For reversal -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall, Schettino and Haneman. For affirmance -- Justice Francis. Hall and Schettino, J.J., concur in result. Hall, J. (concurring). Schettino, J., joins in this opinion. Francis, J. (dissenting).
Plaintiff seeks to erect a regional high school on lands it acquired for that purpose. The lands are in the highest residential district called R-1. At the time of the purchase the local zoning ordinance permitted the proposed use. The municipality thereafter amended the ordinance to bar all schools, public or private, from the R-1 district, permitting them however in its other three residential districts. This suit followed.
The trial court held the municipality lacked power to bar the proposed school, finding that L. 1961, c. 138 (N.J.S.A. 40:55-33.1)*fn1 had that effect. So holding, the trial court did not reach the charge that the ordinance was otherwise arbitrary and a denial of due process. We however concluded the statute only forbade discrimination between public and private schools and that, subject to that restraint, municipalities could deal with schools under the zoning power. Roman Catholic Diocese of Newark v. Borough of Ho-Ho-Kus, 42 N.J. 556 (1964).
Accordingly we reversed the judgment. The matter was remanded for consideration of the issue of arbitrariness. In that connection we made particular reference to the municipality's argument before us that it could take into account the tax exemption such schools have. We said (42 N.J., at p. 565):
"The substantial issue upon which the trial court made no finding is whether it is arbitrary to bar the use of plaintiff's property for a secondary school. The issue is constitutional insofar as it is claimed that the ban offends due process of law. The issue is also statutory insofar as it involves the question whether the municipality exceeded the statutory authority or departed from state policy. In this connection it is appropriate to comment upon so much of the testimony and argument as stresses the tax implications of the proposed use.
We have held that a municipality may consider revenues in its plan for a well balanced community. Gruber v. Mayor and Township Committee of Raritan Twp., 39 N.J. 1, 9-11 (1962). Thus it may provide for industrial or commercial uses which are less demanding in public services than residential uses. It is, however, another matter to bar tax-exempt facilities on the ground that they are financially burdensome by reason of that exemption. The exemption is granted by the State because of the contribution of the exempt facility to the public good. It may be that an exemption will mean a net burden for the taxpayers of a particular municipality, but the municipality must nonetheless abide by state policy. Indeed, our Constitution of 1947 expressly preserved the then existing exemptions of real and personal property used exclusively for religious, educational, charitable or cemetery purposes and owned by a nonprofit corporation or association. Art. VIII, § I, par. 2. And N.J.S.A. 40:55-33.1, while not bearing the interpretation given it in the trial court, does serve to evidence the Legislature's concern for nonprofit private schools which furnish elementary and high school education.
No municipality may quarrel with this policy. Hence it may not zone against a private school, place it in one district rather than another, or refuse it a variance on the ground that it is exempt from taxation."
After remand, the parties took additional testimony upon the question whether the amendment was prompted by the tax exemption. The trial court found it was not. The trial court concluded, however, that the amendment was arbitrary and hence invalid. Defendants again appealed, and we certified the matter before argument in the Appellate Division.
We are satisfied plaintiff did not sustain its burden and hence that the judgment must be reversed.
In finding the ordinance invalid, the trial court, it seems to us, combined several approaches, each of which we are unable to accept. In part, the trial court seems to have been persuaded by decisions elsewhere which are not consistent with our basic conclusion that schools may be excluded from the highest residential district. In part, the trial court seems to have made a de novo evaluation of the legislative policy decision upon an inquiry into the zoning considerations. Finally the trial court appears to have tested the validity of the ordinance on the basis of the attributes of the particular parcel plaintiff owns. Basic to that test would be the belief that the Constitution or the zoning statute requires a zoning ordinance to authorize for each parcel every possible use to which it could be devoted.
As to the last facet, we point out that although a zoning ordinance may be invalid in its impact upon a particular parcel, as where the parcel is zoned into idleness, no one suggests the lands here involved cannot be used for residential purposes. On the contrary, they are ideally suited for that use, and this being so, a constitutional issue does not arise merely because these lands, appropriately zoned for highest residential use, are so extensive or otherwise so featured that a forbidden use might be harbored safely within its perimeter upon some special plan or design. Zoning contemplates the delineation of appropriate districts and the equal treatment of all property within it. The Constitution does not require, nor does the statute require or even permit, a municipality to enact an ordinance which deals separately with every owner's parcel and undertakes to prescribe the uses to which each parcel may be put by reason of its size or situation and the terms upon which each possible use may be made.
Rather, the statutory vehicle for the accommodation of zoning with individual situations is either a special exception, where the ordinance ...