On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4386-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Lihotz and J. N. Harris.
In this action in lieu of prerogative writs, plaintiffs Congregation Anshei Roosevelt and Congregation Yeshivas Me'On Hatorah (collectively referred to as plaintiffs and separately referred to as "the Congregation" and "the Yeshiva") appeal from an order of the Law Division affirming the decision of defendant, Planning and Zoning Board of the Borough of Roosevelt ("Board"), requiring them to apply for a variance to operate a yeshiva at a synagogue that was a pre-existing nonconforming use, finding it was an expansion of such use. The court found the Board did not act arbitrarily and entered judgment in favor of the Board.
On appeal, plaintiffs argue the court erred in the standard of review it used, the evidence failed to establish a change in use, and the Board's decision violated the anti-discrimination provisions of N.J.S.A. 40:55D-66(b). We affirm.
This case arose from a neighbor's complaint to the municipality that the Yeshiva, a tenant of the Congregation, was operating a private school at the synagogue in an R-40 residential zone, which had no provision that allowed private schools as permitted or conditional uses in the district.
Robert V. Francis, the zoning officer, determined the Yeshiva's use of the property did not violate the Borough zoning ordinance and, by letter of October 3, 2005, advised he would not issue a summons.
The Roosevelt Preservation Association ("Preservation Association"), comprised of residents of the Borough, appealed Francis' decision to the Board pursuant to N.J.S.A. 40:55D-70(a) and N.J.S.A. 40:55D-72. Following several hearings, the Board reversed the zoning officer's decision, concluding the yeshiva was an expansion of an already nonconforming use, and variance relief was necessary for the Yeshiva to conduct its activities. The Board's decision was memorialized in a resolution adopted on July 24, 2007.
Plaintiffs then commenced an action in federal court, alleging violations of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.A. § 2000cc to 2000cc-5, and of plaintiffs' constitutional right to freely exercise religion. The complaint also asserted as state claims the Board's decision: (1) was arbitrary and capricious as the yeshiva should be treated as a public school under the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163 (MLUL); (2) violates New Jersey's Constitution; and (3) violates the New Jersey Law Against Discrimination. The complaint also challenged Ordinance 97*fn1 as unconstitutional as applied. In an opinion of August 20, 2008, Chief Judge Garrett E. Brown, Jr. dismissed the complaint, ruling the federal claims were not ripe for decision in the absence of the Board's ruling on a variance application, and declining to retain jurisdiction over plaintiffs' pendent state law claims. The Third Circuit Court of Appeals affirmed on July 22, 2009.
On September 16, 2008, plaintiffs filed a complaint in lieu of prerogative writs against the Board and the Preservation Association. The complaint alleged the Board acted arbitrarily, capriciously and unreasonably when it reversed the zoning officer's decision and sought a declaration the resolution was null and void.
On November 20, 2008, the Preservation Association filed an answer and third-party complaint against the Borough and its current zoning officer,*fn2 seeking to compel third-party defendants to enforce the zoning ordinance against plaintiffs and issue a cease and desist order for the operation of the yeshiva on the synagogue property without municipal review or approvals. By amended pretrial order of April 29, 2009, the court bifurcated the third-party complaint pending adjudication of the complaint.
On June 24, 2009, the court heard argument on plaintiffs' complaint. In a written opinion of July 30, 2009, Judge Lawson affirmed the Board's decision and directed the Yeshiva to apply for a variance to continue its operations on the synagogue property. An order memorializing the decision was entered on August 28, 2009. The Preservation Association moved for certification of this order as final. R. 4:42-2. The court granted the motion in an opinion dated November 13, 2009, memorialized in an order of November 17, 2009.
Plaintiffs moved for a stay pending appeal, the Borough moved for enforcement of the trial court's order, and the Preservation Association moved for summary judgment on its third-party complaint. By order of November 17, 2009, Judge Lawson denied the motion for enforcement of litigant's rights and granted the motion for a stay pending appeal, but limited the student population of the yeshiva to thirty-one for the school year terminating on June 28, 2010, which he found was the student population as of November l3, 2009, and to twelve students for the school year commencing August 8, 2010 forward.
On November 19, 2009, plaintiffs filed a notice of appeal. By order of December 15, 2009, the court sua sponte dismissed the third-party complaint as moot because the Preservation Association's motion for summary judgment had been withdrawn and the motion for enforcement of litigant's rights had been denied.
The Board filed a motion to supplement the record, which we denied on March 17, 2010. By order of May 28, 2010, we also denied plaintiffs' motion seeking a stay of the trial court's limitation on the number of students who could attend the yeshiva during the pendency of the appeal.
The following facts were presented in testimonial and documentary evidence at the Board hearings. Plaintiff Congregation owns property in Roosevelt known as 20 Homestead Lane, Block 6, lots 11, 12, and 13 in the R-40 Residential District. Prior to the adoption of Borough Ordinance No. 97 in l979, the Congregation built and has operated an Orthodox synagogue on the property.*fn3 That zoning ordinance permits houses of worship as conditional uses provided they are located on a lot of at least two acres and have specified impervious lot coverage and parking. It is undisputed the synagogue is a pre- existing nonconforming use, primarily because its lot area is only 1.875 acres.
At an undefined point, the Congregation obtained a variance from the Board for the operation of a nursery school on the premises and entered into a lease with the Roosevelt Community Nursery School.
Due to declining membership, the Congregation entered into a lease with the Yeshiva dated August 17, 2005, for an initial four-year term,*fn4 for the "current synagogue structure, parsonage house and surrounding land." The lease provided for the property to "be used and occupied only and for no other purpose than a synagogue, religious school, adult education services, outreach programming to adults and children, dormitory, kitchen, classrooms and all uses related thereto." It further gave the Yeshiva the option to construct ...