Harrison, J.c.c. (temporarily assigned).
[118 NJSuper Page 454] Plaintiff Three L. Corporation brings an action in lieu of prerogative writs pursuant to R. 4:69 to review the decision of the Newark Board of Adjustment denying its application for a use variance
to operate a day nursery for a maximum of 30 children at 107-113 Grumman Avenue. Plaintiff is the contract purchaser of the above premises, a 93' x 100' lot with a 2 1/2-family residence and two-car garage, located in a Second Residential District. The building inspector initially denied the permit for this purpose on the grounds that the proposed use is not permitted in the zone. Plaintiff appealed and the board denied its application following a hearing on September 7, 1971 based upon the findings that plaintiff's use would (1) increase traffic congestion, (2) change the residential character of the neighborhood and (3) decrease property values. Involved herein is the application of the zoning law, N.J.S.A. 40:55-39.
The Newark zoning ordinance enacted June 9, 1954 applicable to this Second Residential District permits only the establishment of single-family homes, two-and three-family attached dwellings, public schools (elementary and high), private schools not conducted for a profit, not to include nursery schools , museums and libraries, physician's and dentist's offices if located in their homes, and home occupations. The Rabbinical College of New Jersey previously owned and operated the premises under a use variance granted August 1, 1956 to operate the premises as a college.
We first dispose of the issue of whether the ordinance itself unconstitutionally discriminates against private schools conducted for profit so as to deprive their owners of property without due process and of the equal protection of the law. The function of this court in an action in lieu of prerogative writs pursuant to R. 4:69-4 is to review the facts and make independent findings thereon. Appellate courts, not trial courts, generally should rule on issues of constitutionality. Chalmers v. Chalmers , 117 N.J. Super. 474, 478 (Ch. Div. 1971). The constitutional validity of the distinction between profit and nonprofit private day schools under N.J.S.A. 40:55-33.1 has already been upheld in this State in St. Cassian's Catholic Church v. Allen , 77 N.J. Super. 99 (Law Div. 1962), rev'd on other grounds
40 N.J. 46 (1963), which interpretation has been iterated in Tp. Com., Denville v. Bd. of Ed., Morris Cty , 59 N.J. 143 (1971).
As the protection of the statute does not apply to the type of school involved here, the vehicle for the accommodation of zoning with individual situations is either a special exception if provided for in the ordinance, or a variance as authorized in N.J.S.A. 40:55-39. Special reasons, public good, and purpose of the ordinance are to be considered in determining, as we must here, whether the local board soundly exercised its discretion. See Roman Catholic Diocese of Newark v. Ho-Ho-Kus , 47 N.J. 211, 217 (1966).
A private day nursery thus being unauthorized in a Second Residential District, a variance is sought under N.J.S.A. 40:55-39, providing in pertinent part as follows:
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 of use. Whereupon the governing body or board of public works may, by resolution, approve or disapprove such recommendation. * * *
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.
Two critical findings are required by statute: (1) an affirmative finding that "special reasons" "in particular cases" exist; and (2) negative findings applicable in all zoning relief situations that the "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 applicant is required to supply competent and credible evidence to apprise the board of the nature of the zoning burden sought to be ...