For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Schettino. For affirmance -- Justices Hall and Mountain. The opinion of the Court was delivered by Francis, J. Hall, J. (dissenting). Justice Mountain joins in this opinion.
[59 NJ Page 144] The sole question presented by this appeal is whether the zoning ordinance of the Township of Denville bars the operation of a county vocational school in a district where schools are not permitted uses. The Superior Court, Law Division, held that the prohibition was not applicable to the Morris County Board of Vocational Education and entered summary judgment in favor of the Board. We certified the ensuing appeal on our own motion before it was heard in the Appellate Division.
The Township of Denville is a municipality containing 13.06 square miles in Morris County. A zoning ordinance was adopted in 1964 dividing its land area into 14 use zones, three of which were industrial zones. At that time and until July 15, 1970, institutional uses were permitted as special exceptions in all zones upon approval by the Board of Adjustment. Such uses were defined as:
The use by a non-profit public * * * or quasi-public institution such as a church, school, library, hospital or public utility * * *.
The Morris County Board of Vocational Education was organized on October 7, 1969 and began a study of the need for vocational training in Morris County. In a survey subsequently conducted, over 4,000 students expressed a desire for a vocational training program. The study and survey also revealed a need for about 13 courses to service the requirements of students as well as those of local industry and business. As a result, the Board concluded that establishment of a vocational school facility was imperative. Investigation turned up an adequate and satisfactory building with approximately 20 acres of property located on Route 53 in the I-2 industrial zone of the Township. It is said to be centrally located in the county and readily accessible to many of the existing high schools.
Early in July 1970, the Board entered into a contract, with an escape clause, to purchase the building at an agreed price of $1,100,000 for the purpose of operating a county vocational school therein. The State Board of Education, after finding a need for a county vocational school (N.J.S.A. 18A:54-12), approved the project and the building and authorized State funding thereof in the amount of $500,000. The Board of Chosen Freeholders of Morris County approved expenditure of the balance of $600,000. On acquisition, the County Board intended to have vocational training classes for high school students during the day with adults and veterans attending evening classes five nights a week. It
was hoped that apprentice programs would commence on October 1, 1970 with night classes for carpenters and electricians and a course on pollution control. Prior to the time the motion for summary judgment was heard in this action, 85 students had been enrolled in the carpenters and electricians courses and several classes of 25 students each were expected in the pollution control course.
On July 15, 1970, the Township amended the zoning ordinance to prohibit institutional uses, except for public utilities, in the three industrial zones, I-1, I-2 and I-P. These three zones constitute 12.40% of the municipal land area. Institutional uses continued to be authorized as special exceptions in the 11 other zones, representing 87.60% of the Township. This amendment resulted in the proceeding now before us in which the County Board of Vocational Education seeks a judgment declaring that it is not subject to the local zoning ordinance, and therefore that the contemplated school operation is not barred thereby.*fn1
On motion for summary judgment, the trial court held in favor of the County Board saying that it is an autonomous county public agency designed and authorized by the Legislature to be superior in authority to the zoning power of a municipality and therefore not subject to an exercise of such power which would thwart establishment of a county vocational school. On this appeal, the Township contends that the decisions of this Court in Roman Catholic Diocese of Newark v. Ho-Ho-Kus Borough, 42 N.J. 556 (1964), and on the second appeal in that case after remand, 47 N.J. 211 (1966) are dispositive of the matter and require a reversal of the judgment. We agree that the cited cases are controlling.
In Ho-Ho-Kus, the Diocese acquired 20 acres in the R-1 residence district of the Borough for the purpose of erecting
a parochial regional high school thereon. At the time of purchase, such use was permitted by the zoning ordinance, but soon thereafter an amendment was adopted which barred all schools from the R-1 district. However, both public and private schools through the high school level continued to be authorized in the other three residential districts.
The trial court held that a municipality cannot zone with respect to public schools, and relying on N.J.S.A. 40:55-33.1, which banned discrimination in zoning between the type of public and private schools involved, concluded that since the amendment affected only the private schools, it violated the statute. N.J.S.A. 40:55-33.1 provides:
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 ...