For reversal -- Chief Justice Weintraub, and Justices Jacobs, Proctor, Hall, Schettino and Haneman. For affirmance -- Justice Francis. The opinion of the court was delivered by Weintraub, C.J. Francis, J. (dissenting).
[42 NJ Page 558] This is a zoning case. In October 1960 plaintiff, Roman Catholic Diocese of Newark, purchased a parcel of some 20 acres in the most highly restricted residence district (R-1) of the Borough of Ho-Ho-Kus upon which it
intended to erect a regional high school for some 1,500 boys. At the time of the purchase, the zoning ordinance permitted the contemplated use, but plaintiff's plans led to a reconsideration of the ordinance and finally to an amendment which barred all schools from the R-1 district but continued to permit public and parochial schools through the high-school level in the other three residential districts.
The amendment was assailed upon sundry grounds, including the charge of arbitrariness and denial of due process of law. Much testimony was taken. No findings were made however, the trial court deeming the case to be controlled by chapter 138, L. 1961, which was adopted during the pendency of the case. That statute, which appears in the annotated statutes as N.J.S.A. 40:55-33.1, reads:
"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."
On its face, the ordinance in question applies equally to public and private schools, but the trial court held that a municipality cannot zone with respect to public schools and hence a zoning restraint upon a private school is necessarily discriminatory. We certified the ensuing appeal before argument in the Appellate Division.
We are unable to accept the trial court's view of the statute. The statute obviously was drawn on the thesis that a municipality may zone as to public schools and upon that premise sought to insure equality of zoning treatment for private schools. A legislator voting for that law could hardly have understood it to mean that thenceforth a private school shall be immune from zoning. That, of course, is the effect of the trial court's treatment of the statute. If the Legislature so intended, it would have said so in such simple terms. It would not ordain that private schools shall be subject to nondiscriminatory
zoning in order to say they shall not be subject to any zoning at all.
If public schools are beyond the local zoning power, then the statute in question is meaningless and a nullity. We cannot, however, say the Legislature erred in assuming the zoning power does apply. No statute expressly exempts public schools from zoning and no judicial decision has found the exemption. Indeed, we heretofore assumed that public schools are subject to zoning. See Yanow v. Seven Oaks Park, Inc., 11 N.J. 341 (1953); Andrews v. Ocean Twp. Board of Adjustment, 30 N.J. 245 (1959); St. Cassian's Catholic Church v. Allen, 40 N.J. 46 (1963); but cf. Trinity, &c., Church v. Morris Plains Bd. of Adjustment, 72 N.J. Super. 425, 431-32 (App. Div. 1962).
Plaintiff cites Bloomfield v. New Jersey Highway Authority, 18 N.J. 237, 244 (1955); Aviation Services, Inc. v. Morristown, 20 N.J. 275 (1956); and Washington Twp. v. Ridgewood, 26 N.J. 578 (1958), in which it was held that the particular public projects involved were not subject to the zoning ordinance of the municipality in which they were situate. In each of those cases there was the likelihood of a conflict in interest which could defeat or hamper the project if the zoning power were applicable. In Bloomfield the project was restaurant and service station facilities on a toll highway. In Aviation Services the project was a municipal airport authorized by statute to be developed within the borders of another municipality. And in Washington Township the statute authorized a municipality to condemn lands in another municipality in connection with its water needs. We concluded in each case that the Legislature intended the municipality in which the improvement was to be located should not be able to block it by zoning.
Here the prospect of discord is quite remote, for the school districts, whether regional or not, share a common interest with the municipalities themselves. Ordinarily there is no reason for a school board and the local governing body to quarrel about zoning matters. Hence, although unquestionably
the school board as the State's agent to discharge the State's constitutional duty to provide for a system of free public schools, Art. VIII, § IV, par. 1, is a distinct entity essentially independent of the local governing body, Gualano v. Board of School Estimate, 39 N.J. 300, 303 (1963); Botkin v. Westwood, 52 N.J. Super. 416, 425 et seq. (App. Div.), appeal dismissed 28 N.J. 218 (1958), there is a community of interest which augurs for good relations between them. Of course the Legislature could place the public school beyond the zoning power as it is in some jurisdictions, see Town of Atherton v. Superior Court, 159 Cal. App. 2 d 417, 324 P. 2 d 328 (D. Ct. App. 1958); Congregation Temple Israel v. City of Creve Coeur, 320 S.W. 2 d 451, 454 (Mo. Sup. Ct. 1959), but we see no constitutional command that it do so.
Plaintiff cites N.J.S.A. 18:11-11 which provides that the plans and specifications for a school building are not subject to municipal approval and a building permit shall not be required. Kaveny v. Montclair, 71 N.J. Super. 244 (App. Div.), certif. denied 36 N.J. 597 (1962). That statute must be considered with R.S. 18:11-8 which requires approval of such plans and specifications by the State Board of Education. Indeed N.J.S.A. 18:11-11 comes from L. 1928, c. 186, where it appeared as a proviso to what is now R.S. 18:11-8. The reason for the 1928 statute is given in its sponsoring statement:
"All work in connection with the erection or alteration of school buildings is under the supervision of the State Board of Education. The Attorney General has ruled that a local building permit is not necessary in connection with school work. Some still feel that a local permit is necessary. The purpose of this act is to definitely settle the question."
In short, the subject having been committed to a state agency, the municipal role was eliminated to avoid a division of responsibility.
Thus with respect to the sufficiency of the school plant itself the Legislature has both vested responsibility in a state agency and expressly barred the municipality. No such
legislation exists as to zoning. In this connection we are referred to N.J.S.A. 18:2-4, subd. h under which the State Board of Education "may" withhold approval of a "secondary school" if its "location" shall not warrant its establishment or continuance. That statute quite plainly does not charge the State Board with responsibility for the total zoning interests of the community but rather enables the State Board permissively to disapprove a specific site because it is unsuitable in the limited context of the need for and utility of a secondary school.
And so also N.J.S.A. 40:55-1.13 does not bespeak a purpose to place schools beyond the zoning power. That statute, which applies only if a planning board has adopted a master plan or a portion of a master plan, provides that the governing body or other public agency "before taking action necessitating the expenditure of any public funds, incidental to the location, character or extent" of a project, shall refer the proposal to the planning board for review and recommendation. A "school board" is specifically listed among the agencies subject to this requirement. The statute provides that the recommendation of the planning board may be overridden, and for present purposes we may accept the Attorney General's opinion that a school board may override the recommendation without the concurrence of the municipal governing body. Op. A.G. 1954, No. 8. The statute, however, does not relate to compliance with zoning restrictions. Rather it deals with the suitability of a specific site or location for a public improvement, see Saddle River Country Day School v. Saddle River, 51 N.J. Super. 589, 602 (App. Div. 1958), affirmed o.b. 29 N.J. 468 (1959), and hence, although a school board has the final say with respect to the precise location, it does not follow that it may ignore the zoning ordinance.
In summary, then, there is no statute under which zoning responsibility with respect to public schools has been vested in another agency or expressly denied to the municipality. We see no reason, therefore, to dispute the assumption
in N.J.S.A. 40:55-33.1 that public schools are subject to local zoning.
We of course do not mean that the Legislature intended that the governing body may block public education by barring schools throughout the municipality or by relegating schools to areas that are obviously unsuitable. Rather the Legislature found it appropriate to permit the municipality to consider the total needs of the community in all of its zoning aspects to the end that schools will be in appropriate districts and upon plots of ample size and with suitable buffers to contain within the perimeter of the property those influences which could be unduly hurtful to others.
This discourse upon the amenability of public schools to zoning should not obscure the question before us. That question is whether the Legislature intended private schools to be beyond zoning control. While undoubtedly the public interest could be left with the school board, it would be poor policy to permit private schools to locate anywhere at all and to be unrestrained as to size of plot, sideyards, etc. The private organization is not accountable to the electorate directly or indirectly, and even if it wanted to keep in mind the total zoning interests of the community, still it could not draw upon a power to condemn or to tax in its quest for the optimum location. We should hesitate to impute so questionable a purpose to the Legislature.
Plaintiff alternatively suggests the statute be read to permit zoning regulation as to lot size, setback, buffers, etc., but not as to land use. Thus a private school could locate its facilities in any district but would have to obey local regulations reasonably designed to insulate the neighborhood from the noise and activity which schools, especially secondary schools with their athletic facilities, can readily generate. This approach would be more palatable as a policy matter than the approach we rejected above, but the answer is that the Legislature has not adopted it.
The statute is plain enough if it is read without stress and strain. There is disagreement upon ...