This proceeding in lieu of prerogative writs was originally instituted to review the action of the defendant Board of Adjustment of the Town of Montclair denying the application of the plaintiff church to eliminate a condition limiting the enrollment of St. Cassian's School. The limitation had been imposed by the then board of adjustment when construction of the school was authorized in 1951. Both parties moved for summary judgment, and on January 10, 1962, while motions
were pending, chapter 138 of the Laws of 1961 was approved by the Governor and became operative. N.J.S.A. 40:55-33.1. Thereafter, a supplemental complaint was filed adding the second and third counts which asserted, in effect, that since the enrollment limitation was not imposed upon public schools in the community, its imposition on St. Cassian's was rendered illegal by virtue of the statute. By these counts it sought the issuance of a certificate of occupancy, notwithstanding the enrollment limitation. In their answer the defendants challenge the constitutionality of the statute. Alternatively, they assert that a subsequent amendment to the zoning ordinance, excluding public schools, constitutes full compliance with the statute. The plaintiff challenges the right of the town to exclude public schools and urges that the limitation which the defendant zoning board had imposed comes within the statutory prohibition and was not reinstated by the ordinance amendment excluding public schools in futuro.
There being no substantial dispute as to the facts, the matter was submitted on the record below, the 1951 record, affidavits and briefs supplemented by oral argument.
The plaintiff is a religious corporation. Its place of worship and school are located on premises at the corner of Lorraine and Norwood Avenues, Montclair, in an area which was zoned as R-3 (garden group) in 1951. At the time of the decision under review, however, it was zoned as R-1 (single-family residences). Most, if not all, of the remainder of the block in which its property is located, is zoned as R-2 (two-family zone) and C-1 (general business zone). The block is a rather large one and adjoins the upper Montclair business zone. It extends from Valley Road on the north to Norwood Avenue on the south, and from Bellevue Avenue to Lorraine Avenue. Valley Road, which closely parallels the tracks of the Greenwood Lake Division of the Erie-Lackawanna Railroad
at this point, is zoned for business up to Lorraine Avenue on both sides. Continuing around the block, all of the opposite side of Lorraine Avenue, except that portion facing Norwood Avenue, is zoned as R-2 or C-1. The opposite side of Norwood Avenue is zoned as R-1, but is and has been occupied by the Mount Hebron School, a public elementary and junior high school. The entire opposite side of Bellevue Avenue is zoned as C-1 or R-3. The plaintiff's school is located at the corner of Lorraine and Norwood. To the east of it is the church, and immediately east of that is the public library. The playground is located to the rear or north.
Although plaintiff's place of worship has been located on the parcel in question for many years, its school was not constructed until 1951. In July of that year an application was made to the board of adjustment for permission to erect a two-story elementary school building consisting of eight classrooms, a kindergarten room and a combination gymnasium-auditorium. Under the zoning ordinance in effect at that time, the uses permitted in an R-3 Zone included:
(a) Any use permitted in an R-1 Zone.
(e) * * * such philanthropic or eleemosynary uses or institutions other than correctional institutions and such hospitals, convalescent and nursing homes, psychiatric institutions and/or sanitariums as may be permitted by the Board of Adjustment after a hearing.
(f) Accessory uses customarily incident to the above uses.
The use regulations controlling R-1 Zones at that time authorized any use permitted in R-0 Zones. The latter permitted:
"(c) Schools, libraries or museums conducted by a governmental agency and such other schools, libraries or museums as may be permitted by the Board of Adjustment after a hearing." (Emphasis added.)
The board of adjustment, after two hearings, entered an order dated October 22, 1951 permitting the plaintiff to erect
the proposed school but imposing six conditions as a prerequisite to its doing so. Three of these, which were the subject of the current proceedings before the board, were as follews:
"3) That the said playground area be used for no purpose other than for an outdoor recreation area for the students of the contemplated school.
4) That no means of access shall be afforded at any time for motor vehicles to enter the playground area * * *
6) That the enrollment of pupils in said school shall at all times be limited to the extent that for each pupil enrolled there shall be usable outside playground area of not less than one hundred (100) square feet."
A building permit was subsequently issued, and the school was erected and has been in operation for some ten years.
On July 19, 1961 an application was filed by the church to eliminate condition number 6 above and to modify conditions 3 and 4 so as to permit accessory parking on the school playground at certain times. Prior to that time the plaintiff's property had been rezoned from R-3 to R-1. In the latter zone the use regulations authorized any use permitted in the R-0 Zone and
"(d) On any property owned or leased by the Town of Montclair, any use for which it is operated by the Town of Montclair."
In the R-0 Zones the only schools permitted were
Schools, libraries and museums operated by the Town of Montclair. (Section 6 (c))
The clause allowing other than public schools appears to have been eliminated in 1955 or thereabouts.
At a hearing held on August 10, 1961 it developed that for a number of years the school enrollment of St. Cassian's had exceeded the 280-pupil limit which had resulted from the condition that there be 100 square feet of playground space for ...