On appeal from the Superior Court, Law Division, Bergen County.
Gaulkin, Havey and Skillman. The opinion of the court was delivered by Havey, J.A.D.
[247 NJSuper Page 46] In this action in lieu of prerogative writs, plaintiffs applied to the defendant Ramsey Zoning Board of Adjustment (Board) for a special reasons variance to expand a nursery school, a nonconforming use situate in a residential zone. The trial judge reversed the Board's denial of the variance because a Board
member had made a site inspection without notice to and the presence of the parties or their counsel. We reverse. We hold that the presence of the parties or their counsel is not necessary during a site inspection by a board or any of its members. While it is preferable that a board or its member give notice, if practicable, of an intended site inspection, here the failure to give notice was not fatal since the Board member placed his observations of the inspection on the record, the plaintiffs and objectors were given full opportunity to respond to the Board member's comments, and plaintiffs did not object to the comments.
Plaintiffs own property in the Borough of Ramsey containing three structures: a two-story Victorian dwelling, a garage, and a building used as a nursery school. The school conducts morning and afternoon sessions for 28 children, ages infant to 4 1/2. As part of the daily routine, the children have play periods twice daily on a playground located on the rear of the property close to contiguous residences.
Plaintiffs applied to the Board for a special reasons variance, N.J.S.A. 40:55D-70d(2), to expand the enrollment of the nursery school, a nonconforming use, to 67 students by converting the Victorian dwelling into a second school facility. On the second night of the hearing, plaintiffs' real estate expert testified that there was no "adverse noise level or anything that would affect property values" connected with the school. Robert Judge, a Board member, questioned the expert about the noise generated in the playground during play periods. Judge stated that following the initial hearing he had visited the property twice while the playground was in use and had observed that the "noise is very loud." It was his view that the noise adversely affected neighboring property values:
I would say that if you're going to double the enrollment here, and double that noise level, . . . I don't think anyone really would want to purchase a home . . . next to a school where you're going to double the application. That's what I'm trying to say.
It is undisputed that Judge had given no notice to the parties, nor presumably to the other Board members, of his intention to make the site visits.
Several adjoining property owners also appeared and questioned plaintiffs' expert's conclusion regarding adjoining property values. One neighbor testified that he had found the present noise "of children screaming, playing, crying babies offensive, and it's close enough to my property" to affect adversely its value.
The Board denied the application, concluding that while plaintiffs may have demonstrated special reasons, they failed to satisfy the negative criteria under N.J.S.A. 40:55D-70. The Board found:
Due to the recognized noise problem that presently exists and the fact that the present non-conforming use is located in a residential area and abuts several single family residences, a serious detriment to the public good would occur if the applicants were permitted to expand their present use, and in that regard, does not promote the general welfare of the Ramsey community, and in particular, that of the residential area in which the property is located.
The trial judge reversed the Board's determination and remanded for a new hearing because of Board member Judge's "transgression of well-established protocol" in making the site inspections without notice to and the presence of the parties or their counsel. The judge reasoned that local zoning board members "are the functional equivalent of judges," and as such "ought to be measured by virtually the same ethical ...