On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis and Proctor. For reversal -- Justice Hall. The opinion of the court was delivered by Weintraub, C.J. Hall, J. (dissenting).
This is a zoning case. By a vote of 3 to 1, the board of adjustment recommended a variance under subsection (d) of N.J.S.A. 40:55-39 to permit the use of residential premises for a parochial school with living quarters for teachers. The governing body approved. Owners of neighboring property, having failed in their attack in the Law Division, 51 N.J. Super. 69 (1959), prosecuted this appeal. We certified the matter on our motion before the Appellate Division considered it.
The zoning ordinance establishes eight residental and two business districts. The required plot size in residential districts ranges to a maximum of 40,000 sq. ft. in Residence A. The property in question, known as Ivy Hedge, is one of some nine separate ownerships comprising a Residence A district. Ivy Hedge embraces about 16 acres, fronting on the westerly side of Wickapecko Drive for a distance of about 617 ft. and extending westerly with side lines of 1,022 ft. and 1,059 ft. to a rear line of 339.50 ft. On the same side of the street, a 30-acre tract of vacant land lies north of Ivy Hedge; to the south are two parcels with substantial homes. South of the two parcels last mentioned is a Residence E district containing a subdivision development, a women's club, a community day school, and
a public school. To the west and south of the rear portion of Ivy Hedge is another subdivision development in a Residence E district. The minimum plot requirement of the Residence E districts is 12,500 sq. ft. On the easterly side of Wickapecko Drive, across from the premises in question and constituting the balance of the Residence A district here involved, are valuable estates owned by plaintiffs.
The residence on the property in question erected in 1900 contains 17 rooms, plus 6 bathrooms, and 2 powder rooms. The structure is well set back from the property line. The variance is conditioned as follows:
"1. That the exterior of the existing building not be changed or altered;
2. That the property east of the building known as the front yard shall be maintained in its present state of landscaping;
3. That the main entrance and exit for school purposes shall be limited to the extreme westerly portion of the property known as the rear;
4. That any public area, playgrounds, athletic field, etc. be established to the rear of the existing building;
5. St. Mary's Parish would accept the children of Ocean Township who are now attending other parochial schools;
6. That St. Mary's Parish install at its own cost and expense a sanitary sewer line to connect with existing sewer system according to specifications and places as determined by the Township Engineer. Further, that all main lines on existing streets be dedicated to the Township of Ocean; and
7. That the convent and parochial school shall be limited to the existing main building."
The ordinance permits in all districts "apartment houses, garden apartments, apartment hotels, hotels, boarding houses, municipal buildings, churches, public schools, including playgrounds and accessory buildings, public parks, and public playgrounds" upon, however, the recommendation of the board of adjustment to the township committee "under the same procedure as the Board of Adjustment is empowered by law and ordinance to hear cases and make exceptions to the provisions of a zoning ordinance * * * if in its judgment the use * * * will not be detrimental to the health, safety and general welfare of the community
and is reasonably necessary for the convenience of the community." A parochial school, however, is not within the category of uses thus permitted. Rather it comes within "private schools or other educational institutions, whether or not conducted for profit," which are authorized in business districts upon prior application to the board of adjustment under the same provisions with respect to "exceptions" quoted above.
A parochial school thus being unauthorized in residential districts, a variance was sought under (d) of N.J.S.A. 40:55-39. The cited statute reads:
"The board of adjustment shall have the power to:
d. Recommend in particular cases and for special reasons to the governing body of the municipality the granting of a variance to allow a structure or use in a district restricted against such structure or use. Whereupon the governing body or board of public works may, by resolution, approve or disapprove such recommendation. * * *
No relief may be granted or action taken under the terms of this section unless such relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance."
Two critical findings are required by the statute: (1) that the variance "can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance"; (2) that "special reasons" exist for the variance. Both findings were made by the board of adjustment in adequate factual detail and with ample support in the record.
As to the first requirement, the school of course involves no inherent "detriment to the public good." And in the scene before us it was reasonably found that there will be no substantial impairment of the "intent and purpose of the zone plan and zoning ordinance." The ordinance contemplates uses other than one-family homes. As pointed out above, apartment houses, garden apartments, apartment hotels, hotels, ...