On appeal from the Superior Court, Law Division, Bergen County.
Allcorn, Pressler and Furman. The opinion of the court was delivered by Pressler, J.A.D.
These appeals, consolidated by the court on its own motion, involve a land-use controversy between the Borough of Franklin Lakes and Urban Farms, Inc., the developer of a proposed nursing home, formerly a permitted special-exception use.
The nursing home development plan here in issue was first presented to the municipality for special-exception approval in 1972 and was ultimately rejected by it in 1977. Urban Farms challenged this rejection by way of an action in lieu of prerogative writs and obtained a judgment directing that it be issued a building permit subject to specified conditions. Franklin Lakes' appeal from that judgment is the first of the appeals now before us. While that appeal was pending, the municipality in 1979 amended its zoning ordinance to eliminate nursing homes as a permitted or conditionally permitted use anywhere within its borders. That action was sustained by a different judge of the Law Division as a valid exercise of the zoning power, and Urban Farms' appeal from the judgment so declaring is the second of the appeals before us. The fundamental issue projected by this complex of litigation is whether this developer can be deprived of the apparently decisive judicial declaration of its rights by a subsequent zoning ordinance barring its proposed use. In the factual circumstances before us and for the reasons hereinafter set forth, we hold that it may not.
According to the record, Franklin Lakes is a small, primarily residential but not wholly developed municipality, in northwestern Bergen County. Its geographical area is some ten square miles and its population has increased from 7,550 in 1970 to 8,754
in 1980.*fn1 Urban Farms owns a parcel of land just under 26 acres in size, located in a residential zone at the southwest intersection of two main local arteries, Franklin Lake Road and High Mountain Road. Despite the residential zoning of the subject premises, they are virtually surrounded by commercial, public and quasi -public uses, including a privately-owned golf club complex, a public elementary school, a parochial elementary school and convent building, a municipal fire house, a gasoline station, a shopping center and, adjacent to the shopping center, a sewage treatment plant, proposed to be enlarged to handle the projected needs of the nursing home.
The zoning ordinance, prior to its 1979 amendment, provided for five categories of permissible conditional uses in the residential districts of the borough, including churches and church-related uses, hospitals and nursing homes, public and private elementary and secondary schools, golf courses, and nonprofit recreational facilities.*fn2 Approval of conditional uses were made subject to prior administrative findings that the specifically proposed use "will not be detrimental to the health, safety and general welfare of the community and is reasonably necessary for the convenience of the community and will not be injurious to the remainder of the district as a place of residence." The conditional uses were also subject to minimum bulk requirements dependent upon the category of use involved. In the case of nursing homes, the limiting schedule required a 25-acre minimum lot size, 200-foot road frontage and setback from all property lines, 10% maximum building coverage, 2-story maximum
height, specified parking and buffer strip requirements and a specification of permitted accessory uses.
In 1972 Urban Farms, on the basis of a plan fully conforming with the ordinance requirements, sought and obtained special exception approval for a nursing home on the site in question. The approval was, however, conditioned upon the developer obtaining a certificate of need from the State Department of Health within one year. Urban Farms timely applied for the certificate of need but because of a Department of Health moratorium on nursing home approvals, was not successful in obtaining the certificate until January 1976. That certificate, in accordance with the submitted application, granted approval for a facility containing 120 long-term nursing beds subject to the developer's commitment to make at least 42 of those beds available for Medicaid recipients.
Since Urban Farms had not obtained its certificate of need within the one-year period prescribed by the original approval of its special exception application, it was required to reapply to the board of adjustment. Because of neighborhood opposition to the nursing home proposal which had developed in the interim, including opposition by a number of neighbor-attorneys, each representing himself, the board of adjustment proceedings were inordinately protracted, consuming 12 sessions and the presentation by Urban Farms of the testimony of a variety of experts, including an engineer, architect, traffic planner, nursing home administrator and real estate experts. The objectors presented countering experts. Ultimately, in December 1976 the board of adjustment, by a commendably thorough and detailed resolution, recommended to the governing body that it approve the special exception use subject to various terms and conditions to which the applicant made no objection.*fn3 The mayor and council,
however, rejected the recommendation and disapproved the application.
It was the view of the trial judge, based on the record of the local administrative proceedings, that the governing body's disapproval was arbitrary and capricious, and we agree substantially for the reasons expressed by Judge Petrella in his oral opinion. We add, however, several observations.
First, despite the unwarranted findings by the mayor and council to the contrary, the record is overwhelmingly supportive of the conclusion that the proposed use meets the negative criteria of both the ordinance itself and the enabling legislation pursuant to which the special exception was sought. Indeed, the minimal intensity of the use in relation to the size of the parcel, its location at an intersection generally devoted to nonresidential uses, the capacity of the involved roads to absorb whatever traffic the nursing home might generate, and the proposed colonial architecture of the planned single-story structure are factors which, among others, leave no question as to the exceptional suitability of the site for the proposed use and its minimal intrusion on the neighboring residential uses.
Even more compelling, however, than its compliance with the negative criteria is the compliance by the proposed use with the affirmative criterion of the ordinance, namely, its reasonable necessity for the convenience of the community. In this context we note first that a special exception or conditional use permitted by local zoning ...