Halpern, Allcorn and Botter. The opinion of the court was delivered by Botter, J.A.D.
The issue on this appeal is whether, contrary to the holding of the trial judge, Areba School Corporation (hereinafter Areba or the Areba School) is a "school or other education institution * * *"*fn1 within the meaning of the zoning ordinance of Randolph Township prior to its amendment during the course of this litigation. Areba has been approved by the New Jersey Department of Education as a nonprofit corporation authorized to operate a school for emotionally disturbed children with special education funding to be provided under N.J.S.A. 18A:46-1 et seq. Room and board for each pupil referred by a local board of education will be paid by the New Jersey Division of Youth and Family Services (DYFS), Department of Institutions and Agencies, pursuant to contract entered into with Areba.
Areba planned to commence operations on March 1, 1976 but was prevented from doing so by defendants on the theory that the use was prohibited by the municipal zoning ordinance.
This action was instituted in April 1976 and a plenary trial was held in July and August 1976. Judgment was entered in favor of defendant township on August 4, 1976 denying relief to plaintiff. Plaintiff had sought an order preventing defendants from interfering with plaintiff's rightful use and occupation of the premises it had leased for the described purposes. The trial judge did find that if the Areba School is an educational institution within the meaning of the zoning ordinance, it could continue such educational activity on the premises as a valid nonconforming use despite the amendment to the zoning ordinance which sought to preclude the operation or maintenance of a school or educational institution in this zone. Defendants have not filed a cross-appeal from the determination of the trial judge on the nonconforming use aspect of the case.
Plaintiff sought to commence operation of this residential institution for emotionally disturbed children between the ages of 12 and 18. Dr. Angelo J. Spinazzola, Executive Administrator of the Areba School and Assistant Professor of Special Education at Jersey City State College, testified that the institution would provide academic, vocational and career training, and, on occasion, college-supervised independent study for its students. An accompanying therapeutic program was designed to modify the emotional, behavioral and attitudinal characteristics of the pupils to enhance their ability to learn. Dr. Irwin A. Hyman, Professor of School Psychology at Temple University and formerly the Chief of Clinical Services at the training school for retarded children in Vineland, testified that a therapeutic educational program for emotionally disturbed children cannot be divided into separate therapeutic and educational components since therapy is a concomitant process designed to remove emotional blocks which inhibit learning.
In December 1975 the Areba School had been listed by the Department of Education as a nonpublic school eligible for the 1975-1976 school year to receive a maximum of 16 emotionally disturbed children from New Jersey public
schools. Each local board of education sending a child to Areba would pay $480 in tuition on his behalf. In early 1976 Areba's budget, facilities and proposed program were approved by DYFS, which agreed to pay $457 a month for the room and board of each child in 1975-76. Robert Nicholas, Acting Chief of the Bureau of Residential Services of DYFS, testified that the Areba School provided an educational program and staff which met DYFS standards.
Dr. Spinazzola testified that each child would take part in daily school activities from 9 A.M. to 3 P.M. under the supervision of special education teachers. Individual therapy and group therapy sessions would be held three and five times a week, respectively. Except during the summer, each child would receive four hours of classroom instruction daily. During a two-week indoctrination period a child would attend classes while a child study team prepared an appropriate academic and residential prescription. After developing responsible attitudes the child would be allowed to leave the premises to engage in outside social and recreational activities. Upon graduating from the Areba School the child would receive a diploma from the local sending district.
New Jersey's public school system is designed to provide programs for handicapped children, including the emotionally disturbed, educable child. N.J.S.A. 18A:46-1 et seq.; N.J.S.A. 18A:7A-5(e). N.J.A.C. 6:28-2.1 defines an emotionally disturbed educable child as follows:
A child shall be considered to be emotionally disturbed when his behavior is characterized by a pattern of functioning which is so inappropriate as to call attention to itself and which severely limits the individual from profiting from regular classroom learning experiences or severely hinders other pupils in the class from profiting from regular classroom learning experiences. The emotionally disturbed child further characterizes himself by a pattern of expression of emotion inappropriate to the situation in a matter of degree and quality. However, the emotionally disturbed child must give evidence of a degree of rational ...