Lewis, Labrecque and Kolovsky. The opinion of the court was delivered by Labrecque, J.A.D.
Plaintiffs appeal from a judgment of the Law Division which affirmed (1) the denial by the Denville Board of Adjustment of a special use exception and (2) the refusal of the Denville Township Committee to approve a recommended use variance, to permit erection by them of a contemplated 200-bed nursing and convalescent home.
Plaintiffs entered into a contract to purchase a nine-acre tract located in the township's R-1 (prime residential) zone. They then applied to the township building inspector for a permit to construct the first 100-bed section of the proposed nursing home. When their application was denied they appealed to the board of adjustment seeking either a special exception as an institutional use permitted under the ordinance or a use variance. After conducting hearings the board denied the application for a special exception on the ground that operation of the proposed nursing home did not qualify as an institutional use permitted under the ordinance. Subsequently, on September 2, 1965, the board adopted a resolution recommending to the governing body that a use variance pursuant to N.J.S.A. 40:55-39(d) be granted, subject to certain conditions set forth therein.
At a regular meeting held on September 15, 1965 the township committee took up consideration of the recommendation of the board. After hearing plaintiffs' counsel and other interested persons the recommendation was rejected. Plaintiffs thereupon filed the present suit in lieu of prerogative writs. Both sides filed motions for summary judgment, the facts not being in dispute. After hearing argument the trial judge affirmed both the board's denial of a special exception and the committee's rejection of the board's recommendation of a use variance. Plaintiffs thereupon filed the present appeal.
Plaintiffs first urge that the trial court was in error in upholding the denial of the exception by the board of adjustment. This point must be considered in the light of the fact that, subsequent to the entry of the judgment under review, the township committee adopted an amendment to the zoning ordinance specifically providing that a nursing home was not to be considered as an institutional use. Since the case must be determined by us on the basis of the ordinance currently in effect, Hohl v. Township of Readington, 37 N.J. 271, 279 (1962); Kligman v. Lautman, 91 N.J. Super. 488, 493 (App. Div. 1966), we granted leave to plaintiffs to file a supplemental brief in support of their challenge to the legality of the amended ordinance.
The ordinance in effect at the time of the application permitted "institutional uses" in all zones as exceptions to the ordinance. Such a use was defined as:
"316. INSTITUTIONAL USE. The use by a non-profit public use or a public or quasi-public institutional such as a church, school, library, hospital or public utility." (Emphasis added)
The board of adjustment in interpreting this section held that it did not authorize operation of a nursing home. The amendment under attack took the form of an added sentence which read:
"A Nursing Home shall not be included in the definition of an institutional use."
Plaintiffs urge that the ordinance as amended is arbitrary, capricious and unreasonable by reason of its exclusion of nursing homes, while permitting hospitals, as institutional uses.
In passing upon the validity of the present ordinance the role of the court is tightly circumscribed. There is a presumption that a municipality, in enacting or amending a zoning ordinance, acted reasonably, and that the ...