Conford, Freund and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.
The issues presented in this case have become considerably narrowed since the date of argument as a result of the enactment in the interim of L. 1961, c. 138, N.J.S.A. 40:55-33.1, approved January 10, 1962, which reads as follows:
"No planning or zoning ordinance heretofore or hereafter enacted by any municipality governing the use of land by, or for, schools shall, by any of its terms or provisions or by any rule or regulation adopted in accordance therewith, discriminate between public and private day schools, not operated for profit, of elementary or high school grade."
The parties have by request of the court filed supplemental memoranda relative to the effect of this statute on the issues posed.
Plaintiff brought an action in the Law Division to review the refusal of the defendant board of adjustment to grant approval of a request for a special exception under the local zoning ordinance for the construction of an elementary Christian day school as an addition to its existing church building. The court held the denial of the application to be arbitrary and unreasonable and ordered a building permit to be issued to the applicant.
We find much of the factual background unnecessary of recitation in view of the effect of L. 1961, c. 138, as we construe it.
The plaintiff church was founded in Morristown in 1918 but moved its location in 1951 to Mountain Way in Morris Plains, where it erected a church structure on vacant land in what was a "Residence B" zone district under the zoning ordinance then existing. The ordinance permitted churches and schools as authorized uses in such a district. An adjoining tract of land was purchased in 1955. In October 1958 the plaintiff's congregation formally resolved to establish a Christian day school at the church premises, such an endeavor being in accordance with the religious tenets of the organization. However, on December 18, 1958 the zoning ordinance of the borough was amended so as to place plaintiff's land in an "R-2" district, primarily restricted to single-family residences, but permitting "all public buildings and public or institutional uses," subject to the "special exception" procedure fixed by section 404 of the ordinance. This requires an application to the board of adjustment "which after a hearing may authorize the issuance of such permit, if in the Board's judgment it will not be detrimental to the health, safety and general welfare of the community and is reasonably necessary for the convenience of the community." "Institutional uses" are defined in the ordinance
to include "churches, schools teaching academic subjects, hospitals and other similar quasi-public non-profit uses."
On October 29, 1959 plaintiff filed an application with the board of adjustment for a special exception under the ordinance to permit the construction and use of an addition to the existing church building to be used as a Christian day school consisting of two classrooms, a general office, a small private office, and two utility rooms. It was expected that the school would begin with four grades, two in each classroom, with a maximum of 15 children in each grade. Ultimately the school would be enlarged so as to accommodate eight full grades. However, the construction now applied for would encompass only 3400 square feet. Eventually the school would grow to a total of 5800 square feet. Adequate parking space is available on the six-acre tract owned by the church for church and school purposes.
At the hearing before the board of adjustment it was shown that the church-school building would be situated from between 205 to 380 feet from the nearest residences on neighboring streets. All recommendations by the planning board of the borough for parking, screening, etc., were incorporated in the plans accompanying the application. A report submitted by an engineer who was recommended to plaintiff by the local board of health indicated adequate sewage facilities. Mountain Way has considerable traffic, but there is a new public school on the thoroughfare a half-mile distant from the locus in quo.
Morris Plains has a population of 5,000. There is no other Lutheran day school in Morris County, or nearer than Westfield (in Union County). It is contemplated that one-third of the original enrollment of the school would come from families in Morris Plains, the remainder from outside the borough. The school program would encompass ...