zoning ordinance totally invalid. Its judgment went on, in line with the requests for affirmative relief, to order the municipality to make studies of the housing needs of low and moderate income persons presently or formerly residing in the community in substandard housing, as well as those in such income classifications presently employed in the township and living elsewhere or reasonably expected to be employed therein in the future ... The township appealed to the Appellate Division and those plaintiffs, not present or former residents, cross-appealed on the basis that the judgment should have directed that the prescribed plan take into account as well a fair share of the regional housing needs of low and moderate income families without limitation to those having, past, present or prospective connection with the township. The appeals were certified on our own motion before argument in the Division."

"The implications of the issue presented are indeed broad and far-reaching, extending much beyond these particular plaintiffs and the boundaries of this municipality."

"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."

"We will, therefore, consider the case from the wider viewpoint that the effect of Mount Laurel's land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

"Its candid position is that, conceding its land use regulation was intended to result and has resulted in economic discrimination and exclusion of substantial segments of the area population, its policies and practices are in the best present and future fiscal interest of the municipality and its inhabitants and are legally permissible and justified. It further asserts that the trial court was without power to direct the affirmative relief it did."

In these few opening quotes we find the whole argument showcased. It all begins with the "desperate need for housing" based on the horribly flawed assertion of a "housing crisis" that demonstrably never happened, to meet the needs of a population that still doesn't exist, most clearly expressed in this single sentence from "A Blueprint for Housing in New Jersey" (1970). "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985."

Based on this assumption the Court says they will consider the case from the "wider viewpoint" that the Mount Laurel ordinance has the effect of excluding people because of the "limited extent of their incomes and resources" which the municipality freely admits, and asserts they are "legally permissible and justified"in doing because it is in the "best present and future fiscal interest of the municipality and its inhabitants". And the Court accepts that "the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

To summarize, the township freely admits it did what it's accused of doing and says that it's legal and justified because it's in the interest of the town and the Court accepts that it wasn't done for any of the reasons made impermissible by the Fair Housing Act 42 U.S.C. 3602 et seq., which is the federally controlling statute and separates this case from the context of the dissent in Vickers v. Gloucester Township. That is the case. The rest of the decision is then divided into three parts.

I The Facts

This section begins with a lengthy recitation of the facts about Mount Laurel including its size and population and its various zones and the development that's taken place in them in a very straightforward manner. Then we come to the conclusion. "There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property ... and that the policy was carried out without regard for nonfiscal considerations with respect to people, either within or without its boundaries." In other words, they did exactly what they said they did and only for the reasons they said they did it.

The text then goes on to describe the reason for this. "This policy of land use regulation for a fiscal end derives from New Jersey's tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality's children." In other words, this is entirely the fault of the State and applies to all municipalities. As a logical result:

"This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost everyone acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing."

As proof of this practice"The Residential Land Supply" (April 1972) produced by The N. J. Department of Community Affairs and "Exclusionary Land Use Controls: The Case of North-Eastern New Jersey" (1971) by Norman Williams, Jr. and Thomas Norman are cited. What is not considered in this statement is that the municipal action benefits all of the residents of the municipality, including those who are low-and-moderate income homeowners who are most at risk of being driven from their homes by rising taxes.

The next thing shown is how the urban model also worked to maintain fiscal stability.

"The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing than the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing. Despite the municipally confined tax structure, commercial and industrial ratables generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas."

In other words, the cities provided for their fiscal stability by zoning for a substantial ratable base dominated by commercial and industrial uses. Their goal was the same as that of the developing municipalities but simply pursued by different means.

The final part of this section is devoted to the plight of the urban population after World War II as the commercial and industrial base left the cities for new locations in other towns, other counties and other states. At the same time the lure of home ownership in developing communities that promised to provide all of the benefits of urban life in terms of public services and economic opportunities, without the well recognized problems of urban life, drew the emerging middle class to the suburbs. This was compounded by the failure of the cities to find a new productive purpose.

"Much industry and retail business, and even professions, have left the cities."And as for the low income workers "These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a critical erosion of the city tax base and inability to provide the amount and quality of those governmental services education, health, police, fire, housing and the like so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing."

To summarize the facts. State tax policies placed the primary burden of funding municipal, county and educational services on the tax base of each municipality. In order to be able to carry this burden each municipality zoned itself to develop a ratable based that would provide for long-term fiscal stability. The cities did this by zoning for a large commercial and industrial base. "Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing." After World War II the urban model began to fail and many cities had difficulty reinventing themselves.

Instead of seeking to attract a tax base built on non-residential uses that relies on unskilled and semi-skilled workers, the suburbs did this by focusing on attracting a strong residential base that would provide for their future stability. The suburbs stand convicted of developing a well balanced, fiscally stable, socioeconomic model while the cities did not. They didn't attract employers of unskilled and semi-skilled workers and so did not seek to provide housing for a workforce that did not exist.

Now we come to the legal issue.

II The Legal Issue

"The legal question before us, as earlier indicated, is whether a developing municipality like Mount Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources."

"We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need thereof."

"We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs."

At this point we'll take a moment to recall previously expressed thoughts of Justice Hall with a pair of quotes from Vickers v. Gloucester Township cited above.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."
"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

The first quote could easily be applied to the Court in this case for focusing on the abstract need for housing without recognizing the real world reality that housing is only one aspect of the integrated socioeconomic need of the community. Logic argues that building housing for workers without work makes no more sense than building factories without workers to work in them.

The second challenges the expansive view of judicial prerogatives "to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes." Then the argument for this is presented.

"We begin with some fundamental principles as applied to the scene before us."

"Land use is encompassed within the state's police power."

"It is elementary theory that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws."

"It is required that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare (The last term seems broad enough to encompass the others.) Conversely, a zoning enactment which is contrary to the general welfare is invalid."

"Indeed these considerations are specifically set forth in the zoning enabling act as among the various purposes of zoning for which regulations must be designed. N. J. S. A. 40:55-32 ... If a zoning regulation violates the enabling act in this respect, it is also theoretically invalid under the state constitution. We say "theoretically" because, as a matter of policy, we do not treat the validity of most land use ordinance provisions as involving matters of constitutional dimension; that classification is confined to major questions of fundamental import."

"We consider the basic importance of housing and local regulations restricting its availability to substantial segments of the population to fall within the latter category."

"The demarcation between the valid and the invalid in the field of land use regulation is difficult to determine, not always clear and subject to change. This was recognized almost fifty years ago in the basic case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926):

"The ordinance now under review and all similar laws and regulations must find their justification in some aspect of police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. (272 U. S. at 387, 47 S. Ct. at 118, 71 L. Ed. at 310)."

It's nice to see the Court remembering the Ambler Realty case but it would be even nicer to see the Court recall The federal Fair Housing Act which clearly drew the line between legitimate and illegitimate. The Act prohibits discrimination in housing for a specific list of reasons: race, color, religion, sex, handicap, familial status or national origin. That is "precise delimitation". Counsel for Mt. Laurel Twp. made it clear that these were not the basis for their zoning and the Court accepted that that was the case. We would remind the Court of their own language.

"In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

The first thing Justice Hall needed to do to justify a need for change was find sources that, while supporting policies of deference to municipal decision-making, offer a warning that the future may be different and law may have to change. After offering a number of prior decisions as pointing in his direction he found it best said in Pierro v. Baxendale, 20 N. J. 17, 29 (1955) :

"If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed."

Having adding the sanctifying weight of precedent, he returns to his own thoughts.

"The warning implicates the matter of whose general welfare must be served or not violated in the field of land use regulation. Frequently the decisions in this state, including those just cited, have spoken only in terms of the interest of the enacting municipality, so that it has been thought, at least in some quarters, that such was the only welfare requiring consideration. It is, of course, true that many cases have dealt only with regulations having little, if any, outside impact where local decision is ordinarily entitled to prevail. However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state's citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served."

"This essential was distinctly pointed out in Euclid, where Mr. Justice Sutherland specifically referred to the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. Chief Justice Vanderbilt said essentially the same thing, in a different factual context, in the early leading case of Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949), when he spoke of the necessity of regional considerations in zoning and added this:

"The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. (1 N. J. at 513)."

Justice Hall offers this quote as supportive of his position but we see it pointing in exactly the opposite direction. The problem is one of perspective. For Justice Hall zoning in developing municipalities was an act of selfishness and a desire to isolate themselves from the needs of the broader region. We see it differently. We see the world from a dynamic perspective where forces that transcend transient social policy considerations are controlling and municipalities are simply responding to the greater market forces confronting them as they take their place in regions that are being redefined by evolving transportation and communications technologies. The sentence we have highlighted makes this point. Again, we're not asking you to take our viewpoint over that of Justice Hall. We have simply taken the quote he selected above and put it back in the paragraph where he found it. Once again we have added the highlighting for emphasis.

"What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as in living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

When read in this fuller context the vision of Justice Hall and the rest of the Court cannot stand. The "forces" cited in Duffcon are the dynamic forces we see shaping our world in various forms and with different names. In this case it is the economic force of the housing market and the social force of democratic diversity that together serve to create fiscally stable communities, each with a distinct face and character, and together advancing the general welfare of their region. The Court is seeking to impose housing diversity within every municipality, while the natural dynamic forces produce a vital diversity among municipalities.

After this a case supporting placement of a hospital for the emotionally disturbed as meeting a regional need superseding the rights of a municipality to reject it is presented. And then, having failed to find any substantive support for the action under consideration other than some mentions that at some point if circumstances change some alterations in judicial perspectives would be justified, the Court goes about doing what they clearly had decided to do all along.

"This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms of land use regulation which that relationship mandates. There cannot be the slightest doubt that shelter, along with food, are the most basic human needs."

"It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of such broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries. Negatively, it may not adopt regulations or policies which thwart or preclude that opportunity."

"In sum, we are satisfied beyond doubt that, by reason of the basic importance of appropriate housing and the long-standing pressing need for it, especially in the low and moderate cost housing category, and of the exclusionary zoning practices of so many municipalities, conditions have changed, and consistent with the warning in Pierro, supra, judicial attitudes must be altered from that espoused in that and other cases cited earlier, to require, as we have just said, a broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all."

"We have spoken of this obligation of such municipalities as "presumptive." The term has two aspects, procedural and substantive. Procedurally, we think the basic importance of appropriate housing for all dictates that, when it is shown that a developing municipality in its land use regulations has not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation of substantive due process or equal protection under the state constitution has been made out and the burden, and it is a heavy one, shifts to the municipality to establish a valid basis for its action or non-action. ... The substantive aspect of "presumptive" relates to the specifics, on the one hand, of what municipal land use regulation provisions, or the absence thereof, will evidence invalidity and shift the burden of proof and, on the other hand, of what bases and considerations will carry the municipality's burden and sustain what it has done or failed to do. Both kinds of specifics may well vary between municipalities according to peculiar circumstances."

"We turn to application of these principles in appraisal of Mount Laurel's zoning ordinance, useful as well, we think, as guidelines for future application in other municipalities."

With this the Court establishes a new concept in land-use litigation. It does so without constitutional, statutory or precedential support. It is nothing more than an act of will by the members of the Court and so effectively expands the boundaries of judicial authority beyond otherwise recognized bounds.

The focus then turns to the specific of Mount Laurel zoning.

"We have earlier stated that a developing municipality's obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to the municipality's fair share of the present and prospective regional need thereof. Some comment on that conclusion is in order at this point. Frequently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason. But, under present New Jersey legislation, zoning must be done on an individual municipal basis, rather than regionally. So long as that situation persists under the present tax structure, or in the absence of some kind of binding agreement among all the municipalities of a region, we feel that every municipality therein must bear its fair share of the regional burden. (In this respect our holding is broader than that of the trial court, which was limited to Mount Laurel-related low and moderate income housing needs.)"

This admission loudly echoes the language of Duffcon Concrete that supports putting different uses in different places based on any number of factors:

"Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

After this all that remains is the essential discussion of how to define a region.

"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. Confinement to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable."

There are any number of ways to define a region. The Northeast is a national region. The New York and Philadelphia metropolitan areas are regions. The Census Bureau provides journey-to-work data that shows where people who work in a given place live and conversely where people who live in a given area work. Worker housing tends to cluster around employment centers and regions tend to define themselves on an ongoing basis.

III The Remedy

This final section applies only to Mount Laurel and focuses only on mechanics.

This ends the majority opinion written by Justice Frederick Hall. All that remains is a consideration of his 1977 lecture.

We are presenting significant excerpts from this lecture by Justice Hall, delivered two years after his retirement, because it contains what we see as useful insights into his thinking about several important issues. These include his vision of the limits of judicial power, of which he see very few, and his idea of the basis for granting standing to the plaintiffs in the Mount Laurel case as "third- party non-beneficiaries" as defined by Professor Norman Williams, Jr. . He discusses the importance of defining a "fundamental interest" and the fact that for the federal courts housing is not one. We think the full lecture is well worth reading as a picture of the thinking of a man accustomed to wielding power and the public passions that drove him throughout his career on the bench.

The Judicial Role In Land-Use Regulation (excerpts)

Frederick W. Hall
Associate Justice of the New Jersey Supreme Court, retired
Arthur T. Vanderbilt Lecture
Harvard Law School Association of New Jersey
April 20, 1977

Modern land-use regulation has increasingly become a matter of vital interest and importance to the citizenry of large and small metropolitan areas and beyond, and bids fair to continue so for a considerable time to come. Its scope has changed immeasurably since constitutional approval was accorded about 50 years ago. The current major subjects and objects of regulation and the problems and issues arising from it have led to litigation of quite a different character than was formerly the case. What the proper judicial role in this field should be needs to be considered in the light of the broad changes that have likewise taken place in the kinds of litigation and the exercise of the judicial function in other fields of public law.


The United States Supreme Court has come to the point, in reviewing state action on claims of federal constitutional violation, of finding invalidity on equal-protection grounds only where the right involved is said to be a "fundamental interest" and the state cannot show a "compelling state interest." The subjects meeting the fundamental interest test have been strictly limited: voting, race, right to interstate travel and perhaps a couple of others. Housing is not one.
The courts recent forays into the land-use regulation field after an avoidance of about half a century have been, regardless of result, quite unsatisfactory, to say the least.

There have been deep changes in American life and philosophy and the place of government therein. These began to appear in quantity in the "New Deal" era of the 30's but developed much more strongly after World War II.
First, there was a vast increase in regulation of private affairs, both business and personal, by all levels of government. ....
Second, there has been a tremendous increase in the conferring or distribution by government of various kinds of benefits to aid the less fortunate members of our society.
Third, there has been a startling awakening and assertion of claims of human rights under constitutional guarantees, statutes and institutional arrangements especially on behalf of minorities of all varieties and the disadvantaged.
Fourth, we have witnessed a "law explosion," by which relief from all manner of alleged wrongs is sought in the courts in the belief that the judiciary is the only effective branch of government. Everyone sues about everything, ...

This type of litigation is quite different from the traditional model earlier described. It most frequently concerns public, rather than private, action or inaction. It may well attack a whole scheme of government activity. It very frequently is of a representative or class nature, affecting many more persons or entities than are parties or whose views are before the court.

It generally does not seek money damages, but rather declaratory or injunctive relief of a continuing and broadly remedial nature against some government entity or official. Equity jurisprudence very largely governs the ultimate result. ....

This relatively new category of public-law litigation, which includes as well certain kinds of land-use litigation shortly to be mentioned more specifically, presents important questions as to the extent of judicial power and the proper exercise of it. These queries generally arise about the remedy especially when the relief ordered or sought involves affirmative action by another branch of government or amounts to action by the judiciary in a form within the purview of or normally accomplished - even perhaps better handled - by either the local or state legislature or the executive branch.

The Courts Must Decide

Again, the courts are the sole and final arbiter of the constitutionality of local and state legislation, regulations or other governmental action. A declaration of invalidity is binding upon the legislature, the executive and all affected public officials. This is so whether or not the particular agency or government agrees with the decision. It may only be overturned by amendment through vote of the people according to specified procedures.

While considerations of constitutional claims require the greatest judicial circumspection, they cannot be decided on the basis of personal views of individual judges as to the advisability or wisdom of the governmental action under review or in accordance with what may appear to be the wish of an articulate or seeming majority of the affected populace on a particular question.

The judicial branch is the ultimate protector of the rights of all, and this of course includes those of minorities. Constitutional principles and the rights guaranteed by or arising under the documents must always be thought of as living and not static things, subject to enlargement and variation in interpretation and application as conditions and the needs of the body politic change. When this is to occur is, unless spelled out by amendment, the proper and exclusive province of the judiciary. This is fundamental in our form of government.

Land-Use Regulation

There remains the application of this discussion to the more specific matter of the appropriate judicial role in land-use regulation cases. Even more particularly, reference is confined to the currently active aspects of zoning for housing and the place of the regional concept and to the initial articulation of a new and constitutional approach thereto in the unanimous decision of our Supreme Court in Southern Burlington County NAACP v. Township of Mount Laurel, 67 N. J. 151 (1975).

The matter should be placed in historical perspective, both legal and factual. That history is thoroughly presented, state by state and overall, in Professor Norman William's recent comprehensive and thoroughly readable treatise, "American Land Planning Law." To summarize quickly, with special reference to this state, after zoning was constitutionally approved a half century ago, the authorizing legislation in New Jersey and most states, delegated the permissive power to each municipality under standards which, except for the broad health, morals and general welfare language, were directed to regulation of uses to avoid adverse physical impact and to safeguard property values.

The general language of the delegation necessarily left interpretation to the courts. The aim of the adopted ordinances was to keep industrial uses out of the residential areas of the cities and their close suburbs. The idea was revolutionary because it involved restrictions on the private use of one's land, which for centuries had received exceptional veneration and favored treatment at the hands of the law.

The attitudes of the courts in this state as elsewhere varied in periods during the course of the next few decades. Early judicial resistance to zoning largely favored landowners. From 1948 to recent times our courts swung quite perceptibly to the opposite extreme, upholding almost all municipal action.

The New Jersey factual picture changed drastically during this period. I am sure it is quite familiar to all of you. The population expanded greatly through the birth rate and immigration from other sections. Business and industry moved from the central cities to new locations farther out and the more affluent families followed to occupy newly-built single-family housing in developments in municipalities that had been substantially rural. The demand for municipal and educational services funded by real-property taxes became immense in these areas.

At the same time, the cities decayed and their tax bases eroded. They became populated largely by the poor. The available housing wore out and became substandard or worse. Government services deteriorated and we had the uprisings of the 60's.

During the same period, the character and aim of municipal zoning, especially in these municipalities that were growing, or experiencing market pressures for growth, changed radically, although the full significance was not apparent at once. The purpose shifted from protection against physical impact to socioeconomic designs with the clear purpose of safeguarding the particular municipality's welfare as it alone decided. A principal purpose was fiscal - to allow only that kind of growth that would pay its way taxwise, particularly with respect to school costs, or come close to it.

The result was almost universal prohibition through various zoning mechanisms against any but expensive, single-family housing. Multi-family rental units were allowed most meagerly overall. Generally, they too, were required to be expensive, and contained bedroom limitations restricting the number of school children. These provisions effectively excluded from municipality after municipality families of low-and moderate-income, whether they resided in the central cities and sought a better environment and living conditions or were young couples, elderly citizens and others not desiring large houses who already had some ties with the community.

The result too was a statewide shortage of decent low-and moderate-income housing in all types of municipalities, the existence and alarming consequences of which were repeatedly called to public attention by state-agency studies, gubernatorial messages, and recitals in state legislation providing some assistance in funding such housing, only, of course, available where local land-use regulations permitted. It became clear that local exclusionary ordinances were having a substantial impact outside the particular municipality.

At the same time, it was becoming obvious that use regulation of certain types of land had such an important impact beyond municipal lines that individual municipal regulation was harmful to the broader public welfare. So the legislature withdrew the delegation of zoning authority to municipalities with respect to ,among others, wetlands, coastal areas, and the Hackensack Meadowlands district and provided for use regulation by its own agencies. The advisability of the concept of regional land-use regulation was thus established.

In this state of affairs, the Mount Laurel case came to the Supreme Court. It projected a new class of land-use litigation. The suit was brought, not by neighbors protesting the zoning of a particular property or an owner seeking to develop his land contrary to the zoning ordinance, but by people whom Professor Williams calls "third-party non-beneficiaries" - resident and non-resident poor people who wanted to live in the township but could not afford the only type of housing permitted.

Their attack, which they clearly had standing to make, was on the whole zoning scheme of a typical growing municipality having adequate remaining land for further development. The plaintiffs' proofs and briefs well presented to the court the factual picture that has just been sketched.

For present purposes of the discussion of the judicial role, the rationale of the decision may be simplified as follows. Land-use regulation, like any other police power enactment, must enhance and not be contrary to the general welfare to be valid under the state constitution. The availability of adequate land and an appropriate variety and choice of housing for all categories of people is an absolute essential in promotion of the general welfare - in effect, a fundamental state interest.

It is so important to the public good that the general welfare that each so-called developing municipality must take into account in order to have a valid zoning ordinance extends beyond the claimed good of that particular governmental unit. So:

the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land-use regulation, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low-and moderate-cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries.

and may not adopt regulations or policies that thwart of preclude that opportunity. Exclusionary restrictions having the effect mentioned are unconstitutional unless the municipality can sustain the heavy burden of demonstrating peculiar circumstances dictating a contrary conclusion. This was not established by Mount Laurel, so its zoning ordinance is pro tanto invalid.

The conclusions were, of course, within the traditional power and obligation of a court to declare legislation unconstitutional. Deference to the Legislative branch, here the local governing body, requires that such a judgment be rendered only in a clear case, but when that plainly appears in a situation involving a fundamental state interest, a court would be derelict if it did not so act. We are, in essence, dealing with a moral issue.

Mount Laurel went on to indicate that, since housing needs, particularly for people of low and moderate income, do not necessarily suit or fit well in every municipality, a regional approach was desirable, and urged state legislative action to so provide. In the absence thereof, the court said that Mount Laurel would have to provide for its fair share of the present and prospective regional need for such housing.

This solution originated with Chief Justice Weintraub during court conferences, prior to the advent of new permanent justices, making it desirable to schedule a reargument. The idea was not new; several areas of the country have had voluntary plans in operation on this basis for some time, and the professional planning literature thereon is plentiful. The township was given the opportunity to revise its ordinance, using these and other guidelines mentioned in the opinion, with the right in the plaintiffs to seek court review of the revised product if it was claimed not to be in accord with the express or implied directions of the opinion.

There is certainly nothing here that could reasonably suggest an inappropriate judicial role. I submit that it is unthinkable that a court should stop short of giving litigants in the housing field all the guidelines it considers vital and to direct affirmative corrective action to the fullest extent that it can completely supervise and review simply because the defendant is a municipality, and one that might be recalcitrant or uncooperative in righting the constitutional wrong, or because some other entity might be able to do a better job.

Under New Jersey jurisprudence, a court must review any governmental action of the nature here involved, as the Supreme Court has since done in the Madison Township case. That opinion also clearly confirms the judicial power to seek the help of neutral experts where needed to decide questions beyond the ordinary sphere of judicial knowledge, which, of curse, occurs in many cases beside land use litigation.

And it is not to be forgotten that courts can bring about ultimate compliance with their judgments through negative orders. For example, a defiant municipality refusing to change its invalid zoning ordinance could be prohibited, until it did so, from issuing building permits or certificates of occupancy for any dwellings, or indeed for structures of any kind. this method of relief was effectively utilized recently in Morris County to bring about governmental action to provide adequate sewage disposal.

There are, of course, types of relief that courts should not order, regardless of their power to do so. I conceive, for example, that judicial tribunals ought not to direct municipalities to actually build housing. In some cases, they may have to stop and resort to judicial prodding of the public conscience to bring about remedial action.

Mount Laurel has spawned considerable litigation involving other municipalities. It is not within the scope of this presentation to discuss the various decisions, even if the author had had the time to digest the contents and implications of the great proliferation of paper representing the numerous opinions. One brief comment bearing on the judicial role may be in order.

I believe that the implications of Mount Laurel are clear enough that, where zoning for housing is involved, whether the municipality is strictly a developing one or not, a court should take a good, hard look and insist that the municipality justify its restrictions or be forced to change them.

Furthermore, the court ought to give real reasons in its decisions and not rely on unmeaningful boiler-plate shibboleths like arbitrariness, capriciousness, and dubious presumptions of validity. The housing issue is too important and too fundamental to be disposed of in any case by cursory judicial treatment, and we should not revert in such cases to any thesis that whatever the municipality has done is all right.

While the legislature has not yet responded to the Court's suggestion of provision for regional zoning, it did, after Mount Laurel, enact the new Municipal Land Use Law, various sections of which indicate an important shift in policy from the old individual-municipality emphasis of old enabling acts, and give statutory support to the constitutional bases of the decision. I refer to the purposes sections, where the intent of the Act is stated:

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 and preservation of the environment;
and:
to provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space ... in order to meet the needs of all New Jersey citizens.

In addition, the zoning ordinance of every municipality must conform to a master plan, which must contain a land-use plan element and a housing element. I submit that the latter, in order to ground a valid zoning ordinance, would have to make provision, appropriate to the particular municipality, for a variety and choice of housing.

While any home rule tradition is always subject to constitutional requirements and guarantees of rights for all people, as Mount Laurel in effect held, the land-use law provisions just referred to indicate to me a legislative recognition that the invisible walls of suburban communities must have many gates for entrance."

We have presented these portions of the lecture without comment. We believe it speaks for itself. It offers both information and insight into the thinking of a man, who, confronted with a world he didn't like, set out to change it with a seeming disregard for the interests of a great many of the people living in it. Whether this will ultimately be seen as heroic idealism or judicial tyranny will be left to the judgment of future generations who suffer or prosper as a result of it. Arguably, more than forty years on, we are such a generation.

Here we end the Third Source Narrative for Beyond the Mount Laurel Doctrine: From Forty Years of Failure To A Blueprint for Success.

Documents worth reading in addition to those quoted in the text above:

"The Housing Crisis In New Jersey" (1970)
"Land Use Regulation: The Residential Land Supply" (1972).
"A Blueprint For Housing In New Jersey" (1970)
"New Horizons In Housing" (1972).
Warth v. Seldin, 422 U. S. 490 (1975)
Pierro v. Baxendale, 20 N. J. 17, 29 (1955)
Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949)

Beyond the Mt. Laurel Doctrine
Third Source Narrative

This is the Source Narrative to accompany the first Mt. Laurel decision and the writings of its author, Justice Frederick W. Hall. Before looking at the writings of Justice Hall, we have another task to perform. It's time to recall that this podcast is a demonstration project for our Insight Engine problem-solving technique. One of the key steps in our process is identification of powerful false ideas that keep problems from being resolved. Our task is to deconstruct and dispel them. The first one we encounter is the idea of a "housing crisis" in New Jersey. This powerful false idea was the first justification for the actions in Mount Laurel I.

We begin by recognizing the enormous population growth of the "baby-boom" period. From 1940 to 1970 the Census shows the New Jersey population grew from more than 4.1 to over 7.1 million. Numerous studies by "experts" for major institutions projected continued similar growth.

In "The Housing Crisis in New Jersey" (1970) the issue is stated this way: "... there is wide agreement that the State's population will continue to grow at least at the present rate in the years to come." However, this document also includes a very important cautionary footnote that includes the recognition that housing growth drives population growth. It's not the other way around.

"The one significant factor on the horizon which may lead to a decline in the rate of population growth in New Jersey is, of course, the decline in the construction of housing units in the State. If present trends in housing production continue during the coming years to decline, population projections will undoubtedly have to be scaled downward. Furthermore, such a decline could well set in motion a "chain reaction" effect, which would result in further declines in the rate of growth."

The document also shows that building permits had peaked in 1964 at just over 68,000 and dropped to 43,661 by 1968, a four year decline of almost 36%. Such a decline could have been seen as the basis for a reconsideration of "population projections". That's not what happened.

On December 7th Governor Cahill went further in "A Blueprint for Housing in New Jersey". There he said "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985." No explanation is offered as to who these "experts"
were or what methodology they used to reach their astonishing total. He also says "According to reliable statistics, we require 100,000 additional housing units each year, but actually are building only 40,000." These statements remained unchallenged and became part of the major concurring opinion in Mt. Laurel I.

You might be asking "How wrong could the experts have been?" Here are the facts. Decide for yourself.

In 1988 the New Jersey Office of State Planning produced a Technical Document titled "Population Trends and Projections". In it they looked back over the period 1970 to 1985 and found that instead of the projected 2.8 million people from 1970, the actual increase came to 394,136, or less than one seventh of the projected amount. Simple math tells us that if 2.8 million people would require 100,000 units per year, a similar reduction would produce approximately 14,250 homes and the state was already seeing far more homes being built. Census numbers also show that in the decade of the 1970's the population grew by 196,847 while New Jersey added over 384,000 new homes, or 1.95 units for every additional person. Records of annual building permits show this rate of growth kept up through 1985. To fully appreciate the magnitude of this difference recall that the average household size at the time was approximately 3 persons which meant that in reality six homes were being built for every new household in New Jersey.

In conclusion, the population growth that was supposed to fuel the "housing crisis" never happened. The housing being built far exceeded any demand that the population that did come could absorb. If population projections had been adjusted based on the emerging downward trend in housing, the argument underpinning Mt. Laurel I would have had to be significantly altered if not abandoned altogether. But that didn't happen. Instead the Court relied on this badly flawed expert advice. That's the first false idea to be dispelled. There was no housing crisis.

Before we move on, if you're wondering who those unnamed experts could have been who led everyone so far astray, we found them. In a footnote in "Exclusionary Land Use Controls: The Case of North-eastern New Jersey" the authors praise Governor Cahill for his courage in delivering his Special Message and write "The technical specifications for the study were prepared by the authors of this article." The authors were Norman Williams, Jr. and Thomas Norman. Now you know. Now we move on and turn our attention to the second of the great revolutionary architects of the Mt. Laurel Doctrine.

The issues at the heart of the Mt. Laurel I decision - the question of Standing, the definition of the General Welfare and the requirement for Reasonableness - are dealt with in the Third podcast. We find the theories embodied in the writings of Norman Williams, Jr., discussed in the Second podcast, and we find them in the writings of New Jersey Supreme Court Justice Frederick W. Hall. Here we deal with those texts. We say "texts" because the Mt. Laurel decision, as its author freely admits, is about more than just Mt. Laurel. It is about the transformation of a legal theory into judicial practice. It attempts to set New Jersey apart from the long history of federal Supreme Court decisions that support the democratic diversity embodied in the New Jersey home rule tradition.

We have chosen four texts that we find most instructive. The first is a famous dissenting opinion written in 1962 in the case of Vickers v. Gloucester Twp. where his philosophies are clearly set forth and the second is DeSimone v. Greater Englewood Housing Corp. where he writes the majority opinion signaling a willingness on the part of the Court to support challenges to local zoning. The third is Mt. Laurel I and the fourth is a lecture given in 1977, two years after his retirement from the Court, amplifying his thinking about judicial prerogatives raising the issue of "standing" that was not addressed in the Court decision. That will complete our picture of his thinking.

We begin with a brief biographical note.

Frederick Wilson Hall

Frederick Wilson Hall was born in Pittsburgh in 1908. He graduated from Rutgers University where he was elected Phi Beta Kappa and from Harvard Law School Cum Laude in 1931. As a young lawyer he worked in the firm of New Jersey's first Chief Justice, Arthur T. Vanderbilt and then in 1941 he founded and practiced law at the firm of Wharton and Hall.
He was appointed to the New Jersey Superior Court in 1953 and served there until 1959 when he was appointed as an Associate Justice of the New Jersey Supreme Court where he served until 1975. Justice Hall was the last member of what was known as the "Weintraub Court" which served together for eleven years and was widely regarded as one of the most activist and progressive judicial bodies in the nation in the area of civil law.
He was known for his mastery of land use law and his great reputation in that field has tended to deflect attention from his important writings in other fields. He was completely at home in the entirely intricate field of municipal law; he wrote important opinions in the areas of torts, criminal law, constitutional law and many other subjects. Few judges possessed his extensive knowledge of procedure and the Rules of Court.
He remains most famous for writing the decision in the case known as Mt. Laurel I.
He died in 1984.
Vickers v. Gloucester Township

Now to the writings of Justice Frederick Hall. We begin in 1962 with his dissenting opinion in Vickers v. Gloucester Township, 37 N.J. 232 (1962). As we do, it's important to remember the federal statutory context. This is three years before the Voting Rights Act and six before the Fair Housing Act. The Civil Rights movement was growing stronger and a socioeconomic model seen as disproportionately benefiting White people was automatically treated as suspect by a certain school of social ideologues.

On its face this case is about the right of a municipality to ban mobile home parks, but Justice Hall sees it raising greater concerns.

"Of even greater concern is the judicial process by which it is reached and the breadth of the rationale. The import of the holding gives almost boundless freedom to developing municipalities to erect exclusionary walls on their boundaries, according to local whim or selfish desire, and to use the zoning power for aims beyond its legitimate purposes."

After this he goes on to describe the types of towns that are the object of his concern. He separates them from "the settled suburbs surrounding the cities" that should have the right to remain undisturbed and paints this picture of the targets of his distaste. :

"On the contrary these areas are sprawling, heterogeneous governmental units, mostly townships, each really amounting to a region of considerable size itself. Their present rural, semi-rural or mixed nature is about to change substantially and they are soon to become melded into the whole metropolitan area. Their political boundaries are artificial and hence of little significance beyond defining one unit of government."

"Such municipalities, above all others, vitally need and may legally exercise comprehensive planning and implement zoning techniques to avoid present haphazard development which can only bring future grief. They are entitled to aim thereby for a sound and balanced area, with varying uses confined to specific districts and appropriately regulated."

He then continues to describe a number of things towns can reasonably do to shape their future. Then he comes to this.

"And this gets to the nub of what this, and similar cases, are really all about, i.e. the outer limit of the zoning power to be enjoyed by these municipalities most in need of comprehensive authority. What action is not legitimately encompassed by that power and what is the proper role of courts in reviewing its exercise?"

"This inquiry involves important fundamentals. In the broad sense the considerations are well posed in Williams, "Planning Law and Democratic Living," 20 Law and Contemporary Problems 317 (1955):

"The main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society equality of opportunity and equality of treatment, freedom of thought and considerable freedom of action, and fairness. Under the American system, a more or less independent mechanism of judicial review is established to provide an independent check on whether specific governmental decisions conform to these standards. While controversy has often raged about judicial action in other areas, it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare."

"Constitutional law should serve to shed light upon thinking about local planning, by requiring those concerned to do what they should be doing anyway to work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity."

This is a set of breathtaking assertions.

First, while he offers a broad amorphous set of values, it might just as reasonably be said that the main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society as enshrined in the precise language of the U. S. Constitution.

Second, as to what he asserts as having "always been recognized" as "an essential part of the judicial function" and the "attitudes and policies" with which he is concerned, these must be compared to the values and actions consistently upheld for thirty-five years by the U. S. Supreme Court and flowing from sources like the Standard State Zoning Enabling Act that was a product of the federal government. And just who has been doing the recognizing, anyway?

Third, there is the need to "work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity." This lofty vision should be compared with the language found later in the text defining the role of zoning.

Next he expands to a broader vision of a seemingly boundless role for the courts and shares his disdain for those with less expansive views.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."

After this the discussion focuses closer to the case at hand and on the permitted or proper scope of judicial oversight. He finally comes to the definition of zoning quoted above and this statement that seemingly undercuts the argument he has been advancing for the expansiveness of judicial oversight of municipal actions.

"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

After all of his argument to the contrary, this language appears to make it clear that while there are great issues connected with human freedom and opportunity this is not the arena in which they can be constitutionally settled.

From this point the focus is on little more than repetition of the issues, arguing back and forth with elements of previous court decisions and finally a discussion of the actual issue of the case - the right to prohibit mobile homes.

DeSimone v. Greater Englewood Housing Corp.

We next hear his voice in the case of DeSimone v. Greater Englewood Housing Corp. 56 N. J. 428 (1970) 267 A.2d 31. While a seemingly small matter over issuance of a variance, it caught the emerging temper of its time. There had been racial disturbances in Englewood in July, 1967 and the town had become a focus of the Governor's Select Commission on Civil Disorder and its "Report for Action" issued the following year. This unanimous decision was seen by sympathizers as an opening for a renewed assault on municipal zoning. To understand this perspective we offer the assessment of Norman Williams, Jr. in The Background and Significance of Mount Laurel II from 1984:

"By the late 1960's, however, the world suddenly began to look rather different than it had when Justice Hall wrote his Vickers dissent, and other judges began to reexamine their tolerance of exclusionary zoning practices. In an otherwise relatively unimportant case, the New Jersey Supreme Court in 1970 upheld (against a challenge by neighbors) a New Jersey "d" variance approving a housing project in Englewood, which was (a) located in a "white area" and (b) clearly designed at least in part to accommodate blacks from the Englewood ghetto. In upholding the grant of the variance, the opinion-by Hall, and now unanimous--commented in dictum that under those circumstances such a variance could not have been denied. The only logical basis for this comment is that there must be some affirmative duty to plan on behalf of all sections of the population. Once those familiar with this field of law read the Englewood opinion, it was clear that the jig was up; the court seemed to be sending out signals that it was ready for a major reversal on the exclusionary problem." This led us to Mt. Laurel I.

Mt. Laurel I

Now we move on to the climactic document of the career of Frederick W. Hall. The first Mt. Laurel decision was written in 1975, thirteen years after his dissent in Vickers v. Gloucester Township and was his last great contribution to the activism of the court. The case, Southern Burlington County N. A. A. C. P. v. Mount Laurel 67 N. J. 151 (1975), began its course through the state judicial system in 1972 with a finding for the plaintiff which was subsequently appealed, not only by the township but by the plaintiffs as well seeking an expansion of the scope of the decision. It was then taken over by the state Supreme Court and transmuted from a case concerned with racial discrimination, which would have claimed a violation of the federal Fair Housing Act, into one focused on economic segregation which kept it within the state court system where it was argued in 1974 and decided in 1975. It begins by presenting the scope of the argument. We also find here Mr. Norman Williams, Jr. arguing the cause for amicus curiae The Public Interest Research Group of New Jersey twenty years after publishing his foundational document "Planning Law and Democratic Living" in 1955. Importantly, this comes seven years after the Fair Housing Act.

"This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipality. The trial court so found, 119 N.J. Super. 164 (Law Div. 1972), and declared the township zoning ordinance totally invalid. Its judgment went on, in line with the requests for affirmative relief, to order the municipality to make studies of the housing needs of low and moderate income persons presently or formerly residing in the community in substandard housing, as well as those in such income classifications presently employed in the township and living elsewhere or reasonably expected to be employed therein in the future ... The township appealed to the Appellate Division and those plaintiffs, not present or former residents, cross-appealed on the basis that the judgment should have directed that the prescribed plan take into account as well a fair share of the regional housing needs of low and moderate income families without limitation to those having, past, present or prospective connection with the township. The appeals were certified on our own motion before argument in the Division."

"The implications of the issue presented are indeed broad and far-reaching, extending much beyond these particular plaintiffs and the boundaries of this municipality."

"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."

"We will, therefore, consider the case from the wider viewpoint that the effect of Mount Laurel's land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

"Its candid position is that, conceding its land use regulation was intended to result and has resulted in economic discrimination and exclusion of substantial segments of the area population, its policies and practices are in the best present and future fiscal interest of the municipality and its inhabitants and are legally permissible and justified. It further asserts that the trial court was without power to direct the affirmative relief it did."

In these few opening quotes we find the whole argument showcased. It all begins with the "desperate need for housing" based on the horribly flawed assertion of a "housing crisis" that demonstrably never happened, to meet the needs of a population that still doesn't exist, most clearly expressed in this single sentence from "A Blueprint for Housing in New Jersey" (1970). "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985."

Based on this assumption the Court says they will consider the case from the "wider viewpoint" that the Mount Laurel ordinance has the effect of excluding people because of the "limited extent of their incomes and resources" which the municipality freely admits, and asserts they are "legally permissible and justified"in doing because it is in the "best present and future fiscal interest of the municipality and its inhabitants". And the Court accepts that "the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

To summarize, the township freely admits it did what it's accused of doing and says that it's legal and justified because it's in the interest of the town and the Court accepts that it wasn't done for any of the reasons made impermissible by the Fair Housing Act 42 U.S.C. 3602 et seq., which is the federally controlling statute and separates this case from the context of the dissent in Vickers v. Gloucester Township. That is the case. The rest of the decision is then divided into three parts.

I The Facts

This section begins with a lengthy recitation of the facts about Mount Laurel including its size and population and its various zones and the development that's taken place in them in a very straightforward manner. Then we come to the conclusion. "There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property ... and that the policy was carried out without regard for nonfiscal considerations with respect to people, either within or without its boundaries." In other words, they did exactly what they said they did and only for the reasons they said they did it.

The text then goes on to describe the reason for this. "This policy of land use regulation for a fiscal end derives from New Jersey's tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality's children." In other words, this is entirely the fault of the State and applies to all municipalities. As a logical result:

"This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost everyone acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing."

As proof of this practice"The Residential Land Supply" (April 1972) produced by The N. J. Department of Community Affairs and "Exclusionary Land Use Controls: The Case of North-Eastern New Jersey" (1971) by Norman Williams, Jr. and Thomas Norman are cited. What is not considered in this statement is that the municipal action benefits all of the residents of the municipality, including those who are low-and-moderate income homeowners who are most at risk of being driven from their homes by rising taxes.

The next thing shown is how the urban model also worked to maintain fiscal stability.

"The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing than the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing. Despite the municipally confined tax structure, commercial and industrial ratables generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas."

In other words, the cities provided for their fiscal stability by zoning for a substantial ratable base dominated by commercial and industrial uses. Their goal was the same as that of the developing municipalities but simply pursued by different means.

The final part of this section is devoted to the plight of the urban population after World War II as the commercial and industrial base left the cities for new locations in other towns, other counties and other states. At the same time the lure of home ownership in developing communities that promised to provide all of the benefits of urban life in terms of public services and economic opportunities, without the well recognized problems of urban life, drew the emerging middle class to the suburbs. This was compounded by the failure of the cities to find a new productive purpose.

"Much industry and retail business, and even professions, have left the cities."And as for the low income workers "These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a critical erosion of the city tax base and inability to provide the amount and quality of those governmental services education, health, police, fire, housing and the like so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing."

To summarize the facts. State tax policies placed the primary burden of funding municipal, county and educational services on the tax base of each municipality. In order to be able to carry this burden each municipality zoned itself to develop a ratable based that would provide for long-term fiscal stability. The cities did this by zoning for a large commercial and industrial base. "Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing." After World War II the urban model began to fail and many cities had difficulty reinventing themselves.

Instead of seeking to attract a tax base built on non-residential uses that relies on unskilled and semi-skilled workers, the suburbs did this by focusing on attracting a strong residential base that would provide for their future stability. The suburbs stand convicted of developing a well balanced, fiscally stable, socioeconomic model while the cities did not. They didn't attract employers of unskilled and semi-skilled workers and so did not seek to provide housing for a workforce that did not exist.

Now we come to the legal issue.

II The Legal Issue

"The legal question before us, as earlier indicated, is whether a developing municipality like Mount Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources."

"We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need thereof."

"We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs."

At this point we'll take a moment to recall previously expressed thoughts of Justice Hall with a pair of quotes from Vickers v. Gloucester Township cited above.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."
"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

The first quote could easily be applied to the Court in this case for focusing on the abstract need for housing without recognizing the real world reality that housing is only one aspect of the integrated socioeconomic need of the community. Logic argues that building housing for workers without work makes no more sense than building factories without workers to work in them.

The second challenges the expansive view of judicial prerogatives "to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes." Then the argument for this is presented.

"We begin with some fundamental principles as applied to the scene before us."

"Land use is encompassed within the state's police power."

"It is elementary theory that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws."

"It is required that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare (The last term seems broad enough to encompass the others.) Conversely, a zoning enactment which is contrary to the general welfare is invalid."

"Indeed these considerations are specifically set forth in the zoning enabling act as among the various purposes of zoning for which regulations must be designed. N. J. S. A. 40:55-32 ... If a zoning regulation violates the enabling act in this respect, it is also theoretically invalid under the state constitution. We say "theoretically" because, as a matter of policy, we do not treat the validity of most land use ordinance provisions as involving matters of constitutional dimension; that classification is confined to major questions of fundamental import."

"We consider the basic importance of housing and local regulations restricting its availability to substantial segments of the population to fall within the latter category."

"The demarcation between the valid and the invalid in the field of land use regulation is difficult to determine, not always clear and subject to change. This was recognized almost fifty years ago in the basic case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926):

"The ordinance now under review and all similar laws and regulations must find their justification in some aspect of police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. (272 U. S. at 387, 47 S. Ct. at 118, 71 L. Ed. at 310)."

It's nice to see the Court remembering the Ambler Realty case but it would be even nicer to see the Court recall The federal Fair Housing Act which clearly drew the line between legitimate and illegitimate. The Act prohibits discrimination in housing for a specific list of reasons: race, color, religion, sex, handicap, familial status or national origin. That is "precise delimitation". Counsel for Mt. Laurel Twp. made it clear that these were not the basis for their zoning and the Court accepted that that was the case. We would remind the Court of their own language.

"In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

The first thing Justice Hall needed to do to justify a need for change was find sources that, while supporting policies of deference to municipal decision-making, offer a warning that the future may be different and law may have to change. After offering a number of prior decisions as pointing in his direction he found it best said in Pierro v. Baxendale, 20 N. J. 17, 29 (1955) :

"If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed."

Having adding the sanctifying weight of precedent, he returns to his own thoughts.

"The warning implicates the matter of whose general welfare must be served or not violated in the field of land use regulation. Frequently the decisions in this state, including those just cited, have spoken only in terms of the interest of the enacting municipality, so that it has been thought, at least in some quarters, that such was the only welfare requiring consideration. It is, of course, true that many cases have dealt only with regulations having little, if any, outside impact where local decision is ordinarily entitled to prevail. However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state's citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served."

"This essential was distinctly pointed out in Euclid, where Mr. Justice Sutherland specifically referred to the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. Chief Justice Vanderbilt said essentially the same thing, in a different factual context, in the early leading case of Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949), when he spoke of the necessity of regional considerations in zoning and added this:

"The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. (1 N. J. at 513)."

Justice Hall offers this quote as supportive of his position but we see it pointing in exactly the opposite direction. The problem is one of perspective. For Justice Hall zoning in developing municipalities was an act of selfishness and a desire to isolate themselves from the needs of the broader region. We see it differently. We see the world from a dynamic perspective where forces that transcend transient social policy considerations are controlling and municipalities are simply responding to the greater market forces confronting them as they take their place in regions that are being redefined by evolving transportation and communications technologies. The sentence we have highlighted makes this point. Again, we're not asking you to take our viewpoint over that of Justice Hall. We have simply taken the quote he selected above and put it back in the paragraph where he found it. Once again we have added the highlighting for emphasis.

"What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as in living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

When read in this fuller context the vision of Justice Hall and the rest of the Court cannot stand. The "forces" cited in Duffcon are the dynamic forces we see shaping our world in various forms and with different names. In this case it is the economic force of the housing market and the social force of democratic diversity that together serve to create fiscally stable communities, each with a distinct face and character, and together advancing the general welfare of their region. The Court is seeking to impose housing diversity within every municipality, while the natural dynamic forces produce a vital diversity among municipalities.

After this a case supporting placement of a hospital for the emotionally disturbed as meeting a regional need superseding the rights of a municipality to reject it is presented. And then, having failed to find any substantive support for the action under consideration other than some mentions that at some point if circumstances change some alterations in judicial perspectives would be justified, the Court goes about doing what they clearly had decided to do all along.

"This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms of land use regulation which that relationship mandates. There cannot be the slightest doubt that shelter, along with food, are the most basic human needs."

"It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of such broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries. Negatively, it may not adopt regulations or policies which thwart or preclude that opportunity."

"In sum, we are satisfied beyond doubt that, by reason of the basic importance of appropriate housing and the long-standing pressing need for it, especially in the low and moderate cost housing category, and of the exclusionary zoning practices of so many municipalities, conditions have changed, and consistent with the warning in Pierro, supra, judicial attitudes must be altered from that espoused in that and other cases cited earlier, to require, as we have just said, a broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all."

"We have spoken of this obligation of such municipalities as "presumptive." The term has two aspects, procedural and substantive. Procedurally, we think the basic importance of appropriate housing for all dictates that, when it is shown that a developing municipality in its land use regulations has not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation of substantive due process or equal protection under the state constitution has been made out and the burden, and it is a heavy one, shifts to the municipality to establish a valid basis for its action or non-action. ... The substantive aspect of "presumptive" relates to the specifics, on the one hand, of what municipal land use regulation provisions, or the absence thereof, will evidence invalidity and shift the burden of proof and, on the other hand, of what bases and considerations will carry the municipality's burden and sustain what it has done or failed to do. Both kinds of specifics may well vary between municipalities according to peculiar circumstances."

"We turn to application of these principles in appraisal of Mount Laurel's zoning ordinance, useful as well, we think, as guidelines for future application in other municipalities."

With this the Court establishes a new concept in land-use litigation. It does so without constitutional, statutory or precedential support. It is nothing more than an act of will by the members of the Court and so effectively expands the boundaries of judicial authority beyond otherwise recognized bounds.

The focus then turns to the specific of Mount Laurel zoning.

"We have earlier stated that a developing municipality's obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to the municipality's fair share of the present and prospective regional need thereof. Some comment on that conclusion is in order at this point. Frequently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason. But, under present New Jersey legislation, zoning must be done on an individual municipal basis, rather than regionally. So long as that situation persists under the present tax structure, or in the absence of some kind of binding agreement among all the municipalities of a region, we feel that every municipality therein must bear its fair share of the regional burden. (In this respect our holding is broader than that of the trial court, which was limited to Mount Laurel-related low and moderate income housing needs.)"

This admission loudly echoes the language of Duffcon Concrete that supports putting different uses in different places based on any number of factors:

"Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

After this all that remains is the essential discussion of how to define a region.

"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. Confinement to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable."

There are any number of ways to define a region. The Northeast is a national region. The New York and Philadelphia metropolitan areas are regions. The Census Bureau provides journey-to-work data that shows where people who work in a given place live and conversely where people who live in a given area work. Worker housing tends to cluster around employment centers and regions tend to define themselves on an ongoing basis.

III The Remedy

This final section applies only to Mount Laurel and focuses only on mechanics.

This ends the majority opinion written by Justice Frederick Hall. All that remains is a consideration of his 1977 lecture.

We are presenting significant excerpts from this lecture by Justice Hall, delivered two years after his retirement, because it contains what we see as useful insights into his thinking about several important issues. These include his vision of the limits of judicial power, of which he see very few, and his idea of the basis for granting standing to the plaintiffs in the Mount Laurel case as "third- party non-beneficiaries" as defined by Professor Norman Williams, Jr. . He discusses the importance of defining a "fundamental interest" and the fact that for the federal courts housing is not one. We think the full lecture is well worth reading as a picture of the thinking of a man accustomed to wielding power and the public passions that drove him throughout his career on the bench.

The Judicial Role In Land-Use Regulation (excerpts)

Frederick W. Hall
Associate Justice of the New Jersey Supreme Court, retired
Arthur T. Vanderbilt Lecture
Harvard Law School Association of New Jersey
April 20, 1977

Modern land-use regulation has increasingly become a matter of vital interest and importance to the citizenry of large and small metropolitan areas and beyond, and bids fair to continue so for a considerable time to come. Its scope has changed immeasurably since constitutional approval was accorded about 50 years ago. The current major subjects and objects of regulation and the problems and issues arising from it have led to litigation of quite a different character than was formerly the case. What the proper judicial role in this field should be needs to be considered in the light of the broad changes that have likewise taken place in the kinds of litigation and the exercise of the judicial function in other fields of public law.


The United States Supreme Court has come to the point, in reviewing state action on claims of federal constitutional violation, of finding invalidity on equal-protection grounds only where the right involved is said to be a "fundamental interest" and the state cannot show a "compelling state interest." The subjects meeting the fundamental interest test have been strictly limited: voting, race, right to interstate travel and perhaps a couple of others. Housing is not one.
The courts recent forays into the land-use regulation field after an avoidance of about half a century have been, regardless of result, quite unsatisfactory, to say the least.

There have been deep changes in American life and philosophy and the place of government therein. These began to appear in quantity in the "New Deal" era of the 30's but developed much more strongly after World War II.
First, there was a vast increase in regulation of private affairs, both business and personal, by all levels of government. ....
Second, there has been a tremendous increase in the conferring or distribution by government of various kinds of benefits to aid the less fortunate members of our society.
Third, there has been a startling awakening and assertion of claims of human rights under constitutional guarantees, statutes and institutional arrangements especially on behalf of minorities of all varieties and the disadvantaged.
Fourth, we have witnessed a "law explosion," by which relief from all manner of alleged wrongs is sought in the courts in the belief that the judiciary is the only effective branch of government. Everyone sues about everything, ...

This type of litigation is quite different from the traditional model earlier described. It most frequently concerns public, rather than private, action or inaction. It may well attack a whole scheme of government activity. It very frequently is of a representative or class nature, affecting many more persons or entities than are parties or whose views are before the court.

It generally does not seek money damages, but rather declaratory or injunctive relief of a continuing and broadly remedial nature against some government entity or official. Equity jurisprudence very largely governs the ultimate result. ....

This relatively new category of public-law litigation, which includes as well certain kinds of land-use litigation shortly to be mentioned more specifically, presents important questions as to the extent of judicial power and the proper exercise of it. These queries generally arise about the remedy especially when the relief ordered or sought involves affirmative action by another branch of government or amounts to action by the judiciary in a form within the purview of or normally accomplished - even perhaps better handled - by either the local or state legislature or the executive branch.

The Courts Must Decide

Again, the courts are the sole and final arbiter of the constitutionality of local and state legislation, regulations or other governmental action. A declaration of invalidity is binding upon the legislature, the executive and all affected public officials. This is so whether or not the particular agency or government agrees with the decision. It may only be overturned by amendment through vote of the people according to specified procedures.

While considerations of constitutional claims require the greatest judicial circumspection, they cannot be decided on the basis of personal views of individual judges as to the advisability or wisdom of the governmental action under review or in accordance with what may appear to be the wish of an articulate or seeming majority of the affected populace on a particular question.

The judicial branch is the ultimate protector of the rights of all, and this of course includes those of minorities. Constitutional principles and the rights guaranteed by or arising under the documents must always be thought of as living and not static things, subject to enlargement and variation in interpretation and application as conditions and the needs of the body politic change. When this is to occur is, unless spelled out by amendment, the proper and exclusive province of the judiciary. This is fundamental in our form of government.

Land-Use Regulation

There remains the application of this discussion to the more specific matter of the appropriate judicial role in land-use regulation cases. Even more particularly, reference is confined to the currently active aspects of zoning for housing and the place of the regional concept and to the initial articulation of a new and constitutional approach thereto in the unanimous decision of our Supreme Court in Southern Burlington County NAACP v. Township of Mount Laurel, 67 N. J. 151 (1975).

The matter should be placed in historical perspective, both legal and factual. That history is thoroughly presented, state by state and overall, in Professor Norman William's recent comprehensive and thoroughly readable treatise, "American Land Planning Law." To summarize quickly, with special reference to this state, after zoning was constitutionally approved a half century ago, the authorizing legislation in New Jersey and most states, delegated the permissive power to each municipality under standards which, except for the broad health, morals and general welfare language, were directed to regulation of uses to avoid adverse physical impact and to safeguard property values.

The general language of the delegation necessarily left interpretation to the courts. The aim of the adopted ordinances was to keep industrial uses out of the residential areas of the cities and their close suburbs. The idea was revolutionary because it involved restrictions on the private use of one's land, which for centuries had received exceptional veneration and favored treatment at the hands of the law.

The attitudes of the courts in this state as elsewhere varied in periods during the course of the next few decades. Early judicial resistance to zoning largely favored landowners. From 1948 to recent times our courts swung quite perceptibly to the opposite extreme, upholding almost all municipal action.

The New Jersey factual picture changed drastically during this period. I am sure it is quite familiar to all of you. The population expanded greatly through the birth rate and immigration from other sections. Business and industry moved from the central cities to new locations farther out and the more affluent families followed to occupy newly-built single-family housing in developments in municipalities that had been substantially rural. The demand for municipal and educational services funded by real-property taxes became immense in these areas.

At the same time, the cities decayed and their tax bases eroded. They became populated largely by the poor. The available housing wore out and became substandard or worse. Government services deteriorated and we had the uprisings of the 60's.

During the same period, the character and aim of municipal zoning, especially in these municipalities that were growing, or experiencing market pressures for growth, changed radically, although the full significance was not apparent at once. The purpose shifted from protection against physical impact to socioeconomic designs with the clear purpose of safeguarding the particular municipality's welfare as it alone decided. A principal purpose was fiscal - to allow only that kind of growth that would pay its way taxwise, particularly with respect to school costs, or come close to it.

The result was almost universal prohibition through various zoning mechanisms against any but expensive, single-family housing. Multi-family rental units were allowed most meagerly overall. Generally, they too, were required to be expensive, and contained bedroom limitations restricting the number of school children. These provisions effectively excluded from municipality after municipality families of low-and moderate-income, whether they resided in the central cities and sought a better environment and living conditions or were young couples, elderly citizens and others not desiring large houses who already had some ties with the community.

The result too was a statewide shortage of decent low-and moderate-income housing in all types of municipalities, the existence and alarming consequences of which were repeatedly called to public attention by state-agency studies, gubernatorial messages, and recitals in state legislation providing some assistance in funding such housing, only, of course, available where local land-use regulations permitted. It became clear that local exclusionary ordinances were having a substantial impact outside the particular municipality.

At the same time, it was becoming obvious that use regulation of certain types of land had such an important impact beyond municipal lines that individual municipal regulation was harmful to the broader public welfare. So the legislature withdrew the delegation of zoning authority to municipalities with respect to ,among others, wetlands, coastal areas, and the Hackensack Meadowlands district and provided for use regulation by its own agencies. The advisability of the concept of regional land-use regulation was thus established.

In this state of affairs, the Mount Laurel case came to the Supreme Court. It projected a new class of land-use litigation. The suit was brought, not by neighbors protesting the zoning of a particular property or an owner seeking to develop his land contrary to the zoning ordinance, but by people whom Professor Williams calls "third-party non-beneficiaries" - resident and non-resident poor people who wanted to live in the township but could not afford the only type of housing permitted.

Their attack, which they clearly had standing to make, was on the whole zoning scheme of a typical growing municipality having adequate remaining land for further development. The plaintiffs' proofs and briefs well presented to the court the factual picture that has just been sketched.

For present purposes of the discussion of the judicial role, the rationale of the decision may be simplified as follows. Land-use regulation, like any other police power enactment, must enhance and not be contrary to the general welfare to be valid under the state constitution. The availability of adequate land and an appropriate variety and choice of housing for all categories of people is an absolute essential in promotion of the general welfare - in effect, a fundamental state interest.

It is so important to the public good that the general welfare that each so-called developing municipality must take into account in order to have a valid zoning ordinance extends beyond the claimed good of that particular governmental unit. So:

the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land-use regulation, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low-and moderate-cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries.

and may not adopt regulations or policies that thwart of preclude that opportunity. Exclusionary restrictions having the effect mentioned are unconstitutional unless the municipality can sustain the heavy burden of demonstrating peculiar circumstances dictating a contrary conclusion. This was not established by Mount Laurel, so its zoning ordinance is pro tanto invalid.

The conclusions were, of course, within the traditional power and obligation of a court to declare legislation unconstitutional. Deference to the Legislative branch, here the local governing body, requires that such a judgment be rendered only in a clear case, but when that plainly appears in a situation involving a fundamental state interest, a court would be derelict if it did not so act. We are, in essence, dealing with a moral issue.

Mount Laurel went on to indicate that, since housing needs, particularly for people of low and moderate income, do not necessarily suit or fit well in every municipality, a regional approach was desirable, and urged state legislative action to so provide. In the absence thereof, the court said that Mount Laurel would have to provide for its fair share of the present and prospective regional need for such housing.

This solution originated with Chief Justice Weintraub during court conferences, prior to the advent of new permanent justices, making it desirable to schedule a reargument. The idea was not new; several areas of the country have had voluntary plans in operation on this basis for some time, and the professional planning literature thereon is plentiful. The township was given the opportunity to revise its ordinance, using these and other guidelines mentioned in the opinion, with the right in the plaintiffs to seek court review of the revised product if it was claimed not to be in accord with the express or implied directions of the opinion.

There is certainly nothing here that could reasonably suggest an inappropriate judicial role. I submit that it is unthinkable that a court should stop short of giving litigants in the housing field all the guidelines it considers vital and to direct affirmative corrective action to the fullest extent that it can completely supervise and review simply because the defendant is a municipality, and one that might be recalcitrant or uncooperative in righting the constitutional wrong, or because some other entity might be able to do a better job.

Under New Jersey jurisprudence, a court must review any governmental action of the nature here involved, as the Supreme Court has since done in the Madison Township case. That opinion also clearly confirms the judicial power to seek the help of neutral experts where needed to decide questions beyond the ordinary sphere of judicial knowledge, which, of curse, occurs in many cases beside land use litigation.

And it is not to be forgotten that courts can bring about ultimate compliance with their judgments through negative orders. For example, a defiant municipality refusing to change its invalid zoning ordinance could be prohibited, until it did so, from issuing building permits or certificates of occupancy for any dwellings, or indeed for structures of any kind. this method of relief was effectively utilized recently in Morris County to bring about governmental action to provide adequate sewage disposal.

There are, of course, types of relief that courts should not order, regardless of their power to do so. I conceive, for example, that judicial tribunals ought not to direct municipalities to actually build housing. In some cases, they may have to stop and resort to judicial prodding of the public conscience to bring about remedial action.

Mount Laurel has spawned considerable litigation involving other municipalities. It is not within the scope of this presentation to discuss the various decisions, even if the author had had the time to digest the contents and implications of the great proliferation of paper representing the numerous opinions. One brief comment bearing on the judicial role may be in order.

I believe that the implications of Mount Laurel are clear enough that, where zoning for housing is involved, whether the municipality is strictly a developing one or not, a court should take a good, hard look and insist that the municipality justify its restrictions or be forced to change them.

Furthermore, the court ought to give real reasons in its decisions and not rely on unmeaningful boiler-plate shibboleths like arbitrariness, capriciousness, and dubious presumptions of validity. The housing issue is too important and too fundamental to be disposed of in any case by cursory judicial treatment, and we should not revert in such cases to any thesis that whatever the municipality has done is all right.

While the legislature has not yet responded to the Court's suggestion of provision for regional zoning, it did, after Mount Laurel, enact the new Municipal Land Use Law, various sections of which indicate an important shift in policy from the old individual-municipality emphasis of old enabling acts, and give statutory support to the constitutional bases of the decision. I refer to the purposes sections, where the intent of the Act is stated:

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 and preservation of the environment;
and:
to provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space ... in order to meet the needs of all New Jersey citizens.

In addition, the zoning ordinance of every municipality must conform to a master plan, which must contain a land-use plan element and a housing element. I submit that the latter, in order to ground a valid zoning ordinance, would have to make provision, appropriate to the particular municipality, for a variety and choice of housing.

While any home rule tradition is always subject to constitutional requirements and guarantees of rights for all people, as Mount Laurel in effect held, the land-use law provisions just referred to indicate to me a legislative recognition that the invisible walls of suburban communities must have many gates for entrance."

We have presented these portions of the lecture without comment. We believe it speaks for itself. It offers both information and insight into the thinking of a man, who, confronted with a world he didn't like, set out to change it with a seeming disregard for the interests of a great many of the people living in it. Whether this will ultimately be seen as heroic idealism or judicial tyranny will be left to the judgment of future generations who suffer or prosper as a result of it. Arguably, more than forty years on, we are such a generation.

Here we end the Third Source Narrative for Beyond the Mount Laurel Doctrine: From Forty Years of Failure To A Blueprint for Success.

Documents worth reading in addition to those quoted in the text above:

"The Housing Crisis In New Jersey" (1970)
"Land Use Regulation: The Residential Land Supply" (1972).
"A Blueprint For Housing In New Jersey" (1970)
"New Horizons In Housing" (1972).
Warth v. Seldin, 422 U. S. 490 (1975)
Pierro v. Baxendale, 20 N. J. 17, 29 (1955)
Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949)

Beyond the Mt. Laurel Doctrine
Third Source Narrative

This is the Source Narrative to accompany the first Mt. Laurel decision and the writings of its author, Justice Frederick W. Hall. Before looking at the writings of Justice Hall, we have another task to perform. It's time to recall that this podcast is a demonstration project for our Insight Engine problem-solving technique. One of the key steps in our process is identification of powerful false ideas that keep problems from being resolved. Our task is to deconstruct and dispel them. The first one we encounter is the idea of a "housing crisis" in New Jersey. This powerful false idea was the first justification for the actions in Mount Laurel I.

We begin by recognizing the enormous population growth of the "baby-boom" period. From 1940 to 1970 the Census shows the New Jersey population grew from more than 4.1 to over 7.1 million. Numerous studies by "experts" for major institutions projected continued similar growth.

In "The Housing Crisis in New Jersey" (1970) the issue is stated this way: "... there is wide agreement that the State's population will continue to grow at least at the present rate in the years to come." However, this document also includes a very important cautionary footnote that includes the recognition that housing growth drives population growth. It's not the other way around.

"The one significant factor on the horizon which may lead to a decline in the rate of population growth in New Jersey is, of course, the decline in the construction of housing units in the State. If present trends in housing production continue during the coming years to decline, population projections will undoubtedly have to be scaled downward. Furthermore, such a decline could well set in motion a "chain reaction" effect, which would result in further declines in the rate of growth."

The document also shows that building permits had peaked in 1964 at just over 68,000 and dropped to 43,661 by 1968, a four year decline of almost 36%. Such a decline could have been seen as the basis for a reconsideration of "population projections". That's not what happened.

On December 7th Governor Cahill went further in "A Blueprint for Housing in New Jersey". There he said "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985." No explanation is offered as to who these "experts"
were or what methodology they used to reach their astonishing total. He also says "According to reliable statistics, we require 100,000 additional housing units each year, but actually are building only 40,000." These statements remained unchallenged and became part of the major concurring opinion in Mt. Laurel I.

You might be asking "How wrong could the experts have been?" Here are the facts. Decide for yourself.

In 1988 the New Jersey Office of State Planning produced a Technical Document titled "Population Trends and Projections". In it they looked back over the period 1970 to 1985 and found that instead of the projected 2.8 million people from 1970, the actual increase came to 394,136, or less than one seventh of the projected amount. Simple math tells us that if 2.8 million people would require 100,000 units per year, a similar reduction would produce approximately 14,250 homes and the state was already seeing far more homes being built. Census numbers also show that in the decade of the 1970's the population grew by 196,847 while New Jersey added over 384,000 new homes, or 1.95 units for every additional person. Records of annual building permits show this rate of growth kept up through 1985. To fully appreciate the magnitude of this difference recall that the average household size at the time was approximately 3 persons which meant that in reality six homes were being built for every new household in New Jersey.

In conclusion, the population growth that was supposed to fuel the "housing crisis" never happened. The housing being built far exceeded any demand that the population that did come could absorb. If population projections had been adjusted based on the emerging downward trend in housing, the argument underpinning Mt. Laurel I would have had to be significantly altered if not abandoned altogether. But that didn't happen. Instead the Court relied on this badly flawed expert advice. That's the first false idea to be dispelled. There was no housing crisis.

Before we move on, if you're wondering who those unnamed experts could have been who led everyone so far astray, we found them. In a footnote in "Exclusionary Land Use Controls: The Case of North-eastern New Jersey" the authors praise Governor Cahill for his courage in delivering his Special Message and write "The technical specifications for the study were prepared by the authors of this article." The authors were Norman Williams, Jr. and Thomas Norman. Now you know. Now we move on and turn our attention to the second of the great revolutionary architects of the Mt. Laurel Doctrine.

The issues at the heart of the Mt. Laurel I decision - the question of Standing, the definition of the General Welfare and the requirement for Reasonableness - are dealt with in the Third podcast. We find the theories embodied in the writings of Norman Williams, Jr., discussed in the Second podcast, and we find them in the writings of New Jersey Supreme Court Justice Frederick W. Hall. Here we deal with those texts. We say "texts" because the Mt. Laurel decision, as its author freely admits, is about more than just Mt. Laurel. It is about the transformation of a legal theory into judicial practice. It attempts to set New Jersey apart from the long history of federal Supreme Court decisions that support the democratic diversity embodied in the New Jersey home rule tradition.

We have chosen four texts that we find most instructive. The first is a famous dissenting opinion written in 1962 in the case of Vickers v. Gloucester Twp. where his philosophies are clearly set forth and the second is DeSimone v. Greater Englewood Housing Corp. where he writes the majority opinion signaling a willingness on the part of the Court to support challenges to local zoning. The third is Mt. Laurel I and the fourth is a lecture given in 1977, two years after his retirement from the Court, amplifying his thinking about judicial prerogatives raising the issue of "standing" that was not addressed in the Court decision. That will complete our picture of his thinking.

We begin with a brief biographical note.

Frederick Wilson Hall

Frederick Wilson Hall was born in Pittsburgh in 1908. He graduated from Rutgers University where he was elected Phi Beta Kappa and from Harvard Law School Cum Laude in 1931. As a young lawyer he worked in the firm of New Jersey's first Chief Justice, Arthur T. Vanderbilt and then in 1941 he founded and practiced law at the firm of Wharton and Hall.
He was appointed to the New Jersey Superior Court in 1953 and served there until 1959 when he was appointed as an Associate Justice of the New Jersey Supreme Court where he served until 1975. Justice Hall was the last member of what was known as the "Weintraub Court" which served together for eleven years and was widely regarded as one of the most activist and progressive judicial bodies in the nation in the area of civil law.
He was known for his mastery of land use law and his great reputation in that field has tended to deflect attention from his important writings in other fields. He was completely at home in the entirely intricate field of municipal law; he wrote important opinions in the areas of torts, criminal law, constitutional law and many other subjects. Few judges possessed his extensive knowledge of procedure and the Rules of Court.
He remains most famous for writing the decision in the case known as Mt. Laurel I.
He died in 1984.
Vickers v. Gloucester Township

Now to the writings of Justice Frederick Hall. We begin in 1962 with his dissenting opinion in Vickers v. Gloucester Township, 37 N.J. 232 (1962). As we do, it's important to remember the federal statutory context. This is three years before the Voting Rights Act and six before the Fair Housing Act. The Civil Rights movement was growing stronger and a socioeconomic model seen as disproportionately benefiting White people was automatically treated as suspect by a certain school of social ideologues.

On its face this case is about the right of a municipality to ban mobile home parks, but Justice Hall sees it raising greater concerns.

"Of even greater concern is the judicial process by which it is reached and the breadth of the rationale. The import of the holding gives almost boundless freedom to developing municipalities to erect exclusionary walls on their boundaries, according to local whim or selfish desire, and to use the zoning power for aims beyond its legitimate purposes."

After this he goes on to describe the types of towns that are the object of his concern. He separates them from "the settled suburbs surrounding the cities" that should have the right to remain undisturbed and paints this picture of the targets of his distaste. :

"On the contrary these areas are sprawling, heterogeneous governmental units, mostly townships, each really amounting to a region of considerable size itself. Their present rural, semi-rural or mixed nature is about to change substantially and they are soon to become melded into the whole metropolitan area. Their political boundaries are artificial and hence of little significance beyond defining one unit of government."

"Such municipalities, above all others, vitally need and may legally exercise comprehensive planning and implement zoning techniques to avoid present haphazard development which can only bring future grief. They are entitled to aim thereby for a sound and balanced area, with varying uses confined to specific districts and appropriately regulated."

He then continues to describe a number of things towns can reasonably do to shape their future. Then he comes to this.

"And this gets to the nub of what this, and similar cases, are really all about, i.e. the outer limit of the zoning power to be enjoyed by these municipalities most in need of comprehensive authority. What action is not legitimately encompassed by that power and what is the proper role of courts in reviewing its exercise?"

"This inquiry involves important fundamentals. In the broad sense the considerations are well posed in Williams, "Planning Law and Democratic Living," 20 Law and Contemporary Problems 317 (1955):

"The main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society equality of opportunity and equality of treatment, freedom of thought and considerable freedom of action, and fairness. Under the American system, a more or less independent mechanism of judicial review is established to provide an independent check on whether specific governmental decisions conform to these standards. While controversy has often raged about judicial action in other areas, it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare."

"Constitutional law should serve to shed light upon thinking about local planning, by requiring those concerned to do what they should be doing anyway to work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity."

This is a set of breathtaking assertions.

First, while he offers a broad amorphous set of values, it might just as reasonably be said that the main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society as enshrined in the precise language of the U. S. Constitution.

Second, as to what he asserts as having "always been recognized" as "an essential part of the judicial function" and the "attitudes and policies" with which he is concerned, these must be compared to the values and actions consistently upheld for thirty-five years by the U. S. Supreme Court and flowing from sources like the Standard State Zoning Enabling Act that was a product of the federal government. And just who has been doing the recognizing, anyway?

Third, there is the need to "work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity." This lofty vision should be compared with the language found later in the text defining the role of zoning.

Next he expands to a broader vision of a seemingly boundless role for the courts and shares his disdain for those with less expansive views.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."

After this the discussion focuses closer to the case at hand and on the permitted or proper scope of judicial oversight. He finally comes to the definition of zoning quoted above and this statement that seemingly undercuts the argument he has been advancing for the expansiveness of judicial oversight of municipal actions.

"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

After all of his argument to the contrary, this language appears to make it clear that while there are great issues connected with human freedom and opportunity this is not the arena in which they can be constitutionally settled.

From this point the focus is on little more than repetition of the issues, arguing back and forth with elements of previous court decisions and finally a discussion of the actual issue of the case - the right to prohibit mobile homes.

DeSimone v. Greater Englewood Housing Corp.

We next hear his voice in the case of DeSimone v. Greater Englewood Housing Corp. 56 N. J. 428 (1970) 267 A.2d 31. While a seemingly small matter over issuance of a variance, it caught the emerging temper of its time. There had been racial disturbances in Englewood in July, 1967 and the town had become a focus of the Governor's Select Commission on Civil Disorder and its "Report for Action" issued the following year. This unanimous decision was seen by sympathizers as an opening for a renewed assault on municipal zoning. To understand this perspective we offer the assessment of Norman Williams, Jr. in The Background and Significance of Mount Laurel II from 1984:

"By the late 1960's, however, the world suddenly began to look rather different than it had when Justice Hall wrote his Vickers dissent, and other judges began to reexamine their tolerance of exclusionary zoning practices. In an otherwise relatively unimportant case, the New Jersey Supreme Court in 1970 upheld (against a challenge by neighbors) a New Jersey "d" variance approving a housing project in Englewood, which was (a) located in a "white area" and (b) clearly designed at least in part to accommodate blacks from the Englewood ghetto. In upholding the grant of the variance, the opinion-by Hall, and now unanimous--commented in dictum that under those circumstances such a variance could not have been denied. The only logical basis for this comment is that there must be some affirmative duty to plan on behalf of all sections of the population. Once those familiar with this field of law read the Englewood opinion, it was clear that the jig was up; the court seemed to be sending out signals that it was ready for a major reversal on the exclusionary problem." This led us to Mt. Laurel I.

Mt. Laurel I

Now we move on to the climactic document of the career of Frederick W. Hall. The first Mt. Laurel decision was written in 1975, thirteen years after his dissent in Vickers v. Gloucester Township and was his last great contribution to the activism of the court. The case, Southern Burlington County N. A. A. C. P. v. Mount Laurel 67 N. J. 151 (1975), began its course through the state judicial system in 1972 with a finding for the plaintiff which was subsequently appealed, not only by the township but by the plaintiffs as well seeking an expansion of the scope of the decision. It was then taken over by the state Supreme Court and transmuted from a case concerned with racial discrimination, which would have claimed a violation of the federal Fair Housing Act, into one focused on economic segregation which kept it within the state court system where it was argued in 1974 and decided in 1975. It begins by presenting the scope of the argument. We also find here Mr. Norman Williams, Jr. arguing the cause for amicus curiae The Public Interest Research Group of New Jersey twenty years after publishing his foundational document "Planning Law and Democratic Living" in 1955. Importantly, this comes seven years after the Fair Housing Act.

"This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipality. The trial court so found, 119 N.J. Super. 164 (Law Div. 1972), and declared the township zoning ordinance totally invalid. Its judgment went on, in line with the requests for affirmative relief, to order the municipality to make studies of the housing needs of low and moderate income persons presently or formerly residing in the community in substandard housing, as well as those in such income classifications presently employed in the township and living elsewhere or reasonably expected to be employed therein in the future ... The township appealed to the Appellate Division and those plaintiffs, not present or former residents, cross-appealed on the basis that the judgment should have directed that the prescribed plan take into account as well a fair share of the regional housing needs of low and moderate income families without limitation to those having, past, present or prospective connection with the township. The appeals were certified on our own motion before argument in the Division."

"The implications of the issue presented are indeed broad and far-reaching, extending much beyond these particular plaintiffs and the boundaries of this municipality."

"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."

"We will, therefore, consider the case from the wider viewpoint that the effect of Mount Laurel's land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

"Its candid position is that, conceding its land use regulation was intended to result and has resulted in economic discrimination and exclusion of substantial segments of the area population, its policies and practices are in the best present and future fiscal interest of the municipality and its inhabitants and are legally permissible and justified. It further asserts that the trial court was without power to direct the affirmative relief it did."

In these few opening quotes we find the whole argument showcased. It all begins with the "desperate need for housing" based on the horribly flawed assertion of a "housing crisis" that demonstrably never happened, to meet the needs of a population that still doesn't exist, most clearly expressed in this single sentence from "A Blueprint for Housing in New Jersey" (1970). "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985."

Based on this assumption the Court says they will consider the case from the "wider viewpoint" that the Mount Laurel ordinance has the effect of excluding people because of the "limited extent of their incomes and resources" which the municipality freely admits, and asserts they are "legally permissible and justified"in doing because it is in the "best present and future fiscal interest of the municipality and its inhabitants". And the Court accepts that "the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

To summarize, the township freely admits it did what it's accused of doing and says that it's legal and justified because it's in the interest of the town and the Court accepts that it wasn't done for any of the reasons made impermissible by the Fair Housing Act 42 U.S.C. 3602 et seq., which is the federally controlling statute and separates this case from the context of the dissent in Vickers v. Gloucester Township. That is the case. The rest of the decision is then divided into three parts.

I The Facts

This section begins with a lengthy recitation of the facts about Mount Laurel including its size and population and its various zones and the development that's taken place in them in a very straightforward manner. Then we come to the conclusion. "There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property ... and that the policy was carried out without regard for nonfiscal considerations with respect to people, either within or without its boundaries." In other words, they did exactly what they said they did and only for the reasons they said they did it.

The text then goes on to describe the reason for this. "This policy of land use regulation for a fiscal end derives from New Jersey's tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality's children." In other words, this is entirely the fault of the State and applies to all municipalities. As a logical result:

"This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost everyone acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing."

As proof of this practice"The Residential Land Supply" (April 1972) produced by The N. J. Department of Community Affairs and "Exclusionary Land Use Controls: The Case of North-Eastern New Jersey" (1971) by Norman Williams, Jr. and Thomas Norman are cited. What is not considered in this statement is that the municipal action benefits all of the residents of the municipality, including those who are low-and-moderate income homeowners who are most at risk of being driven from their homes by rising taxes.

The next thing shown is how the urban model also worked to maintain fiscal stability.

"The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing than the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing. Despite the municipally confined tax structure, commercial and industrial ratables generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas."

In other words, the cities provided for their fiscal stability by zoning for a substantial ratable base dominated by commercial and industrial uses. Their goal was the same as that of the developing municipalities but simply pursued by different means.

The final part of this section is devoted to the plight of the urban population after World War II as the commercial and industrial base left the cities for new locations in other towns, other counties and other states. At the same time the lure of home ownership in developing communities that promised to provide all of the benefits of urban life in terms of public services and economic opportunities, without the well recognized problems of urban life, drew the emerging middle class to the suburbs. This was compounded by the failure of the cities to find a new productive purpose.

"Much industry and retail business, and even professions, have left the cities."And as for the low income workers "These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a critical erosion of the city tax base and inability to provide the amount and quality of those governmental services education, health, police, fire, housing and the like so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing."

To summarize the facts. State tax policies placed the primary burden of funding municipal, county and educational services on the tax base of each municipality. In order to be able to carry this burden each municipality zoned itself to develop a ratable based that would provide for long-term fiscal stability. The cities did this by zoning for a large commercial and industrial base. "Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing." After World War II the urban model began to fail and many cities had difficulty reinventing themselves.

Instead of seeking to attract a tax base built on non-residential uses that relies on unskilled and semi-skilled workers, the suburbs did this by focusing on attracting a strong residential base that would provide for their future stability. The suburbs stand convicted of developing a well balanced, fiscally stable, socioeconomic model while the cities did not. They didn't attract employers of unskilled and semi-skilled workers and so did not seek to provide housing for a workforce that did not exist.

Now we come to the legal issue.

II The Legal Issue

"The legal question before us, as earlier indicated, is whether a developing municipality like Mount Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources."

"We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need thereof."

"We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs."

At this point we'll take a moment to recall previously expressed thoughts of Justice Hall with a pair of quotes from Vickers v. Gloucester Township cited above.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."
"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

The first quote could easily be applied to the Court in this case for focusing on the abstract need for housing without recognizing the real world reality that housing is only one aspect of the integrated socioeconomic need of the community. Logic argues that building housing for workers without work makes no more sense than building factories without workers to work in them.

The second challenges the expansive view of judicial prerogatives "to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes." Then the argument for this is presented.

"We begin with some fundamental principles as applied to the scene before us."

"Land use is encompassed within the state's police power."

"It is elementary theory that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws."

"It is required that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare (The last term seems broad enough to encompass the others.) Conversely, a zoning enactment which is contrary to the general welfare is invalid."

"Indeed these considerations are specifically set forth in the zoning enabling act as among the various purposes of zoning for which regulations must be designed. N. J. S. A. 40:55-32 ... If a zoning regulation violates the enabling act in this respect, it is also theoretically invalid under the state constitution. We say "theoretically" because, as a matter of policy, we do not treat the validity of most land use ordinance provisions as involving matters of constitutional dimension; that classification is confined to major questions of fundamental import."

"We consider the basic importance of housing and local regulations restricting its availability to substantial segments of the population to fall within the latter category."

"The demarcation between the valid and the invalid in the field of land use regulation is difficult to determine, not always clear and subject to change. This was recognized almost fifty years ago in the basic case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926):

"The ordinance now under review and all similar laws and regulations must find their justification in some aspect of police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. (272 U. S. at 387, 47 S. Ct. at 118, 71 L. Ed. at 310)."

It's nice to see the Court remembering the Ambler Realty case but it would be even nicer to see the Court recall The federal Fair Housing Act which clearly drew the line between legitimate and illegitimate. The Act prohibits discrimination in housing for a specific list of reasons: race, color, religion, sex, handicap, familial status or national origin. That is "precise delimitation". Counsel for Mt. Laurel Twp. made it clear that these were not the basis for their zoning and the Court accepted that that was the case. We would remind the Court of their own language.

"In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

The first thing Justice Hall needed to do to justify a need for change was find sources that, while supporting policies of deference to municipal decision-making, offer a warning that the future may be different and law may have to change. After offering a number of prior decisions as pointing in his direction he found it best said in Pierro v. Baxendale, 20 N. J. 17, 29 (1955) :

"If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed."

Having adding the sanctifying weight of precedent, he returns to his own thoughts.

"The warning implicates the matter of whose general welfare must be served or not violated in the field of land use regulation. Frequently the decisions in this state, including those just cited, have spoken only in terms of the interest of the enacting municipality, so that it has been thought, at least in some quarters, that such was the only welfare requiring consideration. It is, of course, true that many cases have dealt only with regulations having little, if any, outside impact where local decision is ordinarily entitled to prevail. However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state's citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served."

"This essential was distinctly pointed out in Euclid, where Mr. Justice Sutherland specifically referred to the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. Chief Justice Vanderbilt said essentially the same thing, in a different factual context, in the early leading case of Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949), when he spoke of the necessity of regional considerations in zoning and added this:

"The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. (1 N. J. at 513)."

Justice Hall offers this quote as supportive of his position but we see it pointing in exactly the opposite direction. The problem is one of perspective. For Justice Hall zoning in developing municipalities was an act of selfishness and a desire to isolate themselves from the needs of the broader region. We see it differently. We see the world from a dynamic perspective where forces that transcend transient social policy considerations are controlling and municipalities are simply responding to the greater market forces confronting them as they take their place in regions that are being redefined by evolving transportation and communications technologies. The sentence we have highlighted makes this point. Again, we're not asking you to take our viewpoint over that of Justice Hall. We have simply taken the quote he selected above and put it back in the paragraph where he found it. Once again we have added the highlighting for emphasis.

"What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as in living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

When read in this fuller context the vision of Justice Hall and the rest of the Court cannot stand. The "forces" cited in Duffcon are the dynamic forces we see shaping our world in various forms and with different names. In this case it is the economic force of the housing market and the social force of democratic diversity that together serve to create fiscally stable communities, each with a distinct face and character, and together advancing the general welfare of their region. The Court is seeking to impose housing diversity within every municipality, while the natural dynamic forces produce a vital diversity among municipalities.

After this a case supporting placement of a hospital for the emotionally disturbed as meeting a regional need superseding the rights of a municipality to reject it is presented. And then, having failed to find any substantive support for the action under consideration other than some mentions that at some point if circumstances change some alterations in judicial perspectives would be justified, the Court goes about doing what they clearly had decided to do all along.

"This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms of land use regulation which that relationship mandates. There cannot be the slightest doubt that shelter, along with food, are the most basic human needs."

"It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of such broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries. Negatively, it may not adopt regulations or policies which thwart or preclude that opportunity."

"In sum, we are satisfied beyond doubt that, by reason of the basic importance of appropriate housing and the long-standing pressing need for it, especially in the low and moderate cost housing category, and of the exclusionary zoning practices of so many municipalities, conditions have changed, and consistent with the warning in Pierro, supra, judicial attitudes must be altered from that espoused in that and other cases cited earlier, to require, as we have just said, a broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all."

"We have spoken of this obligation of such municipalities as "presumptive." The term has two aspects, procedural and substantive. Procedurally, we think the basic importance of appropriate housing for all dictates that, when it is shown that a developing municipality in its land use regulations has not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation of substantive due process or equal protection under the state constitution has been made out and the burden, and it is a heavy one, shifts to the municipality to establish a valid basis for its action or non-action. ... The substantive aspect of "presumptive" relates to the specifics, on the one hand, of what municipal land use regulation provisions, or the absence thereof, will evidence invalidity and shift the burden of proof and, on the other hand, of what bases and considerations will carry the municipality's burden and sustain what it has done or failed to do. Both kinds of specifics may well vary between municipalities according to peculiar circumstances."

"We turn to application of these principles in appraisal of Mount Laurel's zoning ordinance, useful as well, we think, as guidelines for future application in other municipalities."

With this the Court establishes a new concept in land-use litigation. It does so without constitutional, statutory or precedential support. It is nothing more than an act of will by the members of the Court and so effectively expands the boundaries of judicial authority beyond otherwise recognized bounds.

The focus then turns to the specific of Mount Laurel zoning.

"We have earlier stated that a developing municipality's obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to the municipality's fair share of the present and prospective regional need thereof. Some comment on that conclusion is in order at this point. Frequently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason. But, under present New Jersey legislation, zoning must be done on an individual municipal basis, rather than regionally. So long as that situation persists under the present tax structure, or in the absence of some kind of binding agreement among all the municipalities of a region, we feel that every municipality therein must bear its fair share of the regional burden. (In this respect our holding is broader than that of the trial court, which was limited to Mount Laurel-related low and moderate income housing needs.)"

This admission loudly echoes the language of Duffcon Concrete that supports putting different uses in different places based on any number of factors:

"Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

After this all that remains is the essential discussion of how to define a region.

"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. Confinement to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable."

There are any number of ways to define a region. The Northeast is a national region. The New York and Philadelphia metropolitan areas are regions. The Census Bureau provides journey-to-work data that shows where people who work in a given place live and conversely where people who live in a given area work. Worker housing tends to cluster around employment centers and regions tend to define themselves on an ongoing basis.

III The Remedy

This final section applies only to Mount Laurel and focuses only on mechanics.

This ends the majority opinion written by Justice Frederick Hall. All that remains is a consideration of his 1977 lecture.

We are presenting significant excerpts from this lecture by Justice Hall, delivered two years after his retirement, because it contains what we see as useful insights into his thinking about several important issues. These include his vision of the limits of judicial power, of which he see very few, and his idea of the basis for granting standing to the plaintiffs in the Mount Laurel case as "third- party non-beneficiaries" as defined by Professor Norman Williams, Jr. . He discusses the importance of defining a "fundamental interest" and the fact that for the federal courts housing is not one. We think the full lecture is well worth reading as a picture of the thinking of a man accustomed to wielding power and the public passions that drove him throughout his career on the bench.

The Judicial Role In Land-Use Regulation (excerpts)

Frederick W. Hall
Associate Justice of the New Jersey Supreme Court, retired
Arthur T. Vanderbilt Lecture
Harvard Law School Association of New Jersey
April 20, 1977

Modern land-use regulation has increasingly become a matter of vital interest and importance to the citizenry of large and small metropolitan areas and beyond, and bids fair to continue so for a considerable time to come. Its scope has changed immeasurably since constitutional approval was accorded about 50 years ago. The current major subjects and objects of regulation and the problems and issues arising from it have led to litigation of quite a different character than was formerly the case. What the proper judicial role in this field should be needs to be considered in the light of the broad changes that have likewise taken place in the kinds of litigation and the exercise of the judicial function in other fields of public law.


The United States Supreme Court has come to the point, in reviewing state action on claims of federal constitutional violation, of finding invalidity on equal-protection grounds only where the right involved is said to be a "fundamental interest" and the state cannot show a "compelling state interest." The subjects meeting the fundamental interest test have been strictly limited: voting, race, right to interstate travel and perhaps a couple of others. Housing is not one.
The courts recent forays into the land-use regulation field after an avoidance of about half a century have been, regardless of result, quite unsatisfactory, to say the least.

There have been deep changes in American life and philosophy and the place of government therein. These began to appear in quantity in the "New Deal" era of the 30's but developed much more strongly after World War II.
First, there was a vast increase in regulation of private affairs, both business and personal, by all levels of government. ....
Second, there has been a tremendous increase in the conferring or distribution by government of various kinds of benefits to aid the less fortunate members of our society.
Third, there has been a startling awakening and assertion of claims of human rights under constitutional guarantees, statutes and institutional arrangements especially on behalf of minorities of all varieties and the disadvantaged.
Fourth, we have witnessed a "law explosion," by which relief from all manner of alleged wrongs is sought in the courts in the belief that the judiciary is the only effective branch of government. Everyone sues about everything, ...

This type of litigation is quite different from the traditional model earlier described. It most frequently concerns public, rather than private, action or inaction. It may well attack a whole scheme of government activity. It very frequently is of a representative or class nature, affecting many more persons or entities than are parties or whose views are before the court.

It generally does not seek money damages, but rather declaratory or injunctive relief of a continuing and broadly remedial nature against some government entity or official. Equity jurisprudence very largely governs the ultimate result. ....

This relatively new category of public-law litigation, which includes as well certain kinds of land-use litigation shortly to be mentioned more specifically, presents important questions as to the extent of judicial power and the proper exercise of it. These queries generally arise about the remedy especially when the relief ordered or sought involves affirmative action by another branch of government or amounts to action by the judiciary in a form within the purview of or normally accomplished - even perhaps better handled - by either the local or state legislature or the executive branch.

The Courts Must Decide

Again, the courts are the sole and final arbiter of the constitutionality of local and state legislation, regulations or other governmental action. A declaration of invalidity is binding upon the legislature, the executive and all affected public officials. This is so whether or not the particular agency or government agrees with the decision. It may only be overturned by amendment through vote of the people according to specified procedures.

While considerations of constitutional claims require the greatest judicial circumspection, they cannot be decided on the basis of personal views of individual judges as to the advisability or wisdom of the governmental action under review or in accordance with what may appear to be the wish of an articulate or seeming majority of the affected populace on a particular question.

The judicial branch is the ultimate protector of the rights of all, and this of course includes those of minorities. Constitutional principles and the rights guaranteed by or arising under the documents must always be thought of as living and not static things, subject to enlargement and variation in interpretation and application as conditions and the needs of the body politic change. When this is to occur is, unless spelled out by amendment, the proper and exclusive province of the judiciary. This is fundamental in our form of government.

Land-Use Regulation

There remains the application of this discussion to the more specific matter of the appropriate judicial role in land-use regulation cases. Even more particularly, reference is confined to the currently active aspects of zoning for housing and the place of the regional concept and to the initial articulation of a new and constitutional approach thereto in the unanimous decision of our Supreme Court in Southern Burlington County NAACP v. Township of Mount Laurel, 67 N. J. 151 (1975).

The matter should be placed in historical perspective, both legal and factual. That history is thoroughly presented, state by state and overall, in Professor Norman William's recent comprehensive and thoroughly readable treatise, "American Land Planning Law." To summarize quickly, with special reference to this state, after zoning was constitutionally approved a half century ago, the authorizing legislation in New Jersey and most states, delegated the permissive power to each municipality under standards which, except for the broad health, morals and general welfare language, were directed to regulation of uses to avoid adverse physical impact and to safeguard property values.

The general language of the delegation necessarily left interpretation to the courts. The aim of the adopted ordinances was to keep industrial uses out of the residential areas of the cities and their close suburbs. The idea was revolutionary because it involved restrictions on the private use of one's land, which for centuries had received exceptional veneration and favored treatment at the hands of the law.

The attitudes of the courts in this state as elsewhere varied in periods during the course of the next few decades. Early judicial resistance to zoning largely favored landowners. From 1948 to recent times our courts swung quite perceptibly to the opposite extreme, upholding almost all municipal action.

The New Jersey factual picture changed drastically during this period. I am sure it is quite familiar to all of you. The population expanded greatly through the birth rate and immigration from other sections. Business and industry moved from the central cities to new locations farther out and the more affluent families followed to occupy newly-built single-family housing in developments in municipalities that had been substantially rural. The demand for municipal and educational services funded by real-property taxes became immense in these areas.

At the same time, the cities decayed and their tax bases eroded. They became populated largely by the poor. The available housing wore out and became substandard or worse. Government services deteriorated and we had the uprisings of the 60's.

During the same period, the character and aim of municipal zoning, especially in these municipalities that were growing, or experiencing market pressures for growth, changed radically, although the full significance was not apparent at once. The purpose shifted from protection against physical impact to socioeconomic designs with the clear purpose of safeguarding the particular municipality's welfare as it alone decided. A principal purpose was fiscal - to allow only that kind of growth that would pay its way taxwise, particularly with respect to school costs, or come close to it.

The result was almost universal prohibition through various zoning mechanisms against any but expensive, single-family housing. Multi-family rental units were allowed most meagerly overall. Generally, they too, were required to be expensive, and contained bedroom limitations restricting the number of school children. These provisions effectively excluded from municipality after municipality families of low-and moderate-income, whether they resided in the central cities and sought a better environment and living conditions or were young couples, elderly citizens and others not desiring large houses who already had some ties with the community.

The result too was a statewide shortage of decent low-and moderate-income housing in all types of municipalities, the existence and alarming consequences of which were repeatedly called to public attention by state-agency studies, gubernatorial messages, and recitals in state legislation providing some assistance in funding such housing, only, of course, available where local land-use regulations permitted. It became clear that local exclusionary ordinances were having a substantial impact outside the particular municipality.

At the same time, it was becoming obvious that use regulation of certain types of land had such an important impact beyond municipal lines that individual municipal regulation was harmful to the broader public welfare. So the legislature withdrew the delegation of zoning authority to municipalities with respect to ,among others, wetlands, coastal areas, and the Hackensack Meadowlands district and provided for use regulation by its own agencies. The advisability of the concept of regional land-use regulation was thus established.

In this state of affairs, the Mount Laurel case came to the Supreme Court. It projected a new class of land-use litigation. The suit was brought, not by neighbors protesting the zoning of a particular property or an owner seeking to develop his land contrary to the zoning ordinance, but by people whom Professor Williams calls "third-party non-beneficiaries" - resident and non-resident poor people who wanted to live in the township but could not afford the only type of housing permitted.

Their attack, which they clearly had standing to make, was on the whole zoning scheme of a typical growing municipality having adequate remaining land for further development. The plaintiffs' proofs and briefs well presented to the court the factual picture that has just been sketched.

For present purposes of the discussion of the judicial role, the rationale of the decision may be simplified as follows. Land-use regulation, like any other police power enactment, must enhance and not be contrary to the general welfare to be valid under the state constitution. The availability of adequate land and an appropriate variety and choice of housing for all categories of people is an absolute essential in promotion of the general welfare - in effect, a fundamental state interest.

It is so important to the public good that the general welfare that each so-called developing municipality must take into account in order to have a valid zoning ordinance extends beyond the claimed good of that particular governmental unit. So:

the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land-use regulation, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low-and moderate-cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries.

and may not adopt regulations or policies that thwart of preclude that opportunity. Exclusionary restrictions having the effect mentioned are unconstitutional unless the municipality can sustain the heavy burden of demonstrating peculiar circumstances dictating a contrary conclusion. This was not established by Mount Laurel, so its zoning ordinance is pro tanto invalid.

The conclusions were, of course, within the traditional power and obligation of a court to declare legislation unconstitutional. Deference to the Legislative branch, here the local governing body, requires that such a judgment be rendered only in a clear case, but when that plainly appears in a situation involving a fundamental state interest, a court would be derelict if it did not so act. We are, in essence, dealing with a moral issue.

Mount Laurel went on to indicate that, since housing needs, particularly for people of low and moderate income, do not necessarily suit or fit well in every municipality, a regional approach was desirable, and urged state legislative action to so provide. In the absence thereof, the court said that Mount Laurel would have to provide for its fair share of the present and prospective regional need for such housing.

This solution originated with Chief Justice Weintraub during court conferences, prior to the advent of new permanent justices, making it desirable to schedule a reargument. The idea was not new; several areas of the country have had voluntary plans in operation on this basis for some time, and the professional planning literature thereon is plentiful. The township was given the opportunity to revise its ordinance, using these and other guidelines mentioned in the opinion, with the right in the plaintiffs to seek court review of the revised product if it was claimed not to be in accord with the express or implied directions of the opinion.

There is certainly nothing here that could reasonably suggest an inappropriate judicial role. I submit that it is unthinkable that a court should stop short of giving litigants in the housing field all the guidelines it considers vital and to direct affirmative corrective action to the fullest extent that it can completely supervise and review simply because the defendant is a municipality, and one that might be recalcitrant or uncooperative in righting the constitutional wrong, or because some other entity might be able to do a better job.

Under New Jersey jurisprudence, a court must review any governmental action of the nature here involved, as the Supreme Court has since done in the Madison Township case. That opinion also clearly confirms the judicial power to seek the help of neutral experts where needed to decide questions beyond the ordinary sphere of judicial knowledge, which, of curse, occurs in many cases beside land use litigation.

And it is not to be forgotten that courts can bring about ultimate compliance with their judgments through negative orders. For example, a defiant municipality refusing to change its invalid zoning ordinance could be prohibited, until it did so, from issuing building permits or certificates of occupancy for any dwellings, or indeed for structures of any kind. this method of relief was effectively utilized recently in Morris County to bring about governmental action to provide adequate sewage disposal.

There are, of course, types of relief that courts should not order, regardless of their power to do so. I conceive, for example, that judicial tribunals ought not to direct municipalities to actually build housing. In some cases, they may have to stop and resort to judicial prodding of the public conscience to bring about remedial action.

Mount Laurel has spawned considerable litigation involving other municipalities. It is not within the scope of this presentation to discuss the various decisions, even if the author had had the time to digest the contents and implications of the great proliferation of paper representing the numerous opinions. One brief comment bearing on the judicial role may be in order.

I believe that the implications of Mount Laurel are clear enough that, where zoning for housing is involved, whether the municipality is strictly a developing one or not, a court should take a good, hard look and insist that the municipality justify its restrictions or be forced to change them.

Furthermore, the court ought to give real reasons in its decisions and not rely on unmeaningful boiler-plate shibboleths like arbitrariness, capriciousness, and dubious presumptions of validity. The housing issue is too important and too fundamental to be disposed of in any case by cursory judicial treatment, and we should not revert in such cases to any thesis that whatever the municipality has done is all right.

While the legislature has not yet responded to the Court's suggestion of provision for regional zoning, it did, after Mount Laurel, enact the new Municipal Land Use Law, various sections of which indicate an important shift in policy from the old individual-municipality emphasis of old enabling acts, and give statutory support to the constitutional bases of the decision. I refer to the purposes sections, where the intent of the Act is stated:

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 and preservation of the environment;
and:
to provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space ... in order to meet the needs of all New Jersey citizens.

In addition, the zoning ordinance of every municipality must conform to a master plan, which must contain a land-use plan element and a housing element. I submit that the latter, in order to ground a valid zoning ordinance, would have to make provision, appropriate to the particular municipality, for a variety and choice of housing.

While any home rule tradition is always subject to constitutional requirements and guarantees of rights for all people, as Mount Laurel in effect held, the land-use law provisions just referred to indicate to me a legislative recognition that the invisible walls of suburban communities must have many gates for entrance."

We have presented these portions of the lecture without comment. We believe it speaks for itself. It offers both information and insight into the thinking of a man, who, confronted with a world he didn't like, set out to change it with a seeming disregard for the interests of a great many of the people living in it. Whether this will ultimately be seen as heroic idealism or judicial tyranny will be left to the judgment of future generations who suffer or prosper as a result of it. Arguably, more than forty years on, we are such a generation.

Here we end the Third Source Narrative for Beyond the Mount Laurel Doctrine: From Forty Years of Failure To A Blueprint for Success.

Documents worth reading in addition to those quoted in the text above:

"The Housing Crisis In New Jersey" (1970)
"Land Use Regulation: The Residential Land Supply" (1972).
"A Blueprint For Housing In New Jersey" (1970)
"New Horizons In Housing" (1972).
Warth v. Seldin, 422 U. S. 490 (1975)
Pierro v. Baxendale, 20 N. J. 17, 29 (1955)
Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949)

Beyond the Mt. Laurel Doctrine
Third Source Narrative

This is the Source Narrative to accompany the first Mt. Laurel decision and the writings of its author, Justice Frederick W. Hall. Before looking at the writings of Justice Hall, we have another task to perform. It's time to recall that this podcast is a demonstration project for our Insight Engine problem-solving technique. One of the key steps in our process is identification of powerful false ideas that keep problems from being resolved. Our task is to deconstruct and dispel them. The first one we encounter is the idea of a "housing crisis" in New Jersey. This powerful false idea was the first justification for the actions in Mount Laurel I.

We begin by recognizing the enormous population growth of the "baby-boom" period. From 1940 to 1970 the Census shows the New Jersey population grew from more than 4.1 to over 7.1 million. Numerous studies by "experts" for major institutions projected continued similar growth.

In "The Housing Crisis in New Jersey" (1970) the issue is stated this way: "... there is wide agreement that the State's population will continue to grow at least at the present rate in the years to come." However, this document also includes a very important cautionary footnote that includes the recognition that housing growth drives population growth. It's not the other way around.

"The one significant factor on the horizon which may lead to a decline in the rate of population growth in New Jersey is, of course, the decline in the construction of housing units in the State. If present trends in housing production continue during the coming years to decline, population projections will undoubtedly have to be scaled downward. Furthermore, such a decline could well set in motion a "chain reaction" effect, which would result in further declines in the rate of growth."

The document also shows that building permits had peaked in 1964 at just over 68,000 and dropped to 43,661 by 1968, a four year decline of almost 36%. Such a decline could have been seen as the basis for a reconsideration of "population projections". That's not what happened.

On December 7th Governor Cahill went further in "A Blueprint for Housing in New Jersey". There he said "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985." No explanation is offered as to who these "experts"
were or what methodology they used to reach their astonishing total. He also says "According to reliable statistics, we require 100,000 additional housing units each year, but actually are building only 40,000." These statements remained unchallenged and became part of the major concurring opinion in Mt. Laurel I.

You might be asking "How wrong could the experts have been?" Here are the facts. Decide for yourself.

In 1988 the New Jersey Office of State Planning produced a Technical Document titled "Population Trends and Projections". In it they looked back over the period 1970 to 1985 and found that instead of the projected 2.8 million people from 1970, the actual increase came to 394,136, or less than one seventh of the projected amount. Simple math tells us that if 2.8 million people would require 100,000 units per year, a similar reduction would produce approximately 14,250 homes and the state was already seeing far more homes being built. Census numbers also show that in the decade of the 1970's the population grew by 196,847 while New Jersey added over 384,000 new homes, or 1.95 units for every additional person. Records of annual building permits show this rate of growth kept up through 1985. To fully appreciate the magnitude of this difference recall that the average household size at the time was approximately 3 persons which meant that in reality six homes were being built for every new household in New Jersey.

In conclusion, the population growth that was supposed to fuel the "housing crisis" never happened. The housing being built far exceeded any demand that the population that did come could absorb. If population projections had been adjusted based on the emerging downward trend in housing, the argument underpinning Mt. Laurel I would have had to be significantly altered if not abandoned altogether. But that didn't happen. Instead the Court relied on this badly flawed expert advice. That's the first false idea to be dispelled. There was no housing crisis.

Before we move on, if you're wondering who those unnamed experts could have been who led everyone so far astray, we found them. In a footnote in "Exclusionary Land Use Controls: The Case of North-eastern New Jersey" the authors praise Governor Cahill for his courage in delivering his Special Message and write "The technical specifications for the study were prepared by the authors of this article." The authors were Norman Williams, Jr. and Thomas Norman. Now you know. Now we move on and turn our attention to the second of the great revolutionary architects of the Mt. Laurel Doctrine.

The issues at the heart of the Mt. Laurel I decision - the question of Standing, the definition of the General Welfare and the requirement for Reasonableness - are dealt with in the Third podcast. We find the theories embodied in the writings of Norman Williams, Jr., discussed in the Second podcast, and we find them in the writings of New Jersey Supreme Court Justice Frederick W. Hall. Here we deal with those texts. We say "texts" because the Mt. Laurel decision, as its author freely admits, is about more than just Mt. Laurel. It is about the transformation of a legal theory into judicial practice. It attempts to set New Jersey apart from the long history of federal Supreme Court decisions that support the democratic diversity embodied in the New Jersey home rule tradition.

We have chosen four texts that we find most instructive. The first is a famous dissenting opinion written in 1962 in the case of Vickers v. Gloucester Twp. where his philosophies are clearly set forth and the second is DeSimone v. Greater Englewood Housing Corp. where he writes the majority opinion signaling a willingness on the part of the Court to support challenges to local zoning. The third is Mt. Laurel I and the fourth is a lecture given in 1977, two years after his retirement from the Court, amplifying his thinking about judicial prerogatives raising the issue of "standing" that was not addressed in the Court decision. That will complete our picture of his thinking.

We begin with a brief biographical note.

Frederick Wilson Hall

Frederick Wilson Hall was born in Pittsburgh in 1908. He graduated from Rutgers University where he was elected Phi Beta Kappa and from Harvard Law School Cum Laude in 1931. As a young lawyer he worked in the firm of New Jersey's first Chief Justice, Arthur T. Vanderbilt and then in 1941 he founded and practiced law at the firm of Wharton and Hall.
He was appointed to the New Jersey Superior Court in 1953 and served there until 1959 when he was appointed as an Associate Justice of the New Jersey Supreme Court where he served until 1975. Justice Hall was the last member of what was known as the "Weintraub Court" which served together for eleven years and was widely regarded as one of the most activist and progressive judicial bodies in the nation in the area of civil law.
He was known for his mastery of land use law and his great reputation in that field has tended to deflect attention from his important writings in other fields. He was completely at home in the entirely intricate field of municipal law; he wrote important opinions in the areas of torts, criminal law, constitutional law and many other subjects. Few judges possessed his extensive knowledge of procedure and the Rules of Court.
He remains most famous for writing the decision in the case known as Mt. Laurel I.
He died in 1984.
Vickers v. Gloucester Township

Now to the writings of Justice Frederick Hall. We begin in 1962 with his dissenting opinion in Vickers v. Gloucester Township, 37 N.J. 232 (1962). As we do, it's important to remember the federal statutory context. This is three years before the Voting Rights Act and six before the Fair Housing Act. The Civil Rights movement was growing stronger and a socioeconomic model seen as disproportionately benefiting White people was automatically treated as suspect by a certain school of social ideologues.

On its face this case is about the right of a municipality to ban mobile home parks, but Justice Hall sees it raising greater concerns.

"Of even greater concern is the judicial process by which it is reached and the breadth of the rationale. The import of the holding gives almost boundless freedom to developing municipalities to erect exclusionary walls on their boundaries, according to local whim or selfish desire, and to use the zoning power for aims beyond its legitimate purposes."

After this he goes on to describe the types of towns that are the object of his concern. He separates them from "the settled suburbs surrounding the cities" that should have the right to remain undisturbed and paints this picture of the targets of his distaste. :

"On the contrary these areas are sprawling, heterogeneous governmental units, mostly townships, each really amounting to a region of considerable size itself. Their present rural, semi-rural or mixed nature is about to change substantially and they are soon to become melded into the whole metropolitan area. Their political boundaries are artificial and hence of little significance beyond defining one unit of government."

"Such municipalities, above all others, vitally need and may legally exercise comprehensive planning and implement zoning techniques to avoid present haphazard development which can only bring future grief. They are entitled to aim thereby for a sound and balanced area, with varying uses confined to specific districts and appropriately regulated."

He then continues to describe a number of things towns can reasonably do to shape their future. Then he comes to this.

"And this gets to the nub of what this, and similar cases, are really all about, i.e. the outer limit of the zoning power to be enjoyed by these municipalities most in need of comprehensive authority. What action is not legitimately encompassed by that power and what is the proper role of courts in reviewing its exercise?"

"This inquiry involves important fundamentals. In the broad sense the considerations are well posed in Williams, "Planning Law and Democratic Living," 20 Law and Contemporary Problems 317 (1955):

"The main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society equality of opportunity and equality of treatment, freedom of thought and considerable freedom of action, and fairness. Under the American system, a more or less independent mechanism of judicial review is established to provide an independent check on whether specific governmental decisions conform to these standards. While controversy has often raged about judicial action in other areas, it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare."

"Constitutional law should serve to shed light upon thinking about local planning, by requiring those concerned to do what they should be doing anyway to work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity."

This is a set of breathtaking assertions.

First, while he offers a broad amorphous set of values, it might just as reasonably be said that the main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society as enshrined in the precise language of the U. S. Constitution.

Second, as to what he asserts as having "always been recognized" as "an essential part of the judicial function" and the "attitudes and policies" with which he is concerned, these must be compared to the values and actions consistently upheld for thirty-five years by the U. S. Supreme Court and flowing from sources like the Standard State Zoning Enabling Act that was a product of the federal government. And just who has been doing the recognizing, anyway?

Third, there is the need to "work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity." This lofty vision should be compared with the language found later in the text defining the role of zoning.

Next he expands to a broader vision of a seemingly boundless role for the courts and shares his disdain for those with less expansive views.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."

After this the discussion focuses closer to the case at hand and on the permitted or proper scope of judicial oversight. He finally comes to the definition of zoning quoted above and this statement that seemingly undercuts the argument he has been advancing for the expansiveness of judicial oversight of municipal actions.

"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

After all of his argument to the contrary, this language appears to make it clear that while there are great issues connected with human freedom and opportunity this is not the arena in which they can be constitutionally settled.

From this point the focus is on little more than repetition of the issues, arguing back and forth with elements of previous court decisions and finally a discussion of the actual issue of the case - the right to prohibit mobile homes.

DeSimone v. Greater Englewood Housing Corp.

We next hear his voice in the case of DeSimone v. Greater Englewood Housing Corp. 56 N. J. 428 (1970) 267 A.2d 31. While a seemingly small matter over issuance of a variance, it caught the emerging temper of its time. There had been racial disturbances in Englewood in July, 1967 and the town had become a focus of the Governor's Select Commission on Civil Disorder and its "Report for Action" issued the following year. This unanimous decision was seen by sympathizers as an opening for a renewed assault on municipal zoning. To understand this perspective we offer the assessment of Norman Williams, Jr. in The Background and Significance of Mount Laurel II from 1984:

"By the late 1960's, however, the world suddenly began to look rather different than it had when Justice Hall wrote his Vickers dissent, and other judges began to reexamine their tolerance of exclusionary zoning practices. In an otherwise relatively unimportant case, the New Jersey Supreme Court in 1970 upheld (against a challenge by neighbors) a New Jersey "d" variance approving a housing project in Englewood, which was (a) located in a "white area" and (b) clearly designed at least in part to accommodate blacks from the Englewood ghetto. In upholding the grant of the variance, the opinion-by Hall, and now unanimous--commented in dictum that under those circumstances such a variance could not have been denied. The only logical basis for this comment is that there must be some affirmative duty to plan on behalf of all sections of the population. Once those familiar with this field of law read the Englewood opinion, it was clear that the jig was up; the court seemed to be sending out signals that it was ready for a major reversal on the exclusionary problem." This led us to Mt. Laurel I.

Mt. Laurel I

Now we move on to the climactic document of the career of Frederick W. Hall. The first Mt. Laurel decision was written in 1975, thirteen years after his dissent in Vickers v. Gloucester Township and was his last great contribution to the activism of the court. The case, Southern Burlington County N. A. A. C. P. v. Mount Laurel 67 N. J. 151 (1975), began its course through the state judicial system in 1972 with a finding for the plaintiff which was subsequently appealed, not only by the township but by the plaintiffs as well seeking an expansion of the scope of the decision. It was then taken over by the state Supreme Court and transmuted from a case concerned with racial discrimination, which would have claimed a violation of the federal Fair Housing Act, into one focused on economic segregation which kept it within the state court system where it was argued in 1974 and decided in 1975. It begins by presenting the scope of the argument. We also find here Mr. Norman Williams, Jr. arguing the cause for amicus curiae The Public Interest Research Group of New Jersey twenty years after publishing his foundational document "Planning Law and Democratic Living" in 1955. Importantly, this comes seven years after the Fair Housing Act.

"This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipality. The trial court so found, 119 N.J. Super. 164 (Law Div. 1972), and declared the township zoning ordinance totally invalid. Its judgment went on, in line with the requests for affirmative relief, to order the municipality to make studies of the housing needs of low and moderate income persons presently or formerly residing in the community in substandard housing, as well as those in such income classifications presently employed in the township and living elsewhere or reasonably expected to be employed therein in the future ... The township appealed to the Appellate Division and those plaintiffs, not present or former residents, cross-appealed on the basis that the judgment should have directed that the prescribed plan take into account as well a fair share of the regional housing needs of low and moderate income families without limitation to those having, past, present or prospective connection with the township. The appeals were certified on our own motion before argument in the Division."

"The implications of the issue presented are indeed broad and far-reaching, extending much beyond these particular plaintiffs and the boundaries of this municipality."

"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."

"We will, therefore, consider the case from the wider viewpoint that the effect of Mount Laurel's land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

"Its candid position is that, conceding its land use regulation was intended to result and has resulted in economic discrimination and exclusion of substantial segments of the area population, its policies and practices are in the best present and future fiscal interest of the municipality and its inhabitants and are legally permissible and justified. It further asserts that the trial court was without power to direct the affirmative relief it did."

In these few opening quotes we find the whole argument showcased. It all begins with the "desperate need for housing" based on the horribly flawed assertion of a "housing crisis" that demonstrably never happened, to meet the needs of a population that still doesn't exist, most clearly expressed in this single sentence from "A Blueprint for Housing in New Jersey" (1970). "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985."

Based on this assumption the Court says they will consider the case from the "wider viewpoint" that the Mount Laurel ordinance has the effect of excluding people because of the "limited extent of their incomes and resources" which the municipality freely admits, and asserts they are "legally permissible and justified"in doing because it is in the "best present and future fiscal interest of the municipality and its inhabitants". And the Court accepts that "the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

To summarize, the township freely admits it did what it's accused of doing and says that it's legal and justified because it's in the interest of the town and the Court accepts that it wasn't done for any of the reasons made impermissible by the Fair Housing Act 42 U.S.C. 3602 et seq., which is the federally controlling statute and separates this case from the context of the dissent in Vickers v. Gloucester Township. That is the case. The rest of the decision is then divided into three parts.

I The Facts

This section begins with a lengthy recitation of the facts about Mount Laurel including its size and population and its various zones and the development that's taken place in them in a very straightforward manner. Then we come to the conclusion. "There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property ... and that the policy was carried out without regard for nonfiscal considerations with respect to people, either within or without its boundaries." In other words, they did exactly what they said they did and only for the reasons they said they did it.

The text then goes on to describe the reason for this. "This policy of land use regulation for a fiscal end derives from New Jersey's tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality's children." In other words, this is entirely the fault of the State and applies to all municipalities. As a logical result:

"This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost everyone acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing."

As proof of this practice"The Residential Land Supply" (April 1972) produced by The N. J. Department of Community Affairs and "Exclusionary Land Use Controls: The Case of North-Eastern New Jersey" (1971) by Norman Williams, Jr. and Thomas Norman are cited. What is not considered in this statement is that the municipal action benefits all of the residents of the municipality, including those who are low-and-moderate income homeowners who are most at risk of being driven from their homes by rising taxes.

The next thing shown is how the urban model also worked to maintain fiscal stability.

"The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing than the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing. Despite the municipally confined tax structure, commercial and industrial ratables generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas."

In other words, the cities provided for their fiscal stability by zoning for a substantial ratable base dominated by commercial and industrial uses. Their goal was the same as that of the developing municipalities but simply pursued by different means.

The final part of this section is devoted to the plight of the urban population after World War II as the commercial and industrial base left the cities for new locations in other towns, other counties and other states. At the same time the lure of home ownership in developing communities that promised to provide all of the benefits of urban life in terms of public services and economic opportunities, without the well recognized problems of urban life, drew the emerging middle class to the suburbs. This was compounded by the failure of the cities to find a new productive purpose.

"Much industry and retail business, and even professions, have left the cities."And as for the low income workers "These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a critical erosion of the city tax base and inability to provide the amount and quality of those governmental services education, health, police, fire, housing and the like so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing."

To summarize the facts. State tax policies placed the primary burden of funding municipal, county and educational services on the tax base of each municipality. In order to be able to carry this burden each municipality zoned itself to develop a ratable based that would provide for long-term fiscal stability. The cities did this by zoning for a large commercial and industrial base. "Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing." After World War II the urban model began to fail and many cities had difficulty reinventing themselves.

Instead of seeking to attract a tax base built on non-residential uses that relies on unskilled and semi-skilled workers, the suburbs did this by focusing on attracting a strong residential base that would provide for their future stability. The suburbs stand convicted of developing a well balanced, fiscally stable, socioeconomic model while the cities did not. They didn't attract employers of unskilled and semi-skilled workers and so did not seek to provide housing for a workforce that did not exist.

Now we come to the legal issue.

II The Legal Issue

"The legal question before us, as earlier indicated, is whether a developing municipality like Mount Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources."

"We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need thereof."

"We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs."

At this point we'll take a moment to recall previously expressed thoughts of Justice Hall with a pair of quotes from Vickers v. Gloucester Township cited above.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."
"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

The first quote could easily be applied to the Court in this case for focusing on the abstract need for housing without recognizing the real world reality that housing is only one aspect of the integrated socioeconomic need of the community. Logic argues that building housing for workers without work makes no more sense than building factories without workers to work in them.

The second challenges the expansive view of judicial prerogatives "to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes." Then the argument for this is presented.

"We begin with some fundamental principles as applied to the scene before us."

"Land use is encompassed within the state's police power."

"It is elementary theory that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws."

"It is required that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare (The last term seems broad enough to encompass the others.) Conversely, a zoning enactment which is contrary to the general welfare is invalid."

"Indeed these considerations are specifically set forth in the zoning enabling act as among the various purposes of zoning for which regulations must be designed. N. J. S. A. 40:55-32 ... If a zoning regulation violates the enabling act in this respect, it is also theoretically invalid under the state constitution. We say "theoretically" because, as a matter of policy, we do not treat the validity of most land use ordinance provisions as involving matters of constitutional dimension; that classification is confined to major questions of fundamental import."

"We consider the basic importance of housing and local regulations restricting its availability to substantial segments of the population to fall within the latter category."

"The demarcation between the valid and the invalid in the field of land use regulation is difficult to determine, not always clear and subject to change. This was recognized almost fifty years ago in the basic case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926):

"The ordinance now under review and all similar laws and regulations must find their justification in some aspect of police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. (272 U. S. at 387, 47 S. Ct. at 118, 71 L. Ed. at 310)."

It's nice to see the Court remembering the Ambler Realty case but it would be even nicer to see the Court recall The federal Fair Housing Act which clearly drew the line between legitimate and illegitimate. The Act prohibits discrimination in housing for a specific list of reasons: race, color, religion, sex, handicap, familial status or national origin. That is "precise delimitation". Counsel for Mt. Laurel Twp. made it clear that these were not the basis for their zoning and the Court accepted that that was the case. We would remind the Court of their own language.

"In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

The first thing Justice Hall needed to do to justify a need for change was find sources that, while supporting policies of deference to municipal decision-making, offer a warning that the future may be different and law may have to change. After offering a number of prior decisions as pointing in his direction he found it best said in Pierro v. Baxendale, 20 N. J. 17, 29 (1955) :

"If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed."

Having adding the sanctifying weight of precedent, he returns to his own thoughts.

"The warning implicates the matter of whose general welfare must be served or not violated in the field of land use regulation. Frequently the decisions in this state, including those just cited, have spoken only in terms of the interest of the enacting municipality, so that it has been thought, at least in some quarters, that such was the only welfare requiring consideration. It is, of course, true that many cases have dealt only with regulations having little, if any, outside impact where local decision is ordinarily entitled to prevail. However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state's citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served."

"This essential was distinctly pointed out in Euclid, where Mr. Justice Sutherland specifically referred to the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. Chief Justice Vanderbilt said essentially the same thing, in a different factual context, in the early leading case of Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949), when he spoke of the necessity of regional considerations in zoning and added this:

"The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. (1 N. J. at 513)."

Justice Hall offers this quote as supportive of his position but we see it pointing in exactly the opposite direction. The problem is one of perspective. For Justice Hall zoning in developing municipalities was an act of selfishness and a desire to isolate themselves from the needs of the broader region. We see it differently. We see the world from a dynamic perspective where forces that transcend transient social policy considerations are controlling and municipalities are simply responding to the greater market forces confronting them as they take their place in regions that are being redefined by evolving transportation and communications technologies. The sentence we have highlighted makes this point. Again, we're not asking you to take our viewpoint over that of Justice Hall. We have simply taken the quote he selected above and put it back in the paragraph where he found it. Once again we have added the highlighting for emphasis.

"What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as in living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

When read in this fuller context the vision of Justice Hall and the rest of the Court cannot stand. The "forces" cited in Duffcon are the dynamic forces we see shaping our world in various forms and with different names. In this case it is the economic force of the housing market and the social force of democratic diversity that together serve to create fiscally stable communities, each with a distinct face and character, and together advancing the general welfare of their region. The Court is seeking to impose housing diversity within every municipality, while the natural dynamic forces produce a vital diversity among municipalities.

After this a case supporting placement of a hospital for the emotionally disturbed as meeting a regional need superseding the rights of a municipality to reject it is presented. And then, having failed to find any substantive support for the action under consideration other than some mentions that at some point if circumstances change some alterations in judicial perspectives would be justified, the Court goes about doing what they clearly had decided to do all along.

"This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms of land use regulation which that relationship mandates. There cannot be the slightest doubt that shelter, along with food, are the most basic human needs."

"It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of such broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries. Negatively, it may not adopt regulations or policies which thwart or preclude that opportunity."

"In sum, we are satisfied beyond doubt that, by reason of the basic importance of appropriate housing and the long-standing pressing need for it, especially in the low and moderate cost housing category, and of the exclusionary zoning practices of so many municipalities, conditions have changed, and consistent with the warning in Pierro, supra, judicial attitudes must be altered from that espoused in that and other cases cited earlier, to require, as we have just said, a broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all."

"We have spoken of this obligation of such municipalities as "presumptive." The term has two aspects, procedural and substantive. Procedurally, we think the basic importance of appropriate housing for all dictates that, when it is shown that a developing municipality in its land use regulations has not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation of substantive due process or equal protection under the state constitution has been made out and the burden, and it is a heavy one, shifts to the municipality to establish a valid basis for its action or non-action. ... The substantive aspect of "presumptive" relates to the specifics, on the one hand, of what municipal land use regulation provisions, or the absence thereof, will evidence invalidity and shift the burden of proof and, on the other hand, of what bases and considerations will carry the municipality's burden and sustain what it has done or failed to do. Both kinds of specifics may well vary between municipalities according to peculiar circumstances."

"We turn to application of these principles in appraisal of Mount Laurel's zoning ordinance, useful as well, we think, as guidelines for future application in other municipalities."

With this the Court establishes a new concept in land-use litigation. It does so without constitutional, statutory or precedential support. It is nothing more than an act of will by the members of the Court and so effectively expands the boundaries of judicial authority beyond otherwise recognized bounds.

The focus then turns to the specific of Mount Laurel zoning.

"We have earlier stated that a developing municipality's obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to the municipality's fair share of the present and prospective regional need thereof. Some comment on that conclusion is in order at this point. Frequently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason. But, under present New Jersey legislation, zoning must be done on an individual municipal basis, rather than regionally. So long as that situation persists under the present tax structure, or in the absence of some kind of binding agreement among all the municipalities of a region, we feel that every municipality therein must bear its fair share of the regional burden. (In this respect our holding is broader than that of the trial court, which was limited to Mount Laurel-related low and moderate income housing needs.)"

This admission loudly echoes the language of Duffcon Concrete that supports putting different uses in different places based on any number of factors:

"Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

After this all that remains is the essential discussion of how to define a region.

"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. Confinement to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable."

There are any number of ways to define a region. The Northeast is a national region. The New York and Philadelphia metropolitan areas are regions. The Census Bureau provides journey-to-work data that shows where people who work in a given place live and conversely where people who live in a given area work. Worker housing tends to cluster around employment centers and regions tend to define themselves on an ongoing basis.

III The Remedy

This final section applies only to Mount Laurel and focuses only on mechanics.

This ends the majority opinion written by Justice Frederick Hall. All that remains is a consideration of his 1977 lecture.

We are presenting significant excerpts from this lecture by Justice Hall, delivered two years after his retirement, because it contains what we see as useful insights into his thinking about several important issues. These include his vision of the limits of judicial power, of which he see very few, and his idea of the basis for granting standing to the plaintiffs in the Mount Laurel case as "third- party non-beneficiaries" as defined by Professor Norman Williams, Jr. . He discusses the importance of defining a "fundamental interest" and the fact that for the federal courts housing is not one. We think the full lecture is well worth reading as a picture of the thinking of a man accustomed to wielding power and the public passions that drove him throughout his career on the bench.

The Judicial Role In Land-Use Regulation (excerpts)

Frederick W. Hall
Associate Justice of the New Jersey Supreme Court, retired
Arthur T. Vanderbilt Lecture
Harvard Law School Association of New Jersey
April 20, 1977

Modern land-use regulation has increasingly become a matter of vital interest and importance to the citizenry of large and small metropolitan areas and beyond, and bids fair to continue so for a considerable time to come. Its scope has changed immeasurably since constitutional approval was accorded about 50 years ago. The current major subjects and objects of regulation and the problems and issues arising from it have led to litigation of quite a different character than was formerly the case. What the proper judicial role in this field should be needs to be considered in the light of the broad changes that have likewise taken place in the kinds of litigation and the exercise of the judicial function in other fields of public law.


The United States Supreme Court has come to the point, in reviewing state action on claims of federal constitutional violation, of finding invalidity on equal-protection grounds only where the right involved is said to be a "fundamental interest" and the state cannot show a "compelling state interest." The subjects meeting the fundamental interest test have been strictly limited: voting, race, right to interstate travel and perhaps a couple of others. Housing is not one.
The courts recent forays into the land-use regulation field after an avoidance of about half a century have been, regardless of result, quite unsatisfactory, to say the least.

There have been deep changes in American life and philosophy and the place of government therein. These began to appear in quantity in the "New Deal" era of the 30's but developed much more strongly after World War II.
First, there was a vast increase in regulation of private affairs, both business and personal, by all levels of government. ....
Second, there has been a tremendous increase in the conferring or distribution by government of various kinds of benefits to aid the less fortunate members of our society.
Third, there has been a startling awakening and assertion of claims of human rights under constitutional guarantees, statutes and institutional arrangements especially on behalf of minorities of all varieties and the disadvantaged.
Fourth, we have witnessed a "law explosion," by which relief from all manner of alleged wrongs is sought in the courts in the belief that the judiciary is the only effective branch of government. Everyone sues about everything, ...

This type of litigation is quite different from the traditional model earlier described. It most frequently concerns public, rather than private, action or inaction. It may well attack a whole scheme of government activity. It very frequently is of a representative or class nature, affecting many more persons or entities than are parties or whose views are before the court.

It generally does not seek money damages, but rather declaratory or injunctive relief of a continuing and broadly remedial nature against some government entity or official. Equity jurisprudence very largely governs the ultimate result. ....

This relatively new category of public-law litigation, which includes as well certain kinds of land-use litigation shortly to be mentioned more specifically, presents important questions as to the extent of judicial power and the proper exercise of it. These queries generally arise about the remedy especially when the relief ordered or sought involves affirmative action by another branch of government or amounts to action by the judiciary in a form within the purview of or normally accomplished - even perhaps better handled - by either the local or state legislature or the executive branch.

The Courts Must Decide

Again, the courts are the sole and final arbiter of the constitutionality of local and state legislation, regulations or other governmental action. A declaration of invalidity is binding upon the legislature, the executive and all affected public officials. This is so whether or not the particular agency or government agrees with the decision. It may only be overturned by amendment through vote of the people according to specified procedures.

While considerations of constitutional claims require the greatest judicial circumspection, they cannot be decided on the basis of personal views of individual judges as to the advisability or wisdom of the governmental action under review or in accordance with what may appear to be the wish of an articulate or seeming majority of the affected populace on a particular question.

The judicial branch is the ultimate protector of the rights of all, and this of course includes those of minorities. Constitutional principles and the rights guaranteed by or arising under the documents must always be thought of as living and not static things, subject to enlargement and variation in interpretation and application as conditions and the needs of the body politic change. When this is to occur is, unless spelled out by amendment, the proper and exclusive province of the judiciary. This is fundamental in our form of government.

Land-Use Regulation

There remains the application of this discussion to the more specific matter of the appropriate judicial role in land-use regulation cases. Even more particularly, reference is confined to the currently active aspects of zoning for housing and the place of the regional concept and to the initial articulation of a new and constitutional approach thereto in the unanimous decision of our Supreme Court in Southern Burlington County NAACP v. Township of Mount Laurel, 67 N. J. 151 (1975).

The matter should be placed in historical perspective, both legal and factual. That history is thoroughly presented, state by state and overall, in Professor Norman William's recent comprehensive and thoroughly readable treatise, "American Land Planning Law." To summarize quickly, with special reference to this state, after zoning was constitutionally approved a half century ago, the authorizing legislation in New Jersey and most states, delegated the permissive power to each municipality under standards which, except for the broad health, morals and general welfare language, were directed to regulation of uses to avoid adverse physical impact and to safeguard property values.

The general language of the delegation necessarily left interpretation to the courts. The aim of the adopted ordinances was to keep industrial uses out of the residential areas of the cities and their close suburbs. The idea was revolutionary because it involved restrictions on the private use of one's land, which for centuries had received exceptional veneration and favored treatment at the hands of the law.

The attitudes of the courts in this state as elsewhere varied in periods during the course of the next few decades. Early judicial resistance to zoning largely favored landowners. From 1948 to recent times our courts swung quite perceptibly to the opposite extreme, upholding almost all municipal action.

The New Jersey factual picture changed drastically during this period. I am sure it is quite familiar to all of you. The population expanded greatly through the birth rate and immigration from other sections. Business and industry moved from the central cities to new locations farther out and the more affluent families followed to occupy newly-built single-family housing in developments in municipalities that had been substantially rural. The demand for municipal and educational services funded by real-property taxes became immense in these areas.

At the same time, the cities decayed and their tax bases eroded. They became populated largely by the poor. The available housing wore out and became substandard or worse. Government services deteriorated and we had the uprisings of the 60's.

During the same period, the character and aim of municipal zoning, especially in these municipalities that were growing, or experiencing market pressures for growth, changed radically, although the full significance was not apparent at once. The purpose shifted from protection against physical impact to socioeconomic designs with the clear purpose of safeguarding the particular municipality's welfare as it alone decided. A principal purpose was fiscal - to allow only that kind of growth that would pay its way taxwise, particularly with respect to school costs, or come close to it.

The result was almost universal prohibition through various zoning mechanisms against any but expensive, single-family housing. Multi-family rental units were allowed most meagerly overall. Generally, they too, were required to be expensive, and contained bedroom limitations restricting the number of school children. These provisions effectively excluded from municipality after municipality families of low-and moderate-income, whether they resided in the central cities and sought a better environment and living conditions or were young couples, elderly citizens and others not desiring large houses who already had some ties with the community.

The result too was a statewide shortage of decent low-and moderate-income housing in all types of municipalities, the existence and alarming consequences of which were repeatedly called to public attention by state-agency studies, gubernatorial messages, and recitals in state legislation providing some assistance in funding such housing, only, of course, available where local land-use regulations permitted. It became clear that local exclusionary ordinances were having a substantial impact outside the particular municipality.

At the same time, it was becoming obvious that use regulation of certain types of land had such an important impact beyond municipal lines that individual municipal regulation was harmful to the broader public welfare. So the legislature withdrew the delegation of zoning authority to municipalities with respect to ,among others, wetlands, coastal areas, and the Hackensack Meadowlands district and provided for use regulation by its own agencies. The advisability of the concept of regional land-use regulation was thus established.

In this state of affairs, the Mount Laurel case came to the Supreme Court. It projected a new class of land-use litigation. The suit was brought, not by neighbors protesting the zoning of a particular property or an owner seeking to develop his land contrary to the zoning ordinance, but by people whom Professor Williams calls "third-party non-beneficiaries" - resident and non-resident poor people who wanted to live in the township but could not afford the only type of housing permitted.

Their attack, which they clearly had standing to make, was on the whole zoning scheme of a typical growing municipality having adequate remaining land for further development. The plaintiffs' proofs and briefs well presented to the court the factual picture that has just been sketched.

For present purposes of the discussion of the judicial role, the rationale of the decision may be simplified as follows. Land-use regulation, like any other police power enactment, must enhance and not be contrary to the general welfare to be valid under the state constitution. The availability of adequate land and an appropriate variety and choice of housing for all categories of people is an absolute essential in promotion of the general welfare - in effect, a fundamental state interest.

It is so important to the public good that the general welfare that each so-called developing municipality must take into account in order to have a valid zoning ordinance extends beyond the claimed good of that particular governmental unit. So:

the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land-use regulation, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low-and moderate-cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries.

and may not adopt regulations or policies that thwart of preclude that opportunity. Exclusionary restrictions having the effect mentioned are unconstitutional unless the municipality can sustain the heavy burden of demonstrating peculiar circumstances dictating a contrary conclusion. This was not established by Mount Laurel, so its zoning ordinance is pro tanto invalid.

The conclusions were, of course, within the traditional power and obligation of a court to declare legislation unconstitutional. Deference to the Legislative branch, here the local governing body, requires that such a judgment be rendered only in a clear case, but when that plainly appears in a situation involving a fundamental state interest, a court would be derelict if it did not so act. We are, in essence, dealing with a moral issue.

Mount Laurel went on to indicate that, since housing needs, particularly for people of low and moderate income, do not necessarily suit or fit well in every municipality, a regional approach was desirable, and urged state legislative action to so provide. In the absence thereof, the court said that Mount Laurel would have to provide for its fair share of the present and prospective regional need for such housing.

This solution originated with Chief Justice Weintraub during court conferences, prior to the advent of new permanent justices, making it desirable to schedule a reargument. The idea was not new; several areas of the country have had voluntary plans in operation on this basis for some time, and the professional planning literature thereon is plentiful. The township was given the opportunity to revise its ordinance, using these and other guidelines mentioned in the opinion, with the right in the plaintiffs to seek court review of the revised product if it was claimed not to be in accord with the express or implied directions of the opinion.

There is certainly nothing here that could reasonably suggest an inappropriate judicial role. I submit that it is unthinkable that a court should stop short of giving litigants in the housing field all the guidelines it considers vital and to direct affirmative corrective action to the fullest extent that it can completely supervise and review simply because the defendant is a municipality, and one that might be recalcitrant or uncooperative in righting the constitutional wrong, or because some other entity might be able to do a better job.

Under New Jersey jurisprudence, a court must review any governmental action of the nature here involved, as the Supreme Court has since done in the Madison Township case. That opinion also clearly confirms the judicial power to seek the help of neutral experts where needed to decide questions beyond the ordinary sphere of judicial knowledge, which, of curse, occurs in many cases beside land use litigation.

And it is not to be forgotten that courts can bring about ultimate compliance with their judgments through negative orders. For example, a defiant municipality refusing to change its invalid zoning ordinance could be prohibited, until it did so, from issuing building permits or certificates of occupancy for any dwellings, or indeed for structures of any kind. this method of relief was effectively utilized recently in Morris County to bring about governmental action to provide adequate sewage disposal.

There are, of course, types of relief that courts should not order, regardless of their power to do so. I conceive, for example, that judicial tribunals ought not to direct municipalities to actually build housing. In some cases, they may have to stop and resort to judicial prodding of the public conscience to bring about remedial action.

Mount Laurel has spawned considerable litigation involving other municipalities. It is not within the scope of this presentation to discuss the various decisions, even if the author had had the time to digest the contents and implications of the great proliferation of paper representing the numerous opinions. One brief comment bearing on the judicial role may be in order.

I believe that the implications of Mount Laurel are clear enough that, where zoning for housing is involved, whether the municipality is strictly a developing one or not, a court should take a good, hard look and insist that the municipality justify its restrictions or be forced to change them.

Furthermore, the court ought to give real reasons in its decisions and not rely on unmeaningful boiler-plate shibboleths like arbitrariness, capriciousness, and dubious presumptions of validity. The housing issue is too important and too fundamental to be disposed of in any case by cursory judicial treatment, and we should not revert in such cases to any thesis that whatever the municipality has done is all right.

While the legislature has not yet responded to the Court's suggestion of provision for regional zoning, it did, after Mount Laurel, enact the new Municipal Land Use Law, various sections of which indicate an important shift in policy from the old individual-municipality emphasis of old enabling acts, and give statutory support to the constitutional bases of the decision. I refer to the purposes sections, where the intent of the Act is stated:

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 and preservation of the environment;
and:
to provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space ... in order to meet the needs of all New Jersey citizens.

In addition, the zoning ordinance of every municipality must conform to a master plan, which must contain a land-use plan element and a housing element. I submit that the latter, in order to ground a valid zoning ordinance, would have to make provision, appropriate to the particular municipality, for a variety and choice of housing.

While any home rule tradition is always subject to constitutional requirements and guarantees of rights for all people, as Mount Laurel in effect held, the land-use law provisions just referred to indicate to me a legislative recognition that the invisible walls of suburban communities must have many gates for entrance."

We have presented these portions of the lecture without comment. We believe it speaks for itself. It offers both information and insight into the thinking of a man, who, confronted with a world he didn't like, set out to change it with a seeming disregard for the interests of a great many of the people living in it. Whether this will ultimately be seen as heroic idealism or judicial tyranny will be left to the judgment of future generations who suffer or prosper as a result of it. Arguably, more than forty years on, we are such a generation.

Here we end the Third Source Narrative for Beyond the Mount Laurel Doctrine: From Forty Years of Failure To A Blueprint for Success.

Documents worth reading in addition to those quoted in the text above:

"The Housing Crisis In New Jersey" (1970)
"Land Use Regulation: The Residential Land Supply" (1972).
"A Blueprint For Housing In New Jersey" (1970)
"New Horizons In Housing" (1972).
Warth v. Seldin, 422 U. S. 490 (1975)
Pierro v. Baxendale, 20 N. J. 17, 29 (1955)
Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949)

Beyond the Mt. Laurel Doctrine
Third Source Narrative

This is the Source Narrative to accompany the first Mt. Laurel decision and the writings of its author, Justice Frederick W. Hall. Before looking at the writings of Justice Hall, we have another task to perform. It's time to recall that this podcast is a demonstration project for our Insight Engine problem-solving technique. One of the key steps in our process is identification of powerful false ideas that keep problems from being resolved. Our task is to deconstruct and dispel them. The first one we encounter is the idea of a "housing crisis" in New Jersey. This powerful false idea was the first justification for the actions in Mount Laurel I.

We begin by recognizing the enormous population growth of the "baby-boom" period. From 1940 to 1970 the Census shows the New Jersey population grew from more than 4.1 to over 7.1 million. Numerous studies by "experts" for major institutions projected continued similar growth.

In "The Housing Crisis in New Jersey" (1970) the issue is stated this way: "... there is wide agreement that the State's population will continue to grow at least at the present rate in the years to come." However, this document also includes a very important cautionary footnote that includes the recognition that housing growth drives population growth. It's not the other way around.

"The one significant factor on the horizon which may lead to a decline in the rate of population growth in New Jersey is, of course, the decline in the construction of housing units in the State. If present trends in housing production continue during the coming years to decline, population projections will undoubtedly have to be scaled downward. Furthermore, such a decline could well set in motion a "chain reaction" effect, which would result in further declines in the rate of growth."

The document also shows that building permits had peaked in 1964 at just over 68,000 and dropped to 43,661 by 1968, a four year decline of almost 36%. Such a decline could have been seen as the basis for a reconsideration of "population projections". That's not what happened.

On December 7th Governor Cahill went further in "A Blueprint for Housing in New Jersey". There he said "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985." No explanation is offered as to who these "experts"
were or what methodology they used to reach their astonishing total. He also says "According to reliable statistics, we require 100,000 additional housing units each year, but actually are building only 40,000." These statements remained unchallenged and became part of the major concurring opinion in Mt. Laurel I.

You might be asking "How wrong could the experts have been?" Here are the facts. Decide for yourself.

In 1988 the New Jersey Office of State Planning produced a Technical Document titled "Population Trends and Projections". In it they looked back over the period 1970 to 1985 and found that instead of the projected 2.8 million people from 1970, the actual increase came to 394,136, or less than one seventh of the projected amount. Simple math tells us that if 2.8 million people would require 100,000 units per year, a similar reduction would produce approximately 14,250 homes and the state was already seeing far more homes being built. Census numbers also show that in the decade of the 1970's the population grew by 196,847 while New Jersey added over 384,000 new homes, or 1.95 units for every additional person. Records of annual building permits show this rate of growth kept up through 1985. To fully appreciate the magnitude of this difference recall that the average household size at the time was approximately 3 persons which meant that in reality six homes were being built for every new household in New Jersey.

In conclusion, the population growth that was supposed to fuel the "housing crisis" never happened. The housing being built far exceeded any demand that the population that did come could absorb. If population projections had been adjusted based on the emerging downward trend in housing, the argument underpinning Mt. Laurel I would have had to be significantly altered if not abandoned altogether. But that didn't happen. Instead the Court relied on this badly flawed expert advice. That's the first false idea to be dispelled. There was no housing crisis.

Before we move on, if you're wondering who those unnamed experts could have been who led everyone so far astray, we found them. In a footnote in "Exclusionary Land Use Controls: The Case of North-eastern New Jersey" the authors praise Governor Cahill for his courage in delivering his Special Message and write "The technical specifications for the study were prepared by the authors of this article." The authors were Norman Williams, Jr. and Thomas Norman. Now you know. Now we move on and turn our attention to the second of the great revolutionary architects of the Mt. Laurel Doctrine.

The issues at the heart of the Mt. Laurel I decision - the question of Standing, the definition of the General Welfare and the requirement for Reasonableness - are dealt with in the Third podcast. We find the theories embodied in the writings of Norman Williams, Jr., discussed in the Second podcast, and we find them in the writings of New Jersey Supreme Court Justice Frederick W. Hall. Here we deal with those texts. We say "texts" because the Mt. Laurel decision, as its author freely admits, is about more than just Mt. Laurel. It is about the transformation of a legal theory into judicial practice. It attempts to set New Jersey apart from the long history of federal Supreme Court decisions that support the democratic diversity embodied in the New Jersey home rule tradition.

We have chosen four texts that we find most instructive. The first is a famous dissenting opinion written in 1962 in the case of Vickers v. Gloucester Twp. where his philosophies are clearly set forth and the second is DeSimone v. Greater Englewood Housing Corp. where he writes the majority opinion signaling a willingness on the part of the Court to support challenges to local zoning. The third is Mt. Laurel I and the fourth is a lecture given in 1977, two years after his retirement from the Court, amplifying his thinking about judicial prerogatives raising the issue of "standing" that was not addressed in the Court decision. That will complete our picture of his thinking.

We begin with a brief biographical note.

Frederick Wilson Hall

Frederick Wilson Hall was born in Pittsburgh in 1908. He graduated from Rutgers University where he was elected Phi Beta Kappa and from Harvard Law School Cum Laude in 1931. As a young lawyer he worked in the firm of New Jersey's first Chief Justice, Arthur T. Vanderbilt and then in 1941 he founded and practiced law at the firm of Wharton and Hall.
He was appointed to the New Jersey Superior Court in 1953 and served there until 1959 when he was appointed as an Associate Justice of the New Jersey Supreme Court where he served until 1975. Justice Hall was the last member of what was known as the "Weintraub Court" which served together for eleven years and was widely regarded as one of the most activist and progressive judicial bodies in the nation in the area of civil law.
He was known for his mastery of land use law and his great reputation in that field has tended to deflect attention from his important writings in other fields. He was completely at home in the entirely intricate field of municipal law; he wrote important opinions in the areas of torts, criminal law, constitutional law and many other subjects. Few judges possessed his extensive knowledge of procedure and the Rules of Court.
He remains most famous for writing the decision in the case known as Mt. Laurel I.
He died in 1984.
Vickers v. Gloucester Township

Now to the writings of Justice Frederick Hall. We begin in 1962 with his dissenting opinion in Vickers v. Gloucester Township, 37 N.J. 232 (1962). As we do, it's important to remember the federal statutory context. This is three years before the Voting Rights Act and six before the Fair Housing Act. The Civil Rights movement was growing stronger and a socioeconomic model seen as disproportionately benefiting White people was automatically treated as suspect by a certain school of social ideologues.

On its face this case is about the right of a municipality to ban mobile home parks, but Justice Hall sees it raising greater concerns.

"Of even greater concern is the judicial process by which it is reached and the breadth of the rationale. The import of the holding gives almost boundless freedom to developing municipalities to erect exclusionary walls on their boundaries, according to local whim or selfish desire, and to use the zoning power for aims beyond its legitimate purposes."

After this he goes on to describe the types of towns that are the object of his concern. He separates them from "the settled suburbs surrounding the cities" that should have the right to remain undisturbed and paints this picture of the targets of his distaste. :

"On the contrary these areas are sprawling, heterogeneous governmental units, mostly townships, each really amounting to a region of considerable size itself. Their present rural, semi-rural or mixed nature is about to change substantially and they are soon to become melded into the whole metropolitan area. Their political boundaries are artificial and hence of little significance beyond defining one unit of government."

"Such municipalities, above all others, vitally need and may legally exercise comprehensive planning and implement zoning techniques to avoid present haphazard development which can only bring future grief. They are entitled to aim thereby for a sound and balanced area, with varying uses confined to specific districts and appropriately regulated."

He then continues to describe a number of things towns can reasonably do to shape their future. Then he comes to this.

"And this gets to the nub of what this, and similar cases, are really all about, i.e. the outer limit of the zoning power to be enjoyed by these municipalities most in need of comprehensive authority. What action is not legitimately encompassed by that power and what is the proper role of courts in reviewing its exercise?"

"This inquiry involves important fundamentals. In the broad sense the considerations are well posed in Williams, "Planning Law and Democratic Living," 20 Law and Contemporary Problems 317 (1955):

"The main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society equality of opportunity and equality of treatment, freedom of thought and considerable freedom of action, and fairness. Under the American system, a more or less independent mechanism of judicial review is established to provide an independent check on whether specific governmental decisions conform to these standards. While controversy has often raged about judicial action in other areas, it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare."

"Constitutional law should serve to shed light upon thinking about local planning, by requiring those concerned to do what they should be doing anyway to work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity."

This is a set of breathtaking assertions.

First, while he offers a broad amorphous set of values, it might just as reasonably be said that the main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society as enshrined in the precise language of the U. S. Constitution.

Second, as to what he asserts as having "always been recognized" as "an essential part of the judicial function" and the "attitudes and policies" with which he is concerned, these must be compared to the values and actions consistently upheld for thirty-five years by the U. S. Supreme Court and flowing from sources like the Standard State Zoning Enabling Act that was a product of the federal government. And just who has been doing the recognizing, anyway?

Third, there is the need to "work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity." This lofty vision should be compared with the language found later in the text defining the role of zoning.

Next he expands to a broader vision of a seemingly boundless role for the courts and shares his disdain for those with less expansive views.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."

After this the discussion focuses closer to the case at hand and on the permitted or proper scope of judicial oversight. He finally comes to the definition of zoning quoted above and this statement that seemingly undercuts the argument he has been advancing for the expansiveness of judicial oversight of municipal actions.

"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

After all of his argument to the contrary, this language appears to make it clear that while there are great issues connected with human freedom and opportunity this is not the arena in which they can be constitutionally settled.

From this point the focus is on little more than repetition of the issues, arguing back and forth with elements of previous court decisions and finally a discussion of the actual issue of the case - the right to prohibit mobile homes.

DeSimone v. Greater Englewood Housing Corp.

We next hear his voice in the case of DeSimone v. Greater Englewood Housing Corp. 56 N. J. 428 (1970) 267 A.2d 31. While a seemingly small matter over issuance of a variance, it caught the emerging temper of its time. There had been racial disturbances in Englewood in July, 1967 and the town had become a focus of the Governor's Select Commission on Civil Disorder and its "Report for Action" issued the following year. This unanimous decision was seen by sympathizers as an opening for a renewed assault on municipal zoning. To understand this perspective we offer the assessment of Norman Williams, Jr. in The Background and Significance of Mount Laurel II from 1984:

"By the late 1960's, however, the world suddenly began to look rather different than it had when Justice Hall wrote his Vickers dissent, and other judges began to reexamine their tolerance of exclusionary zoning practices. In an otherwise relatively unimportant case, the New Jersey Supreme Court in 1970 upheld (against a challenge by neighbors) a New Jersey "d" variance approving a housing project in Englewood, which was (a) located in a "white area" and (b) clearly designed at least in part to accommodate blacks from the Englewood ghetto. In upholding the grant of the variance, the opinion-by Hall, and now unanimous--commented in dictum that under those circumstances such a variance could not have been denied. The only logical basis for this comment is that there must be some affirmative duty to plan on behalf of all sections of the population. Once those familiar with this field of law read the Englewood opinion, it was clear that the jig was up; the court seemed to be sending out signals that it was ready for a major reversal on the exclusionary problem." This led us to Mt. Laurel I.

Mt. Laurel I

Now we move on to the climactic document of the career of Frederick W. Hall. The first Mt. Laurel decision was written in 1975, thirteen years after his dissent in Vickers v. Gloucester Township and was his last great contribution to the activism of the court. The case, Southern Burlington County N. A. A. C. P. v. Mount Laurel 67 N. J. 151 (1975), began its course through the state judicial system in 1972 with a finding for the plaintiff which was subsequently appealed, not only by the township but by the plaintiffs as well seeking an expansion of the scope of the decision. It was then taken over by the state Supreme Court and transmuted from a case concerned with racial discrimination, which would have claimed a violation of the federal Fair Housing Act, into one focused on economic segregation which kept it within the state court system where it was argued in 1974 and decided in 1975. It begins by presenting the scope of the argument. We also find here Mr. Norman Williams, Jr. arguing the cause for amicus curiae The Public Interest Research Group of New Jersey twenty years after publishing his foundational document "Planning Law and Democratic Living" in 1955. Importantly, this comes seven years after the Fair Housing Act.

"This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipality. The trial court so found, 119 N.J. Super. 164 (Law Div. 1972), and declared the township zoning ordinance totally invalid. Its judgment went on, in line with the requests for affirmative relief, to order the municipality to make studies of the housing needs of low and moderate income persons presently or formerly residing in the community in substandard housing, as well as those in such income classifications presently employed in the township and living elsewhere or reasonably expected to be employed therein in the future ... The township appealed to the Appellate Division and those plaintiffs, not present or former residents, cross-appealed on the basis that the judgment should have directed that the prescribed plan take into account as well a fair share of the regional housing needs of low and moderate income families without limitation to those having, past, present or prospective connection with the township. The appeals were certified on our own motion before argument in the Division."

"The implications of the issue presented are indeed broad and far-reaching, extending much beyond these particular plaintiffs and the boundaries of this municipality."

"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."

"We will, therefore, consider the case from the wider viewpoint that the effect of Mount Laurel's land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

"Its candid position is that, conceding its land use regulation was intended to result and has resulted in economic discrimination and exclusion of substantial segments of the area population, its policies and practices are in the best present and future fiscal interest of the municipality and its inhabitants and are legally permissible and justified. It further asserts that the trial court was without power to direct the affirmative relief it did."

In these few opening quotes we find the whole argument showcased. It all begins with the "desperate need for housing" based on the horribly flawed assertion of a "housing crisis" that demonstrably never happened, to meet the needs of a population that still doesn't exist, most clearly expressed in this single sentence from "A Blueprint for Housing in New Jersey" (1970). "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985."

Based on this assumption the Court says they will consider the case from the "wider viewpoint" that the Mount Laurel ordinance has the effect of excluding people because of the "limited extent of their incomes and resources" which the municipality freely admits, and asserts they are "legally permissible and justified"in doing because it is in the "best present and future fiscal interest of the municipality and its inhabitants". And the Court accepts that "the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

To summarize, the township freely admits it did what it's accused of doing and says that it's legal and justified because it's in the interest of the town and the Court accepts that it wasn't done for any of the reasons made impermissible by the Fair Housing Act 42 U.S.C. 3602 et seq., which is the federally controlling statute and separates this case from the context of the dissent in Vickers v. Gloucester Township. That is the case. The rest of the decision is then divided into three parts.

I The Facts

This section begins with a lengthy recitation of the facts about Mount Laurel including its size and population and its various zones and the development that's taken place in them in a very straightforward manner. Then we come to the conclusion. "There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property ... and that the policy was carried out without regard for nonfiscal considerations with respect to people, either within or without its boundaries." In other words, they did exactly what they said they did and only for the reasons they said they did it.

The text then goes on to describe the reason for this. "This policy of land use regulation for a fiscal end derives from New Jersey's tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality's children." In other words, this is entirely the fault of the State and applies to all municipalities. As a logical result:

"This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost everyone acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing."

As proof of this practice"The Residential Land Supply" (April 1972) produced by The N. J. Department of Community Affairs and "Exclusionary Land Use Controls: The Case of North-Eastern New Jersey" (1971) by Norman Williams, Jr. and Thomas Norman are cited. What is not considered in this statement is that the municipal action benefits all of the residents of the municipality, including those who are low-and-moderate income homeowners who are most at risk of being driven from their homes by rising taxes.

The next thing shown is how the urban model also worked to maintain fiscal stability.

"The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing than the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing. Despite the municipally confined tax structure, commercial and industrial ratables generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas."

In other words, the cities provided for their fiscal stability by zoning for a substantial ratable base dominated by commercial and industrial uses. Their goal was the same as that of the developing municipalities but simply pursued by different means.

The final part of this section is devoted to the plight of the urban population after World War II as the commercial and industrial base left the cities for new locations in other towns, other counties and other states. At the same time the lure of home ownership in developing communities that promised to provide all of the benefits of urban life in terms of public services and economic opportunities, without the well recognized problems of urban life, drew the emerging middle class to the suburbs. This was compounded by the failure of the cities to find a new productive purpose.

"Much industry and retail business, and even professions, have left the cities."And as for the low income workers "These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a critical erosion of the city tax base and inability to provide the amount and quality of those governmental services education, health, police, fire, housing and the like so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing."

To summarize the facts. State tax policies placed the primary burden of funding municipal, county and educational services on the tax base of each municipality. In order to be able to carry this burden each municipality zoned itself to develop a ratable based that would provide for long-term fiscal stability. The cities did this by zoning for a large commercial and industrial base. "Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing." After World War II the urban model began to fail and many cities had difficulty reinventing themselves.

Instead of seeking to attract a tax base built on non-residential uses that relies on unskilled and semi-skilled workers, the suburbs did this by focusing on attracting a strong residential base that would provide for their future stability. The suburbs stand convicted of developing a well balanced, fiscally stable, socioeconomic model while the cities did not. They didn't attract employers of unskilled and semi-skilled workers and so did not seek to provide housing for a workforce that did not exist.

Now we come to the legal issue.

II The Legal Issue

"The legal question before us, as earlier indicated, is whether a developing municipality like Mount Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources."

"We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need thereof."

"We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs."

At this point we'll take a moment to recall previously expressed thoughts of Justice Hall with a pair of quotes from Vickers v. Gloucester Township cited above.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."
"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

The first quote could easily be applied to the Court in this case for focusing on the abstract need for housing without recognizing the real world reality that housing is only one aspect of the integrated socioeconomic need of the community. Logic argues that building housing for workers without work makes no more sense than building factories without workers to work in them.

The second challenges the expansive view of judicial prerogatives "to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes." Then the argument for this is presented.

"We begin with some fundamental principles as applied to the scene before us."

"Land use is encompassed within the state's police power."

"It is elementary theory that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws."

"It is required that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare (The last term seems broad enough to encompass the others.) Conversely, a zoning enactment which is contrary to the general welfare is invalid."

"Indeed these considerations are specifically set forth in the zoning enabling act as among the various purposes of zoning for which regulations must be designed. N. J. S. A. 40:55-32 ... If a zoning regulation violates the enabling act in this respect, it is also theoretically invalid under the state constitution. We say "theoretically" because, as a matter of policy, we do not treat the validity of most land use ordinance provisions as involving matters of constitutional dimension; that classification is confined to major questions of fundamental import."

"We consider the basic importance of housing and local regulations restricting its availability to substantial segments of the population to fall within the latter category."

"The demarcation between the valid and the invalid in the field of land use regulation is difficult to determine, not always clear and subject to change. This was recognized almost fifty years ago in the basic case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926):

"The ordinance now under review and all similar laws and regulations must find their justification in some aspect of police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. (272 U. S. at 387, 47 S. Ct. at 118, 71 L. Ed. at 310)."

It's nice to see the Court remembering the Ambler Realty case but it would be even nicer to see the Court recall The federal Fair Housing Act which clearly drew the line between legitimate and illegitimate. The Act prohibits discrimination in housing for a specific list of reasons: race, color, religion, sex, handicap, familial status or national origin. That is "precise delimitation". Counsel for Mt. Laurel Twp. made it clear that these were not the basis for their zoning and the Court accepted that that was the case. We would remind the Court of their own language.

"In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

The first thing Justice Hall needed to do to justify a need for change was find sources that, while supporting policies of deference to municipal decision-making, offer a warning that the future may be different and law may have to change. After offering a number of prior decisions as pointing in his direction he found it best said in Pierro v. Baxendale, 20 N. J. 17, 29 (1955) :

"If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed."

Having adding the sanctifying weight of precedent, he returns to his own thoughts.

"The warning implicates the matter of whose general welfare must be served or not violated in the field of land use regulation. Frequently the decisions in this state, including those just cited, have spoken only in terms of the interest of the enacting municipality, so that it has been thought, at least in some quarters, that such was the only welfare requiring consideration. It is, of course, true that many cases have dealt only with regulations having little, if any, outside impact where local decision is ordinarily entitled to prevail. However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state's citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served."

"This essential was distinctly pointed out in Euclid, where Mr. Justice Sutherland specifically referred to the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. Chief Justice Vanderbilt said essentially the same thing, in a different factual context, in the early leading case of Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949), when he spoke of the necessity of regional considerations in zoning and added this:

"The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. (1 N. J. at 513)."

Justice Hall offers this quote as supportive of his position but we see it pointing in exactly the opposite direction. The problem is one of perspective. For Justice Hall zoning in developing municipalities was an act of selfishness and a desire to isolate themselves from the needs of the broader region. We see it differently. We see the world from a dynamic perspective where forces that transcend transient social policy considerations are controlling and municipalities are simply responding to the greater market forces confronting them as they take their place in regions that are being redefined by evolving transportation and communications technologies. The sentence we have highlighted makes this point. Again, we're not asking you to take our viewpoint over that of Justice Hall. We have simply taken the quote he selected above and put it back in the paragraph where he found it. Once again we have added the highlighting for emphasis.

"What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as in living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

When read in this fuller context the vision of Justice Hall and the rest of the Court cannot stand. The "forces" cited in Duffcon are the dynamic forces we see shaping our world in various forms and with different names. In this case it is the economic force of the housing market and the social force of democratic diversity that together serve to create fiscally stable communities, each with a distinct face and character, and together advancing the general welfare of their region. The Court is seeking to impose housing diversity within every municipality, while the natural dynamic forces produce a vital diversity among municipalities.

After this a case supporting placement of a hospital for the emotionally disturbed as meeting a regional need superseding the rights of a municipality to reject it is presented. And then, having failed to find any substantive support for the action under consideration other than some mentions that at some point if circumstances change some alterations in judicial perspectives would be justified, the Court goes about doing what they clearly had decided to do all along.

"This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms of land use regulation which that relationship mandates. There cannot be the slightest doubt that shelter, along with food, are the most basic human needs."

"It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of such broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries. Negatively, it may not adopt regulations or policies which thwart or preclude that opportunity."

"In sum, we are satisfied beyond doubt that, by reason of the basic importance of appropriate housing and the long-standing pressing need for it, especially in the low and moderate cost housing category, and of the exclusionary zoning practices of so many municipalities, conditions have changed, and consistent with the warning in Pierro, supra, judicial attitudes must be altered from that espoused in that and other cases cited earlier, to require, as we have just said, a broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all."

"We have spoken of this obligation of such municipalities as "presumptive." The term has two aspects, procedural and substantive. Procedurally, we think the basic importance of appropriate housing for all dictates that, when it is shown that a developing municipality in its land use regulations has not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation of substantive due process or equal protection under the state constitution has been made out and the burden, and it is a heavy one, shifts to the municipality to establish a valid basis for its action or non-action. ... The substantive aspect of "presumptive" relates to the specifics, on the one hand, of what municipal land use regulation provisions, or the absence thereof, will evidence invalidity and shift the burden of proof and, on the other hand, of what bases and considerations will carry the municipality's burden and sustain what it has done or failed to do. Both kinds of specifics may well vary between municipalities according to peculiar circumstances."

"We turn to application of these principles in appraisal of Mount Laurel's zoning ordinance, useful as well, we think, as guidelines for future application in other municipalities."

With this the Court establishes a new concept in land-use litigation. It does so without constitutional, statutory or precedential support. It is nothing more than an act of will by the members of the Court and so effectively expands the boundaries of judicial authority beyond otherwise recognized bounds.

The focus then turns to the specific of Mount Laurel zoning.

"We have earlier stated that a developing municipality's obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to the municipality's fair share of the present and prospective regional need thereof. Some comment on that conclusion is in order at this point. Frequently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason. But, under present New Jersey legislation, zoning must be done on an individual municipal basis, rather than regionally. So long as that situation persists under the present tax structure, or in the absence of some kind of binding agreement among all the municipalities of a region, we feel that every municipality therein must bear its fair share of the regional burden. (In this respect our holding is broader than that of the trial court, which was limited to Mount Laurel-related low and moderate income housing needs.)"

This admission loudly echoes the language of Duffcon Concrete that supports putting different uses in different places based on any number of factors:

"Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

After this all that remains is the essential discussion of how to define a region.

"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. Confinement to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable."

There are any number of ways to define a region. The Northeast is a national region. The New York and Philadelphia metropolitan areas are regions. The Census Bureau provides journey-to-work data that shows where people who work in a given place live and conversely where people who live in a given area work. Worker housing tends to cluster around employment centers and regions tend to define themselves on an ongoing basis.

III The Remedy

This final section applies only to Mount Laurel and focuses only on mechanics.

This ends the majority opinion written by Justice Frederick Hall. All that remains is a consideration of his 1977 lecture.

We are presenting significant excerpts from this lecture by Justice Hall, delivered two years after his retirement, because it contains what we see as useful insights into his thinking about several important issues. These include his vision of the limits of judicial power, of which he see very few, and his idea of the basis for granting standing to the plaintiffs in the Mount Laurel case as "third- party non-beneficiaries" as defined by Professor Norman Williams, Jr. . He discusses the importance of defining a "fundamental interest" and the fact that for the federal courts housing is not one. We think the full lecture is well worth reading as a picture of the thinking of a man accustomed to wielding power and the public passions that drove him throughout his career on the bench.

The Judicial Role In Land-Use Regulation (excerpts)

Frederick W. Hall
Associate Justice of the New Jersey Supreme Court, retired
Arthur T. Vanderbilt Lecture
Harvard Law School Association of New Jersey
April 20, 1977

Modern land-use regulation has increasingly become a matter of vital interest and importance to the citizenry of large and small metropolitan areas and beyond, and bids fair to continue so for a considerable time to come. Its scope has changed immeasurably since constitutional approval was accorded about 50 years ago. The current major subjects and objects of regulation and the problems and issues arising from it have led to litigation of quite a different character than was formerly the case. What the proper judicial role in this field should be needs to be considered in the light of the broad changes that have likewise taken place in the kinds of litigation and the exercise of the judicial function in other fields of public law.


The United States Supreme Court has come to the point, in reviewing state action on claims of federal constitutional violation, of finding invalidity on equal-protection grounds only where the right involved is said to be a "fundamental interest" and the state cannot show a "compelling state interest." The subjects meeting the fundamental interest test have been strictly limited: voting, race, right to interstate travel and perhaps a couple of others. Housing is not one.
The courts recent forays into the land-use regulation field after an avoidance of about half a century have been, regardless of result, quite unsatisfactory, to say the least.

There have been deep changes in American life and philosophy and the place of government therein. These began to appear in quantity in the "New Deal" era of the 30's but developed much more strongly after World War II.
First, there was a vast increase in regulation of private affairs, both business and personal, by all levels of government. ....
Second, there has been a tremendous increase in the conferring or distribution by government of various kinds of benefits to aid the less fortunate members of our society.
Third, there has been a startling awakening and assertion of claims of human rights under constitutional guarantees, statutes and institutional arrangements especially on behalf of minorities of all varieties and the disadvantaged.
Fourth, we have witnessed a "law explosion," by which relief from all manner of alleged wrongs is sought in the courts in the belief that the judiciary is the only effective branch of government. Everyone sues about everything, ...

This type of litigation is quite different from the traditional model earlier described. It most frequently concerns public, rather than private, action or inaction. It may well attack a whole scheme of government activity. It very frequently is of a representative or class nature, affecting many more persons or entities than are parties or whose views are before the court.

It generally does not seek money damages, but rather declaratory or injunctive relief of a continuing and broadly remedial nature against some government entity or official. Equity jurisprudence very largely governs the ultimate result. ....

This relatively new category of public-law litigation, which includes as well certain kinds of land-use litigation shortly to be mentioned more specifically, presents important questions as to the extent of judicial power and the proper exercise of it. These queries generally arise about the remedy especially when the relief ordered or sought involves affirmative action by another branch of government or amounts to action by the judiciary in a form within the purview of or normally accomplished - even perhaps better handled - by either the local or state legislature or the executive branch.

The Courts Must Decide

Again, the courts are the sole and final arbiter of the constitutionality of local and state legislation, regulations or other governmental action. A declaration of invalidity is binding upon the legislature, the executive and all affected public officials. This is so whether or not the particular agency or government agrees with the decision. It may only be overturned by amendment through vote of the people according to specified procedures.

While considerations of constitutional claims require the greatest judicial circumspection, they cannot be decided on the basis of personal views of individual judges as to the advisability or wisdom of the governmental action under review or in accordance with what may appear to be the wish of an articulate or seeming majority of the affected populace on a particular question.

The judicial branch is the ultimate protector of the rights of all, and this of course includes those of minorities. Constitutional principles and the rights guaranteed by or arising under the documents must always be thought of as living and not static things, subject to enlargement and variation in interpretation and application as conditions and the needs of the body politic change. When this is to occur is, unless spelled out by amendment, the proper and exclusive province of the judiciary. This is fundamental in our form of government.

Land-Use Regulation

There remains the application of this discussion to the more specific matter of the appropriate judicial role in land-use regulation cases. Even more particularly, reference is confined to the currently active aspects of zoning for housing and the place of the regional concept and to the initial articulation of a new and constitutional approach thereto in the unanimous decision of our Supreme Court in Southern Burlington County NAACP v. Township of Mount Laurel, 67 N. J. 151 (1975).

The matter should be placed in historical perspective, both legal and factual. That history is thoroughly presented, state by state and overall, in Professor Norman William's recent comprehensive and thoroughly readable treatise, "American Land Planning Law." To summarize quickly, with special reference to this state, after zoning was constitutionally approved a half century ago, the authorizing legislation in New Jersey and most states, delegated the permissive power to each municipality under standards which, except for the broad health, morals and general welfare language, were directed to regulation of uses to avoid adverse physical impact and to safeguard property values.

The general language of the delegation necessarily left interpretation to the courts. The aim of the adopted ordinances was to keep industrial uses out of the residential areas of the cities and their close suburbs. The idea was revolutionary because it involved restrictions on the private use of one's land, which for centuries had received exceptional veneration and favored treatment at the hands of the law.

The attitudes of the courts in this state as elsewhere varied in periods during the course of the next few decades. Early judicial resistance to zoning largely favored landowners. From 1948 to recent times our courts swung quite perceptibly to the opposite extreme, upholding almost all municipal action.

The New Jersey factual picture changed drastically during this period. I am sure it is quite familiar to all of you. The population expanded greatly through the birth rate and immigration from other sections. Business and industry moved from the central cities to new locations farther out and the more affluent families followed to occupy newly-built single-family housing in developments in municipalities that had been substantially rural. The demand for municipal and educational services funded by real-property taxes became immense in these areas.

At the same time, the cities decayed and their tax bases eroded. They became populated largely by the poor. The available housing wore out and became substandard or worse. Government services deteriorated and we had the uprisings of the 60's.

During the same period, the character and aim of municipal zoning, especially in these municipalities that were growing, or experiencing market pressures for growth, changed radically, although the full significance was not apparent at once. The purpose shifted from protection against physical impact to socioeconomic designs with the clear purpose of safeguarding the particular municipality's welfare as it alone decided. A principal purpose was fiscal - to allow only that kind of growth that would pay its way taxwise, particularly with respect to school costs, or come close to it.

The result was almost universal prohibition through various zoning mechanisms against any but expensive, single-family housing. Multi-family rental units were allowed most meagerly overall. Generally, they too, were required to be expensive, and contained bedroom limitations restricting the number of school children. These provisions effectively excluded from municipality after municipality families of low-and moderate-income, whether they resided in the central cities and sought a better environment and living conditions or were young couples, elderly citizens and others not desiring large houses who already had some ties with the community.

The result too was a statewide shortage of decent low-and moderate-income housing in all types of municipalities, the existence and alarming consequences of which were repeatedly called to public attention by state-agency studies, gubernatorial messages, and recitals in state legislation providing some assistance in funding such housing, only, of course, available where local land-use regulations permitted. It became clear that local exclusionary ordinances were having a substantial impact outside the particular municipality.

At the same time, it was becoming obvious that use regulation of certain types of land had such an important impact beyond municipal lines that individual municipal regulation was harmful to the broader public welfare. So the legislature withdrew the delegation of zoning authority to municipalities with respect to ,among others, wetlands, coastal areas, and the Hackensack Meadowlands district and provided for use regulation by its own agencies. The advisability of the concept of regional land-use regulation was thus established.

In this state of affairs, the Mount Laurel case came to the Supreme Court. It projected a new class of land-use litigation. The suit was brought, not by neighbors protesting the zoning of a particular property or an owner seeking to develop his land contrary to the zoning ordinance, but by people whom Professor Williams calls "third-party non-beneficiaries" - resident and non-resident poor people who wanted to live in the township but could not afford the only type of housing permitted.

Their attack, which they clearly had standing to make, was on the whole zoning scheme of a typical growing municipality having adequate remaining land for further development. The plaintiffs' proofs and briefs well presented to the court the factual picture that has just been sketched.

For present purposes of the discussion of the judicial role, the rationale of the decision may be simplified as follows. Land-use regulation, like any other police power enactment, must enhance and not be contrary to the general welfare to be valid under the state constitution. The availability of adequate land and an appropriate variety and choice of housing for all categories of people is an absolute essential in promotion of the general welfare - in effect, a fundamental state interest.

It is so important to the public good that the general welfare that each so-called developing municipality must take into account in order to have a valid zoning ordinance extends beyond the claimed good of that particular governmental unit. So:

the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land-use regulation, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low-and moderate-cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries.

and may not adopt regulations or policies that thwart of preclude that opportunity. Exclusionary restrictions having the effect mentioned are unconstitutional unless the municipality can sustain the heavy burden of demonstrating peculiar circumstances dictating a contrary conclusion. This was not established by Mount Laurel, so its zoning ordinance is pro tanto invalid.

The conclusions were, of course, within the traditional power and obligation of a court to declare legislation unconstitutional. Deference to the Legislative branch, here the local governing body, requires that such a judgment be rendered only in a clear case, but when that plainly appears in a situation involving a fundamental state interest, a court would be derelict if it did not so act. We are, in essence, dealing with a moral issue.

Mount Laurel went on to indicate that, since housing needs, particularly for people of low and moderate income, do not necessarily suit or fit well in every municipality, a regional approach was desirable, and urged state legislative action to so provide. In the absence thereof, the court said that Mount Laurel would have to provide for its fair share of the present and prospective regional need for such housing.

This solution originated with Chief Justice Weintraub during court conferences, prior to the advent of new permanent justices, making it desirable to schedule a reargument. The idea was not new; several areas of the country have had voluntary plans in operation on this basis for some time, and the professional planning literature thereon is plentiful. The township was given the opportunity to revise its ordinance, using these and other guidelines mentioned in the opinion, with the right in the plaintiffs to seek court review of the revised product if it was claimed not to be in accord with the express or implied directions of the opinion.

There is certainly nothing here that could reasonably suggest an inappropriate judicial role. I submit that it is unthinkable that a court should stop short of giving litigants in the housing field all the guidelines it considers vital and to direct affirmative corrective action to the fullest extent that it can completely supervise and review simply because the defendant is a municipality, and one that might be recalcitrant or uncooperative in righting the constitutional wrong, or because some other entity might be able to do a better job.

Under New Jersey jurisprudence, a court must review any governmental action of the nature here involved, as the Supreme Court has since done in the Madison Township case. That opinion also clearly confirms the judicial power to seek the help of neutral experts where needed to decide questions beyond the ordinary sphere of judicial knowledge, which, of curse, occurs in many cases beside land use litigation.

And it is not to be forgotten that courts can bring about ultimate compliance with their judgments through negative orders. For example, a defiant municipality refusing to change its invalid zoning ordinance could be prohibited, until it did so, from issuing building permits or certificates of occupancy for any dwellings, or indeed for structures of any kind. this method of relief was effectively utilized recently in Morris County to bring about governmental action to provide adequate sewage disposal.

There are, of course, types of relief that courts should not order, regardless of their power to do so. I conceive, for example, that judicial tribunals ought not to direct municipalities to actually build housing. In some cases, they may have to stop and resort to judicial prodding of the public conscience to bring about remedial action.

Mount Laurel has spawned considerable litigation involving other municipalities. It is not within the scope of this presentation to discuss the various decisions, even if the author had had the time to digest the contents and implications of the great proliferation of paper representing the numerous opinions. One brief comment bearing on the judicial role may be in order.

I believe that the implications of Mount Laurel are clear enough that, where zoning for housing is involved, whether the municipality is strictly a developing one or not, a court should take a good, hard look and insist that the municipality justify its restrictions or be forced to change them.

Furthermore, the court ought to give real reasons in its decisions and not rely on unmeaningful boiler-plate shibboleths like arbitrariness, capriciousness, and dubious presumptions of validity. The housing issue is too important and too fundamental to be disposed of in any case by cursory judicial treatment, and we should not revert in such cases to any thesis that whatever the municipality has done is all right.

While the legislature has not yet responded to the Court's suggestion of provision for regional zoning, it did, after Mount Laurel, enact the new Municipal Land Use Law, various sections of which indicate an important shift in policy from the old individual-municipality emphasis of old enabling acts, and give statutory support to the constitutional bases of the decision. I refer to the purposes sections, where the intent of the Act is stated:

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 and preservation of the environment;
and:
to provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space ... in order to meet the needs of all New Jersey citizens.

In addition, the zoning ordinance of every municipality must conform to a master plan, which must contain a land-use plan element and a housing element. I submit that the latter, in order to ground a valid zoning ordinance, would have to make provision, appropriate to the particular municipality, for a variety and choice of housing.

While any home rule tradition is always subject to constitutional requirements and guarantees of rights for all people, as Mount Laurel in effect held, the land-use law provisions just referred to indicate to me a legislative recognition that the invisible walls of suburban communities must have many gates for entrance."

We have presented these portions of the lecture without comment. We believe it speaks for itself. It offers both information and insight into the thinking of a man, who, confronted with a world he didn't like, set out to change it with a seeming disregard for the interests of a great many of the people living in it. Whether this will ultimately be seen as heroic idealism or judicial tyranny will be left to the judgment of future generations who suffer or prosper as a result of it. Arguably, more than forty years on, we are such a generation.

Here we end the Third Source Narrative for Beyond the Mount Laurel Doctrine: From Forty Years of Failure To A Blueprint for Success.

Documents worth reading in addition to those quoted in the text above:

"The Housing Crisis In New Jersey" (1970)
"Land Use Regulation: The Residential Land Supply" (1972).
"A Blueprint For Housing In New Jersey" (1970)
"New Horizons In Housing" (1972).
Warth v. Seldin, 422 U. S. 490 (1975)
Pierro v. Baxendale, 20 N. J. 17, 29 (1955)
Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949)

Beyond the Mt. Laurel Doctrine
Third Source Narrative

This is the Source Narrative to accompany the first Mt. Laurel decision and the writings of its author, Justice Frederick W. Hall. Before looking at the writings of Justice Hall, we have another task to perform. It's time to recall that this podcast is a demonstration project for our Insight Engine problem-solving technique. One of the key steps in our process is identification of powerful false ideas that keep problems from being resolved. Our task is to deconstruct and dispel them. The first one we encounter is the idea of a "housing crisis" in New Jersey. This powerful false idea was the first justification for the actions in Mount Laurel I.

We begin by recognizing the enormous population growth of the "baby-boom" period. From 1940 to 1970 the Census shows the New Jersey population grew from more than 4.1 to over 7.1 million. Numerous studies by "experts" for major institutions projected continued similar growth.

In "The Housing Crisis in New Jersey" (1970) the issue is stated this way: "... there is wide agreement that the State's population will continue to grow at least at the present rate in the years to come." However, this document also includes a very important cautionary footnote that includes the recognition that housing growth drives population growth. It's not the other way around.

"The one significant factor on the horizon which may lead to a decline in the rate of population growth in New Jersey is, of course, the decline in the construction of housing units in the State. If present trends in housing production continue during the coming years to decline, population projections will undoubtedly have to be scaled downward. Furthermore, such a decline could well set in motion a "chain reaction" effect, which would result in further declines in the rate of growth."

The document also shows that building permits had peaked in 1964 at just over 68,000 and dropped to 43,661 by 1968, a four year decline of almost 36%. Such a decline could have been seen as the basis for a reconsideration of "population projections". That's not what happened.

On December 7th Governor Cahill went further in "A Blueprint for Housing in New Jersey". There he said "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985." No explanation is offered as to who these "experts"
were or what methodology they used to reach their astonishing total. He also says "According to reliable statistics, we require 100,000 additional housing units each year, but actually are building only 40,000." These statements remained unchallenged and became part of the major concurring opinion in Mt. Laurel I.

You might be asking "How wrong could the experts have been?" Here are the facts. Decide for yourself.

In 1988 the New Jersey Office of State Planning produced a Technical Document titled "Population Trends and Projections". In it they looked back over the period 1970 to 1985 and found that instead of the projected 2.8 million people from 1970, the actual increase came to 394,136, or less than one seventh of the projected amount. Simple math tells us that if 2.8 million people would require 100,000 units per year, a similar reduction would produce approximately 14,250 homes and the state was already seeing far more homes being built. Census numbers also show that in the decade of the 1970's the population grew by 196,847 while New Jersey added over 384,000 new homes, or 1.95 units for every additional person. Records of annual building permits show this rate of growth kept up through 1985. To fully appreciate the magnitude of this difference recall that the average household size at the time was approximately 3 persons which meant that in reality six homes were being built for every new household in New Jersey.

In conclusion, the population growth that was supposed to fuel the "housing crisis" never happened. The housing being built far exceeded any demand that the population that did come could absorb. If population projections had been adjusted based on the emerging downward trend in housing, the argument underpinning Mt. Laurel I would have had to be significantly altered if not abandoned altogether. But that didn't happen. Instead the Court relied on this badly flawed expert advice. That's the first false idea to be dispelled. There was no housing crisis.

Before we move on, if you're wondering who those unnamed experts could have been who led everyone so far astray, we found them. In a footnote in "Exclusionary Land Use Controls: The Case of North-eastern New Jersey" the authors praise Governor Cahill for his courage in delivering his Special Message and write "The technical specifications for the study were prepared by the authors of this article." The authors were Norman Williams, Jr. and Thomas Norman. Now you know. Now we move on and turn our attention to the second of the great revolutionary architects of the Mt. Laurel Doctrine.

The issues at the heart of the Mt. Laurel I decision - the question of Standing, the definition of the General Welfare and the requirement for Reasonableness - are dealt with in the Third podcast. We find the theories embodied in the writings of Norman Williams, Jr., discussed in the Second podcast, and we find them in the writings of New Jersey Supreme Court Justice Frederick W. Hall. Here we deal with those texts. We say "texts" because the Mt. Laurel decision, as its author freely admits, is about more than just Mt. Laurel. It is about the transformation of a legal theory into judicial practice. It attempts to set New Jersey apart from the long history of federal Supreme Court decisions that support the democratic diversity embodied in the New Jersey home rule tradition.

We have chosen four texts that we find most instructive. The first is a famous dissenting opinion written in 1962 in the case of Vickers v. Gloucester Twp. where his philosophies are clearly set forth and the second is DeSimone v. Greater Englewood Housing Corp. where he writes the majority opinion signaling a willingness on the part of the Court to support challenges to local zoning. The third is Mt. Laurel I and the fourth is a lecture given in 1977, two years after his retirement from the Court, amplifying his thinking about judicial prerogatives raising the issue of "standing" that was not addressed in the Court decision. That will complete our picture of his thinking.

We begin with a brief biographical note.

Frederick Wilson Hall

Frederick Wilson Hall was born in Pittsburgh in 1908. He graduated from Rutgers University where he was elected Phi Beta Kappa and from Harvard Law School Cum Laude in 1931. As a young lawyer he worked in the firm of New Jersey's first Chief Justice, Arthur T. Vanderbilt and then in 1941 he founded and practiced law at the firm of Wharton and Hall.
He was appointed to the New Jersey Superior Court in 1953 and served there until 1959 when he was appointed as an Associate Justice of the New Jersey Supreme Court where he served until 1975. Justice Hall was the last member of what was known as the "Weintraub Court" which served together for eleven years and was widely regarded as one of the most activist and progressive judicial bodies in the nation in the area of civil law.
He was known for his mastery of land use law and his great reputation in that field has tended to deflect attention from his important writings in other fields. He was completely at home in the entirely intricate field of municipal law; he wrote important opinions in the areas of torts, criminal law, constitutional law and many other subjects. Few judges possessed his extensive knowledge of procedure and the Rules of Court.
He remains most famous for writing the decision in the case known as Mt. Laurel I.
He died in 1984.
Vickers v. Gloucester Township

Now to the writings of Justice Frederick Hall. We begin in 1962 with his dissenting opinion in Vickers v. Gloucester Township, 37 N.J. 232 (1962). As we do, it's important to remember the federal statutory context. This is three years before the Voting Rights Act and six before the Fair Housing Act. The Civil Rights movement was growing stronger and a socioeconomic model seen as disproportionately benefiting White people was automatically treated as suspect by a certain school of social ideologues.

On its face this case is about the right of a municipality to ban mobile home parks, but Justice Hall sees it raising greater concerns.

"Of even greater concern is the judicial process by which it is reached and the breadth of the rationale. The import of the holding gives almost boundless freedom to developing municipalities to erect exclusionary walls on their boundaries, according to local whim or selfish desire, and to use the zoning power for aims beyond its legitimate purposes."

After this he goes on to describe the types of towns that are the object of his concern. He separates them from "the settled suburbs surrounding the cities" that should have the right to remain undisturbed and paints this picture of the targets of his distaste. :

"On the contrary these areas are sprawling, heterogeneous governmental units, mostly townships, each really amounting to a region of considerable size itself. Their present rural, semi-rural or mixed nature is about to change substantially and they are soon to become melded into the whole metropolitan area. Their political boundaries are artificial and hence of little significance beyond defining one unit of government."

"Such municipalities, above all others, vitally need and may legally exercise comprehensive planning and implement zoning techniques to avoid present haphazard development which can only bring future grief. They are entitled to aim thereby for a sound and balanced area, with varying uses confined to specific districts and appropriately regulated."

He then continues to describe a number of things towns can reasonably do to shape their future. Then he comes to this.

"And this gets to the nub of what this, and similar cases, are really all about, i.e. the outer limit of the zoning power to be enjoyed by these municipalities most in need of comprehensive authority. What action is not legitimately encompassed by that power and what is the proper role of courts in reviewing its exercise?"

"This inquiry involves important fundamentals. In the broad sense the considerations are well posed in Williams, "Planning Law and Democratic Living," 20 Law and Contemporary Problems 317 (1955):

"The main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society equality of opportunity and equality of treatment, freedom of thought and considerable freedom of action, and fairness. Under the American system, a more or less independent mechanism of judicial review is established to provide an independent check on whether specific governmental decisions conform to these standards. While controversy has often raged about judicial action in other areas, it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare."

"Constitutional law should serve to shed light upon thinking about local planning, by requiring those concerned to do what they should be doing anyway to work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity."

This is a set of breathtaking assertions.

First, while he offers a broad amorphous set of values, it might just as reasonably be said that the main premises of American constitutional law represent a codification and institutionalization of the primary values of a democratic society as enshrined in the precise language of the U. S. Constitution.

Second, as to what he asserts as having "always been recognized" as "an essential part of the judicial function" and the "attitudes and policies" with which he is concerned, these must be compared to the values and actions consistently upheld for thirty-five years by the U. S. Supreme Court and flowing from sources like the Standard State Zoning Enabling Act that was a product of the federal government. And just who has been doing the recognizing, anyway?

Third, there is the need to "work out the relationship between planning the future environment and the great issues connected with human freedom and opportunity." This lofty vision should be compared with the language found later in the text defining the role of zoning.

Next he expands to a broader vision of a seemingly boundless role for the courts and shares his disdain for those with less expansive views.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."

After this the discussion focuses closer to the case at hand and on the permitted or proper scope of judicial oversight. He finally comes to the definition of zoning quoted above and this statement that seemingly undercuts the argument he has been advancing for the expansiveness of judicial oversight of municipal actions.

"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

After all of his argument to the contrary, this language appears to make it clear that while there are great issues connected with human freedom and opportunity this is not the arena in which they can be constitutionally settled.

From this point the focus is on little more than repetition of the issues, arguing back and forth with elements of previous court decisions and finally a discussion of the actual issue of the case - the right to prohibit mobile homes.

DeSimone v. Greater Englewood Housing Corp.

We next hear his voice in the case of DeSimone v. Greater Englewood Housing Corp. 56 N. J. 428 (1970) 267 A.2d 31. While a seemingly small matter over issuance of a variance, it caught the emerging temper of its time. There had been racial disturbances in Englewood in July, 1967 and the town had become a focus of the Governor's Select Commission on Civil Disorder and its "Report for Action" issued the following year. This unanimous decision was seen by sympathizers as an opening for a renewed assault on municipal zoning. To understand this perspective we offer the assessment of Norman Williams, Jr. in The Background and Significance of Mount Laurel II from 1984:

"By the late 1960's, however, the world suddenly began to look rather different than it had when Justice Hall wrote his Vickers dissent, and other judges began to reexamine their tolerance of exclusionary zoning practices. In an otherwise relatively unimportant case, the New Jersey Supreme Court in 1970 upheld (against a challenge by neighbors) a New Jersey "d" variance approving a housing project in Englewood, which was (a) located in a "white area" and (b) clearly designed at least in part to accommodate blacks from the Englewood ghetto. In upholding the grant of the variance, the opinion-by Hall, and now unanimous--commented in dictum that under those circumstances such a variance could not have been denied. The only logical basis for this comment is that there must be some affirmative duty to plan on behalf of all sections of the population. Once those familiar with this field of law read the Englewood opinion, it was clear that the jig was up; the court seemed to be sending out signals that it was ready for a major reversal on the exclusionary problem." This led us to Mt. Laurel I.

Mt. Laurel I

Now we move on to the climactic document of the career of Frederick W. Hall. The first Mt. Laurel decision was written in 1975, thirteen years after his dissent in Vickers v. Gloucester Township and was his last great contribution to the activism of the court. The case, Southern Burlington County N. A. A. C. P. v. Mount Laurel 67 N. J. 151 (1975), began its course through the state judicial system in 1972 with a finding for the plaintiff which was subsequently appealed, not only by the township but by the plaintiffs as well seeking an expansion of the scope of the decision. It was then taken over by the state Supreme Court and transmuted from a case concerned with racial discrimination, which would have claimed a violation of the federal Fair Housing Act, into one focused on economic segregation which kept it within the state court system where it was argued in 1974 and decided in 1975. It begins by presenting the scope of the argument. We also find here Mr. Norman Williams, Jr. arguing the cause for amicus curiae The Public Interest Research Group of New Jersey twenty years after publishing his foundational document "Planning Law and Democratic Living" in 1955. Importantly, this comes seven years after the Fair Housing Act.

"This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipality. The trial court so found, 119 N.J. Super. 164 (Law Div. 1972), and declared the township zoning ordinance totally invalid. Its judgment went on, in line with the requests for affirmative relief, to order the municipality to make studies of the housing needs of low and moderate income persons presently or formerly residing in the community in substandard housing, as well as those in such income classifications presently employed in the township and living elsewhere or reasonably expected to be employed therein in the future ... The township appealed to the Appellate Division and those plaintiffs, not present or former residents, cross-appealed on the basis that the judgment should have directed that the prescribed plan take into account as well a fair share of the regional housing needs of low and moderate income families without limitation to those having, past, present or prospective connection with the township. The appeals were certified on our own motion before argument in the Division."

"The implications of the issue presented are indeed broad and far-reaching, extending much beyond these particular plaintiffs and the boundaries of this municipality."

"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."

"We will, therefore, consider the case from the wider viewpoint that the effect of Mount Laurel's land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

"Its candid position is that, conceding its land use regulation was intended to result and has resulted in economic discrimination and exclusion of substantial segments of the area population, its policies and practices are in the best present and future fiscal interest of the municipality and its inhabitants and are legally permissible and justified. It further asserts that the trial court was without power to direct the affirmative relief it did."

In these few opening quotes we find the whole argument showcased. It all begins with the "desperate need for housing" based on the horribly flawed assertion of a "housing crisis" that demonstrably never happened, to meet the needs of a population that still doesn't exist, most clearly expressed in this single sentence from "A Blueprint for Housing in New Jersey" (1970). "New Jersey has an approximate population of 7,200,000 with experts predicting a population increase to 10,000,000 by 1985."

Based on this assumption the Court says they will consider the case from the "wider viewpoint" that the Mount Laurel ordinance has the effect of excluding people because of the "limited extent of their incomes and resources" which the municipality freely admits, and asserts they are "legally permissible and justified"in doing because it is in the "best present and future fiscal interest of the municipality and its inhabitants". And the Court accepts that "the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

To summarize, the township freely admits it did what it's accused of doing and says that it's legal and justified because it's in the interest of the town and the Court accepts that it wasn't done for any of the reasons made impermissible by the Fair Housing Act 42 U.S.C. 3602 et seq., which is the federally controlling statute and separates this case from the context of the dissent in Vickers v. Gloucester Township. That is the case. The rest of the decision is then divided into three parts.

I The Facts

This section begins with a lengthy recitation of the facts about Mount Laurel including its size and population and its various zones and the development that's taken place in them in a very straightforward manner. Then we come to the conclusion. "There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property ... and that the policy was carried out without regard for nonfiscal considerations with respect to people, either within or without its boundaries." In other words, they did exactly what they said they did and only for the reasons they said they did it.

The text then goes on to describe the reason for this. "This policy of land use regulation for a fiscal end derives from New Jersey's tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality's children." In other words, this is entirely the fault of the State and applies to all municipalities. As a logical result:

"This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost everyone acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing."

As proof of this practice"The Residential Land Supply" (April 1972) produced by The N. J. Department of Community Affairs and "Exclusionary Land Use Controls: The Case of North-Eastern New Jersey" (1971) by Norman Williams, Jr. and Thomas Norman are cited. What is not considered in this statement is that the municipal action benefits all of the residents of the municipality, including those who are low-and-moderate income homeowners who are most at risk of being driven from their homes by rising taxes.

The next thing shown is how the urban model also worked to maintain fiscal stability.

"The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing than the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing. Despite the municipally confined tax structure, commercial and industrial ratables generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas."

In other words, the cities provided for their fiscal stability by zoning for a substantial ratable base dominated by commercial and industrial uses. Their goal was the same as that of the developing municipalities but simply pursued by different means.

The final part of this section is devoted to the plight of the urban population after World War II as the commercial and industrial base left the cities for new locations in other towns, other counties and other states. At the same time the lure of home ownership in developing communities that promised to provide all of the benefits of urban life in terms of public services and economic opportunities, without the well recognized problems of urban life, drew the emerging middle class to the suburbs. This was compounded by the failure of the cities to find a new productive purpose.

"Much industry and retail business, and even professions, have left the cities."And as for the low income workers "These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a critical erosion of the city tax base and inability to provide the amount and quality of those governmental services education, health, police, fire, housing and the like so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing."

To summarize the facts. State tax policies placed the primary burden of funding municipal, county and educational services on the tax base of each municipality. In order to be able to carry this burden each municipality zoned itself to develop a ratable based that would provide for long-term fiscal stability. The cities did this by zoning for a large commercial and industrial base. "Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorated housing." After World War II the urban model began to fail and many cities had difficulty reinventing themselves.

Instead of seeking to attract a tax base built on non-residential uses that relies on unskilled and semi-skilled workers, the suburbs did this by focusing on attracting a strong residential base that would provide for their future stability. The suburbs stand convicted of developing a well balanced, fiscally stable, socioeconomic model while the cities did not. They didn't attract employers of unskilled and semi-skilled workers and so did not seek to provide housing for a workforce that did not exist.

Now we come to the legal issue.

II The Legal Issue

"The legal question before us, as earlier indicated, is whether a developing municipality like Mount Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources."

"We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need thereof."

"We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs."

At this point we'll take a moment to recall previously expressed thoughts of Justice Hall with a pair of quotes from Vickers v. Gloucester Township cited above.

"The leaders of liberal-democratic thought are all too often so confused with abstractions ('health, safety, morals and welfare,' 'character of the neighborhood' etc.), so full of respect for local autonomy, so fearful of judicial review generally, as to be unable to understand the implications of what is going on. It has not been generally realized that in many instances the problems arising in this field of constitutional law are closely akin to those involved in civil liberties law, and call for similar attitudes toward the exercise of governmental power."
"We should not forget some fundamentals. Zoning is land use control by physical planning to bring about physical results for public, not private, welfare. It is not a device to be used to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes. The basic definition by the first authority in the field still holds good: 'Zoning is the regulation by districts under the police power of the height, bulk and use of buildings, the use of land and the density of population.' Bassett, Zoning 45 (1940)"

The first quote could easily be applied to the Court in this case for focusing on the abstract need for housing without recognizing the real world reality that housing is only one aspect of the integrated socioeconomic need of the community. Logic argues that building housing for workers without work makes no more sense than building factories without workers to work in them.

The second challenges the expansive view of judicial prerogatives "to accomplish any and all purportedly desirable social results unrelated to the statutorily stated purposes." Then the argument for this is presented.

"We begin with some fundamental principles as applied to the scene before us."

"Land use is encompassed within the state's police power."

"It is elementary theory that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws."

"It is required that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare (The last term seems broad enough to encompass the others.) Conversely, a zoning enactment which is contrary to the general welfare is invalid."

"Indeed these considerations are specifically set forth in the zoning enabling act as among the various purposes of zoning for which regulations must be designed. N. J. S. A. 40:55-32 ... If a zoning regulation violates the enabling act in this respect, it is also theoretically invalid under the state constitution. We say "theoretically" because, as a matter of policy, we do not treat the validity of most land use ordinance provisions as involving matters of constitutional dimension; that classification is confined to major questions of fundamental import."

"We consider the basic importance of housing and local regulations restricting its availability to substantial segments of the population to fall within the latter category."

"The demarcation between the valid and the invalid in the field of land use regulation is difficult to determine, not always clear and subject to change. This was recognized almost fifty years ago in the basic case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926):

"The ordinance now under review and all similar laws and regulations must find their justification in some aspect of police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. (272 U. S. at 387, 47 S. Ct. at 118, 71 L. Ed. at 310)."

It's nice to see the Court remembering the Ambler Realty case but it would be even nicer to see the Court recall The federal Fair Housing Act which clearly drew the line between legitimate and illegitimate. The Act prohibits discrimination in housing for a specific list of reasons: race, color, religion, sex, handicap, familial status or national origin. That is "precise delimitation". Counsel for Mt. Laurel Twp. made it clear that these were not the basis for their zoning and the Court accepted that that was the case. We would remind the Court of their own language.

"In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility."

The first thing Justice Hall needed to do to justify a need for change was find sources that, while supporting policies of deference to municipal decision-making, offer a warning that the future may be different and law may have to change. After offering a number of prior decisions as pointing in his direction he found it best said in Pierro v. Baxendale, 20 N. J. 17, 29 (1955) :

"If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed."

Having adding the sanctifying weight of precedent, he returns to his own thoughts.

"The warning implicates the matter of whose general welfare must be served or not violated in the field of land use regulation. Frequently the decisions in this state, including those just cited, have spoken only in terms of the interest of the enacting municipality, so that it has been thought, at least in some quarters, that such was the only welfare requiring consideration. It is, of course, true that many cases have dealt only with regulations having little, if any, outside impact where local decision is ordinarily entitled to prevail. However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state's citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served."

"This essential was distinctly pointed out in Euclid, where Mr. Justice Sutherland specifically referred to the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. Chief Justice Vanderbilt said essentially the same thing, in a different factual context, in the early leading case of Duffcon Concrete Products, Inc. v. Borough of Creskill, 1 N. J. 509 (1949), when he spoke of the necessity of regional considerations in zoning and added this:

"The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. (1 N. J. at 513)."

Justice Hall offers this quote as supportive of his position but we see it pointing in exactly the opposite direction. The problem is one of perspective. For Justice Hall zoning in developing municipalities was an act of selfishness and a desire to isolate themselves from the needs of the broader region. We see it differently. We see the world from a dynamic perspective where forces that transcend transient social policy considerations are controlling and municipalities are simply responding to the greater market forces confronting them as they take their place in regions that are being redefined by evolving transportation and communications technologies. The sentence we have highlighted makes this point. Again, we're not asking you to take our viewpoint over that of Justice Hall. We have simply taken the quote he selected above and put it back in the paragraph where he found it. Once again we have added the highlighting for emphasis.

"What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as in living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

When read in this fuller context the vision of Justice Hall and the rest of the Court cannot stand. The "forces" cited in Duffcon are the dynamic forces we see shaping our world in various forms and with different names. In this case it is the economic force of the housing market and the social force of democratic diversity that together serve to create fiscally stable communities, each with a distinct face and character, and together advancing the general welfare of their region. The Court is seeking to impose housing diversity within every municipality, while the natural dynamic forces produce a vital diversity among municipalities.

After this a case supporting placement of a hospital for the emotionally disturbed as meeting a regional need superseding the rights of a municipality to reject it is presented. And then, having failed to find any substantive support for the action under consideration other than some mentions that at some point if circumstances change some alterations in judicial perspectives would be justified, the Court goes about doing what they clearly had decided to do all along.

"This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms of land use regulation which that relationship mandates. There cannot be the slightest doubt that shelter, along with food, are the most basic human needs."

"It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of such broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries. Negatively, it may not adopt regulations or policies which thwart or preclude that opportunity."

"In sum, we are satisfied beyond doubt that, by reason of the basic importance of appropriate housing and the long-standing pressing need for it, especially in the low and moderate cost housing category, and of the exclusionary zoning practices of so many municipalities, conditions have changed, and consistent with the warning in Pierro, supra, judicial attitudes must be altered from that espoused in that and other cases cited earlier, to require, as we have just said, a broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all."

"We have spoken of this obligation of such municipalities as "presumptive." The term has two aspects, procedural and substantive. Procedurally, we think the basic importance of appropriate housing for all dictates that, when it is shown that a developing municipality in its land use regulations has not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation of substantive due process or equal protection under the state constitution has been made out and the burden, and it is a heavy one, shifts to the municipality to establish a valid basis for its action or non-action. ... The substantive aspect of "presumptive" relates to the specifics, on the one hand, of what municipal land use regulation provisions, or the absence thereof, will evidence invalidity and shift the burden of proof and, on the other hand, of what bases and considerations will carry the municipality's burden and sustain what it has done or failed to do. Both kinds of specifics may well vary between municipalities according to peculiar circumstances."

"We turn to application of these principles in appraisal of Mount Laurel's zoning ordinance, useful as well, we think, as guidelines for future application in other municipalities."

With this the Court establishes a new concept in land-use litigation. It does so without constitutional, statutory or precedential support. It is nothing more than an act of will by the members of the Court and so effectively expands the boundaries of judicial authority beyond otherwise recognized bounds.

The focus then turns to the specific of Mount Laurel zoning.

"We have earlier stated that a developing municipality's obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to the municipality's fair share of the present and prospective regional need thereof. Some comment on that conclusion is in order at this point. Frequently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason. But, under present New Jersey legislation, zoning must be done on an individual municipal basis, rather than regionally. So long as that situation persists under the present tax structure, or in the absence of some kind of binding agreement among all the municipalities of a region, we feel that every municipality therein must bear its fair share of the regional burden. (In this respect our holding is broader than that of the trial court, which was limited to Mount Laurel-related low and moderate income housing needs.)"

This admission loudly echoes the language of Duffcon Concrete that supports putting different uses in different places based on any number of factors:

"Improved highways and new transportation facilities have made possible the concentration of industry at places best suited to its development to a degree not contemplated in the earlier stages of zoning. The same forces make practicable the presently existing and currently developing suburban and rural sections given over solely to residential purposes and local retail business services coextensive with the needs of the community. The resulting advantages enure alike to industry and residential properties and, at the same time, advance the general welfare of the entire region."

After this all that remains is the essential discussion of how to define a region.

"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. Confinement to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable."

There are any number of ways to define a region. The Northeast is a national region. The New York and Philadelphia metropolitan areas are regions. The Census Bureau provides journey-to-work data that shows where people who work in a given place live and conversely where people who live in a given area work. Worker housing tends to cluster around employment centers and regions tend to define themselves on an ongoing basis.

III The Remedy

This final section applies only to Mount Laurel and focuses only on mechanics.

This ends the majority opinion written by Justice Frederick Hall. All that remains is a consideration of his 1977 lecture.

We are presenting significant excerpts from this lecture by Justice Hall, delivered two years after his retirement, because it contains what we see as useful insights into his thinking about several important issues. These include his vision of the limits of judicial power, of which he see very few, and his idea of the basis for granting standing to the plaintiffs in the Mount Laurel case as "third- party non-beneficiaries" as defined by Professor Norman Williams, Jr. . He discusses the importance of defining a "fundamental interest" and the fact that for the federal courts housing is not one. We think the full lecture is well worth reading as a picture of the thinking of a man accustomed to wielding power and the public passions that drove him throughout his career on the bench.

The Judicial Role In Land-Use Regulation (excerpts)

Frederick W. Hall
Associate Justice of the New Jersey Supreme Court, retired
Arthur T. Vanderbilt Lecture
Harvard Law School Association of New Jersey
April 20, 1977

Modern land-use regulation has increasingly become a matter of vital interest and importance to the citizenry of large and small metropolitan areas and beyond, and bids fair to continue so for a considerable time to come. Its scope has changed immeasurably since constitutional approval was accorded about 50 years ago. The current major subjects and objects of regulation and the problems and issues arising from it have led to litigation of quite a different character than was formerly the case. What the proper judicial role in this field should be needs to be considered in the light of the broad changes that have likewise taken place in the kinds of litigation and the exercise of the judicial function in other fields of public law.


The United States Supreme Court has come to the point, in reviewing state action on claims of federal constitutional violation, of finding invalidity on equal-protection grounds only where the right involved is said to be a "fundamental interest" and the state cannot show a "compelling state interest." The subjects meeting the fundamental interest test have been strictly limited: voting, race, right to interstate travel and perhaps a couple of others. Housing is not one.
The courts recent forays into the land-use regulation field after an avoidance of about half a century have been, regardless of result, quite unsatisfactory, to say the least.

There have been deep changes in American life and philosophy and the place of government therein. These began to appear in quantity in the "New Deal" era of the 30's but developed much more strongly after World War II.
First, there was a vast increase in regulation of private affairs, both business and personal, by all levels of government. ....
Second, there has been a tremendous increase in the conferring or distribution by government of various kinds of benefits to aid the less fortunate members of our society.
Third, there has been a startling awakening and assertion of claims of human rights under constitutional guarantees, statutes and institutional arrangements especially on behalf of minorities of all varieties and the disadvantaged.
Fourth, we have witnessed a "law explosion," by which relief from all manner of alleged wrongs is sought in the courts in the belief that the judiciary is the only effective branch of government. Everyone sues about everything, ...

This type of litigation is quite different from the traditional model earlier described. It most frequently concerns public, rather than private, action or inaction. It may well attack a whole scheme of government activity. It very frequently is of a representative or class nature, affecting many more persons or entities than are parties or whose views are before the court.

It generally does not seek money damages, but rather declaratory or injunctive relief of a continuing and broadly remedial nature against some government entity or official. Equity jurisprudence very largely governs the ultimate result. ....

This relatively new category of public-law litigation, which includes as well certain kinds of land-use litigation shortly to be mentioned more specifically, presents important questions as to the extent of judicial power and the proper exercise of it. These queries generally arise about the remedy especially when the relief ordered or sought involves affirmative action by another branch of government or amounts to action by the judiciary in a form within the purview of or normally accomplished - even perhaps better handled - by either the local or state legislature or the executive branch.

The Courts Must Decide

Again, the courts are the sole and final arbiter of the constitutionality of local and state legislation, regulations or other governmental action. A declaration of invalidity is binding upon the legislature, the executive and all affected public officials. This is so whether or not the particular agency or government agrees with the decision. It may only be overturned by amendment through vote of the people according to specified procedures.

While considerations of constitutional claims require the greatest judicial circumspection, they cannot be decided on the basis of personal views of individual judges as to the advisability or wisdom of the governmental action under review or in accordance with what may appear to be the wish of an articulate or seeming majority of the affected populace on a particular question.

The judicial branch is the ultimate protector of the rights of all, and this of course includes those of minorities. Constitutional principles and the rights guaranteed by or arising under the documents must always be thought of as living and not static things, subject to enlargement and variation in interpretation and application as conditions and the needs of the body politic change. When this is to occur is, unless spelled out by amendment, the proper and exclusive province of the judiciary. This is fundamental in our form of government.

Land-Use Regulation

There remains the application of this discussion to the more specific matter of the appropriate judicial role in land-use regulation cases. Even more particularly, reference is confined to the currently active aspects of zoning for housing and the place of the regional concept and to the initial articulation of a new and constitutional approach thereto in the unanimous decision of our Supreme Court in Southern Burlington County NAACP v. Township of Mount Laurel, 67 N. J. 151 (1975).

The matter should be placed in historical perspective, both legal and factual. That history is thoroughly presented, state by state and overall, in Professor Norman William's recent comprehensive and thoroughly readable treatise, "American Land Planning Law." To summarize quickly, with special reference to this state, after zoning was constitutionally approved a half century ago, the authorizing legislation in New Jersey and most states, delegated the permissive power to each municipality under standards which, except for the broad health, morals and general welfare language, were directed to regulation of uses to avoid adverse physical impact and to safeguard property values.

The general language of the delegation necessarily left interpretation to the courts. The aim of the adopted ordinances was to keep industrial uses out of the residential areas of the cities and their close suburbs. The idea was revolutionary because it involved restrictions on the private use of one's land, which for centuries had received exceptional veneration and favored treatment at the hands of the law.

The attitudes of the courts in this state as elsewhere varied in periods during the course of the next few decades. Early judicial resistance to zoning largely favored landowners. From 1948 to recent times our courts swung quite perceptibly to the opposite extreme, upholding almost all municipal action.

The New Jersey factual picture changed drastically during this period. I am sure it is quite familiar to all of you. The population expanded greatly through the birth rate and immigration from other sections. Business and industry moved from the central cities to new locations farther out and the more affluent families followed to occupy newly-built single-family housing in developments in municipalities that had been substantially rural. The demand for municipal and educational services funded by real-property taxes became immense in these areas.

At the same time, the cities decayed and their tax bases eroded. They became populated largely by the poor. The available housing wore out and became substandard or worse. Government services deteriorated and we had the uprisings of the 60's.

During the same period, the character and aim of municipal zoning, especially in these municipalities that were growing, or experiencing market pressures for growth, changed radically, although the full significance was not apparent at once. The purpose shifted from protection against physical impact to socioeconomic designs with the clear purpose of safeguarding the particular municipality's welfare as it alone decided. A principal purpose was fiscal - to allow only that kind of growth that would pay its way taxwise, particularly with respect to school costs, or come close to it.

The result was almost universal prohibition through various zoning mechanisms against any but expensive, single-family housing. Multi-family rental units were allowed most meagerly overall. Generally, they too, were required to be expensive, and contained bedroom limitations restricting the number of school children. These provisions effectively excluded from municipality after municipality families of low-and moderate-income, whether they resided in the central cities and sought a better environment and living conditions or were young couples, elderly citizens and others not desiring large houses who already had some ties with the community.

The result too was a statewide shortage of decent low-and moderate-income housing in all types of municipalities, the existence and alarming consequences of which were repeatedly called to public attention by state-agency studies, gubernatorial messages, and recitals in state legislation providing some assistance in funding such housing, only, of course, available where local land-use regulations permitted. It became clear that local exclusionary ordinances were having a substantial impact outside the particular municipality.

At the same time, it was becoming obvious that use regulation of certain types of land had such an important impact beyond municipal lines that individual municipal regulation was harmful to the broader public welfare. So the legislature withdrew the delegation of zoning authority to municipalities with respect to ,among others, wetlands, coastal areas, and the Hackensack Meadowlands district and provided for use regulation by its own agencies. The advisability of the concept of regional land-use regulation was thus established.

In this state of affairs, the Mount Laurel case came to the Supreme Court. It projected a new class of land-use litigation. The suit was brought, not by neighbors protesting the zoning of a particular property or an owner seeking to develop his land contrary to the zoning ordinance, but by people whom Professor Williams calls "third-party non-beneficiaries" - resident and non-resident poor people who wanted to live in the township but could not afford the only type of housing permitted.

Their attack, which they clearly had standing to make, was on the whole zoning scheme of a typical growing municipality having adequate remaining land for further development. The plaintiffs' proofs and briefs well presented to the court the factual picture that has just been sketched.

For present purposes of the discussion of the judicial role, the rationale of the decision may be simplified as follows. Land-use regulation, like any other police power enactment, must enhance and not be contrary to the general welfare to be valid under the state constitution. The availability of adequate land and an appropriate variety and choice of housing for all categories of people is an absolute essential in promotion of the general welfare - in effect, a fundamental state interest.

It is so important to the public good that the general welfare that each so-called developing municipality must take into account in order to have a valid zoning ordinance extends beyond the claimed good of that particular governmental unit. So:

the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land-use regulation, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low-and moderate-cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries.

and may not adopt regulations or policies that thwart of preclude that opportunity. Exclusionary restrictions having the effect mentioned are unconstitutional unless the municipality can sustain the heavy burden of demonstrating peculiar circumstances dictating a contrary conclusion. This was not established by Mount Laurel, so its zoning ordinance is pro tanto invalid.

The conclusions were, of course, within the traditional power and obligation of a court to declare legislation unconstitutional. Deference to the Legislative branch, here the local governing body, requires that such a judgment be rendered only in a clear case, but when that plainly appears in a situation involving a fundamental state interest, a court would be derelict if it did not so act. We are, in essence, dealing with a moral issue.

Mount Laurel went on to indicate that, since housing needs, particularly for people of low and moderate income, do not necessarily suit or fit well in every municipality, a regional approach was desirable, and urged state legislative action to so provide. In the absence thereof, the court said that Mount Laurel would have to provide for its fair share of the present and prospective regional need for such housing.

This solution originated with Chief Justice Weintraub during court conferences, prior to the advent of new permanent justices, making it desirable to schedule a reargument. The idea was not new; several areas of the country have had voluntary plans in operation on this basis for some time, and the professional planning literature thereon is plentiful. The township was given the opportunity to revise its ordinance, using these and other guidelines mentioned in the opinion, with the right in the plaintiffs to seek court review of the revised product if it was claimed not to be in accord with the express or implied directions of the opinion.

There is certainly nothing here that could reasonably suggest an inappropriate judicial role. I submit that it is unthinkable that a court should stop short of giving litigants in the housing field all the guidelines it considers vital and to direct affirmative corrective action to the fullest extent that it can completely supervise and review simply because the defendant is a municipality, and one that might be recalcitrant or uncooperative in righting the constitutional wrong, or because some other entity might be able to do a better job.

Under New Jersey jurisprudence, a court must review any governmental action of the nature 

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