On appeal from the Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld and Burling. For affirmance -- Justices Heher, Jacobs and Brennan. The opinion of the court was delivered by Burling, J. Jacobs, J., with whom William J. Brennan, Jr., J., joins (dissenting). Heher, J. (dissenting). William J. Brennan, Jr., J., joins in this opinion.
Plaintiffs-appellants challenged the validity of a zoning variance granted to the defendant-respondent Istituto Pontificio Delle Maestre Filippini, generally known and hereinafter referred to as "Villa Walsh," and from an adverse determination in the Superior Court, Law Division, addressed an appeal to the Superior Court, Appellate Division. We certified the cause prior to an appellate review below.
Villa Walsh, a non-profit corporation of this State, is an educational institution engaged in the training of teachers for parochial schools throughout New Jersey. It is the owner of a 100-acre tract of land in the general area of Western Avenue and Pickatinny Road in Morris Township, County of Morris, upon which its present physical facilities are located. The present use was initiated prior to the passage of the 1932 zoning ordinance of Morris Township which placed the area within a large "A" residence zone. By virtue of the classification the use was rendered nonconforming and has continued in this status.
In 1952 Villa Walsh desired to expand its facilities and accordingly applied to the building inspector of Morris Township for permission to erect a new building. The proposed structure would enable an increased school enrollment by containing additional living accommodations, and would include an auditorium as well as study, conference and recreational rooms. Although there is some dispute as to the height of the building, the design is of substantial proportion. An elevated passageway would connect the new building with one of the existing structures.
The building inspector denied the application in view of section VIII(a) of the Morris Township Zoning Ordinance which provides:
"Any non-conforming use or structure existing at the time of the passage of this ordinance may be continued upon the lot or in the building so occupied, and any such structure may be restored or repaired in the event of partial destruction thereof but no such use or structure may be enlarged."
Thereafter Villa Walsh sought a variance from the terms of the ordinance by addressing the Board of Adjustment and the Township Committee of Morris County pursuant to the recommendatory procedure of N.J.S.A. 40:55-39(d). Three separate hearings were held by the board of adjustment during February and March of 1953 and were attended by representatives of Villa Walsh and certain of the parties plaintiff together with other owners of property in the immediate area. The prime concern of the latter group was that the expansion would constitute an opening wedge for further growth which might, in time, substantially alter the residential characteristics of the area. Their desire was to maintain the status quo. There was evidence of heavy Sunday traffic moving to and from Villa Walsh, especially during the summer months, which would be augmented through an increased enrollment. Some complaint was made that students and visitors were accustomed to strolling on adjacent residential properties but the representatives of the school assured there would be orders restricting its personnel and guests to the premises. One resident favored the variance, indicating that the increase in personnel would make no change in the present conditions.
The board recommended the variance to the township committee without dissent and the governing body approved by concurring resolution.
On April 2, 1953 plaintiffs proceeded by complaint in lieu of prerogative writ in the Superior Court, Law Division, challenging the action of the township authorities. The case was abruptly terminated by consent of counsel and the lower
court and the resolutions of the board of adjustment and township committee set aside for lack of jurisdictional findings of fact. The judgment directed remand for a reconsideration of the evidence previously submitted and ordered the township bodies to embody a definitive recitation of jurisdictional facts within their resolutions should the variance be approved.
The board of adjustment, following reargument and reappraisal of the evidence, adopted a resolution recommending the variance requested by Villa Walsh on February 2, 1954. On February 26 the township committee adopted a concurring resolution. Plaintiffs filed a supplemental complaint on March 10, 1954, and answer thereto was made by Villa Walsh and the township authorities, and the cause proceeded upon the merits in the Superior Court, Law Division.
The recitation of the basic jurisdictional facts in the resolution of the board of adjustment is inclusive of the recital in the township committee resolution and may be briefly summarized: the existing facilities of Villa Walsh are inadequate to its present program in training teachers and also in providing comfortable living space for its inhabitants; the premises are not adaptable for the construction of single-family residences "by reason of its unusual topography and the existence of a large brick mansion, a chapel and two dormitory and classroom buildings"; removal of the existing facilities to accommodate permissible uses would work a severe financial hardship, as would a relocation of the school; the variance "would not affect the present character of the surrounding property" nor would it result in "substantial detriment to the public good" nor "impair the intent and purpose of the zoning ordinance."
The trial court upheld the grant of the variance, deeming the reasons given to justify its issuance within the statutory ambit and consistent with the objects of zoning.
Plaintiffs' attack and argument take the following design: The variance is not justified under the requirements of N.J.S.A. 40:55-39(d) for it does not subserve any of the purposes of zoning; the resolution of the township committee
is void because an "independent investigation was undertaken and not disclosed on the record."
The factual situation and circumstance present an appealing case. The salutary motivation of Villa Walsh in seeking to increase its facilities and thus to train more teachers to meet the educational needs of the parochial schools and children of this State is commendable. The problems attendant upon realizing this goal must nevertheless be recognized for what they are, and as presented in this case call for the extension and enlargement of a use which has been non-conforming since the passage of the Morris Township zoning ordinance in 1932. Cf. Yanow v. Seven Oaks Park, Inc., 11 N.J. 341 (1953).
In its historical inception the non-conforming use was considered a necessary adjunct to any comprehensive zoning plan. Proponents of zoning were conscious of the severe hardship which might be placed upon the owner of developed property should a uniform use scheme be suddenly impressed upon a diversified area, working a peremptory cessation of existing uses not in conformance with the plan. The principle has been concisely stated by the New York Court of Appeals in People v. Miller, 304 N.Y. 105, 108, 106 N.E. 2 d 34, 35 (Ct. App. 1952):
"The destruction of substantial businesses or structures developed or built prior to the adoption of a zoning ordinance is not deemed to be balanced or justified by the advantage to the public, in terms of more complete and effective zoning, accruing from the cessation of such uses."
See Frank J. Durkin Lumber Co. v. Fitzsimmons, 106 N.J.L. 183 (E. & A. 1929); 1 Yokely, Zoning Law & Practice (1953), sec. 147. The constitutional protection of due process proved to be the legal obstacle. See Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14 (Sup. Ct. 1931). To accommodate this otherwise arbitrary feature of zoning the legislative design, at least in New Jersey, has been to afford protection to non-conforming uses. R.S. 40:55-48 provides:
"Any nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the building so occupied and any such structure may be restored or repaired in the event of partial destruction thereof."
While the courts have given full accord to this statutory mandate, United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 152 (1952); Frank J. Durkin Lumber Co. v. Fitzsimmons, supra; Kramer v. Town of Montclair, 33 N.J. Super. 16 (App. Div. 1954), the spirit of the law is to restrict non-conforming uses. Monmouth Lumber Co. v. Ocean Township, 9 N.J. 64, 77 (1952); Speakman v. Mayor and Council of Borough of North Plainfield, 8 N.J. 250, 257 (1951); Lumund v. Board of Adjustment, 4 N.J. 577, 585 (1950). Their position in the zoning scheme is not encouraged because of the tendency to subvert rather than support sound planning. Such uses possess a contagious character which works to infect the neighborhood of their location, Beirn v. Morris, 14 N.J. 529, 536 (1954); Note, 9 U. of Chicaga L. Rev. 477, 479, 480 (1942), and their presence is adverse to the zoning objective of reasonable conformity, Speakman v. Mayor and Council of Borough of North Plainfield, supra, 8 N.J., at page 257. One eminent authority has gone so far as to suggest that the entire problem of the non-conforming use might be solved by establishing a duty to abstain from unfair non-conformity. See Freund, Some Inadequately Discussed problems of ...