ROMAN CATHOLIC DIOCESE OF NEWARK, A RELIGIOUS CORPORATION OF THE STATE OF NEW JERSEY, ET AL, PLAINTIFFS-RESPONDENTS, v. BOROUGH OF HO-HO-KUS, A MUNICIPAL CORPORATION OF THE COUNTY OF BERGEN AND STATE OF NEW JERSEY, DEFENDANT-APPELLANT, AND CHARLES A. BELTRAMINI AND ELEANOR K. BELTRAMINI, HIS WIFE, ET AL, DEFENDANTS-INTERVENORS-APPELLANTS, AND JOHN A. BYREM AND ELEANOR P. BYREM, HIS WIFE, DEFENDANTS-INTERVENORS
Supreme Court of New Jersey
Argued February 7, 1966—Decided May 23, 1966
47 N.J. 211
Mr. Thomas H. Gassert argued the cause for respondents (Mr. Frederick J. Gassert, of counsel; Mr. Joseph A. Clarken, Jr., on the brief; Messrs. Gassert and Murphy, attorneys).
The opinion of the court was delivered
PER CURIAM. Plaintiff seeks to erect a regional high school on lands it acquired for that purpose. The lands are in the highest residential district called R-1. At the time of the purchase the local zoning ordinance permitted the proposed use. The municipality thereafter amended the ordinance to bar all schools, public or private, from the R-1 district, permitting them however in its other three residential districts. This suit followed.
The trial court held the municipality lacked power to bar the proposed school, finding that L. 1961, c. 138 (
“The substantial issue upon which the trial court made no finding is whether it is arbitrary to bar the use of plaintiff‘s property for a secondary school. The issue is constitutional insofar as it is claimed that the ban offends due process of law. The issue is also statutory insofar as it involves the question whether the municipality exceeded the statutory authority or departed from state policy. In this connection it is appropriate to comment upon so much of the testimony and argument as stresses the tax implications of the proposed use.
We have held that a municipality may consider revenues in its plan for a well balanced community. Gruber v. Mayor and Township Committee of Raritan Twp., 39 N. J. 1, 9-11 (1962). Thus it may provide for industrial or commercial uses which are less demanding in public services than residential uses. It is, however, another matter to bar tax-exempt facilities on the ground that they are financially burdensome by reason of that exemption. The exemption is granted by the State because of the contribution of the exempt facility to the public good. It may be that an exemption will mean a net burden for the taxpayers of a particular municipality, but the municipality must nonetheless abide by state policy. Indeed, our Constitution of 1947 expressly preserved the then existing exemptions of real and personal property used exclusively for religious, educational, charitable or cemetery purposes and owned by a nonprofit corporation or association.
Art. VIII, § I, par. 2 . AndN. J. S. A. 40:55-33.1 , while not bearing the interpretation given it in the trial court, does serve to evidence the Legislature‘s concern for nonprofit private schools which furnish elementary and high school education.No municipality may quarrel with this policy. Hence it may not zone against a private school, place it in one district rather than another, or refuse it a variance on the ground that it is exempt from taxation.”
After remand, the parties took additional testimony upon the question whether the amendment was prompted by the tax exemption. The trial court found it was not. The trial court concluded, however, that the amendment was arbitrary and hence invalid. Defendants again appealed, and we certified the matter before argument in the Appellate Division.
In finding the ordinance invalid, the trial court, it seems to us, combined several approaches, each of which we are unable to accept. In part, the trial court seems to have been persuaded by decisions elsewhere which are not consistent with our basic conclusion that schools may be excluded from the highest residential district. In part, the trial court seems to have made a de novo evaluation of the legislative policy decision upon an inquiry into the zoning considerations. Finally the trial court appears to have tested the validity of the ordinance on the basis of the attributes of the particular parcel plaintiff owns. Basic to that test would be the belief that the Constitution or the zoning statute requires a zoning ordinance to authorize for each parcel every possible use to which it could be devoted.
As to the last facet, we point out that although a zoning ordinance may be invalid in its impact upon a particular parcel, as where the parcel is zoned into idleness, no one suggests the lands here involved cannot be used for residential purposes. On the contrary, they are ideally suited for that use, and this being so, a constitutional issue does not arise merely because these lands, appropriately zoned for highest residential use, are so extensive or otherwise so featured that a forbidden use might be harbored safely within its perimeter upon some special plan or design. Zoning contemplates the delineation of appropriate districts and the equal treatment of all property within it. The Constitution does not require, nor does the statute require or even permit, a municipality to enact an ordinance which deals separately with every owner‘s parcel and undertakes to prescribe the uses to which each parcel may be put by reason of its size or situation and the terms upon which each possible use may be made.
Rather, the statutory vehicle for the accommodation of zoning with individual situations is either a special exception, where the ordinance appropriately so provides, or a variance,
Plaintiff remains free to apply for a variance. In this connection some observations seem appropriate without in any way intimating an opinion as to the outcome of an application. The educational mission of a regional high school is clearly a “special reason” within the meaning of the statute just cited. Andrews v. Ocean Twp. Board of Adjustment, 30 N. J. 245 (1959). Hence the question will be whether a sound exercise of discretion requires that the school be permitted. In dealing with that question, the local authorities should consider the State policy favoring such exempt functions and the fact that regional needs must be met somewhere. Unfortunately under present law the tax burden falls upon the single municipality rather than the whole area which is benefited. Yet a variance may not be refused on that account. 42 N. J., at p. 566. Consideration should also be given to the limited number of sites available to a charity for the reason that it cannot invoke the power of eminent domain. It would not be amiss to weigh also the circumstance that here the proposed use was authorized by the ordinance at the time plaintiff purchased the property. Finally, and of special importance in deciding whether the property can be put to the proposed use without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and the
We suggested in our first opinion that the problem might well be committed to a State agency. 42 N. J., at p. 565. Meanwhile the reconciliation between the local interests and the needs of private educational projects remains in local hands, there to be exercised, as the Legislature must have intended, with due concern for values which transcend municipal lines.
The judgment in favor of plaintiff is reversed and judgment entered in favor of defendants. No costs.
HALL and SCHETTINO, J. J., concur in result.
HALL, J. (concurring). This litigation actually involves the perplexing problem of the permissible extent of local land use control of regional, tax-exempt institutions—be they private schools of religious or secular sponsorship educating children from more than one municipality, or other beneficial non-governmental educational, religious, charitable, hospital and like institutions the services of which transcend local boundaries.
In treating this problem, the primary frame of reference is that under present law planning and zoning regulation in New Jersey must be confined within municipal lines and each municipality may legislate with substantially no regard for the over-all area of which it is a part. The second frame of reference, well illustrated in this case, is that such facilities necessarily increase in size and number with the density of population and require sizeable tracts of land. In such areas lands at all adequate for facilities of this kind are scarce and becoming more so. They generally do not belong
I fear that so far we have come up with little of a constructive nature by way of answer to this basic question and that, as far as the parties in interest in this case are concerned, after five years of litigation we have succeeded only in marching them up hills and down again, with more of the same in prospect. This unfortunate result may be due in part to legal and practical limitations on the judicial function in problems of this kind, the work-a-day solutions of which are better handled legislatively and administratively. Courts in deciding the constitutional and statutory issues presented in this class of cases cannot go much beyond establishing outer boundaries of the zoning power and setting forth guide lines to aid proper local implementation of the power so delineated. I suggest, however, that we have not gone as far as we can and should in these respects in this case.
Perhaps what I have to say here might well have been stated to some extent in connection with the opinion on the first appeal. 42 N. J. 556 (1964). However, the only issue then decided, by reason of the narrow basis on which the trial court disposed of the case, was that public schools, and thus private schools, are in this State within the zoning power, or at least certain aspects of it, as a matter of legisla-
“We of course do not mean that the Legislature intended that the governing body may block public education by barring schools throughout the municipality or by relegating schools to areas that are obviously unsuitable. Rather the Legislature found it appropriate to permit the municipality to consider the total needs of the community in all of its zoning aspects to the end that schools will be in appropriate districts and upon plots of ample size and with suitable buffers to contain within the perimeter of the property those influences which could be unduly hurtful to others.” (42 N. J., at p. 563).
The second was in the following suggestion:
“The matter is remanded for trial of the issue of arbitrariness in the light of the views we have expressed. We should add that if it is held to be unreasonable to bar the proposed use upon a finding that the zoning objective may be readily achieved by appropriate regulation as to plot size, setback, buffers, etc., the municipality should be given an opportunity to legislate to that end.” (42 N. J., at p. 566).
I did not understand, as the present majority states, that we had decided in the prior opinion the unqualified proposition “that schools may be excluded from the highest residential district.”
The trial court on the remand simply found, however, the blanket prohibition of all schools in the R-1 zone to be unreasonable and arbitrary in toto on bases which I agree are legally untenable. The practical effect of the decision is to say that, at least in Ho-Ho-Kus, private schools must be permitted at any location in the highest residential district
While Ho-Ho-Kus could permit private schools and other tax-exempt institutions in residential districts without limitation, as many zoning ordinances do and as Ho-Ho-Kus did before the amendment in controversy, I do not think it can be compelled to. The amendment establishes, at the very least, that the municipality no longer wishes to go that far—a choice which I think a court must recognize as matter of law and fact. Not to do so is to follow the line of cases which say, in analogous situations, that such institutions are immune from any police power regulation in the land use control field on the ground that such regulation bears no substantial relation to the promotion of the public health, safety, morals or general welfare of the community because these uses are themselves in furtherance of the public morals and general welfare. See, e. g., Diocese of Rochester v. Planning Board, 1 N. Y. 2d 508, 154 N. Y. S. 2d 849, 136 N. E. 2d 827 (Ct. App. 1956); Board of Zoning Appeals of Town of Meridian Hills v. Schulte, 241 Ind. 339, 172 N. E. 2d 39 (Sup. Ct. 1961); In re O‘Hara‘s Appeal, 389 Pa. 35, 131 A. 2d 587 (Sup. Ct. 1957). Such reasoning confuses issues and disregards the long established basis for general police power regulation of all kinds of activities. Just because an institution is thought to be a good thing for the community is no reason to exempt it completely from restrictions designed to alleviate any baneful physical impact it may nonetheless exert in the interest of another aspect of the public good equally worthy of protection. Cf. Allendale Congregation of Jehovah‘s Witnesses v. Grosman, 30 N. J. 273 (1959), appeal dismissed 361 U. S. 536, 80 S. Ct. 587, 4 L. Ed. 2d 538 (1960); School District of Philadelphia v. Zoning Board of Adjustment, 417 Pa. 277, 207 A. 2d. 864 (Sup. Ct. 1965). Consequently I am in accord that the judgment of the trial court must be reversed.
My conviction is that, while a municipality cannot be required to permit tax-exempt institutions at any location without conditions or restrictions, it also may not exclude them from any zone by unqualified prohibition. Rather such institutions should have the right to locate on any appropriate site where the physical impact of their operations can be alleviated to a reasonable extent by the imposition of suitable conditions and restrictions. I have in mind, for example, a tract so situated and large enough to accommodate the projected functions and activities as well as motor vehicle traffic and parking in order that considerable insulation will thereby be created for the benefit of immediate neighbors, together with such additional buffers and restrictions as are needed. In addition, the exterior structural design should not be completely out of keeping with the district, as would be the case of a ten-story building in a high-class one-family area.
My reasons for this view are essentially found in the thesis I advanced in the dissenting opinion in Vickers v. Township Committee of Gloucester Township, 37 N. J. 232, 252
Municipalities greatly prize the New Jersey system of substantial home rule. But it should encompass responsibilities as well as rights and they should not be heard to object that they must take some of the bitter with the sweet when the public good thereby advanced necessarily transcends municipal boundaries. That the particular institution which circumstance brings into the community may cost some additional tax moneys does not dictate a different approach. The next town may well have to undertake a similar burden next year.
Methods to deal with the right I would thus recognize can be provided for, it seems to me, in either of two ways. The first would be by advance provision in the zoning ordinance for such uses as special exceptions pursuant to
As far as the present case is concerned, I would require that an application for a variance by the plaintiff be so considered both at the local level and on any judicial review.
SCHETTINO, J., joins in this opinion.
In his concurring opinion Justice Hall has stated in crystal clear fashion an incidental but significant problem which inheres in controversies like the present one. In capsule form the issue may be expressed as regionalism vs. provincialism, with the latter now firmly ensconced in control as the result of recognition by the majority of my colleagues of the comprehensive zoning power of the local authorities with respect to public and private non-profit schools. And it follows, of course, that so long as such pervasive power continues to be paramount, the public welfare as represented by regional interests or needs will be subordinated to the parochial views of a single municipality. Thus it seemed to me originally, and the view is strengthened now by Justice Hall‘s observations, that problems arising out of the location of public or private non-profit secondary schools, particularly those designed to serve regional educational needs, should be resolved by the State Board of Education. In my judgment that board has plenary express or implied authority to deal with the subject to the exclusion of district lines established by a municipal zoning ordinance. 42 N. J., at p. 570.
Moreover, as the dissent indicated, the power of the State Board would not be exhausted by a simple approval or veto of a secondary school location selected by the school authorities, whether the particular school is to be regional or local in its service. And it is unlikely that local aesthetic considerations would be ignored or that community desires to have the physical impact of the school structure on the neighborhood lessened would be shunted aside. Regulation of such matters as “area of plot in relation to size of school, play yards, sidelines, front and rear setback lines,” buffer areas, shrubbing, treeing and the like, is certainly within the implied power of the board, and undoubtedly would be engaged in with due regard for such neighborhood interests. 42 N. J., at p. 571.
For affirmance—Justice FRANCIS—1.