In this action in lieu of prerogative writs, plaintiffs seek to invalidate a site plan approval granted by defendant planning board to defendant congregation.
Congregation Zichron Schneur obtained site plan approval from the planning board to construct a two-story Orthodox Jewish synagogue in the Oak Knoll section of Lakewood Township. The property is in an R-12 zone. A house of worship is a permitted use. The site plan met all the bulk requirements so that no variances were needed. The congregation asserts a need to build its house of worship in proximity to its members' homes because Orthodox religious law prohibits operation of a motor vehicle on the Sabbath, from sundown Friday to sundown Saturday.
Plaintiffs contend that the Lakewood zoning ordinance, as it relates to houses of worship, is arbitrary, capricious and unreasonable in its treatment of the lot area, buffer and parking requirements. They cite three reasons for invalidity, namely, a disparate treatment of houses of worship in various zones in the township, inadequate bulk standards and inadequate parking requirements.
We start with some fundamental principles. The power to zone is contained within N.J.S.A. 40:55D-62. Ordinances enacted pursuant to that power, like any other municipal ordinances, are entitled to a presumption of validity. That presumption can only be overcome by an affirmative showing that the ordinance is arbitrary, capricious or unreasonable. Bow
and Arrow Manor, Inc. v. West Orange, 63 N.J. 335, 307 A.2d 563 (1973). While the power of a municipality to zone is broad, it must utilize its power within the limits of the legislative delegation and the standards which accompany that delegation. In particular, the ordinance must bear a real and substantial relationship to the regulation of land use within the municipality. State v. Baker, 81 N.J. 99, 105, 405 A.2d 368 (1979); Taxpayers Assn. of Weymouth Tp., Inc. v. Weymouth Tp., 80 N.J. 6, 21, 364 A.2d 1016 (1976), cert. den. 430 U.S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977); Ciba-Geigy Corp. v. Dover Tp., 230 N.J. Super. 317, 320-21, 553 A.2d 398 (Law Div.1988). The ordinance must advance at least one of the many purposes specified in the enabling statute. N.J.S.A. 40:55D-2. However, consistent with the presumption of validity, courts will impute a proper governmental purpose or interest as the object to be served by the ordinance. If necessary, courts will infer an adequate basis to support the legislation, even if the purposes or findings are not expressed by the lawmakers. Bell v. Stafford Tp., 110 N.J. 384, 394, 541 A.2d 692 (1988); Hutton Park Gardens v. West Orange Town Council, 68 N.J. 543, 564-565, 350 A.2d 1 (1975); Burton v. Sills, 53 N.J. 86, 95, 248 A.2d 521 (1968), app. dism. 394 U.S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748 (1969).
In Kozesnik v. Montgomery Tp., 24 N.J. 154, 131 A.2d 1 (1957), the Supreme Court defined a judge's role in assessing challenges to the validity of zoning ordinances. The Court noted that the zoning statute delegates legislative power to local government and that the judiciary cannot exercise that power either directly or indirectly by measuring the policy determination through a judge's private view of the situation. As the Court put it:
The wisdom of legislative action is reviewable only at the polls. The judicial role is tightly circumscribed. We may act only if the presumption in favor of the ordinance is overcome by a clear showing that it is arbitrary or unreasonable. [at 167, 131 A.2d 1; citations omitted]
Kozesnik emphasizes that if a zoning amendment presents a "fairly debatable issue" the court may not interfere with the legislative judgment that the purposes of the zoning act are being served. In every case, the question is one of reasonableness under the circumstances. Id. at 168-169, 131 A.2d 1.
Additionally, Kozesnik noted that dissimilar treatment does not necessarily bespeak capriciousness. The Court said that if all properties similarly situated had to be accorded identical treatment, the objective of a well balanced community could be undermined. The final test must be whether the municipality is seeking to advance a community interest as opposed to a private or sectional advantage. Id. at 172, 131 A.2d 1.
As with other zoning issues, the question of what constitutes a community interest as opposed to a private or sectional advantage is protean. Our courts have acknowledged that interpretation of the zoning power is amorphous and ever evolving. The Supreme Court, in Taxpayers Assn. of Weymouth Tp., Inc. v. Weymouth Tp., supra, summarized the approach:
The concept of the general welfare in land use regulation has been given an expansive interpretation by both this Court and the United States Supreme Court. [citation omitted] In this regard, the term is mutable and reflects current social conditions. [80 N.J. at 21-22, 364 A.2d 1016; footnote omitted]
As our zoning law has evolved, the zoning statutes have been read liberally in response to changing social needs. Therefore, in addition to physical use, the courts have sometimes sustained restrictions relating to the users of property, provided that the limitations do not bear too remote a relationship to land use. See Taxpayers Assn. of Weymouth Tp., Inc. v. Weymouth Tp., supra, and the cases collected therein at 33, 364 A.2d 1016. As to religious uses, the courts of this state and other states as well as the United States Supreme Court have given very close scrutiny and sensitive attention to laws which would tend unduly to restrict or regulate such activities. Thus, Justice Clifford, in his concurring opinion in State v. Cameron, 100 N.J. 586, 498 A.2d 1217 (1985), said:
[The] power to affect, through zoning, religious activity in a residential area surely has its limits. Like any other aspect of the police power, the zoning authority must be exercised for the general welfare of the community, [citation omitted] and 'must be exercised within constitutional limits' [citation omitted]. Moreover, courts have held that religious activity itself is in furtherance of public morals and the general welfare, [citation omitted] and that religious institutions enjoy a highly-favored and protected status, which severely curtails the permissible extent of governmental regulation in this area. [citation omitted]