For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Jacobs, J. Hall, J., concurring in result.
The plaintiffs appealed from a judgment of the Law Division which affirmed the action of Montclair's Board of Commissioners in approving the recommendation of its board of adjustment that a variance be granted to the Lacordaire School. The variance enabled the construction of a new school building on Lacordaire's premises at Lorraine Avenue and Park Street in Upper Montclair. We certified the appeal while it was pending in the Appellate Division.
Lacordaire is a private day school for girls in primary and high school and for boys through third grade. It is operated for children of all faiths by Sisters of the Congregation of the Order of St. Dominic and the curriculum includes, in addition to the courses required for primary and secondary schools by the State Board of Education, instruction in various fields such as music, painting and sculpture as well as religious instruction for its Catholic students. It began operations in 1920 with seven students in a large dwelling house built in 1896 and located at the Lorraine Avenue and Park Street premises. These premises include
about 3 1/2 acres of land. Through the years its attendance increased steadily and reached 235 in 1958; a coach house on the premises was used for school purposes along with the main building (the dwelling house); and a wing containing four classrooms was added in 1946 to the coach house. The 235 students included 139 high school students who received their instruction on the first and second floors of the main building and 96 elementary school students who received their instruction in the coach house. The 12 Sisters who constitute the faculty live on the third floor of the main building.
In 1937 the area in which Lacordaire is located was placed by Montclair's zoning ordinance in an R-1 residential zone. The permitted uses within that zone include, inter alia, schools, libraries and museums operated by the Town of Montclair, churches, privately conducted schools for less than thirteen pupils, and accessory uses customarily incidental to the permitted uses. In 1936 Lacordaire had a student enrollment of 54 and after the adoption of Montclair's zoning ordinance in 1937 it continued its operations as a nonconforming use within the protection of R.S. 40:55-48. Several other schools are located within a block or two of Lacordaire; these include Mt. Hebron, a public school through junior high school, St. Cassian's, a parochial school, and a small nursery school on Park Street. No objection has been voiced as to the manner in which Lacordaire has been conducted; on the contrary, the appellants have expressly acknowledged that it is "a fine school, operated by devoted people." In 1955 the Middle States Association evaluated Lacordaire and gave its approval, conditioned however upon the school's providing adequate physical facilities to meet its growth. The school's student population was then 161 and in the light of its later growth there is little room to question that its physical facilities are now grossly insufficient.
In the summer of 1958 Lacordaire proposed the construction of a new one story school building on its premises and
sought a variance. Hearings were held during July and August before the board of adjustment and on September 15, 1958 the board unanimously recommended to the board of commissioners that a variance be granted. On January 13, 1959 the board of commissioners denied the variance without prejudice to a further application. In the meantime the Montclair Fire Department had inspected Lacordaire's premises and had made various recommendations including suggestions that the use of any floor above the first floor in the main building as classrooms "or for other student activities be discontinued" and that "the Sisters presently housed on the third floor be removed to the second floor." After redrafting its plans with a view towards satisfying the board of commissioners, Lacordaire sought a variance to enable the construction of a new two story building on its premises. Hearings were held before the board of adjustment during which considerable testimony was introduced in support of and in opposition to the request for a variance. Two expert witnesses testified for Lacordaire that property values in the area would in nowise be impaired by the proposed construction whereas one expert witness for the appellants testified to the contrary. Similarly, witnesses who lived in the immediate neighborhood expressed divergent views not only as to the effect of the proposed building on property values but also as to its effect on street parking, traffic and related conditions.
On May 19, 1959 the board of adjustment filed a formal decision in which it recommended to the board of commissioners that a variance be granted subject to conditions which it outlined. It expressly found that Lacordaire's present facilities are obsolete and outmoded and that there was danger of overcrowding; that the automobile traffic congestion in the area was not "directly and solely related" to Lacordaire; that "the continuous use of these premises for educational purposes for 37 years past should not be endangered or ended by the refusal to permit proper modernization and limited expansion of the existing facilities"; that "the educational and
cultural use of the premises is in furtherance of the general welfare of the community" and that the modest increase of pupils which would be permitted by granting the variance would "not constitute a substantial enlargement of the present use" and that the variance could be granted, subject to the conditions outlined, "without substantially impairing the intent and purpose of the Zone Plan of the Zoning Ordinance of the Town of Montclair." The conditions which the board recommended included the following: (1) that the present main building be used solely for the residence of the Sisters, a chapel, a library and administrative offices and not for classrooms or student quarters, (2) that total registration of students shall not at any time now or in the future exceed "200 in the high school and 90 in the elementary school for a total of 290 in the entire school," (3) that trees and shrubbery not within the perimeter of the proposed new building and driveways be preserved and that "no other area or areas of the entire plot shall be hard surfaced for playground, parking or other incidental or accessory uses," (4) that no portion of the plot north of the coach house and the proposed new building and no portion of the plot south of the main building and the proposed new building be used now or hereafter for extensions or additional buildings for school purposes or accessory uses, (5) that all vehicular parking accessory and incidental to the school during school hours be limited to the existing driveways and parking area, (6) that the auditorium-gymnasium be not used for public or private functions except Lacordaire functions directly connected with and limited solely to its educational and cultural program, and (7) that Lacordaire by acceptance of the conditions shall be deemed to have agreed to abide by them so long as its premises are in a residential zone under a zoning ordinance having substantially the same limitations as are now in effect.
On June 16, 1959 the board of commissioners adopted a resolution approving the recommendations of the board of adjustment and granting ...