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Burton v. Town of Montclair

Decided: April 23, 1963.

BENJAMIN T. BURTON, PLAINTIFF-APPELLANT,
v.
TOWN OF MONTCLAIR, A MUNICIPAL CORPORATION, BOARD OF COMMISSIONERS OF THE TOWN OF MONTCLAIR, BOARD OF ADJUSTMENT OF THE TOWN OF MONTCLAIR, INSPECTOR OF BUILDINGS OF THE TOWN OF MONTCLAIR, AND MONTCLAIR ACADEMY FOUNDATION, INC., A CORPORATION, DEFENDANTS-RESPONDENTS



For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.

Per Curiam

Montclair Academy Foundation, Inc., a New Jersey corporation not for pecuniary profit, conducts a private country day school for boys in grades 7 through 12, on a 5.7-acre tract of land located at the intersection of Bloomfield Avenue and Lloyd Road in Montclair, New Jersey. The Academy has been in existence at this site for 75 years and for the academic year 1961-1962 had a student body of 204 boys, 34.3% of whom were residents of Montclair. It is anticipated that if the development program contemplated by these proceedings is approved, local students will increase to 55-65% of the enrollment. The use of the tract for school purposes is a nonconforming one. It pre-existed the adoption of the first zoning ordinance of the Town. At present all but a small portion of the premises is in the R-3 zone (garden apartments); the remainder is in R-0, the one-family residence zone.

The Academy building complex consists of a main academic building, a separate gymnasium, Walden House (used to house unmarried teachers and as a luncheon facility), Miller House (occupied by the Assistant Headmaster and his family) and storage garages. All of these structures, of frame and stucco construction, were erected between 1888 and 1909. Presently they are outmoded, functionally obsolete, and in such state of deterioration that even with most extensive and uneconomic repairs, they could not be made adequate to

satisfy the needs of a modern, efficient educational plant. The physical condition of the buildings faced the Board of Trustees with the problem of replacement within a short time or abandonment of the Academy.

The Academy acquired another 5.7-acre parcel of land on the westerly side of Lloyd Road, immediately opposite its present site. The tract consists of five lots, to four of which it already has title; it has an option to purchase the fifth lot. Thus, the school has available for its purposes 11.4 acres in one piece, separated only by Lloyd Road to which it holds title to the center of the street on both easterly and westerly sides.

The Academy, being desirous of building a new, modern fireproof school and gymnasium on the new tract on the westerly side of Lloyd Road, applied to the Board of Adjustment for a variance from the R-0 zone to permit the construction. The plans submitted provided, among other things, that upon grant of the variance and completion of the new buildings, the present old structures of the school on the opposite side of the street would be demolished and the site used for athletic and playfield area.

The application for variance was made under N.J.S.A. 40:55-39 which provides:

"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 * * * may, by resolution, approve or disapprove such recommendation. If such recommendation shall be approved by the governing body * * * then the administrative officer in charge of granting permits shall forthwith issue a permit for such structure or use.

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."

The Board conducted extensive hearings on the application. Much testimony, expert and ...


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