Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel

The opinion of the Court was delivered by

This is the return, eight years later, of Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel, 67 N.J. 151 (1975) (Mount Laurel I). We set forth in that case, for the first time, the doctrine requiring that municipalities’ land use regulations provide a realistic opportunity for low and moderate income housing. The doctrine has become famous. The Mount Laurel case itself threatens to become infamous. After all this time, ten years after the trial court’s initial order invalidating its zoning ordinance, Mount Laurel remains afflicted with a blatantly exclusionary ordinance. Papered over with studies, rationalized by hired experts, the ordinance at its core is true to nothing but Mount Laurel’s determination to exclude the poor. *199 Mount Laurel is not alone; we believe that there is widespread non-compliance with the constitutional mandate of our original opinion in this case.

To the best of our ability, we shall not allow it to continue. This Court is more firmly committed to the original Mount Laurel doctrine than ever, and we are determined, within appropriate judicial bounds, to make it work. The obligation is to provide a realistic opportunity for housing, not litigation. We have learned from experience, however, that unless a strong judicial hand is used, Mount Laurel will not result in housing, but in paper, process, witnesses, trials and appeals. We intend by this decision to strengthen it, clarify it, and make it easier for public officials, including judges, to apply it.

This case is accompanied by five others, heard together and decided in this opinion. 1 All involve questions arising from the *200 Mount Laurel doctrine. They demonstrate the need to put some steel into that doctrine. The deficiencies in its application range from uncertainty and inconsistency at the trial level to inflexible review criteria at the appellate level. The waste of judicial energy involved at every level is substantial and is matched only by the often needless expenditure of talent on the part of lawyers and experts. The length and complexity of trials is often outrageous, and the expense of litigation is so high that a real question develops whether the municipality can afford to defend or the plaintiffs can afford to sue.

There is another side to the story. We believe, both through the representations of counsel and from our own research and experience, that the doctrine has done some good, indeed, perhaps substantial good. We have tried to make the doctrine clearer for we believe that most municipal officials will in good faith strive to fulfill their constitutional duty. There are a number of municipalities around the State that have responded to our decisions by amending their zoning ordinances to provide realistic opportunities for the construction of low and moderate *201 income housing. 2 Further, many other municipalities have at least recognized their obligation to provide such opportunities in their ordinances and master plans. Finally, state and county government agencies have responded by preparing regional housing plans that help both the courts and municipalities themselves carry out the Mount Lam-el mandate. Still, we are far from where we had hoped to be and nowhere near where we should be with regard to the administration of the doctrine in our courts.

These six cases not only afford the opportunity for, but demonstrate the necessity of reexamining the Mount Laurel doctrine. We do so here. The doctrine is right but its administration has been ineffective.

A brief statement of the cases may be helpful at this point. Mount Laurel II results from the remand by this Court of the original Mount Laurel case. The municipality rezoned, purportedly pursuant to our instructions, a plenary trial was held, and the trial court found that the rezoning constituted a bona fide attempt by Mount Laurel to provide a realistic opportunity for the construction of its fair share of the regional lower income housing need. Reading our cases at that time (1978) as requiring no more, the trial court dismissed the complaint of the N.A.A.C.P. and other plaintiffs but granted relief in the form of a builder’s remedy, to a developer-intervenor who had attacked the total prohibition against mobile homes. Plaintiffs’ appeal of the trial court’s ruling sustaining the ordinance in all other respects was directly certified by this Court, as ultimately was defendant’s appeal from the grant of a builder’s remedy allowing construction of mobile homes. We reverse and remand to determine Mount Laurel’s fair share of the regional need and for further proceedings to revise its ordinance; we affirm the grant of the builder’s remedy.

*202 In Caputo v. Township of Chester, two resident landowners of that Morris County township had long sought rezoning of their property to allow residential construction with densities greater than those previously permitted. After much negotiation the municipality rezoned but not to plaintiffs’ satisfaction. Plaintiffs therefore commenced an action challenging the validity of the ordinance, an action that ultimately was based upon our decision in Mount Laurel. The trial court held that the ordinance was invalid but refused to grant a builder’s remedy to the would-be-developer, who appealed. Chester apparently acceded to the court’s ruling, no appeal having been taken. We granted direct certification of the developer's appeal. The only issues before us in that matter are the propriety of the denial of a builder’s remedy and of the invalidation of a five acre minimum lot requirement in a single family zone. We affirm that denial, reverse the ruling as to the minimum lot requirement, and reverse and remand the cause for further proceedings limited to the issue of the satisfaction of Chester’s present indigenous need for lower income housing.

In Glenview Development Co. v. Franklin, again a developer sought both to invalidate the zoning ordinance and to obtain a builder’s remedy. The trial court held that this rural Hunterdon County township was not subject to the Mount Laurel obligation because it was deemed not to be a “developing” community, from which ruling the developer appealed. We certified the matter directly. We affirm the trial court’s ruling but reverse and remand the cause for further proceedings limited to the issue of the satisfaction of Franklin’s present indigenous need for lower income housing.

In Round Valley, Inc. v. Clinton, the usual two-pronged attack by the developer (declaration of invalidity and builder’s remedy) was successful at the trial level, where the court entered a judgment invalidating the ordinance and appointing a master to assure its appropriate revision and to assist in effectuating a builder’s remedy. On appeal, the Appellate Division held that the judgment below did not pass upon the validity of the *203 ordinance but simply granted a builder’s remedy; that such action by a trial court was not authorized by the Mount Laurel doctrine, since it consisted of little more than the grant of a variance without complying with the statutory requirements. The Appellate Division also indicated that the sale of a portion of the developer’s tract between the trial and the appeal rendered most of the matters moot, since the portion sold was that designed by the developer for all of its multi-family units. The matter is before us on the developer’s appeal. We reverse the Appellate Division and remand for further proceedings to determine fair share and thereafter to revise the ordinance; in effect we sustain the trial court’s finding that the ordinance is invalid and its appointment of a master to aid in its revision, as well as its award of the builder’s remedy subject to the conditions set forth herein.

Urban League of Essex Co. v. Mahwah was the latest of numerous attempts to force the construction of housing for those who work in Mahwah in Bergen County. The trial court held that the Mahwah zoning ordinance complied with the Mount Laurel doctrine in that it allowed for the construction of “least cost” housing although admittedly no lower income housing could possibly be built there. Plaintiffs, being both those who live in and out of Mahwah and who work there, believing that the ordinance could more realistically provide an opportunity for the construction of lower income housing, appealed to the Appellate Division and we certified the matter directly. We reverse and remand for further proceedings concerning Mah-wah’s fair share and thereafter to revise the ordinance.

In Urban League of Greater New Brunswick v. Carteret, the zoning ordinances of all the municipalities in Middlesex County were initially challenged. The majority of the eases were settled during trial (through the revision of ordinances to comply with the trial court’s directives, or, in the cases of Perth Amboy, Carteret and Dunellen, through judgments of the trial court holding that no Mount Laurel obligation existed). Only seven municipalities appealed from the judgment of the trial court. *204 As to those seven, the trial court held that their zoning ordinances violated the Mount Laurel doctrine. The court determined the regional need and then allocated to each municipality a sufficient part of the regional need so that, were it built, that municipality’s lower income housing would constitute the same percentage of its total housing as the lower income housing of the county constituted of its total housing. The balance of the regional need allocable to those seven municipalities was divided among them equally. On appeal the Appellate Division reversed, holding, among other things, that the trial court’s determination was improperly “formulaic” and that the formula was incorrect. There was no remand for proceedings in accordance with the Appellate Division’s opinion. The appeal to us is from that Appellate Division decision. We reverse the judgment of the Appellate Division but remand to the trial court for further proceedings concerning region, regional need, and fair share and thereafter for revision of the various ordinances.

This opinion is divided into three sections. Section I contains a brief history of the Mount Laurel doctrine with a discussion of the major implementation problems addressed in this opinion; a statement of the constitutional basis for the doctrine and the appropriate scope of the judicial power to enforce it; and a summary of the more significant rulings in today’s opinion. In Section II, we resolve the substantive issues raised by the six cases before us and set forth the obligations imposed upon municipalities and trial courts by the Mount Laurel doctrine. Finally, in Section III we apply these rulings to dispose of the six cases themselves.

I.

Background

A. History of the Mount Laurel Doctrine

In Mount Laurel I, this Court held that a zoning ordinance that contravened the general welfare was unconstitutional. We pointed out that a developing municipality violated that consti *205 tutional mandate by excluding housing for lower income people; that it would satisfy that constitutional obligation by affirmatively affording a realistic opportunity for the construction of its fair share of the present and prospective regional need for low and moderate income housing. 67 N.J. at 174. 3 This is the core of the Mount Laurel doctrine. Although the Court set forth important guidelines for implementing the doctrine, their application to particular cases was complex, and the resolution of many questions left uncertain. Was it a “developing” municipality? What was the “region,” and how was it to be determined? How was the “fair share” to be calculated within that region? Precisely what must that municipality do to “affirmatively afford” an opportunity for the construction of lower income housing? Other questions were similarly troublesome. When should a court order the granting of a building permit (i.e., a builder’s remedy) to a plaintiff-developer who has successfully challenged a zoning ordinance on Mount Laurel grounds? How should courts deal with the complicated procedural aspects of Mount Laurel litigation, such as the appointment of experts and masters, the joinder of defendant municipalities, and the problem of interlocutory appeals? These have been the principal questions that New Jersey courts have faced *206 in attempting to implement the Mount Laurel mandate, and the principal questions dealt with in this opinion. We begin by examining how some of these questions have been dealt with up to now.

Two years after Mount Laurel I, in Oakwood at Madison, Inc. v. Township of Madison, 72 N.J. 481 (1977), this Court once again faced the exclusionary zoning issue. We ruled that “fair share” allocations need not be “precise” or based on “specific formulae” to win judicial approval. Id. at 498-99. Instead, the Court explained, a court should look to the “substance” of a challenged zoning ordinance and the “bona fide efforts” of a municipality to remove exclusionary barriers in order to determine whether that municipality had met its Mount Laurel burden.

With regard to the definition of the “region” from which fair share allocations were to be made, the majority cited with approval the trial court’s formulation of a region as the “ ‘area from which, in view of available employment and transportation, the population of the township would be drawn, absent invalidly exclusionary zoning.’” Id. at 537; quoting Oakwood at Madison, Inc. v. Township of Madison, 128 N.J.Super. 438, 441 (Law Div.1974). We distinguished this very general standard for determining region from the situation with which we would be confronted if a state planning body promulgated a plan that divided the whole state into regions.

Madison also addressed the nature of a municipality’s “affirmative” duty to encourage the construction of lower income housing. The Court reaffirmed that affected municipalities must provide realistic opportunities for their fair share of lower income housing, and required the municipality to provide density bonuses for the construction of multi-bedroom units, while reserving judgment, however, on other affirmative measures. 72 N.J. at 517-18 (a density bonus allows the developer to build more units per acre if certain kinds of units áre included in the project).

*207 An important aspect of the Court’s decision was the award of a builder’s remedy to the plaintiff-developer. The Court emphasized that the plaintiff, for “six years” and through “two trials and on this extended appeal,” had “borne the stress and expense of this public interest litigation.” Id. at 549-50. The Court admonished, however, that this kind of remedy should “ordinarily be rare.” Id. at 551-52 n. 50.

Finally, the Court introduced the important concept of “least cost” housing, i.e., housing built at the least cost possible, even though not inexpensive enough for lower income occupancy. Recognizing that even with subsidies and affirmative devices some municipalities simply might not be able to provide a realistic opportunity for the construction of lower income housing, the Court held that under those and only those circumstances such municipalities could meet their obligation with “least cost” housing. Id. at 512-13.

Later in the same year that Madison was decided, the Court determined which municipalities were subject to the Mount Laurel fair share obligation. Pascack Ass’n, Ltd. v. Washington Twp., 74 N.J. 470 (1977); Fobe Associates v. Demarest, 74 N.J. 519 (1977). In Pascack, the Court held that “fully developed, single-family residential” communities such as Washington Township did not have any Mount Laurel obligation. This holding was reaffirmed in Fobe where the Court upheld the decision of the Demarest Board of Adjustment denying a variance sought for multi-family housing given the fact that a “developed” municipality like Demarest did not have a Mount Laurel obligation. 4

*208 B. Constitutional Basis for Mount Laurel and the Judicial Role

The constitutional basis for the Mount Laurel doctrine remains the same. The constitutional power to zone, delegated to the municipalities subject to legislation, is but one portion of the police power and, as such, must be exercised for the general welfare. When the exercise of that power by a municipality affects something as fundamental as housing, the general welfare includes more than the welfare of that municipality and its citizens: it also includes the general welfare — in this case the housing needs — of those residing outside of the municipality but within the region that contributes to the housing demand within the municipality. Municipal land use regulations that conflict with the general welfare thus defined abuse the police power and are unconstitutional. In particular, those regulations that do not provide the requisite opportunity for a fair share of the region’s need for low and moderate income housing conflict with *209 the general welfare and violate the state constitutional requirements of substantive due process and equal protection. Mount Laurel I, 67 N.J. at 174 and 181.

That is the constitutional rationale for the Mount Laurel doctrine. The doctrine is a corollary of the constitutional obligation to zone only in furtherance of the general welfare. The doctrine provides a method of satisfying that obligation when the zoning in question affects housing.

It would be useful to remind ourselves that the doctrine does not arise from some theoretical analysis of our Constitution, but rather from underlying concepts of fundamental fairness in the exercise of governmental power. The basis for the constitutional obligation is simple: the State controls the use of land, all of the land. In exercising that control it cannot favor rich over poor. It cannot legislatively set aside dilapidated housing in urban ghettos for the poor and decent housing elsewhere for everyone else. The government that controls this land represents everyone. While the State may not have the ability to eliminate poverty, it cannot use that condition as the basis for imposing further disadvantages. And the same applies to the municipality, to which this control over land has been constitutionally delegated.

The clarity of the constitutional obligation is seen most simply by imagining what this state could be like were this claim never to be recognized and enforced: poor people forever zoned out of substantial areas of the state, not because housing could not be built for them but because they are not wanted; poor people forced to live in urban slums forever not because suburbia, developing rural areas, fully developed residential sections, seashore resorts, and other attractive locations could not accommodate them, but simply because they are not wanted. It is a vision not only at variance with the requirement that the zoning power be used for the general welfare but with all concepts of *210 fundamental fairness and decency that underpin many constitutional obligations. 5

*211 Subject to the clear obligation to preserve open space and prime agricultural land, a builder in New Jersey who finds it economically feasible to provide decent housing for lower income groups will no longer find it govemmentally impossible. Builders may not be able to build just where they want — our parks, farms, and conservation areas are not a land bank for housing speculators. But if sound planning of an area allows the rich and middle class to live there, it must also realistically and practically allow the poor. And if the area will accommodate factories, it must also find space for workers." The specific location of such housing will of course continue to depend on sound municipal land use planning.

While Mount Laurel I discussed the need for “an appropriate variety and choice of housing,” 67 N.J. 179, the specific constitutional obligation addressed there, as well as in our opinion here, is that relating to low and moderate income housing. Id. All that we say here concerns that category alone; the doctrine as we interpret it has no present applicability to other kinds of housing. See Pascack, 74 N.J. at 480. It is obvious that eight years after Mount Laurel I the need for satisfaction of this *212 doctrine is greater than ever. Upper and middle income groups may search with increasing difficulty for housing within their means; for low and moderate income people, there is nothing to search for. 6

No one has challenged the Mount Laurel doctrine on these appeals. Nevertheless, a brief reminder of the judicial role in this sensitive area is appropriate, since powerful reasons suggest, and we agree, that the matter is better left to the Legislature. We act first and foremost because the Constitution of our State requires protection of the interests involved and because the Legislature has not protected them. We recognize the social and economic controversy (and its political consequences) that has resulted in relatively little legislative action in this field. We understand the enormous difficulty of achieving a political consensus that might lead to significant legislation enforcing the constitutional mandate better than we can, legislation that might completely remove this Court from those controversies. But enforcement of constitutional rights cannot await a supporting political consensus. So while we have always preferred legislative to judicial action in this field, we shall continue — until the Legislature acts — to do our best to uphold the constitutional obligation that underlies the Mount Laurel *213 doctrine. That is our duty. We may not build houses, but we do enforce the Constitution. 7

We note that there has been some legislative initiative in this field. We look forward to more. The new Municipal Land Use Law explicitly recognizes the obligation of municipalities to zone with regional consequences in mind, N.J.S.A. 40:55D-28(d); it also recognizes the work of the Division of State and Regional Planning in the Department of Community Affairs (DCA), in creating the State Development Guide Plan (1980) (SDGP), which plays an important part in our decisions today. Our deference to these legislative and executive initiatives can be regarded as a clear signal of our readiness to defer further to more substantial actions.

The judicial role, however, which could decrease as a result of legislative and executive action, necessarily will expand to the extent that we remain virtually alone in this field. In the absence of adequate legislative and executive help, we must give meaning to the constitutional doctrine in the cases before us *214 through our own devices, even if they are relatively less suitable. That is the basic explanation of our decisions today.

C. Summary of Rulings

Our rulings today have several purposes. First, we intend to encourage voluntary compliance with the constitutional obligation by defining it more clearly. We believe that the use of the State Development Guide Plan and the confinement of all Mount Laurel litigation to a small group of judges, selected by the Chief Justice with the approval of the Court, will tend to serve that purpose. Second, we hope to simplify litigation in this area. While we are not overly optimistic, we think that the remedial use of the SDGP may achieve that purpose, given the significance accorded it in this opinion. Third, the decisions are intended to increase substantially the effectiveness of the judicial remedy. In most cases, upon determination that the municipality has not fulfilled its constitutional obligation, the trial court will retain jurisdiction, order an immediate revision of the ordinance (including, if necessary, supervision of the revision through a court appointed master), and require the use of effective affirmative planning and zoning devices. The long delays of interminable appellate review will be discouraged, if not completely ended, and the opportunity for low and moderate income housing found in the new ordinance will be as realistic as judicial remedies can make it. We hope to achieve all of these purposes while preserving the fundamental legitimate control of municipalities over their own zoning and, indeed, their destiny.

The following is a summary of the more significant rulings of these cases:

(1) Every municipality’s land use regulations should provide a realistic opportunity for decent housing for at least some part of its resident poor who now occupy dilapidated housing. The zoning power is no more abused by keeping out the region’s poor than by forcing out the resident poor. In other words, each municipality must provide a realistic opportunity for decent *215 housing for its indigenous poor except where they represent a disproportionately large segment of the population as compared with the rest of the region. This is the case in many of our urban areas.

(2) The existence of a municipal obligation to provide a realistic opportunity for a fair share of the region’s present and prospective low and moderate income housing need will no longer be determined by whether or not a municipality is “developing.” The obligation extends, instead, to every municipality, any portion of which is designated by the State, through the SDGP as a “growth area.” This obligation, imposed as a remedial measure, does not extend to those areas where the SDGP discourages growth — namely, open spaces, rural areas, prime farmland, conservation areas, limited growth areas, parts of the Pinelands and certain Coastal Zone areas. The SDGP represents the conscious determination of the State, through the executive and legislative branches, on how best to plan its future. It appropriately serves as a judicial remedial tool. The obligation to encourage lower income housing, therefore, will hereafter depend on rational long-range land use planning (incorporated into the SDGP) rather than upon the sheer economic forces that have dictated whether a municipality is “developing.” Moreover, the fact that a municipality is fully developed does not eliminate this obligation although, obviously, it may affect the extent of the obligation and the timing of its satisfaction. The remedial obligation of municipalities that consist of both “growth areas” and other areas may be reduced, based on many factors, as compared to a municipality completely within a “growth area.”

There shall be a heavy burden on any party seeking to vary the foregoing remedial consequences of the SDGP designations.

(3) Mount Laurel litigation will ordinarily include proof of the municipality’s fair share of low and moderate income housing in terms of the number of units needed immediately, as well as the number needed for a reasonable period of time in the future. *216 “Numberless” resolution of the issue based upon a conclusion that the ordinance provides a realistic opportunity for some low and moderate income housing will be insufficient. Plaintiffs, however, will still be able to prove a prima facie case, without proving the precise fair share of the municipality, by proving that the zoning ordinance is substantially affected by restrictive devices, that proof creating a presumption that the ordinance is invalid.

The municipal obligation to provide a realistic opportunity for low and moderate income housing is not satisfied by a good faith attempt. The housing opportunity provided must, in fact, be the substantial equivalent of the fair share.

(4) Any future Mount Laurel litigation shall be assigned only to those judges selected by the Chief Justice with the approval of the Supreme Court. The initial group shall consist of three judges, the number to be increased or decreased hereafter by the Chief Justice with the Court’s approval. The Chief Justice shall define the area of the State for which each of the three judges is responsible: any Mount Laurel case challenging the land use ordinance of a municipality included in that area shall be assigned to that judge.

Since the same judge will hear and decide all Mount Laurel cases within a particular area and only three judges will do so in the entire state, we believe that over a period of time a consistent pattern of regions will emerge. Consistency is more likely as well in determinations of regional housing needs and allocations of fair share to municipalities within the region. Along with this consistency will come the predictability needed to give full effect to the Mount Laurel doctrine. While determinations of region and regional housing need will not be conclusive as to any municipality not a party to the litigation, they shall be given presumptive validity in subsequent litigation involving any municipality included in a previously determined region.

*217 The Chief Justice will analyze all pending Mount Laurel litigation to determine which, if any, should be transferred to one of the three Mount Laurel judges. As for the cases pending before us, given the knowledge acquired by the judges of the particular facts of the case, each will be remanded to the judge who heard the matter below with the exception of Round Valley, Inc. v. Clinton and Urban League of Greater New Brunswick v. Carteret, since neither of the judges who determined those matters remains on the trial bench.

(5) The municipal obligation to provide a realistic opportunity for the construction of its fair share of low and moderate income housing may require more than the elimination of unnecessary cost-producing requirements and restrictions. Affirmative governmental devices should be used to make that opportunity realistic, including lower-income density bonuses and mandatory set-asides. Furthermore the municipality should cooperate with the developer’s attempts to obtain federal subsidies. For instance, where federal subsidies depend on the municipality providing certain municipal tax treatment allowed by state statutes for lower income housing, the municipality should make a good faith effort to provide it. Mobile homes may not be prohibited, unless there is solid proof that sound planning in a particular municipality requires such prohibition.

(6) The lower income regional housing need is comprised of both low and moderate income housing. A municipality’s fair share should include both in such proportion as reflects consideration of all relevant factors, including the proportion of low and moderate income housing that make up the regional need.

(7) Providing a realistic opportunity for the construction of least-cost housing will satisfy a municipality’s Mount Laurel obligation if, and only if, it cannot otherwise be satisfied. In other words, it is only after all alternatives have been explored, all affirmative devices considered, including, where appropriate, a reasonable period of time to determine whether low and moderate income housing is produced, only when everything has *218 been considered and tried in order to produce a realistic opportunity for low and moderate income housing that least-cost housing will provide an adequate substitute. Least-cost housing means what it says, namely, housing that can be produced at the lowest possible price consistent with minimal standards of health and safety.

(8) Builder’s remedies will be afforded to plaintiffs in Mount Laurel litigation where appropriate, on a case-by-case basis. Where the plaintiff has acted in good faith, attempted to obtain relief without litigation, and thereafter vindicates the constitutional obligation in Mount Laurel -type litigation, ordinarily a builder’s remedy will be granted, provided that the proposed project includes an appropriate portion of low and moderate income housing, and provided further that it is located and designed in accordance with sound zoning and planning concepts, including its environmental impact.

(9) The judiciary should manage Mount Laurel litigation to dispose of a case in all of its aspects with one trial and one appeal, unless substantial considerations indicate some other course. This means that in most cases after a determination of invalidity, and prior to final judgment and possible appeal, the municipality will be required to rezone, preserving its contention that the trial court’s adjudication was incorrect. If an appeal is taken, all facets of the litigation will be considered by the appellate court including both the correctness of the lower court’s determination of invalidity, the scope of remedies imposed on the municipality, and the validity of the ordinance adopted after the judgment of invalidity. The grant or denial of a stay will depend upon the circumstances of each case. The trial court will appoint a master to assist in formulating and implementing a proper remedy whenever that course seems desirable.

(10) The Mount Laurel obligation to meet the prospective lower income housing need of the region is, by definition, one that is met year after year in the future, throughout the years *219 of the particular projection used in calculating prospective need. In this sense the affirmative obligation to provide a realistic opportunity to construct a fair share of lower income housing is met by a “phase-in” over those years; it need not be provided immediately. Nevertheless, there may be circumstances in which the obligation requires zoning that will provide an immediate opportunity — for instance, zoning to meet the region’s present lower income housing need. In some cases, the provision of such a realistic opportunity might result in the immediate construction of lower income housing in such quantity as would radically transform the municipality overnight. Trial courts shall have the discretion, under those circumstances, to moderate the impact of such housing by allowing even the present need to be phased in over a period of years. Such power, however, should be exercised sparingly. The same power may be exercised in the satisfaction of prospective need, equally sparingly, and with special care to assure that such further postponement will not significantly dilute the Mount Laurel obligation.

We reassure all concerned that Mount Laurel is not designed to sweep away all land use restrictions or leave our open spaces and natural resources prey to speculators. Municipalities consisting largely of conservation, agricultural, or environmentally sensitive areas will not be required to grow because of Mount Laurel. No forests or small towns need be paved over and covered with high-rise apartments as a result of today’s decision.

As for those municipalities that may have to make adjustments in their lifestyles to provide for their fair share of low and moderate income housing, they should remember that they are not being required to provide more than their fair share. No one community need be concerned that it will be radically transformed by a deluge of low and moderate income developments. Nor should any community conclude that its residents will move to other suburbs as a result of this decision, for those “other suburbs” may very well be required to do their part to provide the same housing. Finally, once a community has *220 satisfied its fair share obligation, the Mount Laurel doctrine will not restrict other measures, including large-lot and open area zoning, that would maintain its beauty and communal character.

Many of these points will be discussed later in this opinion. We mention them now only to reassure all concerned that any changes brought about by this opinion need not be drastic or destructive. Our scenic and rural areas will remain essentially scenic and rural, and our suburban communities will retain their basic suburban character. But there will be some change, as there must be if the constitutional rights of our lower income citizens are ever to be protected. That change will be much less painful for us than the status quo has been for them.

II.

Resolution of the Issues

A. Defining the Mount Laurel Obligation

In Oakwood v. Madison, this Court held that it was sufficient in Mount Laurel litigation for courts to look to the “substance” of challenged zoning ordinances and to the existence of “bona fide efforts” by municipalities to meet their obligations. 72 N.J. at 499. It was hoped that this test would adequately protect the constitutional rights of lower income persons while at the same time minimizing the role of the courts in this area. Unfortunately, experience has taught us that this formulation is too vague to provide adequate guidance for either trial courts or municipalities. As the Mount Laurel II and Mahwah cases demonstrate, the Madison test does not ensure sufficient judicial scrutiny of zoning ordinances. Even those that plainly fail to meet the requisites of the Mount Laurel doctrine may pass the test of Madison.

Therefore, proof of a municipality’s bona fide attempt to provide a realistic opportunity to construct its fair share of lower income housing shall no longer suffice. Satisfaction of the Mount Laurel obligation shall be determined solely on an *221 objective basis: if the municipality has in fact provided a realistic opportunity for the construction of its fair share of low and moderate income housing, it has met the Mount Laurel obligation to satisfy the constitutional requirement; if it has not, then it has failed to satisfy it. 8 Further, whether the *222 opportunity is “realistic” will depend on whether there is in fact a likelihood — to the extent economic conditions allow — that the lower income housing will actually be constructed. Plaintiff’s case will ordinarily include proof of the municipality’s fair share of the regional need and defendant’s proof of its satisfaction. Good or bad faith, at least on this issue, will be irrelevant. The numberless approach encouraged in Madison, where neither plaintiffs nor defendants are required to prove a fair share number, is no longer acceptable.

The numberless approach is to be distinguished, however, from presumptive facial invalidity. Plaintiff may continue to prove (in addition to or instead of proving the fair share obligation of the municipality) that the land use regulations fail to provide a realistic opportunity for low and moderate income housing or that they contain “expressly prescribed requirements or restrictions which preclude or substantially hinder it.” Mount Laurel I, 67 N.J. at 180-81. As before, such a showing shall create a prima facie case of a failure to satisfy the Mount Laurel obligation. The municipality shall then have the heavy burden of demonstrating, by a preponderance of the evidence, its fair share and its satisfaction of that share, or any justifica *223 tion of its failure. It shall not be sufficient in such cases to show merely that there are one, two or three zones that purport to contain provisions for multi-family dwellings: what is needed where facial invalidity is relied on by the plaintiff is a definite presentation of facts by the defendant-municipality that shows that it has satisfied its fair share obligation.

In the remainder of Section II, we will restate what “fair share” means and what municipalities and courts must do to ensure that Mount Laurel obligations are met. Section IIB, using the DCA’s SDGP as the remedial standard, sets forth which municipalities have a prospective fair share obligation. Section IIC describes various ways by which the prospective fair share of municipalities may be calculated. Section IID describes the mechanisms municipalities mus