Stanton, Hall and Gaulkin. The opinion of the court was delivered by Hall, J.A.D.
[51 NJSuper Page 591] These cases involve the legality of an amendment to the zoning ordinance of the Borough of Saddle River affecting the formerly unrestricted right to use property in the borough for private school purposes and the validity of the issuance of a building permit, subsequently recalled, to Chestnut Ridge Land Co., Inc. (which we will call the "land company"), the owner, and The Saddle River Country Day School (hereafter designated as the "school"), the lessee, for structural alterations of a residence property incident to the conversion thereof for use as a private day school. The lower court upheld the amendment, and its applicability to the premises in question,
declared the building permit invalid and enjoined the land company and the school from altering the building until approval had been obtained for use of the property as a school pursuant to the ordinance as amended and a building permit secured in conformity with the building code and from using the house for other than one-family dwelling purposes until a certificate of occupancy for any other use had been duly issued in accordance with applicable local legislation. The school and the land company appeal. The zoning ordinance amendment is attacked on its face as matter of law. The questions concerning the building permit involve both law and facts, the latter not in any substantial dispute.
Saddle River is located in north central Bergen County and has an area of six square miles, much of it hilly country. It is described as a highly desirable residential community appealing to persons wishing an expanse of land and a rural atmosphere, and as such one of the most attractive in the county. The present population is slightly less than 1,400. Its growth has not been rapid, the nature and pace thereof no doubt having been largely controlled by zoning ordinance requirements to be adverted to shortly. Such requirements have tended to development along the line of large and expensive homes on substantial tracts of land. Less than 1% of the area is used for business purposes and that is devoted to retail stores and service establishments concentrated in the center of the community and designed to serve the needs of the residents. There is no industrial use. The single public school accommodates about 250 local children from kindergarten through grade eight. Secondary education for about 70 borough students is provided at Ramsey High School. Probably half of the high school age children are educated in private schools outside the municipality. There is also a private nursery school in the town for those of pre-school years. The general character of the community may be further illustrated by the fact that the borough has no police department, law enforcement being served by three part-time marshals.
The premises directly involved in this litigation is the so-called "Denison estate" -- an older 17-room mansion on an irregular tract of some 20 acres with varying topography, bounded roughly by the westerly side of Chestnut Ridge Road, the northerly side of Woodcliff Lake Road and the easterly side of Allendale Road. These roads are principal inter-community arteries. The adjacent area was referred to by one expert witness as the focal point of highest values in the borough, because of the elevation, fine view and value of homes that have been built in the vicinity. These homes, mostly of recent construction, include those of plaintiffs in the Wollen suit and others. They are principally of the estate type on tracts ranging from slightly over 2 to 26 or more acres and with values of from something over $40,000 to close to $150,000. In the early part of June 1957 the Denison estate was owned by Leonard C. Bierbrier and wife. Bierbrier was mayor of the borough. It was on the market for sale, the Bierbriers apparently desiring to move out of the municipality. The broker was Albert Zecker, a local resident.
The borough zoning ordinance, adopted in 1930, provided for only three use districts, A and B residence and business. The A residence zone comprised at least 95% of the total municipal area. Permitted uses were broad, including some commercial activities, but minimum area, frontage, dwelling size and yard requirements were substantial. For example, a minimum lot area of two acres and frontage of 200 feet were required. Off-street parking provision on a specified formula basis was also made mandatory for all non-residential uses. The B residence district permitted the same uses, but imposed very less stringent area, frontage and yard restrictions and no minimum dwelling size. The land encompassed within this district was a minute fraction of the total. The business zone allowed only usual small community sales and service establishments plus all uses permitted in the residence districts. This zone, again, included only a very small percentage of the borough area.
Permitted uses in the A residence district, and so also in the B and business zones, were single-family dwellings, including therein a professional office of the resident owner or lessee and home occupations; agricultural, horticultural, dairying, market gardening and nurseries with necessary buildings and including sale on the premises of products raised or produced thereon; places of worship with appurtenant buildings; central telephone exchange; public library, museum, art gallery and community center building; structures used by any level of government for public purposes excluding warehouses and workshops; and "school or other educational institution, including playgrounds and accessory buildings." Non-conforming uses are relatively few.
Note should also be taken that certain other uses were permitted in all zones as "special exceptions" (R.S. 40:55-39(b), as amended), viz. , "hospitals, clubs, sanitariums, cemeteries, hotels, orphanages, camps, boarding houses accommodating over 6 persons, clinics, commercial airports and air fields * * *," on recommendation of the board of adjustment to the governing body for the latter's approval or disapproval.
Procedurally, the zoning ordinance requires the issuance of a building permit by the building inspector before any building or structure may be erected or altered, and a certificate of occupancy by the same official before any new building or structure may be used or occupied or any other (i.e. , existing) building, other than an existing residence, may be used or occupied as a residence or for living purposes. The issuance of the latter certificate is made dependent on compliance not only with the zoning ordinance, but also with the building and sanitary codes and "any other ordinance of the Borough * * *."
The borough building code, in effect throughout the period here involved, is a most voluminous and detailed document of some 350 printed pages. It is the 1950 edition of the "Basic Building Code of the Building Officials Conference of America, Inc.," prepared for adoption by municipalities anywhere in the country. Some of its procedural provisions
and nomenclature do not precisely conform to New Jersey concepts. While it was apparently adopted in Saddle River verbatim and without any adapting language, that fact does not affect or impair its procedural or substantive applicability in the present situation. Suffice it to say that the code requires a building permit issued by the building inspector thereunder before proceeding with the alteration of a residence building for conversion from dwelling to school use, based on an application, plans and specifications demonstrating compliance with all pertinent code provisions. In addition, the code requires a certificate of use and occupancy issued by the same official before a building "altered to change from one use group to another" or for which no such certificate had been heretofore issued shall be used or occupied, certifying that the work has been completed in accordance with the provisions of the issued permit. The interrelation of the code to the zoning ordinance in these respects will be hereafter considered. There is no provision in the code as to procedure in the event of the improper issuance of a permit or certificate by the inspector.
We should also mention that Saddle River has a planning board which had adopted a master plan. N.J.S.A. 40:55-1.10.
To come to the chronology of events leading to these suits, beginning in the early part of June 1957: Douglas Ogilvie was a teacher in a boys' private school in Englewood and an applicant for a teaching position in the Saddle River public school. He was hopeful of starting a private school of his own somewhere in the general area some time in the near future. He was acquainted with John C. Alford, a substantial resident of Saddle River and member of its board of education, who was interested in establishing such a school to provide upper grade and secondary education for boys and girls of the borough and nearby communities. They quickly decided to work together, Ogilvie on the ...