151 N.J. Super. 336 | N.J. Super. Ct. App. Div. | 1977
The opinion of the court was delivered by
The issue on this appeal is whether, contrary to the holding of the trial judge, Areba School Corporation (hereinafter Areba or the Areba School) is a “school or other education institution * * *,
Areba planned to commence operations on March 1, 1976 hut was prevented from doing so by defendants on the theory that the use was prohibited by the municipal zoning ordi
Plaintiff sought to commence operation of this residential institution for emotionally disturbed children between the ages of 12 and 18. Dr. Angelo J. Spinazzola, Executive Administrator of the Areba School and Assistant Professor of Special Education at Jersey City State College, testified that the institution would provide academic, vocational and career training, and, on occasion, college-supervised independent study for its students. An accompanying therapeutic program was designed to modify the emotional, behavioral and attitudinal characteristics of the pupils to enhance their ability to learn. Dr. Irwin A. Hyman, Professor of School Psychology at Temple University and formerly the Chief of Clinical Services at the training school for retarded children in Vineland, testified that a therapeutic educational program for emotionally disturbed children cannot be divided into separate therapeutic and educational components since therapy is a concomitant process designed to remove emotional blocks which inhibit learning.
In December 1975 the Areba School had been listed by the Department of Education as a nonpublic school eligible for the 1975-1976 school year to receive a maximum of 16 emotionally disturbed children from New Jersey public
Dr. Spinazzola testified that each child would take part in daily school activities from 9 A.vr. to 3 p.M. under the supervision of special education teachers. Individual therapy and group therapy sessions would be held three and five times a week, respectively. Except during the summer, each child would receive four hours of classroom instruction daily. During a two-week indoctrination period a child would attend classes while a child study team prepared an appropriate academic and residential prescription. After developing responsible attitudes the child would be allowed to leave the premises to engage in outside social and recreational activities. Upon graduating from the Areba School the child would receive a diploma from the local sending district.
New Jersey’s public school system is designed to provide programs for handicapped children, including the emotionally disturbed, educable child. N. J. S. A. 18A:46-1 el seq.; N. J. S. A. 18A:7A — 5(e). N. J. A. C. 6:28-2.1 defines an emotionally disturbed educable child as follows:
A child shall be considered to be emotionally disturbed when Ms behavior is characterized by a pattern of functioning which is so inappropriate as to call attention to itself and which severely limits the individual from profiting from regular classroom learning experiences or severely hinders other pupils in the class from profiting from regular classroom learning experiences. The emotionally disturbed child further characterizes himself by a pattern of expression of emotion inappropriate to the situation in a matter of degree and quality. However, the emotionally disturbed child must give evidence of a degree of rational behavior which permits some communication with authority figures indicative of ability to profit from instruction under specially controlled circumstances.
James Eiehardson, Director of the Bureau of Special Education and Pupil Personnel of the Department of Education, testified below. He is responsible for all special education programs in the public school's and in eligible nonpublic schools for handicapped children in our State. He testified that the child study team develops an “educational plan” for the handicapped child. These plans range from supplementary education in the local school to enrollment in an eligible nonpublie school. N. J. S. A. 18A-.46 — 13 in part states:
The absence or unavailability of a special class facility in any district shall not be construed as relieving a board of education of the responsibility for providing education for any child who qualifies under this chapter.
Placement of an emotionally disturbed child in a day or residential nonpublic school depends upon the child’s home environment and the parents’ consent.
“The nonpublie school educational program shall be considered the educational program of the local' school district * * N. J. A. C. 6.28-3.28(a). These programs for emotionally disturbed children provide smaller classes and spe
The trial judge’s finding that the Areba School was primarily a therapeutic community with merely an ancillary educational component, and therefore that Areba is not an educational institution for the pertinent zoning purposes, is clearly erroneous. The goal of the Areba School is to educate and graduate children so that they may function in our society. New Jersey’s constitutional guarantee of a thorough and efficient education for all its school children “must be understood to embrace that educational opportunity which is needed in the contemporary setting to equip a child in his role as a citizen and as a competitor in the labor market.” Robinson v. Cahill, 62 N. J. 473, 515 (1973) (other history and citations omitted). Children will be sent to the Areba School in order to meet educational obligations of local boards of education. The Areba School will provide therapy as a means of furthering that education. Institutions for emotionally disturbed children providing special educational programs approved by a state department of education have elsewhere been deemed schools within the meaning of local zoning regulations. Wiltwyck School for Boys, Inc. v. Hill, 11 N. Y. 2d 182, 227 N. Y. S. 2d 655, 182 N. E. 2d 268 (Ct. App. 1962); Armstrong v. Zoning Bd. of Appeals for Washington Tp., 158 Conn. 158, 257 A. 2d 799 (S. Ct. 1969); see Annotation, “What
We have no doubt that Areba is a school within the meaning of our laws and Randolph Township’s zoning ordinance. The constitutional obligation to furnish a “thorough and efficient” system of education has been recently defined by the legislature to include the teaching of basic communication and computational skills, programs designed “to develop the individual talents and abilities of pupils,” and programs supportive of “all pupils especially those who are educationally disadvantaged or who have special educational needs * * N. J. S. A. 18A:7A — 5, quoted in Robinson v. Cahill, 69 N. J. 449, 457 (1976). This has long been the educational objective of our laws. An earlier study commission report, commonly referred to as the Bateman Commission Report, stated (at 38) :
Each child in the State has the right to an educational program geared to the highest level he is capable of achieving, permitting him to realize his highest potential as a productive member of society, [quoted in Robinson v. Cahill, 118 N. J. Super. 223, 270 (Law Div. 1972)]
In their brief defendants ask us to reverse the trial judge’s finding that Areba, if deemed a school, could operate as a continuing nonconforming use under the certificate of occupancy previously granted to the military academy. In the absence of a cross-appeal this issue is not before us. Franklin Discount Co. v. Ford, 27 N. J. 473, 491 (1958); Lyons v. Hartford Ins. Croup, 125 N. J. Super. 239, 248 (App. Div. 1973), certif. den. 64 N. J. 322 (1974). However, were we to consider the issue we would have no doubt that Areba may operate as a proper nonconforming use.
The property is located in the RT-1 zone, in the Mt. Freedom section of Randolph Township, which is a resort zone in which a resort hotel complex had been converted to a college preparatory school with Junior R.O.T.O. status known as the General Douglas McArthur Military Academy and as the General Douglas McArthur Institute, which was in operation until mid-1975. A permitted use in this zone was: “A school or other education institution, including playgrounds, parks and accessory buildings, not conducted as a business.”
According to Director Richardson, of 5,000 or so school-age emotionally disturbed children from local districts, about 2,000 are enrolled in private facilities in New Jersey and 1,600 in out-of-state facilities.
Certificates of occupancy for the military academy were issued in 1966 and 1967. Pursuant to a contract with DYES, the military academy accepted a number of children, comprising a small per