[201 NJSuper Page 232] The Baptist Home, which provides for the care of elderly Baptists, is in Riverton, New Jersey. Its application for a zoning variance which would permit the expansion of its facility was denied by the Board of Adjustment. This prerogative writ action seeks a reversal of that denial; it also challenges the validity of the Borough's zoning ordinance. Individual residents have been allowed to intervene. The issues have been disposed of in two phases of the litigation. First, the validity of the Borough's zoning ordinance was considered. It was held to be void but the municipality was provided with an opportunity to adopt a new ordinance. This was done and the court then considered the variance question in the light of the new legislation, holding that the denial of the variance was arbitrary. The opinions supporting these decisions are set forth below. Each responds to a summary judgment motion.
THE VALIDITY OF THE OLD ZONING ORDINANCE
Riverton Borough's governing body is also its planning board. It has adopted a zoning ordinance. This opinion holds that the governing body cannot be a planning board under our Municipal Land Use Law, that the existence of a separate planning board was necessary before the zoning ordinance could be adopted and that, as a consequence, the Borough's ordinance is void.
N.J.S.A. 40:55D-23a provides for the creation of a planning board and establishes its membership. N.J.S.A. 40:55D-62a permits the adoption of a zoning ordinance only after a planning board has adopted the Land Use Plan element of the master plan and, pursuant to N.J.S.A. 40:55D-64, after reference of the proposed ordinance to a planning board. Riverton's planning board is its governing body. This cannot be. The membership requirements of the statute must be met. Taxpayers Ass'n. of Weymouth Tp. v. Weymouth Tp., 80 N.J. 6, 20-21 (1976). The Riverton arrangement does not meet them. It is the clear intention of the Legislature that a planning board be an autonomous body. Lehrhaupt v. Flynn, 140 N.J. Super. 250, 268 (App.Div.1976), aff'd 75 N.J. 459 (1978). The Riverton ordinance fails to recognize this fact. The ordinance emasculates appellate rights. Any interested party desiring to appeal the decision of the planning board to the governing body, as permitted by N.J.S.A. 40:55D-17, would not have independent review of appellate contentions as anticipated by the statute. An appeal from the governing body to the governing body makes no sense and surely was not intended by the Legislature.
A municipality is not required to adopt a zoning ordinance. N.J.S.A. 40:55D-62a provides that the "governing body may adopt or amend a zoning ordinance. . . ." Under our former zoning statutes, the absence of a planning board did not affect the validity of a zoning ordinance. Angermeier v. Sea Girt, 27 N.J. 298 (1955). Submission of a proposed zoning
regulation to a planning board was required but only "when such board exist[ed]." N.J.S.A. 40:55-35. The Borough argues that the old arrangement remains a permissible one. It points to N.J.S.A. 40:55D-23a, which says that the "governing body may, by ordinance, create a planning board . . .," contrasting this with N.J.S.A. 40:55D-69 which provides that the "governing body shall create, by ordinance, a zoning board of adjustment. . . ." It also suggests that the elimination of the words "when such board exists" from N.J.S.A. 40:55D-64 (the present version of N.J.S.A. 40:55-35) is not significant. I disagree with the Borough's position.
It is necessary to read the Municipal Land Use Law in its entirety when construing the Legislature's intention with reference to any part thereof. Particular words of the statute should be read in the light of the statutory purpose. Sperry & Hutchinson Co. v. Margetts, 15 N.J. 203 (1954). The Municipal Land Use Law greatly increased the power of municipal planning boards, part of the legislative effort to strengthen planning procedures in municipalities and to make planning and zoning integrated undertakings. It is entirely clear that the Legislature intended to have planning boards play a substantial role in connection with the enactment of zoning ordinances. The land use element, perhaps the most significant underpinning for any zoning ordinance, must be adopted by a planning board and no zoning ordinance may be adopted which is inconsistent with these land use provisions unless the inconsistent provisions are adopted by the affirmative vote of the full authorized membership of the governing body with reasons for the adoption being set forth in the record. The planning board adopts the entire master plan for the community. It is the body authorized to grant subdivision approvals. The provision of N.J.S.A. 40:55D-23a that the governing body "may" create a planning board must be read in light of the fact that a municipality is not required to adopt zoning legislation, in which case it need not appoint a planning board. When a zoning ordinance is adopted, a planning board is a necessity. If this were not so,
the mandatory provision in the statute, requiring that an ordinance " shall " be adopted only after the planning board has adopted the land use element, N.J.S.A. 40:55D-62a, and the demand of N.J.S.A. 40:55D-64 that the governing body "shall" refer a proposed zoning ordinance to the planning board, would make no sense. These provisions make it entirely clear that, if a municipality wishes to adopt a zoning ordinance, it may do so only with the participation of a planning board, and therefore, a planning board must be created.
Riverton's governing body-cum-planning board was not an arrangement authorized by statute. As a consequence, Riverton's planning board did not exist in the eyes of the law. As a further consequence, its zoning ordinance was not adopted as required by law. It is therefore void.
It is unlikely that the Borough of Riverton wishes to be without a zoning ordinance. Accordingly, I will suspend the effect of my opinion for 90 days from the date of the execution of the order which reflects this opinion, during which time the Borough, at its discretion, may adopt a new zoning ordinance. The arrangement is permissible under Kruvant v. Mayor and Council, 82 N.J. 435 (1980).
The Baptist Home has requested an injunction to restrain the enactment of any municipal legislation which would prevent its proposed expansion, claiming that equitable considerations require this relief. It is the usual rule in connection with injunctions, however, that they will not issue to prevent threatened harm unless the court is satisfied that such harm is very likely to occur. New Jersey AFL-CIO v. St. Fed. of Dist. Bds. of Ed., 93 N.J. Super. 31 (Ch.Div.1966). It is, of course, likely that the Borough will adopt a new zoning ordinance and that the new regulations will adversely affect the Home. However, in addition to the reluctance to restrain future acts merely threatened, it is also the general rule that equity will not enjoin the discretionary functions of public officials. Id. In Ringwood Solid Waste Mgt. Auth. v. Ringwood, 131 N.J. Super. 61
(Law Div.1974), the Court refused to restrain a municipality from adopting an ordinance, saying the Court has no authority to prevent a legislative branch from meeting and addressing legislation. When this rule is added to the circumstance that no actual threat has been made in the present case, and the further fact that the contents of any new ordinance cannot be known at this time, the proper exercise of discretion requires the denial of the restraint. This will not prevent my consideration of the issue raised by the Home, namely, whether any new legislation should be applied to it, after a new ordinance has been adopted. At that time, the question of the Home's right to proceed with its expansion will be considered.
Jurisdiction is retained.
THE BAPTIST HOME'S RIGHT TO A VARIANCE
The Borough of Riverton adopted a new zoning ordinance within the time limits provided by this court. The new regulations effectively prohibit the establishment of health care facilities, thereby denying Baptist Home the right to expand its use. The Home now applies for further relief by way of motion for summary judgment. It contends that it is entitled to a variance, regardless of the new ordinance, which may be granted by this court on the basis of the record below.
I. THE FINAL DECISION RULE
The Home argues that the invalidation of the prior zoning ordinance automatically entitles it to proceed with the proposed expansion of its facilities. This would follow if Riverton's new zoning ordinance is denied retroactive effect since the Home's application would be uncontrolled by any zoning ordinance. However, the long-standing rule in this state is that a court must apply the law in existence at the time of its decision when resolving litigated issues. Hohl v. Readington Twp., 37 N.J. 271, 279 (1962). The rule has been criticized and somewhat eroded in recent opinions, e.g., Kruvant v. Cedar Grove, 82 N.J. 435
(1980); Urban Farms v. Franklin Lakes, 179 N.J. Super. 203 (App.Div.1981). Under the facts of this case, however, the new ordinance must be applied to the Home's variance request. The new ordinance was adopted pursuant to the order of this court. While its provisions frustrate the Home's plans, that was not the essential purpose of the legislation. Riverton's old ordinance, as a result of procedural error, established an "imperfectly expressed legislative policy", a circumstance which has been held to require retroactive application of the new ordinance. Urban Farms, supra.
This conclusion does not mean that the variance issue must be remanded to the Riverton Board of Adjustment for consideration under the new ordinance. The inherently beneficial aspects of the Home's use, coupled with the peculiar facts of this case, for the reasons discussed below, make that unnecessary.
II. THE "INHERENTLY BENEFICIAL USE": ITS CONSEQUENCES
The Home's application for a variance was based upon N.J.S.A. 40:55D-70d, which provides that variances may be granted "[i]n particular cases and for special reasons. . . ." Section 70 concludes:
No variance or other relief may be granted under the terms of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.
"Special reasons" are frequently referred to as "positive criteria". The burden of proving their existence is upon the Home. Fobe Associates v. Demarest, 74 N.J. 519 (1977). Satisfaction of that condition is not difficult in the case of an inherently beneficial use, since our cases hold that the use itself supplies the special reasons. Such is the case here. The use to which the Home proposes to put its property is "inherently beneficial." The basis for that conclusion and the dimensions of the use require discussion.
The Baptist Home is a non-profit, charitable New Jersey corporation organized to supply long term residential care to elderly Baptists. It serves the needs of South Jersey residents, regardless of their economic circumstances. Its Riverton facility, the expansion of which was authorized some years ago by a zoning variance, has a population of 73 residents and a staff of 65. The proposed new expansion would provide space for 39 new residents and would require an additional staff of 25. The facility is now at capacity; 93 persons are currently waiting for admission.
On December 1, 1981, the State Department of Health issued a certificate of need for the proposed expansion, which stated:
The applicant has demonstrated a special need for the expansion of residential care services. The Baptist Home of South Jersey provides care specifically for the aged Baptists of Southern New Jersey. Currently, the Baptist Home has a ...