Shepard v. Woodland Township Committee & Planning Board

The opinion of the court was delivered by Lora, J. A. D. Defendants appeal from that part of the judgment of . the Law Division whose opinion is reported at 138 N. J. Super. 379, holding subsection 8(a) of Art. VI, § 603, of the Woodland Township zoning ordinance unconstitutional insofar as it purports to confine the residents of a senior citizens community to persons who are 53 years of age or over, except for one child who may be 19 years of age or over. Plaintiff contends not only that the qualification for residency, based upon age, is unconstitutional but additionally that the trial judge erred in his determination that authorization of a senior citizens community as a land use regulation is not foreign to the authority granted to municipalities in N. J. S. A. 40:55-30, 33. Section 603, entitled “Special Uses” by the amendment in question, was employed to add an exception permitted in the residential-agricultural zone, under terms and conditions set forth therein as follows: [99] 8. Senior Citizen Communities. In R-A Zones where one or more parcels of land having a contiguous total area of at least 500 acres are under common ownership or control, there may be established a Senior Citizen Community in accordance with the laws of the State of New Jersey and with the following additional requirements: a. Age and Occupancy Eequirements. The permanent residents of a Senior Citizen Community shall bo confined to persons who are 52 years of age or over except that one child who is 19 years of age or over may be permitted to reside in any senior citizen dwelling unit occupied by his or her parent(s) or guardian(s). Full time occupancy of any residential unit shall be limited to 3 individuals. We are of the view the quoted ordinance provisions do not constitute a valid exercise of the zoning power granted to municipalities by the enabling statute. As stated in Taxpayers Ass’n. of Weymouth Tp. v. Weymouth Tp., 125 N. J. Super. 376, 380 (App. Div. 1973), Certif. granted 65 N. J. 570: Nothing in N. J. S. A. 40:55-30, which grants zoning powers to municipalities, authorizes a zoning regulation limiting the age of those, whether it be individuals or families, who may reside in a structure, be it a house or mobile home, otherwise permitted in a particular zoning district. All that a municipality may validly be concerned with in the exercise of its zoning power is the physical use of lands and structures thereon. Bridge Park Co. v. Highland Park, 113 N. J. Super. 219, 221-222 (App. Div. 1971). Cf. Hinman v. Planning and Zoning Comm’n, 26 Conn. Sup. 125, 214 A. 2d 131 (Comm. Pl. 1965). The provision for a senior citizens community does not involve the physical use of the land within the permissible district but rather seeks to regulate the age or makeup of the family unit permitted to reside in the structure in contravention of N. J. S. A. 40:55-30, 32, Bridge Parle Co. v. Highland Park, 113 N. J. Super. 219, 221-222 (App. Div. 1971). Defendants argue that Woodland Township is authorized to enact subsection 8 (a) of the ordinance by virtue of its power to regulate land use to “promote health, morals or the general welfare * * N. J. S. A. 40:55-32. While we appreciate that senior citizens may have special housing needs [100] meriting special considerations, as evidenced by N. J. S. A. 55:141-1 et seq., the “Senior Citizens Nonprofit Rental Housing Tax. Law” and N. J. S. A. 55 :14A-1 el seq., the “Local Housing Authorities Law,” and that housing needs are encompassed within the concept of general welfare, Oakwood at Madison, Inc. v. Madison Tp., 117 N. J. Super. 11 (Law Div. 1971), certif. granted 62 N. J. 185 (1973), we are constrained to conclude that absent specific enabling legislation, zoning for senior citizens communities is not within the township’s authority to regulate land use to promote the general welfare. Evidence of such legislative interpretation of the scope of the enabling statute may be found in Assembly Bill No. 1338 introduced March 18, 1974 which passed both Houses of the Legislature but was vetoed by the Governor on April 7, 1975. Defendants attempt to distinguish Weymouth from the instant case in that in Weymouth the physical use of the land was for mobile park homes irrespective of the age of its occupants, and the 53-year limitation was not functionally or directly related to the establishment of a senior citizen community, whereas the subject ordinance, by § 8(b), permits not only residences as a use of the land but also limited commercial facilities and service establishments intended primarily for the use and convenience of the residents of such senior citizen community, and by § 8(c) requires recreational and cultural facilities for their sole use. Then, too, they assert no exclusive zone has been established since senior citizen communities are merely a permitted use in a R — A zone. We find such distinctions to be without significance. The end result of the requirement of a contiguous total area of at least 500 acres under common ownership or control in effect constitutes a zone within a zone. Having concluded that the amendment to the ordinance is invalid for the reasons above stated, we do not deem it necessary to pass upon the validity of the amended ordinance’s qualification for' residency, based upon age, and the limita [101] tion of full-time occupancy of any residential unit therein to three individuals. Affirmed as modified.