Oakwood at Madison, Inc. v. Township of Madison

Pashman, J.,

concurring and dissenting.

OUTLINE OF CONCURRING AND DISSENTING OPINION

I Limited Agreement with Majority 555

II The Need for Affirmative Relief 556

III The Nature of Affirmative Judicial Relief 576

(A) Remedial Objectives 577

(B) Procedural Approach 582

(C) Calculation of the Municipal “Pair Share” of Regional Housing Needs 588

(D) Imposition of Remedial Devices 595

(1) Award Specific Relief to Corporate Plaintiffs 596

(2) Enjoin Interference with Construction of Low and Moderate Income Housing 601

(3) Establish “Set-Aside” or “Override” Procedures to Pacilitate Construction of Low and Moderate Income Housing 602

*555(4) Declare that Regional Housing Needs Constitute a “Special Reason” for Granting Use Variances 605

(5) Order Specific Changes in the Zoning Ordinance 609

(6) Enjoin Municipal Approval of Other Eorms of Development 610

(7) Order Municipality to Provide Density Bonuses and Other Incentives for Building Lower Income Housing 611

(8) Order Municipality to Impose Subdivision Conditions and Other Inclusionary Devices 612

(9) Order the Municipal Government to Establish a Local Housing Authority 615

IV Conclusion 616

I

LIMITED AGREEMENT WITH MAJORITY

I concur in the majority holding that the 1973 Madison Township zoning ordinance is invalid. Contrary to the constitutional precepts of Southern Burlington Cty. NAACP v. Mt. Laurel Tp., 67 N. J. 151 (1975), appeal dismissed and cert. den. 423 U. S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975) (hereinafter "Mt. Laurel”), the instant ordinance fails to “make realistically possible the opportunity for an appropriate variety and choice of housing for all categories of people who desire to live there,” particularly persons of low and moderate income. In his opinion for the Court, Judge Conford details the ways in which the Madison Township ordinance falls short of its obligation under Mt. Laurel. The township has *556failed to zone adequate amounts of vacant and developable land for multi-family housing and for homes on very small lots, and has imposed undue cost-generating features which raise the rental or purchase price of new housing units above levels affordable by lower income families. Consequently, the majority concludes that the township has failed to foster or promote the construction of new, least-cost housing. I am in substantial accord with these findings.

I also agree with the majority that “[considerations bearing upon the public interest, justice to plaintiffs and efficient judicial administration” require immediate, specific relief and judicial supervision of all remedial efforts. Unquestionably, it is time that we begin to steer our energies toward good faith implementation of established principles.

I differ with the majority, however, as to the nature and scope of judicial remedies made available for the trial court during the remedial stages of the litigation. In cases of this nature, I conceive that powerful judicial antidotes may become necessary to eradicate the evils of exclusionary zoning. For this reason, I would proceed less gingerly than the majority; I would go farther and faster in outlining for the trial judge the full arsenal of judicial weaponry available for this purpose. I will first analyze the need for stronger, more effective judicial relief in exclusionary zoning cases and then enumerate the various remedial weapons which are or should be available to the trial judge upon remand.

II

TEE NEED FOR AFFIRMATIVE RELIEF

The evils which the widespread practice of exclusionary zoning inflicts upon the State are now well-documented and need only be summarized here.

Exclusionary land use devices, such as minimum house size requirements, minimum lot size and frontage requirements, bedroom restrictions, overzoning for nonresidential or low density residential uses, and the outright prohibition of *557multifamily housing, mobile homes and other forms of lower cost housing, effectively preclude construction of low and moderate cost housing units and thereby foreclose the opportunity for low and moderate income families to reside within the community. Mt. Laurel, supra, 67 N. J. at 170-173; id. at 197-303; (Pashman, J., concurring). The nefarious effects of this pattern of land use development are obvious.

First, exclusionary zoning contributes to the current housing shortage, not only by legislatively foreclosing opportunities for construction of low and moderate cost housing, but also by preventing construction of “least cost” housing which might create vacancies in units affordable by low income families. As to exclusionary zoning and the housing shortage generally, see Mallach,, “Do Law Suits Build Housing?: The Implications of Exclusionary Zoning Litigation,” 6 Burgers-Camden L. J. 653, 659 n. 34 (1975); Sagalyn & Sternlieb, Zoning and Housing Cost: The Impact of Land-Use Controls on Housing Price (1973); Dep’t of Community Affairs, The Housing Crisis in New Jersey (1970).

Exclusionary zoning also tends to undermine rather than promote efficient land use development by sometimes sub-serving -parochial interests in derogation of more efficient regional plans for the development and utilization of land. Mt. Laurel, supra, 67 N. J. at 171. It raises the unfortunate spectre of not only excluding from the community “strangers” whom local residents consider to be “undesirable,” but also excluding (or even expelling) former or current residents who can no longer afford the high costs of housing in the community. Such persons might include elderly residents dependent upon fixed incomes, newly married sons and daughters of suburbanite parents, young families with children or persons currently residing in substandard housing. See, e. g., Pascack Ass’n Ltd. v. Mayor & Council of Washington Tp., 131 N. J. Super. 195, 301 (Law Div. 1974), certif. granted, 69 N. J. 73 (1975).

*558Another similarly “incongruous result” stems from the fact that exclusionary land use practices often malee it impossible for lower paid industrial or municipal employees to reside in the community where they work. Mt. Laurel, supra, 67 N. J. at 172. See also L. Rubinowitz, Low-Income Housing: Suburban Strategies 215, 235-236 (1974); Aloi & Goldberg, “Racial and Economic Exclusionary Zoning: The Beginning of the End?”, 1971 Urban L. Ann. 9, 12-13; Sager, “Tight Little Islands: Exclusionary Zoning, Equal Protection, and the Indigent,” 21 Stan. L. Rev. 767, 781 (1969).

Exclusionary land use practices also contribute directly to the rapid and relentless deterioration of our cities. In recent decades, industry and a large number of retail businesses have moved out of the city and relocated in suburban shopping centers and industrial parks. Meanwhile, lower income employees have been forced to remain in the cities. This phenomenon in turn causes two developments — an increase in unemployment among low income workers who cannot afford to reach the new sources of suitable employment and a critical erosion of the urban tax base, with its corresponding erosion of the city’s ability to provide essential governmental services, such as police, fire protection, education, health and welfare, Mt. Laurel, supra, 67 N. J. at 173; M. Clawson, Suburban Land Conversion in the United States: An Economic and Governmental Process (1971). Thus, in a very direct and real way, exclusionary zoning fuels the financial crisis now facing most of our major cities. It also contributes to the creation of urban slums and the social unrest which they inevitably breed. See Nat’l Advisory Comm’n on Civil Disorders, Report (1968).

Finally, exclusionary land use regulation builds a wall around the cities over which only the well-to-do can escape. Mt. Laurel, supra, 67 N. J. at 171; Mytelka & Mytelka, “Exclusionary Zoning: A Consideration of Remedies,” 7 Seton Hall L. Rev. 1, 3 (1975). Residential segregation is the inevitable result, violating the sacred ideals of our *559pluralist society expressed in our State and Eederal Constitutions. Among these are the right to travel, the right to live wherever one chooses and the basic right to equal opportunity to seek the amenities of life. Mt. Laurel, supra, 67 N. J. at 221 (Pashman, J., concurring); Kleven, supra, 21 U. C. L. A. L. Rev. at 1507—1508; Sager, supra, 21 Stan. L. Rev. at 791.

In Mt. Laurel, this Court began to deal with the sinister side of municipal land use controls. After discussing in detail the evils, pervasiveness and detrimental impact of exclusionary zoning practices, we concluded that such practices are inconsistent with the general welfare and violate both the zoning enabling act, N. J. S. A. 40 -.55-30 et seq.1 and the State constitutional requirements of substantive due process and equal protection of the laws, N. J. Const. (1947), Art. I, ¶ 1. Mt. Laurel, supra, 67 N. J. at 175, 185; id. at 195 (Pashman, J., concurring). As a result, we imposed upon each developing community an obligation “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.” Mi. Laurel, supra, 67 N. J. at 179. Having found the Mount Laurel Township zoning ordinances violative of this principle, we set aside those portions of the ordinance deemed to be exclusionary and allowed the township 90 days within which to adopt amendments to correct the deficiencies. Mt. Laurel, supra, 67 N. J. at 191. The majority *560declined, however, to directly provide judicial supervision of municipal compliance with the decision, and noted simply that:

It is not appropriate at this time, particularly in view of the advanced view of zoning law as applied to housing laid down by this opinion, to deal with the matter of the further extent of judicial power in the field or to exercise any such power. * * * The municipality should first have full opportunity to itself act without judicial supervision. We trust it will do so in the spirit we have suggested, both by appropriate zoning ordinance amendments and whatever additional action encouraging the fulfillment of its fair share of the regional need for low and moderate income housing may be indicated as necessary and advisable.

[67 N. J. at 192]

Expressing concern that reliance upon voluntary municipal action might prove to be ineffective and that the abuses condemned by the Court were already widespread and deeply ingrained in local attitudes, I urged this Court to go “farther and faster” in implementing the principles announced that day. I once again call upon this Court to increase its efforts to combat the ills of exclusionary zoning.

In Mt. Laurel, I indicated several reasons justifying direct, immediate and effective judicial involvement. These factors remain equally pertinent today. There can be no doubt that abuse of the municipal zoning power is still widespread and pervasive. Zoning devices which have an exclusionary impact govern the vast majority of suburban New Jersey’s vacant and developable land. Mt. Laurel, supra, 67 N. J. at 181-184; id. at 197-203 (Pashman, J., concurring) ; Sagalyn & Sternlieb, supra, at 193-195; Williams & Norman, “Exclusionary Land Use Controls: The Case of North-eastern New Jersey,” 22 Syracuse L. Rev. 476 (1971); N. J. Dep’t of Community Affairs, Div. of State and Regional Planning, Land Use Regulation: The Residential Land Supply (1972), Clawson, supra, at 261-280. Recent indications show that there has been no substantial change in this unlawful pattern of land use development. Mallach, *561supra, 6 Rutgers-Camden L. J. at 653.2 Mere invalidation of exclusionary ordinances and even the veiled threat of further judicial action (see Mt. Laurel, supra, 67 N. J. at 192) apparently have not succeeded in stimulating voluntary compliance with the principles of Mt. Laurel.

Eor one thing, local attitudes continue to militate against efforts to bring municipal land use regulations into conformity with the letter and spirit of Mt. Laurel. As we noted in Mt. Laurel, exclusionary zoning stems in part from the belief — partially discredited by recent studies3 — that opening the suburbs to low and moderate income families will increase demands on locally financed government services without producing a corresponding increase in local revenues. It is feared that higher property taxes will be the inevitable result. See, e. g., N. J. Cty. & Mun. Gov’t Study Comm’n, supra note 3, at xi, 83-88. This concern prompts *562local officials to strive for the benefits but avoid the costs of suburban development, by encouraging commercial and industrial uses while barring construction of housing for nonaffluent families. Ilid.

Exclusionary zoning is also motivated to a large extent by long-standing social and racial fears and prejudices.4 Suburbanites generally perceive exclusionary land use regulation as a way of preserving cherished middle class values and the amenities of their insular communities. They fear that low and moderate income people will bring to their communities a corresponding influx of urban ills and social conflict. Id. at 86. See also Eleven, “Inclusionary Ordinances — Policy and Legal Issues in Requiring Private Developers to Build Low Cost Housing,” 21 U. C. L. A. L. Rev. 1432, 1464-1465 and n. 107 (1974); Mytelka & Mytelka,, supra, 7 Seton Hall L. Rev. at 14. The public resistance to the spirit of Mt. Laurel, which derives from these attitudes, would effectively stymie any action by locally elected officials. Hence, it is parochial interests which continue to dominate land use planning, at the expense of broader statewide and regional needs.

Other factors, which have come to light since Mt. Laurel, further illustrate the urgent need both for close judicial supervision and for the formulation of guidelines to direct remedial efforts. Critics of Mt. Laurel have urged a narrow reading of its applicability to other communities and the extent and nature of the judical relief which it authorizes, thereby producing uneven and equivocal results in the lower courts. Compare, e. g., Pascack Ass’n Ltd. v. Mayor & Council of Washington Tp., supra, 131 N. J. Super. 195 and *563Urban League of Greater New Brunswick v. Mayor & Council of Carteret, 142 N. J. Super. 11 (Ch. Div. 1976) with Segal Construotion Co. v. Wenonah Zoning Bd. of Adjustment, 134 N. J. Super. 421 (App. Div. 1975), and Nigito v. Borough of Closter, 142 N. J. Super. 1 (App. Div. 1976). See also Rose, “From the Courts: The Trickle Before the Deluge from Mount Laurel,” 5 Real Estates L. J. 69 (1976); The Bergen Record, “Mt. Laurel Zoning Ruling: A Vision Ignored,” Jan. 19, 1976, at A-4, col. 5.

The failure to clarify ambiguities and to formulate guidelines for effective judicial review serves to strip the principles laid down in Mt. Laurel of all practical effect. Town officials who believe that courts will equivocate in enforcing municipal obligations to meet regional housing needs have no reason to act voluntarily in satisfying the mandate of Mt. Laurel, especially where such action faces strong local opposition. Under these circumstances, judicial timidity merely encourages municipal officials to yield to local prejudices and await the filing of law suits by low income persons and frustrated developers. In order to furnish a real incentive to good faith efforts on the part of municipal government, our legal pronouncements must guarantee prospective litigants effective relief for the vindication and enforcement of their constitutional rights.

Yet, even when law suits are filed, dilatory tactics by the municipality can still frustrate efforts to implement the principles of Mt. Laurel. For example, recalcitrant communities can delay legal proceedings by simply rezoning during litigation, or engaging in what one article calls the “zoning amendment shuffle.” Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 29-30.

The instant case provides an illustration of the problem. Plaintiffs instituted this action in November 1970. After the trial court invalidated defendant’s zoning ordinance, Oakwood at Madison, Inc. v. Madison Tp., 117 N. J. Super. 11 (Law Div. 1971), cross-appeals were taken and this Court certified the appeals pending unheard in the Appel*564late Division. 62 N. J. 185 (1972). In October 1973, while the matter was awaiting a second hearing before this Court, Madison Township adopted the revised zoning ordinance now under review. As a result, we remanded to obtain rulings on the ordinance as amended. In April 1974, the trial court again invalidated the Madison Township zoning scheme, Oakwood at Madison, Inc. v. Madison Tp., 128 N. J. Super. 438 (Law Div. 1974) and, now, more than six years after the action was initially filed, the case is again before this Court.

While I do not question the motivations or impugn the intentions of the municipality in this particular case, it demonstrates that rezoning during the course of litigation can be used as a means of forestalling compliance with judicial decrees. In fact, several jurisdictions have responded to this danger by refusing to consider amendatory afterthoughts where a litigant has received a favorable determination in a suit challenging the exclusionary nature of a zoning ordinance. First Nat’l Bank v. Village of Skokie, 35 Ill. App. 3d 545, 342 N. E. 2d 448, 451 (App. Ct. 1975); Fiore v. City of Highland Park, 93 Ill. App. 2d 24, 235 N. E. 2d 23, 26-28 (App. Ct. 1968), cert. den. 393 U. S. 1084, 89 S. Ct. 867, 21 L. Ed. 2d 776 (1969); First Nat’l Bank v. Village of Skokie, 85 Ill. App. 2d 326, 229 N. E. 2d 378, 381-384 (App. Ct. 1967); Casey v. Warwick Tp. Zoning Hearing Bd., 328 A. 2d 464, 467-468 (Pa. Sup. Ct. 1974); Bd. of Supervisors of Willistown Tp. v. Walsh, 20 Pa. Cmwlth. 275, 341 A. 2d 572 (Cmwlth. Ct. 1975); Camp Hill Dev. Co., Inc. v. Zoning Bd. of Adjustment, 13 Pa. Cmwlth. 519, 319 A. 2d 197 (Cmwlth Ct. 1974); Sauer v. Richland Tp., 8 Pa. Cmwlth. 464, 303 A. 2d 269 (Cmwlth. Ct. 1973).

The hesitancy to order direct judicial supervision and assure adequate enforcement of Mt. Laurel principles may lead to another, equally distressing result. In the absence of such supervision following a final adjudication of invalidity, imaginative draftspeople will be able to construct *565“fresh devices, imtrammeled by precedent” to circumvent the holding of the trial court and preserve the exclusionary character of the community. Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 19. Again, the instant case furnishes an illustration of the problem.

In October 1971, the trial court struck down Madison Township’s zoning ordinance as impermissibly exclusionary and violative of the general welfare. Oakwood at Madison, Inc. v. Madison Tp., supra, 117 N. J. Super. at 21. On October 1, 1973, following oral argument in this case but prior to a second hearing before this Court, Madison Township substantially amended its earlier ordinance. The ostensible purpose of this revision was to rectify some of the deficiencies in the original ordinance. Though making the new ordinance more complex and sophisticated, township draftspeople failed to alter its illegal exclusionary character. For instance, the trial judge’s first opinion criticized the township for zoning too much of its vacant and developable land for large minimum size lots and not devoting enough acreage to zones permitting construction of multifamily dwellings and lower cost houses on small lots. Id. at 19-21. As a result, the township reduced the size of its most restrictive zone, R-80, which requires a minimum lot size of two acres. But at the same time, it increased the size of the R-40 zone which requires minimum lot sizes of one acre. Additionally, it created a new zone, RP, which is developable as an R-80 zone until condemned by the township. These changes effectively offset the salutary effect of reducing the size of the R-80 zone. Furthermore, while the ordinance as amended now devotes a somewhat larger area to higher density districts and multifamily zones, these zones still cover only a small fraction of the township and, in fact, much of the land so zoned is not even vacant or developable. Thus, while the AF or multifamily apartment zone was enlarged by 150 acres and now encompasses 676 acres, at most only 193 of these acres are vacant and de*566velopable.5 See generally Judge Conforms analysis of this aspect of the revised ordinance, ante at 505-507.6

In order to offset these apparent deficiencies, Madison Township claims to have satisfied its obligation with respect to lower income housing by permitting establishment of PUDs (planned unit developments) and residential clusters pursuant to “The ‘Municipal Planned Unit Development Act’,” N. J. S. A. 40:55-54- et seq. (superseded by the “Municipal Land Use Law,” L. 1975, c. 291, §§ 28-46, effective August 1, 1976). While PUDs and residential clusters ordinarily increase the potential for low and moderate cost housing (Mt. Laurel, supra, 67 N. J. at 166; see generally Babcock & Bosselman, Exclusionary Zoning: Land Use Regulation and Housing in the 1970’s 69-76 (1973)), here the township has foreclosed this possibility bjr locating two of the three PUD sites in remote areas of the township unserviced by essential utilities. Furthermore, other restrictions on PUD and residential cluster also foreclose low and moderate income housing: (1) maximum PUD density levels are even more restrictive than those contained in the Mount Laurel Township ordinance; and (2) an additional cost-*567generating stage has been added to the approval process in addition to other cost-generating requirements, such as the mandatory construction of a school building to accommodate a specified number of students. For these reasons, I agree with the majority’s assessment that the township’s reliance upon these provisions is misplaced. Ante at 506. I also concur in the trial court’s conclusion regarding the township effort to redraft its zoning ordinance: “The advances towards moderate-income housing opportunities are token, towards low-income housing opportunities nil.” Oakwood at Madison, Inc. v. Madison Tp., supra, 128 N. J. Super. at 446.

A similar situation was presented in Pascack Ass’n Ltd. v. Mayor & Council of Washington Tp., supra, 131 N. J. Super. 195. There, the municipal zoning ordinance was struck down, partly because “it failed to make any provision for multi-family or rental-type housing.” Id. at 197. In response to this holding, the township adopted an amendment to its zoning ordinance creating a multifamily district. Id. at 198. Nonetheless, in doing so, the township fell palpably short of complying with the court’s mandate with respect to multifamily housing: first, the area actually rezoned for this use was quite limited both in size and in suitability for multifamily housing and, second, the ordinance imposed unreasonably demanding restrictions concerning lot size, unit density, minimum floor areas, and the required number of bedrooms and bathrooms, which together precluded multifamily residential use consistent with the economic needs of local residents. Id. at 199-200, 207.

Numerous other techniques and devices exist for circumventing judicial decisions which attempt to eradicate impermissible, exclusionary land use regulations. For example, in three landmark Pennsylvania cases, the plaintiff-developer was successful in having an exclusionary device invalidated but was still unable to build his proposed project. Appeal of Kit-Mar Builders, Inc., 439 Pa. 466, 268 A. 2d 765 (Sup. Ct. 1970) (two to three acre minimum lot size requirement in*568validated); Appeal of Girsh, 437 Pa. 237, 263 A. 2d 395 (Sup. Ct. 1970) (de facto ban on apartment buildings invalidated); Nat’l Land & Inv. Co. v. Easttown Tp. Bd. of Adjustment, 419 Pa. 504, 215 A. 2d 597 (Sup. Ct. 1965) (four acre minimum lot size requirement struck down). As one commentator explains:

None of the landmark decisions of the Supreme Court of Pennsylvania . . . resulted in a victory for the builder in the sense that the builder was able, as a result of litigation, to construct the development he proposed to build. Joseph Girsh never built his apartments. After the decision of the Supreme Court, In re Girsh . . . the Township classified several properties other than that owned by Girsh for apartment development. The present owners of the Girsh property are still attempting to convince the Township and the courts that apartments should be permitted on the tract involved in the Girsh case. In fact, the Girsh property, possibly as a result of the persistence demonstrated by the would-be developers, has now been condemned as a public park ....

Kit-Mar Builders . . . are still negotiating for subdivision approval [7], . . . Finally, even after the Supreme Court invalidated the four-acre zoning involved in National Land and Investment Co. v. Kasttoton Township Board of Adjustment .... Easttown Township then threatened to impose three-acre zoning. National Land finally abandoned its effort to build on one-acre lots, and the- case was settled at two-acre minimum lots.[8]

Similar tactics were employed by the municipality in Fiore v. City of Highland Park, 76 Ill. App. 2d 62, 221 N. E. 2d *569323 (App. Ct. 1966). There the plaintiff-developer sought to build apartments in a single family zone. Prior to a final judgment in the case, the city rezoned the property to office and research use. The trial court held that both this classification and the original single-family use were too restrictive and hence invalid. On appeal, the appellate court affirmed, but set aside the determination with respect to the original classification because the question was then moot. Fiore v. City of Highland Park, supra, 221 N. E. 2d at 330-331. The city then rezoned back to the single-family classification and the trial court again struck it down. Obviously irritated by the municipality’s bad faith, the appellate court affirmed, stating:

In the light of the language, intent and meaning of the opinion and mandate, and the understanding of it, as indicated in the report of the Plan Commission, the act of the City in rezoning plaintiffs’ property to the same single-family classification which it had in 1963, indicated a complete disregard for, and constituted an attempt to thwart, the opinion and mandate of this court. We have utmost respect and deep regard for the philosophy embodied in the principle of the separation of the powers of the three branches of our government. However, a City which is an appellant in zoning litigation, cannot parlay the doctrine of separation of powers into an authorization to exercise its delegated legislative powers after the case is decided adversely to it and remanded to the trial court with directions, and thereby frustrate and void the opinion and mandate of the reviewing court to which it submitted its case for decision.

[Fiore v. City of Highland Park, supra, 235 N. E. 2d at 27-28.]

For other examples of municipal delay and subterfuge, see, Gautreaux v. Chicago Housing Authority, 342 F. Supp. 827 (N. D. Ill. 1972), aff’d 480 F. 2d 210 (7 Cir. 1973), cert. den. 414 U. S. 1144, 94 S. Ct. 895, 896, 39 L. Ed. 2d 98 (1974) (inaction by city officials aimed at subverting a court order for the construction and placement of public housing); Crow v. Brown, 457 F. 2d 788 (5 Cir. 1972), aff’g 332 F. Supp. 382 (N. D. Ga. 1971) (refusal by local officials to grant developers building permits for apartments to be occupied by low income black tenants); Dailey v. City of Lawton, *570425 F. 2d 1037 (10 Cir. 1970), aff’g 296 F. Supp. 266 (W. D. Okla. 1969) (denial of building permits for construction of low-income housing); Kennedy Park Homes Ass’n v. Lackawanna, 318 F. Supp. 669 (W. D. N. Y. 1970), aff’d 436 F. 2d 108 (2 Cir. 1970), cert. den. 401 U. S. 1010, 91 S. Ct. 1256, 28 L. Ed. 2d 546 (1971) (imposition of a moratorium on new subdivisions); Casey v. Warwick Tp. Zoning Hearing Bd., supra, 328 A. 2d 467-468 (amending zoning ordinance during litigation); G & D Holland Constr. Co. v. City of Marysville, 12 Cal. App. 3d 989, 91 Cal. Rptr. 227 (Ct. App. 1970) (rezoning to frustrate construction of an apartment building for lower income families).

Thus, in the absence of effective judicial supervision, a recalcitrant community can employ a variety of techniques to forestall efforts to eliminate exclusionary zoning practices. See one court’s expressed recognition of this problem in Van Ness v. Borough of Deal, 139 N. J. Super. 83, 101 (Ch. Div. 1975). See generally Babcock & Bosselman, supra, at 14-17. Using these techniques, a “bad-faith municipality can play games until a developer gives up and goes elsewhere.” Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 24. For this reason, most commentators agree that sole reliance upon the municipality to correct the exclusionary effect of its zoning scheme is insufficient9 and that, in the words of one authority,

. . . if judicial review of local zoning action is to result in anything more than a farce, the courts must be prepared to go beyond mere invalidation and grant definite relief.

[Casey v. Warwick Tp. Zoning Hearing Bd., supra, 328 A. 2d at 469, quoting Krasnowiecki, supra note 7, 120 U. Pa. L. Rev. at 1082.]

*571Obviously, action by other branches of government designed to address the problem of exclusionary zoning is preferable to judicial intervention on a case-by-case basis.10 I strongly urge and warmly welcome such action. However, in its absence, courts must be prepared to provide effective relief in cases properly before them. Without such relief, the principles of Mt. Laurel will be shorn of all value and meaning, and the infringement of constitutional rights will remain unredressed.

In seeking to vindicate the constitutional rights of low- and moderate-income families, . . . the courts’ responsibility is to take all steps within their power to provide real remedies for those deprived of constitutional rights.

[Rubinowitz, supra, 26, 224; emphasis supplied]

*572Judicial enforcement of our decision in Mt. Laurel would be consistent with the role other courts have taken in similar situations. Recently, in a case which upheld a remedial order compelling the U. S. Department of Housing and Urban Development to implement a comprehensive plan for the construction and deeoncentration of public housing facilities in the Chicago metropolitan area, the United States Supreme Court reaffirmed the power of courts to provide such relief in housing discrimination cases:

. . . Our prior decisions counsel that in the event of a constitutional violation “all reasonable methods be available to formulate an effective remedy,” North Carolina State Board of Education v. Swann, 402 U. S. 43, 46 [91 S. Ct. 1284, 1286, 28 L. Ed. 2d 586, 589], and that every effort should be made by a federal court to employ those methods “to achieve the greatest possible degree of [relief], taking into account the practicalities of the situation.” Davis v. Board of School Comm’rs, 402 U. S. 33, 37 [91 S. Ct. 1289, 1292, 28 L. Ed. 2d 577, 581]. As the Court observed in Swann v. Charlotte-Mecklenburg Board of Education: “Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” 402 U. S. [1], at 15 [91 S. Ct. 1267 at 1276, 28 L. Ed. 2d 554, at 566].

[Hills v. Gautreaux, 425 U. S. 284, 297, 96 S. Ct. 1538, 1546, 47 L. Ed. 2d 792, 803 (1976) aff’g sub. nom. Gautreaux v. Chicago Housing Authority, 503 E. 2d 930 (7 Cir. 1974)]

See also Hawkins v. Town of Shaw, 437 F. 2d 1286 (5 Cir. 1971), aff’d en banc 461 F. 2d 1171 (5 Cir. 1972); Kennedy Park Homes Ass’n v. Lackawanna, supra, 436 F. 2d 108; Norwalk Core v. Norwalk Redevelopment Agency, 395 F. 2d 920 (2 Cir. 1968), Cf. Griffin v. School Bd. of Prince Edward Cty., 377 U. S. 218, 233-234, 84 S. Ct. 1226, 1234-1235, 12 L. Ed. 2d 256, 266-267 (1964); Newman v. Alabama, 503 F. 2d 1320, 1332-1333 (5 Cir. 1974), cert. den. 421 U. S. 948, 95 S. Ct. 1680, 44 L. Ed. 2d 102 (1975); Robinson v. Cahill, 69 N. J. 133, 152 (1975); id., 70 N. J. 155, 174 (Pashman, J., dissenting). When constitutional rights have been violated and the responsible governmental agencies *573have failed to correct the violation, courts have a duty to provide effective relief by taking whatever reasonable steps are necessary to right the wrong. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U. S. 1, 15-16, 91 S. Ct. 1267, 28 L. Ed. 2d 554, 566 (1971); Green v. Cty. School Bd., 391 U. S. 430, 437-438 & n. 4, 88 S. Ct. 1689, 1694, 20 L. Ed. 2d 716, 723 (1968); Louisiana v. United States, 380 U. S. 145, 154, 85 S. Ct. 817, 13 L. Ed. 2d 709, 715 (1965); Robinson v. Cahill, supra, 69 N. J. at 152-153; id., 69 N. J. at 156 (Pashman, J., concurring and dissenting); Jackman v. Bodine, 43 N. J. 453 (1964), supplemented 53 N. J. 585 (1969); Cooper v. Nutley Sun Publishing Co., 36 N. J. 189, 196-197 (1961); Asbury Park Press, Inc. v. Woolley, 33 N. J. 1 (1960); King v. South Jersey Nat’l Bank, 66 N. J. 161, 177 (1974) (dictum).

Yet before suggesting various techniques for providing alternative judicial relief, it is necessary to address the problems raised by Mr. Justice Mountain. I am aware of the difficult task which the Court faces in attempting to fashion adequate relief. These problems are raised in my Brother’s concurring and dissenting opinion and have properly engaged the attention of courts almost since the beginnings of our Republic. Though the difficult problems of enforcing the Ml. Laurel decision may uniquely be the province of this Court, other tribunals have also been faced with the problem of fashioning adequate relief to protect the enjoyment of various rights. Indeed, the existence of adequate relief to remedy the violation of a known right must not be considered merely ancillary to the merits of the instant case; in fact, it is a central issue in any controversy.

It is precisely because of the difficulty in enforcing our decision in Mt. Laurel that I have urged this Court and others to utilize a creative hand in shaping remedies which will adequately address the problems which have engaged our attention. This Court’s role must not be limited by the complexities of the problems which it faces; though simplicity is desirable, it must not be purchased at the cost of sacrificing *574the place which the Judiciary has attained in remedying the injustices of our society. Accordingly, I enthusiastically endorse Professor Chayes’ eloquent expression of these principles :

In my view, judicial action only achieves such legitimacy by responding to, indeed by stirring, the deep and durable demand for justice in our society. I confess some difficulty in seeing hou> this is to be accomplished by erecting the barriers of the traditional conception to turn aside, for example, attacks on exclusionary Honing and police violence, two of the ugliest remaining manifestations of official racism in American Kfe. In practice, if not in words, the American legal tradition has always acknowledged the importance of substantive results for the legitimacy and accountability of judicial action. Otherwise it could not praise Marbury v. Madison as creative judicial statesmanship while condemning Lochner v. New York as abuse of power. Perhaps the most important consequence of the inevitably exposed position of the judiciary in our contemporary regulatory state is that it ivill force us to confront more explicitly the qualities of wisdom, viability, responsiveness to human needs — the justice — of judicial decisions.

[“The Role of the Judge in Public Law Litigation,” 89 Harv. L. Rev. 1281, 1316; footnotes omitted, emphasis added.]

Any tribunal which stops short of redressing a known wrong, particularly one of constitutional dimension, has been misguided as to the value of the right which it seemingly upholds. I do not read Mr. Justice Mountain’s opinion as meaning in any way to disparage the important rights which we discussed in Mt. Laurel. On the contrary, he clearly states that the “rule of law and statement of principle” announced in Mt. Laurel are unexceptionable, yet it is in their implementation that difficulties arise, (at 624, Mountain J., concurring and dissenting). Yet to the extent that my Brother’s opinion applauds a person’s right to equal protection of the laws and due process, it is equally insensitive to those rights in its failure to provide appropriate remedies to ensure their continued enjoyment.

The problems inherent in the nature of the judicial power were realized and discussed by Chief Justice Marshall, in the landmark case of Marbury v. Madison, 1 Cranch (5 *575U. S.) 137, 2 L. Ed. 60 (1803). There the United States Supreme Court faced for the first time the difficult task of enforcing a decision to hold unconstitutional an Act of Congress, and thereby act as the final arbiter of the law. Chief Justice Marshall did not find the Court’s task insurmountable. Instead, he noted the importance of its decision to our constitutional form of government:

[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.

Id. at 163. Yet Chief Justice Marshall’s statement would have reflected a wholly inadequate view of the meaning of liberty and of our duty today if he had not added the important qualification that “[o]ne of the first duties of government is to afford that protection.” Id. To the extent that Mr. Justice Mountain is willing to leave the protection of important constitutional guarantees dependent on legislative action, he incorporates into our State Constitution an uncertainty in enforcement which renders equally uncertain the enjoyment of these rights.

Of course, to the extent that Mr. Justice Mountain urges legislative action to remedy the persistent wrongs of exclusionary zoning, I commend Ms effort and join in his opinion.11 This Court has repeatedly cited the need for *576comprehensive planning and a regional approach to zoning which the Legislature may accomplish with the power which it has within its grasp.12 Though the Judiciary acts independent of the Legislature and is, constitutionally, an independent branch of the government, I am not opposed to a legislative solution which would lessen the burden facing this Court. Nevertheless, I realize that we must not avoid our constitutional duty to remedy the violation which the Court unanimously agrees exists in this case. We cannot remain aloof when fundamental liberties are at stake. Accomplishing effective relief in this case is a job which belongs to this Court alone.

Ill

THE NATURE OF AFFIRMATIVE JUDICIAL RELIEF

In Mt. Laurel, I called for the trial court to be “flexible and imaginative” in molding remedies to fit the circumstances of each case. I now go a step further and propose guidelines which I hope will fuel the judicial imagination.

Because all communities have differing characteristics, a remedial order which is suitable for one town may be wholly *577inappropriate for another. For this reason, it would be ludicrous for this Court to define a standard remedial order applicable to all municipalities which have failed to use their land use regulations to make possible an appropriate variety and choice of housing. Nevertheless, contrary to the majority, I firmly believe that this Court can and should specify the goals which must be furthered by such judicial relief and then outline the procedures and devices which, depending on local circumstances, can be employed to attain those goals.

A. Remedial Objectives

Five basic goals or objectives are readily identifiable. Most important, the trial court must prohibit continued use of the zoning power for illegal, exclusionary purposes. Ordinarily, this may be accomplished by enjoining operation of exclusionary devices and ordering the municipality to amend its zoning ordinance to correct these deficiencies. Thus the court can alter an exclusionary scheme and foreclose prospective denial of plaintiffs’ rights. Mt. Laurel, supra, 67 N. J. at 191. Insofar as the majority opinion sets aside the unlawfully exclusionary provisions of the Madison Township zoning ordinance and orders the township to correct the deficiencies therein, I join in that opinion. Ante at 552-553.

Second: Not only must the trial court enjoin all prospective abuse of the zoning power, but through its remedial order it must provide effective relief to remedy past discrimination as well. Thus, in Mt. Laurel, we held that where a municipality chooses to exercise its power pursuant to the zoning enabling act, it automatically assumes a presumptive obligation with respect to regional housing needs:

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 *578mentioned 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 therefor.

[67 N. J. at 174; emphasis supplied.]

When a court has determined that a municipality has failed to meet this obligation, it must order that community to fulfill its duty.13 This means that the town must make housing opportunities reasonably available to persons who desire to live there, but have been precluded from doing so by the town’s land use regulations. Obviously, if the rights afforded by Mt. Laurel are to have any real meaning or value, fulfillment of the obligation must be measured in terms of actual production of sufficiently dispersed low and moderate income housing.14 Judicial relief therefore must *579be geared toward achieving that goal. One well-reasoned article states:

Where a municipality has engaged in exclusionary practices, particularly where it has done so in the face of precedents like Mount Laurel, the overriding judicial consideration should be to get housing built without delay. [15] [Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 26.]

Third: While principally designed to eliminate exclusionary zoning and encourage construction of low and moderate cost housing, remedial decrees must not be insensitive to other legitimate local concerns. Therefore, judicial decrees must also strive to preserve the amenities which have made the defendant-municipality an attractive place in which to live. This goal reflects the fact that providing an appropriate variety and choice of housing, though fundamental, is not the only objective of land use planning. Other objectives include preservation of the environment, regulation of the pace of community growth and development and protection of the public health, safety and welfare. N. J. S. A. 40:55-32, superseded by Municipal Land Use Act, L. 1975, c. 291, § 2. In Mi. Laurel, we stressed the importance of these additional functions of zoning. Mt. Laurel, supra, 67 N. J. at 190-191; id. at 212-213 (Pashman, J., concurring). Cf. Village of Belle Terre v. Boraas, 416 U. S. 1, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974); Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926). A failure to advance this third objective could invariably lead to a condition which has been described as follows:

*580Exclusionary zoning can be successfully attacked in the courts, but the excluded can win too well. If land use regulations are torn down without regard to the efficacy of substitute ordinances, the desirable residential community which originally attracted the plaintiffs can rapidly deteriorate into a place of soaring taxes, disappearing amenities, and inadequate schools, utilities, and public services — in short, a scene of chaotic, ugly growth. [Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 1-2.]

To avoid such a result the trial court must carefully balance the objective of building lower cost residences with the goal of preserving local amenities. As we noted in Mt. Laurel, both of these objectives can be achieved through careful planning and local cooperation:

There is no reason why developing municipalities like Mount Laurel, required by this opinion to afford the opportunity for all types of housing to meet the needs of various categories of people, may not become and remain attractive, viable communities providing good living and adequate services for all their residents in the kind of atmosphere which a democracy and free institutions demand. They can have industrial sections, commercial sections and sections for every kind of housing from low cost and multifamily to lots of more than an acre with very expensive homes. Proper planning and governmental cooperation can prevent over-intensive and too sudden development, insure against future suburban sprawl and slums and assure the preservation of open space and local beauty. We do not intend that developing municipalities shall be overwhelmed by voracious land speculators and developers if they use the powers which they have intelligently and in the broad public interest. Under our holdings today, they can be better communities for all than they previously have been.

[67 N. J. at 190-191]

See generally Sedler, “Conditional, Experimental and Substitutional Relief,” 16 Rutgers L. Rev. 639 (1962).

Fourth: So far as practical, the relief granted should respect the principle of local prerogative in land use planning. As was recognized in Mi. Laurel, zoning is still largely a function of local government.16 Mt. Laurel, supra, 67 *581N. J. at 189. Therefore, at least in the first instance, it is the function and responsibility of local government to revise and amend its zoning ordinance and to formulate plans to meet its affirmative obligation under Mt. Laurel. Id. at 191. For this reason courts usually require the initial stages of remedial action to be undertaken by the municipality. Of course, respect for local judgment and control of land use decisions does not justify judicial acquiescence to indifference, evasion or subterfuge on the part of the municipality. Therefore, respect for local control should never override the other objectives of remedial action. As I stated in Mt. Laurel, “[t]he mere fact that local land use control issues are involved does not preclude the court . . . from exercising full panoply of equitable powers to remedy the situation.” 67 N. J. at 215 (Pashman, J., concurring).

Fifth: The relief ordered by the trial court must be judicially manageable. This, of course, does not mean that it may not be innovative, flexible, or require long-range or novel forms of judicial involvement. In short, the appropriateness and sufficiency of each remedial device must be measured in terms of its relation to the advancement of these five goals and objectives.17

*582B. Procedural Approach

In cases challenging the validity of municipal legislation, the traditional equitable remedy has been to enjoin operation and enforcement of the offending provisions. As noted in Part II, supra, this remedy is wholly inadequate in the context of exclusionary zoning. It makes no provision for vindicating and redressing past wrongs; skillful draftspeople will be able to circumvent it by devising new exclusionary devices, requiring prolonged litigation to achieve desired results; and, finally, an unqualified injunction against operation of the ordinance may subvert the legitimate, nonexclusionary function of land use planning, to the detriment of the entire community. Therefore, I conceive that the remedial stage of most exclusionary zoning cases will require both affirmative relief and close judicial supervision, almost as a matter of course.

The need for a deliberate approach implementing this relief is apparent. As I noted in Mt. Laurel, effective relief can be achieved only if the trial court proceeds steadfastly in following these four steps:

(1) identify [ing] the relevant region;

(2) determining] the present and future housing needs of the region;

(3) allocating] these needs among the various municipalities in the region; and

(4) shaping] a suitable remedial order.

[67 N. J. at 215-216]

In order to effectuate each of these steps, the procedural guidelines which follow might be utilized by the trial court.

*583Upon entering a judgment against the municipality, the trial court should, at the earliest practical point, join all municipalities located in the region surrounding the defendant community. Mt. Laurel, 67 N. J. at 216 (Pashman, J., concurring). If necessary, this may be on the court’s own motion. R. 4:28-1, 4:30. Not only is this necessary in order to equitably allocate housing needs among municipalities in a region, but it is essential if conflicting decisions are to be avoided in cases involving communities in the same region. 67 N. J. at 216 (Pashman, J., concurring).

The trial court should then order the affected towns (if it has not already done so) to undertake a study identifying local and regional housing needs. This study would analyze, inter alia, the number of substandard and overcrowded units within the town and surrounding region, the number of people employed but unable to reside there, and the number of people likely to migrate there absent exclusionary zoning. The court would then ask the municipality to submit a recommendation as to what number of new low and moderate income residential units (over what period of time) would constitute its fair share of the regional housing need. See Part III (C) infra. Upon receipt of this recommendation, the court would fix and specify the municipality’s "fair share” of that need.

However, if prior to assessing each municipality’s "fair share” the trial court finds that statistical data or independent testimony would be of assistance, the trial court may appoint its own zoning and planning experts to aid in its judgment. See Matter of Walter Peterson, 253 U. S. 300, 312, 40 S. Ct. 543, 64 L. Ed. 919, 925 (1920) (finding that a court possesses the inherent power to appoint persons unconnected with the court to aid in the performance of specific duties arising in a case); Mt. Laurel, 67 N. J. at 216 (Pashman, J., concurring); Handleman v. Marwen Stores Corp., 53 N. J. 404 (1969); Pascack Ass’n v. Washington Tp., supra; Polulich v. J. G. Schmidt Tool Die & Stamping Co., 46 N. J. Super. 135 (Cty. Ct. 1957); Scott v. Spanjer *584Bros., Inc., 298 F. 2d 928 (2 Cir. 1962). See generally, Wigmore, Evidence § 2484 at 270 (3 ed. 1940); Botter, “The Court Appointed Impartial Expert” in M. Kraft, Using Experts in Civil Cases (PLI 1977) at 73. Or, the court might appoint an independent expert if it finds that municipal recommendations are inadequate. Such consultants are to be appointed at the expense of the defendant; they should be allowed to consult with defendant, other parties, and the trial court; and ultimately, they should file a report and testify in any proceedings. This would provide the best way of ensuring a dialogue designed to meet Mt. Laurel obligations. Additionally, discussions with all parties should have the valuable effect of making certain that the expert’s recommendations are sensitive to legitimate local concerns.

After quantifying the municipality’s “fair share” of the region’s lower income housing needs, the court would order the town to formulate and submit a remedial plan designed to enable, encourage and affirmatively attain satisfaction of its portion of the regional need. The plan should include, among other things, proposed amendments to the municipal zoning ordinance and affirmative programs deemed necessary to satisfy the municipality’s obligation under Mt. Laurel. Such additional programs might involve establishment of a local housing authority, creation of a mobile home park district, imposition of inclusionary conditions upon subdivision, PUD and cluster zone developments, or provision of density bonuses and other inclusionary devices. See Part III (D) infra. The plan would then be submitted to the trial court for approval within a specified number of days.

After a hearing at which all parties could comment upon the proposed plan, the trial court would either approve the plan and order immediate implementation or, upon finding it deficient, modify the plan or order the municipality to do so. Such revisions would be submitted to the court for approval at a subsequent hearing. After the remedial plan has been formulated, approved and incorporated by the court into a judicial decree the court would retain jurisdiction in *585order to supervise implementation of the plan. During this process, the court could require submission of progress reports from those charged with implementing the plan and could, when necessary, issue supplemental orders enforcing or modifying the remedial decree. If it has not yet done so, independent planning consultants could be appointed to assist with implementation, and additionally, suggestions and participation by all parties to the suit should be encouraged. Finally, if there is evidence of bad faith, inadvertence or neglect on the part of the municipality, the court could assume direct control over certain aspects of the plan and impose stronger remedial measures than those provided for in the initial decree. See Part III (D) infra.

Ample precedent exists for this approach. It has already been utilized by several of our trial courts in cases challenging the exclusionary character of local zoning ordinances. Mt. Laurel, supra, 119 N. J. Super. at 178-180; Pascack Ass’n Ltd. v. Mayor & Council of Washington Tp., supra. 131 N. J. Super. 195; Urban League of Greater New Brunswick v. Borough of Carteret, supra, 142 N. J. Super. at 35-39. It also mirrors the relief commonly provided by federal courts in school and housing desegregation cases. See, e. g., Swann v. Charlotte-Mecklenberg Bd. of Educ., supra, 402 U. S. 1, 91 S. Ct. 1267, 28 L. Ed. 2d 554. (Defendant’s failure to meet a school desegregation deadline fixed by the District Court, triggered the appointment of an independent consultant whose recommendations were ultimately incorporated into a desegregation plan adopted by the court); Southern Alameda Spanish Speaking Organization (SASSO) v. Union City, 424 F. 2d 291 (9 Cir. 1970), on remand, 357 F. Supp. 1188, 1199 (N. D. Cal. 1970) (District Court gave the city nine months within which to “take steps necessary and reasonably feasible under the law to accommodate . . . the [housing] needs of [its] low income residents,” and also ordered the city to submit periodic reports concerning the steps it had taken to accomplish this objective); Crow v. Brown, supra, 332 F. Supp. at 395-396 (county officials and *586a local housing authority were ordered to appoint a joint committee to prepare a county wide plan for the development and placement of low rent public housing projects and to implement the recommendations of the joint committee after first reporting to the court); Gautreaux v. Chicago Housing Authority, supra, 296 F. Supp. 907 (N. D. Ill. 1969), supplemented 304 F. Supp. 736 (N. D. Ill. 1969) (the District Court ordered the parties to submit plans designed “to prohibit the future use and to remedy the past effects of [the housing authority’s] unconstitutional site selection and tenant assignment procedures”; following review of these plans, the Court issued a detailed order providing for the immediate deconcentration of public housing facilities in the Chicago Metropolitan area and further compelling the housing authority to revise its tenant assignment policy, submit such revisions to the Court for approval and undertake certain studies); Hawkins v. Town of Shaw, supra, 437 F. 2d at 1286. (5 Cir.), aff’d en banc 461 F. 2d 1171 at 1174 (5 Cir. 1972) (town required to submit a plan for the court’s approval detailing proposed cures for the “long history of discrimination which the record reveals.”). Cf. Brown v. Bd. of Educ., 349 U. S. 294, 299-300, 75 S. Ct. 753, 99 L. Ed. 1083, 1105-1106 (1955); Wright v. City of Emporia, 407 U. S. 451, 454-458, 92 S. Ct. 2196, 33 L. Ed. 2d 51, 57-59 (1972); Mahaley v. Cuyahago Metropolitan Housing Authority, 355 F. Supp. 1257, 1269 (N. D. Ohio 1973), rev’d on other grounds, 500 F. 2d 1087 (6 Cir. 1974), cert. den. 419 U. S. 1108, 95 S. Ct. 781, 42 L. Ed. 2d 805 (1975).18

*587This approach is attractive in several respects. First, placing the initial responsibility for formulating a remedial plan into the hands of municipal officials furthers the objective of assuring maximum respect for local prerogatives. Cf. Reynolds v. Sims, 377 U. S. 533, 586, 84 S. Ct. 1362, 1394, 12 L. Ed. 2d 506, 541 (1964); Jackman v. Bodine, supra, 43 N. J. at 473-474. Good faith compliance with the letter and spirit of the initial court decree will obviate the need for additional judicial interference and thus guarantee the retention of municipal control and responsibility over zoning matters.

Second, this approach recognizes the need to preserve local amenities. As noted above, if the municipality must accommodate low and moderate income families, it is best that this be done in a planned and orderly fashion. Intelligent use of PUD restrictions, density bonuses, landscape requirements and dispersal of different types of housing throughout the community can achieve compliance with the municipality’s obligation under Mt. Laurel and still adequately protect the amenities which make the town an attractive place to live. Phased zoning, a technique which permits control over the pace and location of new development affords another means of achieving these ends.19 Nevertheless, this technique must be used with caution. See Golden v. Ramapo Planning Bd., 30 N. Y. 2d 359, 334 N. Y. S. 2d 138, 285 N. E. 2d 291 (Ct. App. 1972), appeal dismissed 409 U. S. 1003, 93 S. Ct. 436, 34 L. Ed. 2d 294 (1972); Constr. Industry Ass’n of Sonoma Cty. v. Petaluma, 375 F. Supp. 574 (N. D. Cal. 1974), rev’d 522 F. 2d 897 (9 Cir. 1975), cert. den. 424 U. S. 934, 96 S. Ct. 1148, 47 L. Ed. 2d 342 (1976); *588Kleven, supra, 21 U. C. L. A. L. Rev. at 1453 n. 66. All such efforts, if otherwise proper and valid, should be encouraged by the court.

Third and most important, by requiring judicial review and approval of all remedial programs, this approach assures that plaintiffs’ rights will be adequately protected and that the municipality’s proposed plans will comply with both the trial court order and the dictates of Mt. Laurel. Moreover, by retaining jurisdiction to supervise implementation of the remedial order, the trial court will forestall the possibility of dilatory tactics or bad faith compliance on the part of the municipality. See Part II supra. As one commentator correctly notes:

The mere adoption of [a remedial] plan is not sufficient to satisfy the court’s duty. It must take the necessary steps to see to it that the plan becomes a reality.

[Rubinowitz, supra note 8, 6 Mich. J. L. Reform, at 669.]

The remedial approach which I have suggested, seeks to do this by permitting courts to retain jurisdiction, require periodic reports, set time limits and, if necessary, issue supplemental orders to address problems which arise during implementation of the order. “In this area, more than in most, continual supervision can be crucial.” Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 32. Cf. Green v. Cty. School Bd., supra, 391 U. S. at 439, 88 S. Ct. at 1694, 20 L. Ed. 2d at 724; Louisiana v. United States, supra, 380 U. S. at 156, 85 S. Ct. at 823, 13 L. Ed. 2d at 716; Kelley v. Altheimer, 378 F. 2d 483, 489 (8 Cir. 1967); Kennedy Park Homes Ass’n v. Lackawanna, supra, 318 F. Supp. at 698; City of Miami Bench v. Weiss, 217 So. 2d 836, 838 (Fla. Sup. Ct. 1969); Casey v. Warwick Tp. Zoning Hearing Bd., supra, 328 A. 2d at 470.

C. Calculation of the Municipal “Fair Share” of Regional Housing Needs.

As noted, the task of formulating a remedial order ordinarily begins with a quantification of the municipality’s *589“fair share” of regional housing needs. In Mt. Laurel, we observed that the recent proliferation and widespread acceptance of fair share allocation plans has engendered numerous formulae and techniques for making this determination. Mt. Laurel, supra, 67 N. J. at 189-190; id. at 215-216 (Pashman, J., concurring). Obviously, no one approach or formulaic device is judicially mandated and courts should carefully weigh all reasonable proposals submitted to them by expert witnesses and local planning authorities. However, some quantifiable approximation of the municipality’s “fair share” is necessary as an aid in formulating remedial plans or evaluating their adequacy. See id. at 190. Eor this reason, I am baffled by the majority’s pronouncement that, while Madison Township is obligated to create the opportunity for a fair and reasonable share of the housing needs of its region, “no formulaic determination or numerical specification of such a fair and reasonable share is required.” Ante at 553. Because this approach gives the trial court no reliable way of measuring local compliance with the Court’s remedial order, I fail to see how it will encourage implementation of an effective remedial plan. The need for at least some degree of specificity in this regard was aptly stated in a recent article on the subject of exclusionary zoning:

. . . The absence of explicit tests for determining whether an ordinance is unlawfully exclusionary exacerbates the problem. On remand, the Madison court discussed the concept of “fair share” allocation of low and moderate income housing within a given region. This concept requires an evaluation of both the income distribution of the municipality’s population and that of the larger metropolitan area of which the township is a part. The precise manipulation of the statistics to be gathered and the formulation of land use provisions, however, was not addressed by the court and thus the township was left with no clear idea of how best to implement the “fair share” concept. To require a township to revise its ordinance to meet reasonable yet imprecise standards imputes a measure of good faith that may not exist. It is difficult to believe that a township that systematically has excluded all but the affluent would frame, *590much less administer, an ordinance that actively will encourage the entry of others.

[Mallach, supra, 6 Rutgers-Camden L. J. at 664; footnotes omitted, emphasis supplied]

While absolute .precision, or adoption of a foolproof formula is neither necessary nor possible, some reasonable approximation of the municipality’s fair share obligation is essential for a proper evaluation of remedial efforts.

Ordinarily a challenge that a local zoning ordinance is exclusionary requires an initial determination of the municipality’s “fair share” of regional housing needs during the course of the trial. However, in some cases, such as in the instant case, the exclusionary impact of the challenged ordinance is so patent that there is no need to quantify the municipal obligation under Mt. Laurel prior to entering judgment in the case. Oakwood at Madison v. Madison Tp., supra, 128 N. J. Super. at 447. Thus, where no such determination has been made, the trial court will have to fix and specify the municipal obligation during the remedial stage of the case.

As noted in Mt. Laurel, proximate quantification of the municipal obligation generally requires (1) identification of the relevant region; (2) a determination of the present and prospective housing needs of the region and (3) allocation of these needs among the various municipalities in the region. Mt. Laurel, supra, 67 N. J. at 215 (Pashman, J., concurring).

While the trial court should solicit recommendations from the parties and particularly from the municipality’s planning authority, delineation of the appropriate region is ultimately a question for the court. As we recognized in Mt. Laurel, the composition of the relevant “region” will necessarily vary from case to case and no “hard and fast rule” can provide the appropriate answer in every instance.20 *591Mt. Laurel, supra, 67 N. J. at 189. Among the geographic units which experts have suggested are: the county, a multicounty unit, the Standard Metropolitan Statistical Area utilized by the Federal Office of Management and Budget in calculating the United States Census, an “urbanized” or nonrural subregion of the relevant Standard Metropolitan Statistical Area (such as that utilized in Gautreaux v. Chicago Housing Authority, supra, 304 F. Supp. at 737-738); an area coextensive with the jurisdiction of a regional planning authority, if one exists; the area within which most residents of the community journey to work; and the “housing market” area employed by the U. S. Department of Housing and Urban Development and discussed by the U. S. Supreme Court in Hills v. Gautreaux, supra, 425 U. S. at 298-301, 96 S. Ct. at 1546-47, 47 L. Ed. 2d at 804-05.

In determining which of these alternate definitions of a region is appropriate in a particular case, the court should consider and weigh the following factors: (1) where low and moderate cost housing is currently being sought, (2) where development is likely to take place in the foreseeable future, (3) where the municipality’s current and prospective residents work or are likely to work, (4) whether there exists a regional planning agency, (5) whether the location *592of transportation facilities and prospective employment makes commutation likely, and (6) whether the suggested “region” is sufficiently large and diverse to permit a feasible solution to the housing problem. See generally ante at 540; Mt. Laurel, supra, 67 N. J. at 215 n. 16 (Pashman, J., concurring); Rubinowitz, supra note 8, 6 Mich. L. J. Reform at 652-655; Rubinowitz, supra at 219-220; Rose, supra note 17, 6 Rutgers-Camden L. J. at 717-720; Davidoff & Davidoff, “Opening the Suburbs: Toward Inclusionary Land Use Controls,” 22 Syracuse L. Rev. 509 (1971); Bisgaier, supra note 2, 99 N. J. L. J. at 738, Cols. 2-3; Lindbloom, “Defining ‘Pair Share’ of ‘Regional Need’: A Planner’s Application of Mount Laurel,” 98 N. J. L. J. 633 (1975).

I would order the trial court to actually identify the region which includes the defendant municipality. The majority, on the other hand, concludes that, generally, no specific geographical area will be necessarily the authoritative region, and that in this case the trial court should look to the housing market area of which Madison Township is a part and from which the future population of the township would be drawn in the absence of exclusionary zoning. See ante at 537, 538, 543-544. Unless the trial court determines the appropriate region with some degree of specificity, it will be unable to arrive at any meaningful estimate of the region’s housing needs or the defendant’s “fair share.” Although the majority’s formulation of the approximate region in this case is relevant to the factors which I have listed, it fails to provide a definitive standard necessary to identify the appropriate region.

Once the relevant region has been identified, the court must then determine the housing need for that region. Again, this information should be solicited from the local planning board, its consultants, the other parties in the case and, if necessary, impartial experts appointed by the court. In the present context, the regional housing need may be defined as “the number of new housing units that would be necessary to provide each low and moderate income *593family in the region with' a decent, standard housing unit within the financial means of the family.” Rubinowitz, supra note 8, 6 Mich. J. L. Reform at 656. See also M. Brooks, Lower Income Housing; The Planner’s Response 14 (Am. Soc’y of Planning Officials 1972); Bisgaier, supra note 2, 99 N. J. L. J. at 738.

Finally, the trial court must fix and specify the number of low and moderate cost dwelling units which shall constitute the municipality’s fair share of the regional housing need. As noted above, this approximation need not be mathematically precise nor rely exclusively upon any one particular formula or technique. However, it must be specific enough to provide a workable benchmark to guide the formulation and measurement of remedial efforts.

Ample discussion of the pertinent factors exists both in the literature21 and in currently operative fair share al*594location programs.22 These factors include, but are not necessarily limited to: the percentage of the region’s vacant, developable land lying within the municipality; whether this land is suitable for low cost housing in terms of its proximity to utilities, transportation facilities and other services; whether it is accessible to available or prospective *595employment opportunities; the town’s population density relative to that in the region at large; whether or not the town’s proportion of lower income families exceeds that in the region as a whole and the extent to which the municipality has heretofore violated the precepts of Mt. Laurel by excluding low and moderate income persons. Naturally, the relevance and weight accorded each of these factors will vary from case to case. For example, in a small region where jobs are still relatively concentrated, location of employment opportunities may not be as critical as in a large region with substantial suburbanization of employment. See Rubinowitz, supra note 8, 6 Mich. J. L. Reform at 666 n. 133. Similarly, in cases where exclusionary zoning has already become well entrenched, an allocation plan which overemphasizes satisfaction of local housing needs or immediate availability of job opportunities will reward those towns which have been most exclusionary and hence would subvert the fundamental objective of redressing past indiscretions. See note 21 supra. In the final analysis, it will be the task of the trial court to decide which of the above factors should be weighed most heavily in evaluating the figures submitted by the municipality and the other parties in the case, and in finally fixing a “fair share” figure.

D. Imposition of Remedial Devices

Obviously, if the municipality fails to submit an adequate remedial plan in a timely manner, or if having done so it fails to faithfully execute that plan, a court will be required to issue stronger remedial measures, either upon application by one of the parties or upon its own motion. In addressing the problem of municipal neglect or recalcitrance, a court may utilize the services and assistance- of an independent planning consultant. See Mt. Laurel, supra, 67 N. J. at 217 (Pashman, J., concurring); Pascack Ass’n Ltd. v. Mayor & Council of Washington Tp., supra, 131 N. J. Super. at 201. Cf. Swann v. Charlotte-Mecklenburg *596Bd. of Educ., supra, 402 U. S. at 8, 91 S. Ct. at 1272, 28 L. Ed. 2d at 562; Hartman, supra note 8, 9 Urban L. Ann. at 173; Moskowitz, “How to Use Experts Effectively in Land Regulation Proceedings,” 3 Real Estate L. J. 359 (1975). In addition, a court should continue to solicit suggestions and comments from the parties in the case.- Ultimately, though, it is the responsibility of the court to adopt measures which (so far as reasonably practical) will provide effective relief for plaintiffs and satisfy the objectives listed in. Part III (A) supra. Following is a list of affirmative remedies which can be imposed, either by the defendant voluntarily or, if the town defaults in its responsibility, by the court. The list is not intended to be exhaustive. Nor should every measure be adopted in every case. Rather, the list is simply suggestive of what devices might be available to the municipality and to the court in framing a remedial order.

(1) Award Specific Relief to Corporate Plaintiffs

Frequently, challenges to a municipal zoning ordinance, such as in the instant ease, are initiated (either singly or in cooperation with low and moderate income plaintiffs) by a corporate land developer which seeks to build a residential development contrary to the local ordinance. Often, as here, the corporate plaintiff will contend that the municipal zoning scheme is unreasonable, arbitrary and confiscatory with respect to its property.23 I agree with the *597majority that in the instant ease Oakwood at Madison, Inc. and Beren Corporation have not sustained this contention, and relief should not he granted on that basis. In particular, these plaintiffs have failed to demonstrate that they will be denied a reasonable return on thfeir property if it is put to its assigned use. It is well established that landowners are not entitled to the most profitable utilization of their land. Bow & Arrow Manor v. West Orange, 63 N. J. 335, 350 (1973); Cobble Close Farm v. Middletown Tp. Bd. of Adjustment, 10 N. J. 442, 452 (1952).

Nevertheless, specific relief may he available to corporate litigants on another ground. While it is not the function of courts to rewrite zoning ordinances, issue building permits or otherwise interfere with municipal control over zoning matters (Bow & Arrow Manor v. West Orange, supra, 63 N. J. at 343), where there has been an adjudication of municipal abuse of the zoning power, the court may (and, in some cases, must) intervene to the extent necessary to provide effective relief. In the present context, granting the specific relief sought by the corporate plaintiff (see note 23 supra) will serve several important functions.

First, as previously noted, even after an exclusionary zoning provision has been invalidated, a shrewd, intransigent community may rezone plaintiff’s property in such a manner as to frustrate the proposed use. Towns may also require lengthy approval procedures or withhold from the corporate plaintiff permits necessary to proceed with a project. As one court has noted, such actions “effectively grant the municipality a power to prevent any challenger from obtaining meaningful relief after a successful attack on a zoning ordinance.” Casey v. Warwick Tp. Zoning Hearing Bd., supra, 328 A. 2d at 468. By affording the corporate plaintiff specific relief, a remedial order will effectively prevent this form of harassment and will obviate the need for further, litigation with respect to the property involved. See Sinclair Pipe Line Co. v. Village of Richton Park, infra, 19 Ill. 2d 370, 167 N. E. 2d 406 at 411. Moreover, it will furnish an important in*598centive for developers to bring suits in the public interest. As our own Court has recognized, “unless the immediate litigant can hope to gain, there [will] be no incentive to challenge existing practices or prior holdings which, in the public interest, ought to be reviewed." Goldberg v. Traver, 52 N. J. 344, 347 (1968).

Second, this remedial device directly advances the fundamental objective of promoting actual construction of low and moderate income housing. By allowing the corporate landowner to proceed with his project without further delay it offers one of the fastest and surest ways of accomplishing this objective. Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 26.

Finally, issuance of a variance or building permit under these circumstances also serves to protect the interests of the municipality because it assures that the corporate plaintiff will undertake the proposed use and no other. As one court notos:

. . . [A] decree [invalidating a zoning provision] which was induced by evidence which depicted a proposed use in a highly favorable light would not restrict the property owner to that use, and he might thereafter use the property for an entirely different purpose.

In our opinion, it is appropriate for the court to avoid these difficulties by framing its decree with reference to the record before it . . . [T]he relief awarded may guarantee that the owner will be allowed to proceed with that use without further litigation and that he will not proceed with a different use.

[Sinclair Pipe Line Co. v. Village of Richton Park, infra, 167 N. E. 2d at 411.]

In light of these considerations, numerous courts have awarded specific relief to successful corporate litigants in cases of this nature. Crow v. Brown, supra, 332 F. Supp. at 395; Dailey v. City of Lawton, supra, 296 F. Supp. at 269; Casey v. Warwick Tp. Zoning Hearing Bd., supra, 328 A. 2d at 469; Appeal of Girsh, supra, 263 A. 2d 395; Tp. of Williston v. Chesterdale Farms, Inc., 7 Pa. Cmwlth. 453, 300 A. 2d 107, 121-122 (Comwlth. Ct. 1973); Camp Hill Dev. Co., Inc. v. Zoning Bd. of Adjustment, supra, 319 A. 2d at *599201; Fiore v. City of Highland Park, supra, 221 N. E. 2d at 330: Franklin v. Village of Franklin Park, 19 Ill. 2d 381, 167 N. E. 2d 195 (Sup. Ct. 1960); Kavanewsky v. Zoning Bd. of Appeals, 160 Conn. 397, 279 A. 2d 567, 571 (Sup. Ct. 1971); Pascack Ass’n, Ltd. v. Mayor & Council of Washington Tp., supra, 131 N. J. Super. at 207-208; Brunetti v. Mayor & Council of Madison Tp., 130 N. J. Super. 164, 169 (Law Div. 1974). Cf. Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill. 2d 370, 167 N. E. 2d 406, 411 (Sup. Ct. 1960); First Nat’l Bank v. Village of Skokie, supra, 342 N. E. 2d at 451; Duggan v. County of Cook, 17 Ill. App. 3d 253, 307 N. E. 2d 782 (App. Ct. 1974), modified on other grounds, 60 Ill. 2d 107, 324 N. E. 2d 406 (Sup. Ct. 1975).24

Naturally, if successful corporate litigants were to receive a building permit or other specific judicial relief as a matter *600of right, the community would be wholly unprotected against “what in essence would be the unregulated development by the plaintiffs of their property.” Pascack Ass’n, Ltd. v. Mayor & Council of Washington Tp., supra, 131 N. J. Super. at 207. Therefore, most courts have required that the corporate plaintiff satisfy all other municipal requirements and regulations (such as utility, building and health codes, environmental reviews and subdivision controls) before a building permit will issue.25 See, e. g., Casey v. Warwick Tp. Zoning Hearing Bd., supra, 328 A. 2d 469; Dailey v. City of Lawton, supra, 296 F. Supp. at 269; Camp Hill Dev. Co., Inc. v. Zoning Bd. of Adjustment, supra, 319 A. 2d at 201; Schere v. Freehold Tp., 119 N. J. Super. 433, 437 (App. Div. 1972), certif. den. 62 N. J. 69 (1972), cert. den. 410 U. S. 931, 93 S. Ct. 1374, 35 L. Ed. 2d 593 (1973). However, it should be emphasized that municipalities may not use these additional requirements and procedures to frustrate development or impede remedial efforts. Where this occurs, the tri'al court should intervene and either appoint an independent planning expert to review the developer’s plans or issue an order requiring the municipality to show why the plan should not be approved. In the event of clearly arbitrary and bad faith tactics on the part of the town, the court could simply order the municipality to issue the necessary permits. See, e. g., Crow v. Brown, supra, 332 F. Supp. at 395; Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 31; Rubinowitz, supra note 8, 6 Mich. J. L. Reform at 643-647. Under these *601circumstances, requiring the developer to comply with State building and safety standards (see, e. g., State Uniform Construction Code Act, L. 1975, c. 217, N. J. S. A. 52:27D-119 et seq.) might be sufficient to protect valid local interests'.

(2) Enjoin Interference with Construction of Low and Moderate Income Housing

Frequently, a corporate litigant which wishes to construct a residential development will initiate a suit challenging a municipal zoning ordinance even before it has designed the project or acquired the land. Under such a case, a trial court would be unable to grant a successful .litigant the type of specific relief which I have described.

Therefore, even after an exclusionary ordinance has been set aside, an unyielding municipality may be able to frustrate the developer’s plans and impede construction of housing for low and moderate income people. The multiplicity of local controls (e..g., subdivision, building and health codes) and the presence of numerous reviewing agencies (e. g., planning and zoning boards, site plan and environmental review commissions and building, health, water and sewer authorities) increase the potential for administrative delay. Unwarranted delays, in turn, can cause problems for the developers by increasing their costs to the point that their projects become financially unfeasible.

To avoid these problems in cases where specific relief is not yet' practical, courts could enjoin unwarranted municipal interference with efforts by the corporate plaintiff to construct needed housing. For instance, in Crow v. Brown, supra, a federal housing discrimination ease, the U. S. District Court included in its remedial decree an order enjoining all county officials “from interfering in any way with the construction and completion” of several apartment buildings earmarked for low and moderate income residents. Id. 332 F. Supp. at 395. Where necessary or appropriate, a court *602may go further and issue an order enjoining government officials from failing to take certain affirmative actions. An excellent example of this remedial device appears in Kennedy Park Homes Ass’n v. Lackawanna, supra, another housing discrimination case. There, the court ordered, inter alia:

2. That . . . defendants shall immediate^ take whatever action is necessary to provide adequate sewage service to the K.P.H.A. [the corporate litigant] subdivision.

4. That defendants be enjoined from using any of the City’s municipal powers regarding land use to prevent or interfere with the construction of Kennedy Park Subdivision.

5. That defendants affirmatively take whatever steps are necessary to allow the Kennedy Park Subdivision to begin construction.

[318 F. Supp. at 697.]

(3) Establish “Set-Aside” or “Override” Procedures to Facilitate Construction of Low and Moderate Income Housing

Establishment of a so-called “set-aside” or “override” procedure provides another means of preventing unnecessary administrative delays and stimulating construction of low and moderately priced housing. This technique may be utilized whether or not developers of low and moderate cost housing are actually involved as litigants in the suit.

This procedure is embodied in the Massachusetts Zoning Appeal Law, L. 1969, c. 774, Mass. Gen. Laws, ch. 40B §§ 20-23.26 This act allows certain developers of low and moderate income housing to bypass local land use regulations which prohibit such housing or make it economically in*603feasible. Under the law, any public agency, nonprofit corporation or limited dividend organization27 that proposes to build low or moderate income subsidized bousing may submit to the local zoning board of appeals “a single application to build such housing in lieu of separate applications as to the [other] applicable local boards.” Mass. Gen. Laws, eh. 4-0B, § 21. The board of appeals then notifies all other local boards and agencies and schedules a hearing on the application. If the application is approved, the developer receives a comprehensive permit in lieu of all other required permits or approvals. Ibid. This procedure prevents unnecessary delays and bad faith, dilatory tactics.

If, however, the local board of appeals denies an application for a comprehensive permit, the developer may appeal to the state Housing Appeals Committee, a division of the Massachusetts Department of Community Affairs. Id. at § 22. For purposes of such appeals, the statute establishes a quota of low and moderate income housing as the legislative determination of what is “consistent with local needs.” Id. at § 20. Where the Housing Appeals Committee concludes that a local decision denying a developer’s application is unreasonable or is inconsistent with “local needs” (as defined by the act), the state agency is empowered to vacate the decision of the local board and direct the board to issue a comprehensive permit to the applicant. Id. at § 23. In this way, the statute provides for state review of local zoning decisions and permits the state to override decisions which are myopic, unreasonable or in conflict with broader state and regional goals. For an analogous statutory procedure, see ALI Model Land Dev. Code §§ 7 — 501 to 7 — 503 (Proposed Official Draft, 1975).

*604While the Massachusetts law is a product of legislative initiative, its principles are equally available to trial courts for the framing of judicial relief. As noted above, remedial decrees ordinarily fix and specify the defendant-municipality’s “fair share” of the regional housing need. This designation is, in many respects, comparable to the “quotas” established by the Massachusetts legislation. Mass. Gen. Laws, Ch. 40B, § 20. Under this approach, the trial court could provide that, until such time as the required number of low and moderate income housing units have been constructed, a developer whose proposed project is consistent with the court-ordered allocation plan could apply to the court, or its designee, for an order setting aside all local regulations which unreasonably interfere with its project. This procedure would be available to all' developers of low and moderately priced, housing regardless whether they were litigants in the law suit which produced the remedial plan. •

One variation of this approach would allow the developer to apply to the trial court for a “set-aside” or “override” order only after it had made a good faith effort to comply with local regulations and obtain all necessary approvals. Thus, before granting this relief, the trial court would have to determine -whether the applicant had made the necessary “good' faith effort,” whether the developer’s project would in.fact have-furthered the objectives of the remedial plan and whether the municipality had unreasonably withheld approval of the project. • •

A second, more pptent variation of this' approach would permit the developer to apply directly to a-single, designated municipal board or, if the board proved to be uncooperative, to a court appointed panel of planning experts for a “comprehensive permit” similar to the one available under the Massachusetts law. A denied application could he reviewed by the trial court which originally imposed the procedural remedy. See generally Rubinowitz, supra, at 221-222; Rubinowitz, supra note 8, 6 Mich. J. L. Reform at 662-665; Rote, supra note 4, 6 Rutgers-Camden L. J. at 741-744; *605Mallach, supra, 6 Rutgers-Camden L. J. at 670; Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 7-12.

Imposition of either of these devices as part of a remedial order will facilitate construction of low and moderate cost housing. Moreover, through its abbreviation of the approval process, this approach will provide an incentive to developers to undertake projects geared toward meeting the housing needs of lower ineome families.

(4) Declare that Regional Housing Heeds Constitute a “Special Reason” for Granting Use Variances

A related, but procedurally different technique for fostering development of low and moderately priced housing would be to have the trial court utilize a developer’s application for a use variance as part of its remedial plan.

N. J. S. A. 40:55-39(d), superseded by the Municipal Land Use Law, L. 1975, c. 291, § 5728 requires the issuance of a use variance where the applicant can show that “special reasons” exist for granting the variance, and that it “can be granted without substantial detriment to public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.” Kohl v. Mayor and Council of Fair Lawn, 50 N. J. 268, 276 (1967); Kunzler v. Hoffman, 48 N. J. 277, 284 (1966); Wickatunk Village, Inc. v. Tp. of Marlboro, 118 N. J. Super. 445 (Ch. Div. 1972). See generally 2 Anderson, American Law of Zoning ch. 14 (1968); Although it is not clear whether regional housing needs of lower income people currently are regarded as a “special reason” for granting a use variance, compare, e. g., Brunetti v. Mayor & Council of Madison Tp., supra, 130 N. J. Super. 164 with Nigito v. Borough of Closter, *606supra, 142 N. J. Super. 1, this issue is currently pending before this Court.

However, even if this Court should find that filling regional housing needs is not a “special reason” within the meaning of the statute generally, such a holding would not prevent a trial court from utilizing this procedure as part of its remedial order in a given case by finding that regional housing needs constitute a “special reason” for granting a developer’s application for a use variance. Such an order could be vacated as soon as the critical need for such housing subsides and the town shows that it has satisfied its obligation under Mt. Laurel. Essentially, this approach identifies low and moderate income . housing as a “preferred” or “favored” use within the region in which the defendant-municipality lies.

Substantial precedent exists for this approach. In DeSimone v. Greater Englewood Housing Corp. No. 1, 56 N. J. 428 (1970), taxpayer-residents of the City of Englewood challenged the validity of a special use variance which allowed a nonprofit housing agency to construct a semipublie multifamily residential project. In particular, plaintiffs argued that the grounds offered to justify the variance did not qualify as “special reasons” under existing legislation. Justice Hall, speaking for the Court, unequivocally upheld the variance in languáge which is appropriate in the present context:

We specifically hold, as a matter of law in the light of public policy and the law of the land, that public or, as here, semi-public housing accommodations to provide safe, sanitary and decent housing, to relieve and replace substandard living conditions or to furnish housing for minority or underprivileged segments of the population outside of ghetto areas is a special reason adequate to meet that requirement of N. J. S. A. 40:55-39(4) and to ground a use variance.

[56 N. J. at 442.]

Accord, Brunetti v. Mayor & Council of Madison Tp., supra, 130 N. J. Super. at 167-168 (need for moderate-income, multifamily housing held to be a “special reason” in sup*607port of a variance); Pascack Ass’n v. Mayor & Council of Washington Tp., supra, 131 N. J. Super. at 197 (same). Cf. Kunzler v. Hoffman, 48 N. J. 277 (1966) (private hospital for the emotionally disturbed); Wickatunk Village, Inc. v. Marlboro Tp., 118 N. J. Super. 445 (Ch. Div. 1972) (sewage treatment plant for mobile home park). Contra Nigito v. Borough of Closter, supra, 142 N. J. Super. 1 (moderate income garden apartments); Jenpet Realty Co., Inc. v. Ardlin, Inc., 112 N. J. Super. 79, 84-85 (App. Div. 1970) (small-garden type apartment complex).29 See also the unreported cases reviewed by Professor Rose in his article, “The Trickle Before the Deluge from Mount Laurel,” supra, 5 Real Estate L. J. 69, and the Newark Star-Ledger, July 14, 1976, at 36, cols. 1-3, which notes that developers are increasingly relying on the use variance “in their long-running battles to build low and moderate-income housing in the State’s suburban communities.”

A similar approach was employed in Bristow v. Woodhaven, 35 Mich. App. 205, 192 N. W. 2d 322 (Ct. App. 1971) . There the court held that the municipality’s total ban on trailer parks was invalid with respect to plaintiff’s property. Affirming the trial court, it held

Certain uses of land have come to be recognized as bearing a real, substantial, and beneficial relationship to the public health, safety, and welfare so as to be afforded a preferred or favored status. To restrict such uses appears to conflict with the concept of presumed validity of an ordinance prohibiting such an otherwise legitimate use . . . Therefore, in such limited situations, the proponent of a *608preferred or protected but prohibited use may establish a prima facie case thereby casting upon the municipality the burden of going forward to justify its prohibition of a use heretofore recognized as beneficial to the public welfare.

[192 N. W. 2d at 324, 325; emphasis supplied.]

While in Kropf v. Sterling Heights, 391 Mich. 139, 215 N. W. 2d 179 (1974), the Michigan Supreme Court rejected the statement in Bristow that certain uses should be preferred or favored, it stated:

On its face, an ordinance which totally excludes from a municipality a use recognized by the Constitution or other laws of this State as legitimate also carries with it a strong taint of unlawful discrimination and a denial of equal protection of the law as to the excluded use.

[215 N. W. 2d at 185]

Accordingly, it accepted a lower court’s statement that a "total- prohibition by a local zoning ordinance of a 'constitutionally’ — recognized use will amount to establishment of a prima fade case placing a heavy burden on the municipality to justify the local legislation.” [215 N. W. 2d at 185].

Another analogy for this remedy may be drawn from the American Law Institute’s proposed Model Land Development Code. While the Model Code continues to respect local prerogatives in most land use matters, it does provide for state supervision in certain areas substantially implicating the state or regional welfare. One such area concerns land use developments which are likely ''to present issues of state or regional significance” and so-called “developments of regional benefit” which include, inter alia> uses sponsored by governmental agencies and “housing for persons of low and moderate income.” ALI Model Land Dev. Code § 7-301 (Proposed Official Draft, 1975). Where applications for such developments are filed with a local land development agency, the Model Code states that the local agency “shall not restrict its consideration to benefit and *609detriment within the jurisdiction, but shall consider all relevant and material evidence offered to show the impact of the development on surrounding areas.” Id. at § 7-402. It also allows an unsuccessful applicant to appeal to the State Land Adjudicatory Board which is empowered to override local decisions in appropriate cases. Id. at §§ 7-501 to 7-504. Mirroring the concepts of “speciál reason” and “preferred use” discussed above, the drafters of the Model Code justify the special treatment afforded these uses by noting that they “typically provide benefits to an area beyond the boundaries of a single local government.” Id. at § 7-301, Comment. See generally Note, supra note 4, 6 Rutgers-Camden L. J. at 746-754.

(5) Order Specific Changes in the Zoning Ordinance

Pollowing the invalidation of a zoning regulation, a trial court ordinarily allows a municipality to correct deficiencies by amending its zoning ordinance within a specified period of time. In this way, the court permits the town to retain control over this stage of the rezoning process. However, where the revised ordinance continues an exclusionary character or otherwise fails to comport with the principles of Mt. Laurel, the trial court should begin to specify ways in which the ordinance must be modified.

In the instant case, the majority has directed the trial court to undertake this task by ordering the town to adopt a revised ordinance which shall as minima:

(a) allocate substantial areas for single-family dwellings on very small lots; (b) substantially enlarge tbe areas for dwellings on moderate sized lots; (c) substantially enlarge the AF district or create other enlarged multi-family zones; (d) reduce the HP, R-80 and B.-40 zones to the extent necessary to effect the foregoing . . .; (e) modify the restrictions in the AF zones and PUD areas . . . which discourage the construction of apartments of more than two bedrooms; (f) modify the PUD regulations to eliminate the undue cost-generating requirements specified above; and (g) generally eliminate and reduce undue cost-generating- restrictions in zones allocated to the achievement of lower income housing . . . [Ante at 553]

*610I am in substantial accord with these detailed instructions and believe them to be fully justified under the facts of this case. I would only add that the Court might also have directed the municipality to “overzone” for low and moderate cost housing [see ante at 518-520] and to either create a mobile home park zone or allow mobile homes as a permissible use in other residential districts.

In this regard, I note, at the risk of stating the obvious, that mobile homes provide one of the most feasible and most readily available means of furnishing housing which is affordable to the elderly, to low and moderate income families and to young couples with one or two children. This additional source of housing is particularly important when, as now, economic conditions largely preclude construction of other forms of low cost housing. See generally D. Mandelker & R. Montgomery, Housing in America: Problems and Perspectives 223, 438 (1973); Rubinowitz, supra note 8, 6 Mich. J. L. Reform at 627 n. 3 & 630 n. 14; Bristow v. City of Woodhaven, supra, 192 N. W. 2d at 327-328; Sheperd’s, Mobile Homes and Mobile Home Parks 3-8 & passim (1975).

(6) Enjoin Municipal Approval of Other Forms of Development

This remedial device — the imposition of a moratorium on building and other development within the municipality until such time as the municipality has taken steps to provide for its fair share of the regional housing need — is one of the most extreme and possibly most effective remedies available. While it should be used sparingly, this remedy might provide an ideal form of judicial relief in certain cases. Modified versions of this device have already been suggested by commentators and employed by some courts. In Kennedy Park Homes Ass’n v. Lackawanna, supra, for example, the U. S. District Court included in its decree an order

*611That defendants be enjoined from issuing building permits for any construction in the second and third wards which will contribute additional sanitary sewage to the municipal system until Kennedy Park Subdivision (a low and moderate income housing project) has been granted permission to tap into the sewer system by the appropriate authority.

[318 F. Supp. at 698.]

See Rubinowitz, supra note 8, 6 Mich. J. L. Reform at 6-61; Rubinowitz, supra at 211-212.

Another example of this technique appears in the American Law Institute’s proposed Model Land Development Code. Section 7-305 of that code expressly provides that no local land use agency shall approve any proposed development which will create more than 100 new jobs,

unless the agency also finds that

(1) adequate and reasonably accessible housing for prospective employees is available within or without the jurisdiction of the local government ....

If appropriate under the circumstances, these or like provisions could be incorporated by the trial court into its final decree.

(7) Order Municipality to Provide Density Bonuses and Other Incentives for Building Lower Income Housing

As noted in Mt. Laurel and again by the majority today, it is unlikely that substantial amounts of low and moderate income housing will be built, absent some form of governmental contribution, concession or incentive, because of the high cost of construction and current economic conditions. Mt. Laurel, supra, 67 N. J. at 170 n. 8 and 188 n. 21; id. at 207-208 (Pashman, J., concurring); ante at 510-512. See also Kleven, supra, 21 U. C. L. A. L. Rev. at 1452-1453; Mallach, supra, 6 Rutgers-Camden L. J. at 660-663, 686-687. Because the object of this litigation is not only to prevent continued infringement of plaintiffs’ rights but *612also to redress past wrongs, the municipality must employ whatever tactics are necessary (and reasonably attainable) to achieve these ends. If it appears that some form of governmental "contribution, concession or incentive” is required to stimulate production of low and moderate income housing, these avenues must be explored.

One such incentive is the "density bonus.” See, e. g., N. J. S. A. 40:55-57(b) (2) and (3). Under one variation, the developer is permitted to build a specified number of conventional units above the maximum density otherwise allowed in the zone, in return for including a certain number of low or moderately priced units in its housing project, or the developer might be allowed to build an additional single bedroom or efficiency apartment, above the maximum allowable density, in return for the construction of a specified number of multibedroom units. The former device serves to promote the production of low and moderate income housing, while the latter directly addresses the critical housing needs of lower income families. In general, the purpose of a density bonus is to “encourage the construction of moderately priced housing by providing for optional increases in density in order to reduce land costs for such . . . housing.” Montgomery County, Md., Code ch. 25A—1 (1973) quoted in Eleven, supra, 21 U. C. L. A. at 1444 n. 35. There has alreadj' been some indication that these devices can successfully stimulate production of needed housing, despite the presence of adverse economic conditions. Id. at 1476-1490. Therefore, where such conditions prevail, these and other comparable incentives should be incorporated into the trial court’s remedial order.

(8) Order Municipality to Impose Subdivision Oonditions and Other Inclusionary Devices

Another method of fostering production of low and moderately priced housing is to condition approval of large residential developments and subdivisions on agreements that *613a certain percentage of units affordable by lower income people will be provided. Such schemes have already been implemented in several parts of the country. In Montgomery County, Maryland, for example, developments with 50 or more residential units are required to include moderately priced dwelling units comprising at least 15% of the total number of units in the project. Similarly, an in elusionary ordinance enacted by the Los Angeles City Council in 1974 now requires developers of multifamily apartments, condominiums or cooperatives with five or more units to include at least 6% low income and a total of 15% low and moderate income units in each project. For a detailed account of these and other inclusionary zoning schemes, see Eleven, supra, 21 U. C. L. A. L. Rev. at 1438-1448 & passim. See also Rubinowitz, supra at 53-63, 222; Rose, “From the Legislatures: The Mandatory Percentage of Moderately Priced Dwelling Ordinance (MPMPD) Is the Latest Technique of Inclusionary Zoning,” 3 Real Estate L. J. 167 (1974).

The terms and conditions of these programs vary considerably. Some rely exclusively on subsidized housing for satisfaction of their mandatory percentage requirements. Where this is the case, the requirement should be set aside if the developer can prove that a good faith effort has failed to uncover necessary government subsidies. Even where the scheme requires provision of privately financed units (with price ceilings in lieu of subsidized dwellings), it often provides for a waiver of this requirement where it would work a hardship upon the developer or deprive him of a fair and reasonable return on his investment.

In order to facilitate production of mandatory low priced dwellings by reducing the cost of these units, many inclusionary schemes also provide for density bonuses and conditional waivers of other cost-generating land use regulations. In addition, inclusionary zoning schemes are generally enforced by simply withholding approval or enjoining construction of a development until compliance with the mandatory percentage provision has been assured. Finally, *614many such programs also contain provisions which guarantee that moderately priced units will, in fact, be .purchased or. rented by low and moderate income families. See, e. g., Kleven, supra, 21 U. C. L. A. L. Rev. at 1445 n. 40 and 1448 n. 51.

The salutary remedial effects of these devices are obvious. Not only do they promote construction of moderately priced housing, but they directly address the problem of avoiding creation of suburban slums through deconcentration of low and moderate income housing. Id. at 1448-1460. In addition, they foster higher quality construction and better maintenance of low income units, because

[t]he incentive for good workmanship and maintenance should be greater ... if the subsidized units are tied to a developer’s conventional sales and rental units, whose marketability would be adversely affected by poor construction or maintenance of the subsidized units. Id. at 1461-1462.

Eor these reasons, inelusionary provisions represent an important and useful addition to the arsenal of judicial remedies.30

*615(9) Order the Municipal Government to Establish a Local Housing Authority

In Mt. Laurel, I stressed that municipalities have a clear obligation to encourage and solicit federal and state housing assistance and, in some instances, may even have a duty to provide low income housing itself through local public and semipublic programs. Id., 67 N. J. at 211 (Pashman, J., concurring). Establishment of a local housing authority will undoubtedly help the municipality to undertake these tasks. Community Development and Housing Act of 1974, 42 U. S. C. A. §§ 1401 et seq.; Local Housing Authority Law, N. J. S. A. 55:14A-1 et seq. Therefore, in the event that preliminary remedial programs prove to be unsuccessful in meeting the municipality’s fair share of regional housing needs, the trial court should consider ordering the defendant to establish a local housing authority.

Initially, this body would be charged with actively seeking federal and state assistance. Affirmative solicitation is quite important in the context of low income housing because under most housing subsidy programs the initiative rests with local authorities and private sponsors. The U. S. Department of Housing and Urban Development, which administers most federal programs, must often rely on the submission of applications to it before it may authorize funding for local projects. Inaction or lack of cooperation by local officials will effectively defeat such programs. See generally Kleven, supra, 21 U. C. L. A. L. Rev. at 1433 n. 1 & 1437 n. 10; Rubinowitz, supra note 8, 6 Mich. J. L. Reform at 627-630; Note, supra note 4, 6 Rutgers-Camden L. J. at 733 nn. 42-44; Hills v. Gautreaux, supra, 425 U. S. at 303, 96 S. Ct. at 1549, 47 L. Ed. 2d at 806-807 & n. 19.

*616Where even these efforts prove inadequate, and the circumstances so justify, the court should then order the municipal housing authority to undertake the construction of local, low income housing projects. See, e. g., N. J. S. A. 55:14A-7 (b). Several federal courts have already resorted to this remedy. Garrett v. City of Hamtramck, 335 F. Supp. 16 (E. D. Mich. 1971), supplemented 357 F. Supp. 925, 927-928 (E. D. Mich. 1973), rev’d on other grounds 503 F. 2d 1236 (6 Cir. 1974), on remand 394 F. Supp. 1151 (E. D. Mich. 1975) (court ordered the construction of at least 430 units of low and moderate income housing to accommodate black residents whom the city failed to relocate after they were displaced through highway programs and urban renewal). Cf. Gautreaux v. Chicago Housing Authority, supra, 342 F. Supp. at 830-831; Southern Alameda Spanish Speaking Organization (SASSO) v. Union City, supra, 357 F. Supp. at 1199; Crow v. Brown, supra, 332 F. Supp. at 395-396. As one commentary stated:

‘Courts do not build housing,’ but if other remedies do not succeed, courts could order governmental agencies to do so.

[Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 31-32; citations omitted.]

IV

CONCLUSION

Returning to the instant case, it should be recalled that six years have elapsed since this litigation began. Even though the principles set forth in Mt. Laurel, defining the municipality’s, obligation to provide regional housing needs, are now well settled, Madison Township’s ordinance has been shown to fall far short of meeting its obligation. Low and moderate income groups continue to be excluded from the township, and plaintiffs’ constitutional rights remain unredressed and unvindicated.

Therefore, I would remand the case to the trial court for formulation and expeditious imposition of a comprehensive *617remedial order. On remand, the court first should fix and specify Madison Township’s “fair share” of the region’s lower income housing needs. This requirement might be framed in terms of either an absolute quota or one to be met over a specified number of years. While the court need not support its conclusion by relying upon any one particular formula, it must base its decision on a careful weighing of the factors set forth in this opinion.

Upon notification of its “fair share” requirement, the municipality shall have 90 days within which to submit to the trial court a proposed remedial plan which includes both suggested amendments to its zoning ordinance and affirmative programs designed to achieve (so far as is possible) timely satisfaction of its fair share obligation. Guidelines concerning proposed amendments to the local ordinance are set forth above and need not be repeated here.

A hearing shall be held on the proposed plan thus submitted. If adopted by the court (either in its original form or with modifications), the plan shall be incorporated into a final decree and immediate implementation shall be ordered. The court shall retain jurisdiction for purposes of supervising implementation of this plan.

If, however, the plan is found to be inadequate, the court shall, in consultation with the parties, formulate and enter its own remedial plan. The court may appoint independent zoning and planning experts to assist in this process. Supra, at 583. In addition to the amendments to the local zoning ordinance noted above, such a plan might properly include establishment of a local housing authority, creation of a set-aside or override procedure for proposed low and moderate income housing developments, provision of density bonuses, imposition of subdivision quotas or any other device deemed appropriate under the circumstances.

The immediate and specific measures which I have outlined are needed if we are ever to thwart the class segregation which we have too long neglected. Mere good faith reliance that municipalities will rezone to meet their obligations *618has not worked in the past. Madison Township, as well as other suburban communities, have already clearly demonstrated their reluctance to provide housing which is critically needed. Now, less than two years after our decision in Mt. Laurel, communities have indicated their hostility to any formal plan designed to meet their affirmative obligation. In the absence of action by either members of municipal governing bodies or lower courts, this Court must assume the task of devising measures which will ensure an end to exclusionary zoning.31

Yet, the Court’s own hesitation in ordering effective remedies for exclusionary zoning suggests a lack of commitment to the intent and spirit of the principles which we unanimously announced in Mt. Laurel. Although the members of this Court have all indicated their staunch support of our decision in that case, adherence to these principles lies in the implementation of a remedial plan which will correct the deficiencies of exclusionary zoning. This result cannot be accomplished in this case without ordering the trial court to:

(1) identify the relevant region;

(2) determine the present and future housing needs of the region;

*619(3) allocate these needs among the various municipalities in the region;

(4) shape a suitable remedial order.

Because the Court has satisfied itself with declaring exclusionary zoning unconstitutional and relying upon generalized notions of “fair share” and regional considerations, I am fearful that it has stopped short of taking steps which are needed to implement today’s decision requiring Madison Township to meet regional housing needs. Unlike decisions declaring specific exclusionary devices unconstitutional, enforcement of an affirmative obligation to provide multifamily housing requires an ongoing process of judicial vigilance coupled with strong corrective measures.

Only by taking upon ourselves the task of fashioning affirmative judicial relief will we make exclusionary suburbs responsive to the needs of our democratic society. Only through such direct and forceful action will the evils of a segregated society and economic bigotry be thwarted and the barriers of exclusionary zoning permanently breached.

On August 1, 1976, this statute was superseded by the “Municipal Land Use Law,” L. 1976, o. 291, N. J. S. A. 50:55D-1 et seq. Nothing there suggests that the principles set forth in Mt. Laurel need be reconsidered, especially in light of the constitutional underpinning of that decision. In fact, the new law itself expressly incorporates the principle that municipal zoning regulations must not be blind to the needs and general welfare of neighboring communities, the county and the State as a whole. See, e. g., L. 1976, e. 291, § 2(d).

See also Kushner, “Land Use Litigation and Low Income Housing : Mandating Regional Fair Share Plans,” 27 Zoning Digest No. 282, at 13 (1975) (judicial action thus far has not produced “any observable improvement in either the quantity of low income housing or the quality of its locational configurations”) ; Delogu, “On the Choice of Remedies,” 27 Zoning Digest No. 282, at 6 (1975). The Bergen Record, April 7, 1976, at C-2, col. 1 (“very little has happened” since Mt. Laurel) ; Thei New York Times, August 1, 1976, § 8, at 1 (N. J. ed.) (“State officials and builders alike agree that the change brought about by Mount Laurel thus far has been negligible.”) ; The Bergen Record, Jan. 19, 1976, at 1 (“the message [of Mt. Laurel] has been ignored”) ; Paterson News, August 19, 1976, at 8, col. 1 (“But the ruling in the Mount Laurel case has turned out to be a disappointment. The decision’s a flop . . . .”) ; The Newark Star Ledger, July 14, 1976, at 36, col. 3 (“The clear mandate in Mt. Laurel . . . has actually led to the production of very few, if any, moderate priced housing units”) ; Paterson News, October 17, 1975, at 4, col. 4 (“The five appeals court decisions... diminished the impact of the Supreme Court ruling [Mt. Laurel] . . .”) ; Bisgaier, “Some Notes on Implementing Mt. Laurel — An Admittedly Biased View,” 99 N. J. L. J. 729 (1976).

See, e. g., N. J. Cty. & Mun. Gov’t Study Comm’n, Housing & Suburbs: Riscal & Social Impact of Multifamily Development (1974) G. Sternlieb, Housing Development and Costs (1973).

One study, for example, reports that through a local referendum the residents of an “all-white” suburb of Detroit chose to reject all further federal funds for urban renewal, rather than comply with an order to provide housing for minority residents. Note, “A Wrong Without a Remedy: Judicial Approaches to Exclusionary Zoning,” 6 Rutgers-Camden L. J. 727, 730 n. 12 (1975), citing G. Muller, Exclusionary Zoning 32-33 (1972).

As Judge Conford points out, Judge Furman stated that the true figure was probably closer to 120 acres and plaintiffs argued that it may be as low as 67 acres. Ante at 506 and accompanying text.

This case provides other examples of shrewd draftsmanship. For instance, in his first opinion, the trial judge criticized the imposition of minimum floor space requirements in the R-80 and R — 10 zones. Oakwood at Madison, Inc. v. Madison Tp., supra, 117 N. J. Super. at 20-21. Although the amended ordinance eliminated these provisions, it added a new provision which establishes minimum per room floor space limitations applicable to all residential zones.

In his initial opinion, the trial judge also questioned the propriety of the AF zone bedroom restrictions, limiting multifamily developments to 80% one bedroom and 20% two bedroom apartments. Although the revised ordinance no longer contains these restrictions, it now includes a floor area ratio regulation which confines construction to a maximum of 10,000 square feet per acre, and which effectively limits multifamily developments to efficiencies and one bedroom apartments. Ante at 505-506.

Although the developer in Kit-Mar finally did obtain a subdivision approval, this did not occur until May 1972, more than two years after the Pennsylvania Supreme Court decided the case. Krasnowiecki, “Zoning Litigation and the New Pennsylvania Procedures,” 120 U. Pa. L. Rev. 1029, 1082-1083 & n. 204 (1973).

Rubinowitz, supra, at 210-211 quoting from Brief for Appellants, at 45-47, Commonwealth v. County of Bucks, 22 Bucks Cty. L. Rep. 179 (Ct. C. P. 1972), appeal docketed Commonwealth Ct. Pa. 27 T. D. 1972. See also Rubinowitz, “Exclusionary Zoning: A wrong in Search of a Remedy,” 6 Mich. J. L. Reform 625, 638-639 (1973); Hartman, “Beyond Invalidation: The Judicial Power to Zone,” 9 Urban L. Ann. 159, 161-162 (1975), Krasnowiecki, supra note 7, 120 U. Pa. L. Rev. at 1080-1084.

See, e. g., Hartman, supra note 8, 9 Urban L. Ann. at 161; Mytelka, “The Mount Laurel Case: Where to Now?”, 98 N. J. L. J. 513 (1975) ; Rubinowitz, supra, at 205; Rubinowitz, supra note 8, 6 Mich. J. L. Reform at 626; Note, “The Mount Laurel Case: A Question of Remedies,” 37 U. PiU. L. Rev. 442, 453 (1975) ; Note, supra note 4, 6 Rutgers-Camden L. J. at 727, 729, 754.

As noted in Mt. Laurel by both the trial court (119 N. J. Super. at 177) and this Court (67 N. J. at 189 n. 22; id. at 214; (Pashman, J., concurring)), legislative or administrative action is preferable to litigation. First, legislation can have a much broader impact than judicial intervention, which ordinarily is limited to providing relief on a ease-by-case basis. Second, legislative bodies are not confined to the issues brought before them, but may undertake a broad multi-face.ted approach to the problem. Third, the legislature may draw upon a much broader range of informational sources and expertise. Finally, the Legislature and the agencies to whom it delegates authority are often better equipped to handle politically sensitive issues. Nevertheless where this process fails and where constitutional infirmities and social problems persist, the courts must and will intervene when called upon to do so. Mt. Laurel, supra, 67 N. J. at 192; id. at 215 (concurring opinion). See also ante at 535-536. As I noted in Mt. Laurel, if judicial intervention does become necessary in eases of this nature, courts are clearly capable of handling the issues presented to them. To assist them in resolving difficult questions, courts may invite the participation of the Department of Community Affairs or other governmental agencies as amici curiae, and appoint independent experts or join necessary parties. Id. 67 N. J. at 216. See generally Chayes, “The Role of the Judge in Public Law Litigation,” 89 Harv. L. Rev. 1281 (1976).

While some- efforts have already been taken in this direction, Mt. Laurel, supra, 67 N. J. at 189 n. 22; ante at 535; Mallach, supra, 6 Rutgers-Camden L. J. at 677-686, few of these measures provide for mandatory municipal participation and it is as yet unclear how effective they will be.

The concurring and dissenting opinion might be read as logically calling for the Court to declare unconstitutional the zoning enabling statute, thereby requiring the Legislature to fashion a “workable” scheme which the Court could then enforce. The fact that Mr. Justice Mountain has chosen to criticize our enforcement powers under the present statutory scheme, as opposed to our constitutional analysis in Mt. Laurel, supports this conclusion and leaves open this possibility. I note that Professor Payne’s article, “Delegation Doctrine in the Reform of Local Government Law: The Case of Exclusionary Zoning,” 29 Rutgers L. Rev. 803 (1976), which is approvingly cited in the concurring and dissenting opinion, calls for such an alternative approach to the problems of exclusionary zoning. Professor Payne suggests an alternative to the *576Court’s current approach which “is not inconsistent with Mount Laurel

. . . without backtracking from the commitment to break the cycle of neglect of regional housing needs made in Mount Laurel, the Supreme Court should, in a case properly presenting the issue, declare the New Jersey Zoning Enabling Act unconstitutional, on a theory that it improperly delegates to local decision-making matters that are demonstrably regional in concern.

[20 Rutgers L. Rev. at 820]

Though I agree that such an approach offers an attractive promise that headway will be made in meeting current zoning problems, I cannot ignore other problems which that approach might bring about. Cf., Robinson v. Cahill, 70 N. J. 155, 161 (1976) (Mountain J., dissenting).

See e. g., Mt. Laurel, 67 N. J. at 189, n. 22 (“Authorization for regional zoning — the implementation of planning —, or at least regulation of land uses having a substantial external impact by some agency beyond the local municipality, would seem to be logical and desirable as the next legislative step.”).

Tkis essential objective remains unaffected by proof that the municipality’s failure to meet its obligation under Mt. Laurel derives from inadvertence rather than from a conscious effort to discriminate against certain classes of people. See, e. g., Mt. Laurel, supra, 67 N. J. at 174 n. 10; id. at 196 n. 2 (Pashman J., concurring) .

Naturally a municipality which affirmatively encourages the construction of low and moderate income housing in an already oyercrowded, blighted or deteriorated section of the community in order to preserve the exclusionary character of the remainder of the municipality does not satisfy its obligation under Mt. Laurel. Therefore, not only must the municipality foster production of low and moderate income housing, but it must also assure that the housing is placed so that it alleviates, rather than aggravates, current concentrations of low and moderate income residents. It is interesting to note that the Housing and Community Development Act of 1974 provides that one of its primary objectives is to reduce

the isolation of income groups within communities and geographical areas and [promote] an increase in the diversity and vitality of neighborhoods through the spatial deconcentration of housing opportunities for persons of lower income.

[42 U. S. C. A. § 5301(c)(6).]

Bee generally, Rose “Fair Share Housing Allocation Plans: Which Formula Will Pacify the Contentious Suburbs?” 12 Urban L. Ann. 3 (1976).

In a footnote, this article quotes from another source as follows:

In exclusionary zoning cases the measure of whether the remedy is working should be actual production of low-and moderate-income housing.

[Rubinowitz, supra, at 211.]

Though recognizing this fact, we also stressed the critical need to eventually reduce reliance upon local decision-making and to pro*581vide for a greater degree of intergovernmental cooperation and use of regional and statewide development schemes. Mt. Laurel, supra, 67 N. J. at 189 n. 22; id. at 210 (Pashman, J., concurring). Until such changes are enacted, though, the Judiciary will continue to ensure that localities consider and weigh the impact which their land use regulations have on regional and statewide needs. Id. at 177. But cf. ante at 571 (Pashman, J., concurring).

It is interesting to note that one writer theorized that a comparable set of objectives underlie the decrees of federal courts in federal voting rights and school desegregation cases:

Several principles of fashioning appropriate relief in the vindication of federal constitutional rights can be distilled from these cases. First, the remedy must be effective: it must maximize the actual relief sought, such as actual desegregation. Second, the court must be flexible and consider the use of all available techniques. A choice of remedies must take into account the practicalities of relief. Flor can the existence of administrative inconvenience bar the use of a particular form of relief. Third, courts must *582supervise these eases until such time as full relief has been provided. Supplemental orders, encompassing additional or different approaches from the original order, may he necessary to accomplish this purpose.

[Rubinowitz, supra note 8, 6 Mich. J. L. Reform at 637]

See also Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 18-20; Rose, “Exclusionary Zoning and Managed Growth: Some Unresolved Issues,” 6 Rutgers-Camden L. J. 689 (1975).

See also Cal. Gov’t Code § 65302 (West Supp. 1972), quoted in Kleven, supra, 21 U. C. L. A. L. Rev. at 1436 n. 7, requiring all municipalities to develop housing plans which make adequate provision for the housing needs of all economic segments of the community and 42 U. S. C. A. § 5304(a) (4) requiring all applicants for federal assistance under the Housing and Community Development Act of 1974 to first study and assess the housing needs of lower income persons residing in the community and then formulate and submit an appropriate “housing assistance plan.”

While this Court has not yet ruled upon the validity of phased zoning, there appears to be no reason why this technique could not be employed so long as it is well planned, the phasing is not too drawn out and there is early provision for lower income housing. Mt. Laurel, supra, 67 N. J. at 189 n. 20; id. at 213 (Pashman, J., concurring); see also Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 16, 22-23.

For example, in both Mt. Laurel and the instant case, the court properly rejected the municipality’s suggestion that the appropriate *591“region” was the county within which the community lies. Mt. Laurel, supra, 67 N. J. at 189-190; Oakwood at Madison v. Madison Tp., supra, 128 N. J. Super. at 441; ante at 537-544. Central to this determination in Mt. Laurel was the proximity of Mount Laurel Township to high concentrations of lower income families in adjacent Camden County. In the instant matter, the fact that 50% of the current residents of Madison Township are employed outside the county and that the township has close ties to the more densely populated areas of the New York metropolitan region, weighed heavily in undermining defendant’s contention that Middlesex County was the appropriate region. On the other hand, it is conceivable that in cases where the county contains a highly urbanized core and most of the residents of the municipality are employed within the county, the appropriate region could be coextensive with the county. See, e .g., Middle Union Associates v. Holmdel Tp., Dkt. No. L-1149-72 P. W. (Law Div. 1975) (unreported), discussed in a recent article by Professor Hose, supra, 5 Real Estate L. J. at 73.

See, e .g., Brooks, supra, Lower Income Housing: The Planner's Response; Rubinowitz, supra note 8, 6 Mich. J. L. Reform at 658-661; Rubinowitz, supra, at 65-84, 219-220; Lindbloom, supra, 98 N. J. L. J. 633; Kelly, “Will the Housing Market Evaluation Model Be the Solution to Exclusionary Zoning?” 3 Real Estate L. J. 373 (1975); Rose, supra note 17, 6 Rutgers-Camden L. J. at 709-717; Rose, supra, 5 Real Estate L. J. 69; Rose, supra note 14, 12 Urban L. Ann. 3 (1976); N. Williams, American Land Planning Lato § 66.13(o) (1975 Supp.); Bisgaier, supra note 2, 99 N. J. L. J. at 738, Cols. 3-5.

Some experts suggest that allocation of the region’s housing obligation should be based on an equal share of new dwelling units per town, or on a proportionate share of units equal to the ratio of the town’s low and moderate income population to that of the region at large. Though attractively easy to apply, where there has already been a substantial degree of exclusion, application of these formulae will fail to satisfy the goal of curing past discrimination, and hence is wholly inappropriate.

In response to this shortcoming, some commentators have suggested that the court allocate low and moderate income units in inverse proportion to the amount of such units currently located in the municipality. While this criterion serves to further the goal of deconcentration of housing opportunities — and therefore should be given serious consideration — exclusive emphasis on this factor could subvert the goal of preserving local amenities by ignoring the amount *594of vacant land in the municipality which is fiscally and environmentally suitable for low and moderate cost housing.

Some commentators, such as Professor Rose, advocate a “take care of their own” approach.which would allocate new housing units to those subregions where there is the greatest need for such housing. Rose, supra, 5 Real Estate L. J. at 78; Rose, supra note 14, 12 Urban L. Ann. 8 (1976). While this approach is politically attractive, sole reliance upon it will fall short of the municipality’s obligation under Mt. Laurel since it probably would allocate the largest number of units to the most highly urbanized areas and would therefore perpetuate the high concentration of low and moderate income families in those areas.

One study suggests that all of these criteria can be catalogued into the following three categories: the municipal need to satisfy its own demand for low and moderate cost housing, based upon the number of substandard and overcrowded units within the community; the regional need to disperse a certain percentage of its urban population among outlying suburban areas; and the local need to consider the community’s ability to absorb additional units of low and moderate cost housing. Under this approach, allocation of the regional housing need could then be based upon a combination of the first two factors, subject of course to the last set of criteria. Brooks, supra; Lower Income Housing: The Planner’s Response at 20-21, 37-88. See also Rubinowitz, supra note 8, 6 Mich. J. L. Reform at 661.

See, e. g., Miami Valley (Dayton, Ohio) Regional Planning Comm’n, a Housing Plan for the Miami Valley Region (July 1970); Metropolitan Washington (D. C.) Council of Gov’ts, Fair Share Housing Formula (Jan. 1972); Metropolitan Council of the Twin Cities Area (Minneapolis-St. Paul, Minn.), Housing: Plan, Policy Program (1973); San Bernardino Cty. Planning Dep’t Gov’t Subsidized Housing Distribution Model for Valley Portion of San Bernardino Cty., Calif. (Jan. 1972); Sacramento, Calif., Regional Area Planning Comm’n, An Approach to the Distribution of Low and Moderate-Income Housing, A Technical Report (Aug. 1972); and Erber & Prior, Housing Allocation Planning: An Annotated Bibliography (Council of Planning Librarians Exchange Bibliography #547, 1974).

This issue can arise ip a variety of procedural contexts. Often it will be raised, on appeal from an administrative denial of plaintiff’s application for a desired use, pursuant to tbe special exception or variance procedures of N. J. S. A. 40:55-39(b), (d), which have been superseded by the Municipal Land Use Law, L. 1975, c. 291, § 57, N. J. S. A. 40:55D-70. See Mt. Laurel, supra, 67 N. J. at 181 n. 12. Sometimes, the developer will attempt to circumvent the administrative process by attacking the exclusionary provision directly, On other occasions, the developer will raise the issue in a suit to compel intransigent local officials to issue the requisite building, sewer, health, water or subdivision permits for its project. In each case, though, the ultimate relief sought by the corporate plaintiff is the same — permission to build the kind of residential development desired.

Admittedly, some jurisdictions have rejected these precedents and continue to adhere to the traditional rule that, even upon a finding of invalidity, courts may not compel municipal authorities to zone in a particular fashion. See, e. g., Bd. of Supervisors of Fairfax Cty. v. Allman, 215 Va. 434, 211 S. E. 2d 48, 55 (Sup. Ct. 1975), cert. den. 423 U. S. 940, 96 S. Ct. 300, 46 L. Ed. 2d 272 (1976); City of Richmond v. Randall, 215 Va. 506, 211 S. E. 2d 56, 61 n. 3 (Sup. Ct. 1975); City of Miami Beach v. Weiss, supra, 217 So. 2d at 837. However, even these courts, though ostensibly adhering to the traditional rule, have begun to afford indirect relief to corporate plaintiffs. In Bd. of Supervisors of Fairfax Cty. v. Allman, for example, the Supreme Court of Virginia ordered the couty board of supervisors to “reconsider its action refusing to rezone” defendant’s property, and further stated that failure to do so would lead to subsequent judicial intervention. Id. 211 S. E. 2d at 55-56. Similarly, in City of Miami Beach v. Weiss, the court essentially held that after invalidating a zoning classification lower courts could enjoin enforcement of any classification more restrictive than that requested by the plaintiff. In any event, because of the realities of the planning process and the effective way in which this remedial device deals with these realities, I find the precedents in support of this technique to be compelling. See generally, Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 26-29; Hartman, supra note 8, 9 Urban L. Ann. at 162-166; Krasnowiechi, supra note 7, 120 U. Pa. L. Rev. at 1059-1065, 1070-1083.

In this regard, I agree with the majority that specific relief should not be “automatic,” but rather should rest in the discretion of the court. Ante at 551. Obviously, prior to granting such relief, the court would have to determine whether the proposed use is suitable to the area, consistent with other aspects of the remedial order and generally in furtherance of remedial objectives. I cannot agree with the majority, however, that “such relief will ordinarily be rare.” On the contrary, due to the salutary features of this form of relief, I envision that it ordinarily will be granted so long as the proposed use is found to be “suitable."

See Mahoney v. Bd. of Appeals of Winchester, 366 Mass. 228, 316 N. E. 2d 606, 608-609 (Sup. Jud. Ct. 1974), appeal dismissed 420 U. S. 903, 95 S. Ct. 822, 42 L. Ed. 2d 834 (1975); Bd. of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 294 N. E. 2d 393 (Sup. Jud. Ct. 1973) upholding the constitutionality of the law. See also Note, supra note 4, 6 Rutgers-Camden L. J. at 743-746; Rubinowitz, supra note 8, 6 Mich. J. L. Reform at 644-645.

A “limited dividend” organization is not a public agency but is eligible for federal or state housing subsidies. While the Massachusetts law is limited in its application to subsidized housing, there is no reason why its principles may not be applied by a trial court to all forms of low and moderate income housing.

It has been suggested that similar results may be attained by declaring low and moderate income housing to be a “special exception” use under N. J. S. A. 40:55-39(b). Mytelka & Mytelka, supra, 7 Seton Hall L. Rev. at 11.

Litigants who oppose this approach have argued that if the need for moderate income, multifamily housing is held to be a “special reason” justifying issuance of a use variance, then the entire zoning scheme of the municipality will break down. Nonetheless, as the court pointed out in Brunetti v. Mayor & Council of Madison Tp., this is not necessarily true since applications for a variance will still be subject to the negative criteria that the proposed use must be without substantial detriment to the public good and must not substantially impair the intent and purpose of the zoning ordinance. Id., 130 N. J. Sniper, at 168.

It might be noted, though, that because this remedy entails a considerable degree of interference with both private and public developers, it would best be implemented through legislative initiative and should be imposed by a court only as a last resort. Nevertheless, where the scheme is carefully drafted and clearly warranted by the circumstances, I see no objection to it in principle.

In this regard, I do not have the same reservations the majority has concerning the validity of this remedial device. The majority cites Bd. of Supervisors v. DeGroff Enterprises, Inc., 214 Va. 235, 198 S. E. 2d 600 (Sup. Ct. 1973). In that case, the Supreme Court of Virginia invalidated a Fairfax County Virginia inclusionary zoning ordinance on the grounds that it exceeded the authority granted by the enabling act and that it constituted an unconstitutional taking without just compensation. Id. 198 S. E. 2d at 602. With respect to the first ground, I find that the court’s construction of the zoning power to be excessively narrow. Moreover, the court failed to distinguish between the exclusionary and inclusionary impact of zoning provisions. As to the second ground cited above, careful draftsmanship should be able to avoid any constitutional objections by assuring *615that developers are guaranteed a fair and reasonable return on their investment. See generally Kleven, supra, 21 U. C. L. A. L. Rev. at 1490-1528; Note, “Required Low-Income Housing in Residential Developments : Constitutional Challenges to a Community Imposed Quota,” 16 Ariz. L. Rev. 439 (1974).

The Court’s duty to remedy exclusionary zoning is not in any way changed by the United States Supreme Court’s recent decision in Arlington Heights v. Metropolitan Housing Development Corp., - U. S. -, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977). The opinion makes clear that the Court’s decision there is not concerned with the constitutionality of exclusionary zone plans generally but is limited to consideration of governmental action which has a racially disproportionate impact. See ante at 562. See generally Washington v. Davis, 426 U. S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976); Brest, “The Supreme Court, 1975 Term, Forward: In Defense of the Antidiscrimination Principle,” 90 Harv. L. Rev. 1 (1976). By contrast, the analysis in Mt. Laurel is not limited to equal protection principles but also concerns the requirement that municipal zoning regulations conform to the general welfare. 67 N. J. at 174-179. More important, it is not limited to the principles embodied in the Federal Constitution but is predicated on more expansive state constitutional grounds. 67 N. J. at 174-175.