The opinion of the court was delivered by: Brown, C.J.
This matter comes before the Court upon two motions to dismiss the complaint of Congregation Anshei Roosevelt ("the Synagogue") and Congregation Yeshivas Me' On Hatorah ("the Yeshiva") (collectively "Plaintiffs"). One of these motions was filed by defendants Borough of Roosevelt, the mayor of Roosevelt, the Council of the Borough of Roosevelt, the Planning and Zoning Board of the Borough or Roosevelt, and Planning Board members Steven Yeger, Jane Rothfuss, Allison Petrilla, and James Alt (collectively, "Defendants.") The other motion to dismiss was filed by defendants Jeff Ellentuck and Peggy Malkin. Plaintiffs have also filed cross-motions for summary judgment. On July 21, 2008, this Court heard oral argument. For the reasons set forth below and on the record during oral argument, the Court will grant both motions to dismiss.
The Borough of Roosevelt ("Roosevelt"), originally known as Jersey Homesteads was founded in 1936, under the auspices of the Federal Government, as an agricultural and industrial cooperative community for Jewish farmers and garment workers. (Compl. at ¶ 13.) The establishment of the town was one of President Roosevelt's endeavors to combat the economic hardships of the great depression. (Id. at ¶ 14.) Roosevelt is designated on both the state and national registers for historic places. The once predominantly Jewish town, remains the only municipality in the state and perhaps the country that has a synagogue as its only house of worship. (Id. at ¶ 15.) It was submitted at oral argument that the Borough is 1.95 square miles with a population of approximately 900 residents.
The property where the Synagogue is located is in the Borough's R-40, Residential District, located at 18 Homestead Lane in the Borough. (Compl. at ¶ 16.) Plaintiffs maintain that the building that houses Congregation Anshei Roosevelt was constructed in or around 1955. (Id. at ¶ 17.) At the time the synagogue was constructed, no zoning ordinances were in effect. (Plaint. Opp. at 3.) However, on May 23, 1979, the Borough adopted Ordinance No. 97, which allowed for public schools in the RA-40 Zone as a principal permitted use and allowed houses of worship as conditional uses. (Compl. at ¶ 18.) Pursuant to this ordinance, three conditions were required for a house of worship to be constructed in the RA-40 Zone: "(i) [a] two acre minimum lot size, (ii) a minimum parking standard, (iii) and maximum building coverage. (Compl. at ¶ 19.) It was determined at a hearing before the Zoning Board that the synagogue lot size is 1.8757 acres (i.e. less than the two acre minimum) and that the synagogue does not meet the parking requirements of the current zoning regulation.
In the face of declining membership and increasing difficulty in paying for rabbinical services, the leaders of the Synagogue congregation entered into a lease agreement with the Yeshiva,*fn1 whereby, in exchange for providing rabbinical services to the Congregation, the Yeshiva would be permitted to conduct religious and secular studies on the property. (Compl. at ¶ 21). One condition of the agreement between the synagogue and the Yeshiva was that no members of the Yeshiva would sit on the synagogue board. According to Temple President Rabbi Elly Shapiro, this was done to allay the fear that if the Yeshiva grew in size, "there might be a lopsided lease or  relationship." (Van Grouw Afidavit, Exhibit C, 74-75.)
The first class of Yeshiva students began in September, 2005 with twelve students. (Compl. at ¶ 23.) However, it was asserted by a neighbor of the Synagogue during one of the hearings before the Planning Board that the student population had grown to 34. Rabbi Shapiro also testified during one of the hearings that there were six "junior rabbis or rabbis in training" living in a resident house on the premises. (Van Grouw Afidavit, Exhibit C, 83-84.)
Plaintiffs allege that from the outset, certain residents vehemently opposed the Yeshiva operating at the Synagogue, stating that the Borough lacked the financial and physical resources to absorb the Yeshiva. (Compl. at ¶ 25.)*fn2 Plaintiffs further assert that the "virulence" expressed by those in opposition to the Synagogue/Yeshiva partnership, "divided the residents of the Borough and ultimately led to then mayor Neil Marko (a supporter of the Yeshiva) being voted out of office in a recall election in 2006." (Id. at ¶¶ 26-27 Plaintiffs allege that in a letter to Robert Francis ("the zoning officer"), dated September 7, 2005, Bert Ellentuck, a neighbor of the Synagogue, complained that the Synagogue property was being used for improper purposes in violation of the Borough's local ordinance. (Id. at ¶ 29.) According to Plaintiffs, Mr. Ellentuck complained that the operation of a private school was not permitted as a principal permitted use or a conditional use in the RA-40 Zone. (Id.)
In response, the zoning officer visited the synagogue to "determine the nature of the Yeshiva activity in the synagogue." (Plaint. Opp. at 5.) Mr. Francis also sought and received the legal advice of the Borough's then-attorney, Ira Karasick. ("the Borough's attorney".) (Van Grouw Affidavit, exhibit D.) In a written opinion, the Borough's attorney noted that private schools were indeed a prohibited use in the R-40 district. (Id. at 2.). However, in his opinion, "the use of the property as a yeshiva for 12 students, without any modification of the existing facility, comports more with and is encompassed within the use of the property as a house of worship, rather than constituting the establishment of a private school." (Id. at 2.) He based this opinion on what he described as "the education of youth as a traditional component of a house of worship in virtually all religions, certainly those prevalent in our society." The Borough's attorney added that even if the Yeshiva was considered a private school, it would still be allowed to exist on the property because the New Jersey Municipal Land Use Law ("MLUL") requires that private schools be afforded the same treatment as public schools in a given area, and the R-40 zone allows public schools as a permitted use. (Id.) Following the Borough's Attorney's advice, in a letter of October 3, 2005, the zoning officer declined to issue a summons for any zoning violation. (Id. at exhibit E.)
Plaintiffs allege that in the wake of the zoning officer's decision, Bert Ellentuck individually and through the Roosevelt Preservation Association ("the Association") sought to garner support in the community to oppose the Yeshiva.*fn3 (Compl. at ¶ 33.) Plaintiffs further allege that "at least two members of the Municipal Council are also members of the Association." (Id. at ¶ 34).
This decision was appealed to the Zoning Board ("the Board") by the Association*fn4 and hearings took place before the Board on December 13, 2005, February 14, 2006, March 14, 2006, April 4, 2006, and September 12, 2006. (Cohen Affidavit, Exhibit B, Resolution of the Board.) At the September 12 hearing, Rabbi Zevulun Charlop was called by Plaintiffs to testify as an expert on Jewish law, custom, and practice. Rabbi Charlop testified that "[a] yeshiva is a place where [students] congregate to study the Torah." (Van Grouw Affidavit , exhibit C, 33.) According to Rabbi Charlop, a synagogue "[m]ay not necessarily be a yeshiva[, b]ut a yeshiva is always a synagogue." (Id. at 35; see also 57.) He also testified that historically, a synagogue has always served the role of "a house of worship and [a] house of study." (Id. at 35.) Rabbi Charlop opined that the study of secular subjects at a Yeshiva, such as science or math, in his mind, would not change the nature of the Yeshiva. According to Charlop, students would not attend a Yeshiva to study secular topics, but rather would attend a Yeshiva to engage in religious studies. (Id. at 36-37.) The rabbi opined further that a typical Yeshiva might consist of 80% religious studies and 20% secular studies. (Id. at 53.) According to Rabbi Charlop, a "yeshiva [as well as a synagogue] can operate all day and all night." (Id. at 60; 67.)
At the March 14 hearing, Charles B. Rush, a licensed land surveyor was called upon by the Association to testify before the Planning Board. (Van Grouw Affidavit, exhibit B.) By Mr. Rush's calculations, the land where the synagogue is located is equal to 1.8757 acres, which is just under the two acre minimum mandated by the local ordinance. (Id. at 24.)
John Chadwick, a licensed planner, was also called upon by the Association to testify at the March 14 hearing. Id. at 37. Mr. Chadwick testified that in the R-40 zone, the local zoning ordinance does not permit more than one principal use on a piece of property. Id. at 46. Based upon the views expressed by the zoning officer and Mr. Chadwick's review of the lease, he opined that there were three principle uses on the subject property: (1) the synagogue, (2) the Yeshiva; and (3) the parsonage. He also testified that the Synagogue (without regard to the Yeshiva) is a non-conforming use because the property is less than two acres and does not provide adequate parking pursuant to the relevant local ordinance. Id. at 54. As a result, Mr. Chadwick testified that the addition of a school to the synagogue would alter that nonconforming use, regardless of whether the added use was a permitted use. Id. at 100. In Mr. Chadwick's opinion, from a "planning standpoint," worship and religious instruction are two separate uses. Id. at 58. Mr. Chadwick distinguished a synagogue or church that might have classes on Sundays or after school (a permitted use) from the situation at issue here where the Yeshiva is running classes during the day in the same building where worship is taking place at other times. Id. at 58-59. Mr. Chadwick added that it was clear to him from the description given by the zoning officer in addition to the lease between the synagogue and the Yeshiva, that the Synagogue is being utilized for two different uses at different times. Id. at 60. He also noted that the zoning officer's letter failed to mention that the lease provided for the Yeshiva to add dormitories to the property. Id. at 61-62. Mr. Chadwick concluded that the Yeshiva's presence on the property was a non-conforming use and the Yeshiva was obligated to apply for a variance to maintain this use. Id. at 54.
The Board also heard from Bert Ellentuck, a member of the Association and neighbor of the Synagogue, at the hearing of September 12, 2006. Mr. Ellentuck testified that it was his "belief that there is no Congregation Anshei Roosevelt," and opined further that the Yeshiva had taken over the building and was not respecting the local zoning ordinances. (Van Grouw Affidavit, Exhibit C, 93.) Mr. Ellentuck testified further that he was told by someone that morning that there were 34 students currently enrolled in the Yeshiva who were living in various buildings around the community.*fn5 According to Ellentuck, these students were "in school and on the street from about 7:30 in the morning to sometimes 12 or one o'clock [at] night." Id. at 93-94. He also indicated that the lights in the synagogue are frequently on and there are also a number of cars always parked on the side of the street. Id. at 94.
Another resident living on the same street as the Synagogue, Melissa Brankle, expressed dissatisfaction over the Yeshiva's involvement at the Synagogue, due to the loss of her quiet enjoyment of her property since the Yeshiva has commenced its operations at the Synagogue.
Ms. Brankle testified that vehicles travel to and from the synagogue 40 to 50 times a day beginning at 7:20 a.m. and ending around 1:30 a.m. the next day. She added that 20 to 30 students are outside playing at all hours of the day, including the evenings, seven days a week. Id. at 100.
Mr. Ellentuck's wife, Mrs. Shan Ellentuck also testified that she was concerned about a provision in the lease agreement that provided for a 25 year extension of the lease between the Synagogue and the Yeshiva. According to Mrs. Ellentuck, the Yeshiva has stated that it intends to significantly increase the student population. Mrs. Ellentuck testified that estimates on the part of the Yeshiva as to the potential future population range from 50 to 300 students. Id. at 101-02.
On July 24, 2007, the Board adopted a Resolution, overturning the zoning officer's decision. (See Cohen Affidavit, Exhibit B.) In the Resolution, the Board noted all the testimony highlighted above, and also the complaints of several other community members, regarding the potential harm the Yeshiva's presence could cause to the town's water and sewer systems. (Id.) The Board found that the synagogue was established in 1955, before the minimum 2 acre requirement was established as reflected in the current zoning ordinance. (Id. at ¶ 35.) The Board also accepted the evidence produced by the Association that the Synagogue as a house of worship, "is a nonconforming use in that it does not comply with the conditional use standards contained in the Ordinance." (Id.) The Resolution further stated that "[w]hile the Board accepts the testimony of the Rabbi that a Yeshiva can be a synagogue, the Rabbi acknowledged that the Yeshiva is a school." (Id. at ¶ 36.) The Board continued that "[t]he argument that the Yeshiva is a function of a Jewish house of worship may be accurate. The problem is that from a land use perspective, the Yeshiva has resulted in a significant increase in the intensity of the use." (Id. at ¶ 37.) Because the Board found the Yeshiva to be "an expansion of an already nonconforming use," it concluded that a variance was required for its continued operation. (Id.) The Resolution continued that "[s]ince Roosevelt has other locations within the plan available for such an ...