February 9, 2011
CONGREGATION ANSHEI ROOSEVELT AND CONGREGATION YESHIVAS ME'ON HATORAH, PLAINTIFFS-APPELLANTS,
PLANNING AND ZONING BOARD OF THE BOROUGH OF ROOSEVELT AND ROOSEVELT PRESERVATION ASSOCIATION, LLC, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: October 6, 2010
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 dormitories on the property in the future and to utilize the parsonage house as a temporary dormitory until a dormitory was constructed.
The Yeshiva was required under the lease to provide the Congregation with the following rabbinical services: (a) religious services to be conducted by an Orthodox rabbi to include three services per day and on the Sabbath, when the yeshiva was in session, and High Holiday services, but no guarantee of services when the yeshiva was not in session; (b) community outreach programs to include adult religious education classes to be held both in the synagogue and in members' homes, Hebrew School for the youth of the community to be held weekly, and events to celebrate specified Jewish holidays; (c) pastoral services to include officiating at weddings and funerals, and training boys and girls and officiating at their Bar and Bat Mitzvahs; and (d) determining any religious questions that may arise by the rabbi of the synagogue. According to the lease, no Yeshiva members or their family could sit on the Congregation's board or serve as an officer of its corporation.*fn5
The first class of students started school at the yeshiva in September 2005. On September 7, 2005, Bertram Ellentuck, a next door neighbor, sent a letter to the zoning officer complaining the Yeshiva's operation was not a permitted use in the zone. Francis visited the property and met with the Yeshiva's principals and its attorney. He observed there were twelve ninth-grade students. He was told the students arrived at the school and attended classes five days a week from 7 a.m. until 9 p.m. and were transported to and from the yeshiva by a van owned by the Yeshiva. He was also informed that eighty percent of the students' studies at the yeshiva involved religious instruction and twenty percent were dedicated to secular subjects. Francis never saw a copy of the lease and did not inquire whether the synagogue operated separately from the school.
Francis conveyed this information to the Board's attorney who opined in written correspondence that the yeshiva was encompassed within the use of the property as a house of worship and recommended no summons should be issued. Relying on that opinion, by letter of October 3, 2005 to Ellentuck, Francis ruled that no zoning violations had occurred as a result of the Yeshiva's operation on the Congregation's property and, accordingly, it could operate without the need for any land use approvals. Francis also notified the Board by memorandum of December 13, 2005 that he did not intend to issue a summons for any violation.
The Preservation Association appealed Francis' determination, claiming the zoning officer erred in his decision, and his conclusion violated the MLUL and the Borough zoning ordinance. The Board held public hearings on December 13, 2005, February 14, 2006, March 14, 2006, April 4, 2006, and September 12, 2006. The Preservation Association presented expert testimony from Charles Rush, a professional engineer and surveyor, and John Chadwick, a licensed planner. Plaintiffs presented the testimony of Rabbi Zevulun Charlop, an acknowledged expert on Jewish religious law, custom, and practices. Francis and the Congregation's president, Rabbi Ellie Shapiro, also testified.
The Preservation Association's general position was that the Yeshiva's operation was an intensification of a nonconforming use requiring a variance. Chadwick testified the synagogue was a prior nonconforming use because the property failed to meet at least two of the conditional requirements of the zoning ordinance. The site was less than two acres and the number of parking spaces was deficient.*fn6 Chadwick testified that after visiting the site and reviewing the lease, it became apparent the synagogue and yeshiva were separate and distinct uses. He distinguished between a religious facility that provided classes "after school" or on Saturdays or Sundays and schools that were "day time operations with running classrooms" that give "instruction in arithmetic and math and reading." He thus concluded the Yeshiva was operating a school independent of the Congregation's synagogue. Chadwick also opined, from a planning perspective, that worship and religious instruction were two separate uses. Chadwick concluded the addition of the yeshiva to the existing synagogue operating on the property "change[d]," "expand[ed]," "alter[ed]" and "modifie[d]" the use, triggering the need for a variance.
Rabbi Charlop had no knowledge of the zoning laws or the circumstances of the Roosevelt congregation, and he had never visited the site.*fn7 He testified that a yeshiva is a place where people gather to study the Torah,*fn8 which is "the highest form of worship," and they are also obliged to observe in the yeshiva "[a]ll the traditions and customs of the synagogue[,]" including praying three times daily. Rabbi Charlop explained these acts turned a yeshiva into a house of worship, stating a synagogue "[m]ay not necessarily be a yeshiva [b]ut a yeshiva is [always]*fn9 a synagogue."
On cross-examination Rabbi Charlop explained the difference between a yeshiva and a synagogue: "A synagogue is not necessarily a yeshiva because it is not a house of study, enterprise of study. And the yeshiva is a house of worship because in addition to being an enterprise of study it's also a synagogue." Rabbi Charlop was of the opinion that any building in which a yeshiva operated "would automatically become a house of worship" because of its religious studies and prayer requirements.
In response to a Board member's inquiry, Rabbi Charlop acknowledged that not every Orthodox synagogue has a yeshiva associated with it and there are "other forms of education[al] practices associated with [an] [O]rthodox synagogue." The Rabbi responded to further questions by Board members that yeshiva students generally do not attend public or any other schools while synagogue school students do.
Rabbi Shapiro, who executed the lease with the Yeshiva, testified the arrangement was essentially a barter system of the use of the building for the performance of rabbinical services. The purpose of the lease was "to try to rejuvenate what was a dying congregation." She explained that the initial lease was for four years so the yeshiva could have four classes and graduate a group of students each year. Rabbi Shapiro further stated that as of September 12, 2006, six junior rabbis were living in the parsonage, who were not students but were "apprenticed to the school" and were "studying to be rabbis" and performed "rabbinical services."
A number of residents also testified at the hearings in opposition to the Yeshiva's operation. Mel Friedman, a former longstanding member of the Congregation, testified that religious services were conducted at the synagogue "very infrequently" and "[p]rimarily on the three high holy days." He related information he received at a public meeting with Yeshiva representatives, including the plan to increase enrollment from the initial twelve ninth-grade students to a four-year program through twelfth grade.
Ellentuck testified on behalf of the Preservation Association. Ellentuck related that, in the past, the synagogue had held regular services "once a month" and the nursery school had operated from 9:00 a.m. until noon, with ten or twelve children under the age of five. Currently, however, there were thirty-four students attending the yeshiva, who were "in school and on the street from about 7:30 in the morning to sometimes 12 or one o'clock [at] night." He was under the impression that number would significantly increase. Ellentuck estimated that the number of people at the yeshiva equaled the number of all of the other residents of the block. He also complained about "a number of cars always parked on the side of the street."
Ellentuck expressed the opinion that "there has been an incredible change to the nature of what is happening" on the residential street.
Melissa Branco,*fn10 another resident of the street, testified the street was no longer quiet. According to Branco, The cars and the vans start at 7:20 in the morning. There are approximately 40 to 50 round trips of vans and cars everyday up and down the street. Because it's not that they just come and stay and then leave in the evening. They don't close down until about 1:30 in the morning. There are 20 to 30 kids . . . playing outside through all hours of the day, in the evening.
And this is seven days a week, Monday through Friday evening when the sun goes down . . . during the Sabbath there's plenty of people in and out of the synagogue all day and all evening. And then it start[s] up again on Sunday.
Other residents expressed concerns about expansion of the yeshiva, including the increased traffic and the change over the year with the junior rabbis currently living on-site. One person additionally expressed concerns about water and sewer problems and infrastructure capacity occasioned by the increased use of the property.
On September 12, 2006, the Board voted six to one to reverse the zoning officer's decision. In its July 24, 2007 resolution, the Board accepted the testimony of the professional planner that the synagogue is a prior nonconforming use as it does not comply with the conditional use standards of the zoning ordinance. The Board expressly accepted Rabbi Charlop's testimony "that a [y]eshiva can be a synagogue," but noted his acknowledgement that "the [y]eshiva is a school." The resolution also referenced the Rabbi's unfamiliarity with the property, zoning laws, and the fact the lease created separate entities for the synagogue and yeshiva. The resolution further stated that although a yeshiva may be a "function of a Jewish house of worship," "from a land use perspective," the Yeshiva's operation "resulted in a significant increase in the intensity" of the property's use. Though recognizing that "a house of worship might have religious classes in appropriate circumstances," the yeshiva students were "outside late at night when they were not in classes," which was not a religious exercise.
The Board also stated that at the time Francis rendered his decision there were only twelve students attending the yeshiva and he was unaware the lease contained provisions for further expansion and a residential component. The Board noted the increase to thirty-four students currently attending the school and the six junior rabbis residing in the parsonage house, characterizing the yeshiva as a "boarding" or "residential" school thus having significant land use impacts.
The Board found plaintiffs were obligated to apply to the Board for variances from the conditional use standards and seek conditional use and site plan approval. In the resolution the Board emphasized the sole issue currently before it was whether land use approval was required and "[n]othing in the Board's decision on this appeal should be interpreted as being opposed to the establishment of the Yeshiva on the Property." The Board concluded:
[T]he Zoning Officer erred in that the proposal is a significant intensification of the non-conforming use and should not have been allowed as of right without any municipal review or approval.
[T]he decision of the Zoning Officer to allow the Yeshiva to be established on the Property without land use approval is reversed.
Pertinent to this appeal, plaintiffs filed the within action on September 16, 2008, alleging the Board's decision was arbitrary, capricious and unreasonable, against the weight of the evidence, and violative of the MLUL and plaintiffs' right to the free exercise of their religion. The complaint alleged the "use of the Property for the Yeshiva's activities is a core synagogue use and comports with and is encompassed within the pre-existing use of the Property as a house of worship." At the June 24, 2009 oral argument, plaintiffs contended the trial court should apply a de novo standard of review to the Board's decision because the issue involved only the interpretation of a zoning ordinance rather than a variance application in which the Board was granted discretion. They further argued the Board's conclusions of law had "no factual predicate," its finding of an increase in the intensity of the use was "conclusory" because no testimony had established "a baseline," and the neighbors' testimony regarding the intensification of use was "not valid." Plaintiffs also urged the Board's finding that the lease provided for further expansion was irrelevant because the Yeshiva conceded it would need municipal approvals if it wanted to add to the building. Lastly, plaintiffs argued the yeshiva use was protected by the anti-discrimination provisions of N.J.S.A. 40:55D-66(b), because the six rabbis who lived in the parsonage were serving a religious function and were "all part of the pre[-]existing use."*fn11
In his July 30, 2009 written decision, Judge Lawson found the question before him did not involve an interpretation of a zoning ordinance and thus did not involve a pure question of law requiring de novo review. See Wyzykowski v. Rizas, 132 N.J. 509, 518-20 (l993) (holding the local board's determination was not entitled to a presumption of validity because the case involved an interpretation of the zoning ordinance to determine whether a certain use fell within the definition of "accessory use"). The judge found compelling defendants' argument that the Board's resolution required both findings of fact and law in that the determination of whether the yeshiva use was part of the pre-existing nonconforming synagogue use or was an intensification or expansion of that use required the Board to find the facts relating to the nature of the yeshiva use. The judge determined the inquiry before him was whether the Board's reversal of the zoning officer's decision was arbitrary, capricious and unreasonable. He concluded the Board acted within its discretion and did not act arbitrarily, capriciously, or unreasonably.
As all parties conceded the synagogue constituted a pre-existing, nonconforming use, Judge Lawson cited Belleville v. Parrillo's, Inc., 83 N.J. 309, 315-16 (l980), holding that courts apply a restrictive standard in evaluating whether a use intensifies or changes such existing, nonconforming use and permits an associated use "only if it is a continuance of substantially the same kind of use as that to which the premises were devoted to at the time of the passage of the zoning ordinance."
In rejecting plaintiffs' argument that the yeshiva and the synagogue had a singular use, the judge distinguished the cases relied on by plaintiffs. He noted that Shim v. Washington Township Planning Board, 298 N.J. Super. 395 (App. Div. l997), holding a day care center was an accessory use to a church, and St. John's Evangelical Lutheran Church v. City of Hoboken, 195 N.J. Super. 414 (Law Div. l983), permitting a homeless shelter to operate in a church, involved houses of worship that were permitted uses according to the zoning ordinances.*fn12
Accordingly, he explained, those courts did not apply Belleville's restrictive analysis pertaining to nonconforming uses.
Judge Lawson found the testimony of the planner, plaintiffs' expert in Jewish doctrine, and the lease all supported the Board's conclusion that the yeshiva was an additional, separate use from the synagogue that resulted in an impermissible expansion of the existing nonconforming use. Notably, he cited Rabbi Charlop's testimony that a yeshiva is both a synagogue and a school. Applying the Belleville standard, the judge affirmed the Board's decision, concluding that adding the yeshiva use to the pre-existing nonconforming synagogue use "could result in a substantial change of use." Accordingly, for the Yeshiva to continue operating, plaintiffs were required to apply for a variance and "provide the Board with the opportunity to fully evaluate all the zoning implications that will affect the surrounding community."
The court also found the requirement of applying for a variance did not constitute discrimination under N.J.S.A. 40:55D-66(b). According to that statute, "[n]o zoning ordinance governing the use of land by or for schools shall . . . discriminate between public and private nonprofit day schools of elementary or high school grade accredited by the State Department of Education." The court reasoned that even if the Congregation had leased its property for use as a public school, a permitted use in the zone, while maintaining the synagogue, the school would still have to apply for a variance because its operation would be "likely to result in a substantial change to the synagogue nonconforming use and would trigger the narrow [Belleville] standard of review[.]"
By order of August 28, 2009, the court entered judgment in favor of the Board, requiring plaintiffs to file a variance application. This appeal ensued.
On appeal, plaintiffs challenge the standard of review used by Judge Lawson and argue: (1) intensification of a pre-existing nonconforming house of worship use, alone, is not a legally sufficient basis for determining the use to have been illegally extended and, even if intensification could provide such a basis, the record does not support such finding in this case, and (2) if the Yeshiva's use were to be viewed as a school use separate and apart from the house of worship use, it would still be permitted on the site under the anti-discrimination protections of N.J.S.A. 40:55D-66(b). We do not find plaintiffs' arguments to be persuasive in light of the record and applicable law.
Plaintiffs first argue the court should have applied a de novo standard of review because the case involves the purely legal issues of the interpretation and enforcement of an ordinance, rather than the exercise of discretion based on local concerns that would be involved in a variance application. See, e.g., Reich v. Borough of Fort Lee Zoning Bd., 414 N.J. Super. 483, 499 (App. Div. 2010). According to plaintiffs, the sole issue pertains to the meaning of the term "house of worship" in the zoning ordinance. Plaintiffs acknowledge the Board had to take testimony as to what a yeshiva use is, but contend that once the uncontroverted testimony was presented by their religious expert that a "yeshiva is always a synagogue," the decision as to whether the use is a continuation of the pre-existing use involved solely a legal issue. In essence, plaintiffs are seeking a de novo review and carte blanche acceptance of Rabbi Charlop's testimony based on the argument that neither the planner nor the Board possessed expertise in the field of Jewish religious practices. They further urge that the Board "ha[d] no more right to prohibit or regulate" the yeshiva use "than it has to prescribe the number of religious services that may be held each day" or the days of the week or length of the services.
We disagree. The issue of whether a use constitutes an expansion of a prior nonconforming use is a mixed question of law and fact. Bonaventure Int'l, Inc. v. Borough of Spring Lake, 350 N.J. Super. 420, 438 (App. Div. 2002); see also Belleville, supra, 83 N.J. at 317. The determination of whether an activity is within the scope of the existing nonconforming use requires an examination of "the particular facts of the case, the terms of the particular ordinance, and the effect which the increased use will have on other property." Hantman v. Randolph Twp., 58 N.J. Super. 127, 137 (App. Div. 1959), certif. denied, 31 N.J. 550 (1960); accord Belleville, supra, 83 N.J. at 317-18 (adopting the court's reasoning in Hantman as "the proper analysis for examining changes in nonconforming uses").
The determination of whether to enforce a zoning officer's decision generally is within the discretion of a zoning board, and the board's decision will not be disturbed absent an abuse of that discretion. Berkeley Square Ass'n, Inc. v. Zoning Bd. of Adjustment of Trenton, 410 N.J. Super. 255, 263 (App. Div. 2009), certif. denied, 202 N.J. 347 (2010). Here, it is clear the zoning officer lacked both the experience and information necessary to render a decision on the variance issue. "Bound by the same scope of review as the Law Division, our role is to defer to the local land-use agency's broad discretion and to reverse only if we find its decision to be arbitrary, capricious, or unreasonable." Bressman v. Gash, 131 N.J. 517, 529 (1993). See also Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005); Berkeley Square, supra, 410 N.J. Super. at 263.
Neither Shim, supra, 298 N.J. Super. 395, nor St. John's Evangelical Lutheran Church, supra, 195 N.J. Super. 414, is persuasive authority for plaintiffs' position. In Shim, supra, a church received site plan approval, bulk variances and design waivers to build a church in a zone that permitted such uses. 298 N.J. Super. at 398. The proposed facility included a sanctuary, fellowship hall, offices, a library and a church-operated day care center. Id. at 398-99. The objectors filed a complaint that alleged a variance and separate site plan approvals were required for the day care center, which was not a permitted or conditional use in the zone. Id. at 398-400. We affirmed the trial court's finding that no variance was necessary because the day care center was an "accessory use" to the church. Id. at 399-409. We recognized that an accessory use was one that was "incidental, subordinate and customarily associated with the primary use" and "commonly, habitually and by long practice been established as reasonably associated with the primary use." Id. at 404 (internal citation and quotation marks omitted). The day care center was a subordinate use because it would utilize less than twenty percent of the space in the proposed facility. Id. at 405. It also was "customarily incidental" to the principal use of the church because it would be part of a constellation of services provided to all members of the community that included job search and training, Lamaze classes, and health and parenting seminars. Id. at 409.
Plaintiffs cite our comments in Shim that "[r]eligious institutions consider day care centers as part of their spiritual mission, not necessarily in advancing their religious teachings, but by providing a valuable community service" and that First Amendment issues may require accommodation of various activities on church property. Id. at 406, 408. But they ignore the fact our decision was based squarely on the application of zoning law regarding accessory uses. Id. at 407. Contrary to plaintiffs' contention that Shim restricted a township's ability to apply zoning ordinances to church activities, we held the day care center was permissible specifically because it met the criteria for an accessory use to a permissible use in the zone as defined by the township's zoning ordinance, and because its impact would be compatible with the zoning policy of the area. Id. at 409-10.
Plaintiffs' reliance on St. John's Evangelical Lutheran Church, supra, is similarly misplaced. There, a Law Division judge denied a request for an injunction to close a homeless shelter that a city church had begun to operate in its basement. 195 N.J. Super. at 417. The church was a permitted use in the zone. Ibid. Based on a clergyman's affidavit, the judge found that using the church "as a sanctuary for the poor is a religious use 'customarily incident' to the 'principal uses'" and thus the homeless shelter was an accessory use to the church. Id. at 417-18.
Although plaintiffs submitted Rabbi Charlop's testimony to the Board as evidence the yeshiva was an accessory use, they never asserted that claim in their complaint or argued it to the trial court. Nor do they argue on appeal that the yeshiva met the Borough's standards for an accessory use. It is clear the yeshiva could not meet that standard, which under the Borough zoning code required the use be one "customarily associated with and  subordinate and incidental to the principal building, structure or use[.]" Borough of Roosevelt Mun. Zoning Ord., Article II definitions. Here the yeshiva appeared to be the primary use of the site and the pre-existing synagogue, with its declining membership and monthly regular Sabbath services becoming an incidental use.
Moreover, as Judge Lawson noted, both the Shim and St. John's Evangelical Lutheran Church cases involved houses of worship that were permitted uses according to the zoning ordinances, thus the courts did not apply the restrictive Belleville standard that should be applied to a pre-existing nonconforming use. We recently reiterated that standard as follows:
We are mindful of the spirit of the law toward nonconforming uses. The uses may be continued as of right, N.J.S.A. 40:55D-68, but may not be enlarged as of right, Grundlehner v. Dangler, 29 N.J. 256, 263 (1959), and they are to be restricted rather than expanded, Belleville, [supra,] 83 N.J. [at] 318. Moreover, as reiterated in Avalon Home & Land Owners Ass'n v. Borough of Avalon, 111 N.J. 205, 210 (1988), continuation of a nonconforming use can be permitted only if it is a continuance of substantially the same kind of use as that to which the premises were previously devoted, absent a variance. See also Grundlehner, supra, 29 N.J. at 263 (holding that nonconforming uses may not be enlarged as of right "except where the enlargement is so negligible or insubstantial that it does not fairly warrant judicial or administrative notice or interference"). [Reich, supra, 414 N.J. Super. at 503-04 (internal citations omitted).]
An analysis of whether a nonconforming use has changed must be "qualitative" with the focus being "the quality, character and intensity of the use, viewed in their totality and with regard to their overall effect on the neighborhood and the zoning plan." Belleville, supra, 83 N.J. at 314. Questions or uncertainty regarding whether the proposed enlargement or change is substantial are to be resolved against allowance of the enlargement or change. Id. at 316.
We are satisfied the Board and trial court performed the correct analysis. We are also satisfied the Board's determination that the yeshiva constituted a change of use and an intensification of the nonconforming house of worship use requiring a variance application was soundly grounded on the evidence adduced during the four hearings. We reject plaintiffs' argument that only a structural enlargement or enlargement of the footprint can constitute an expansion of a nonconforming use as directly contrary to the standard set forth by the Supreme Court in Belleville. Id. at 314. It is also immaterial to the matter before the Board what the permitted occupancy of the synagogue was under the construction or fire codes.
It is uncontroverted the synagogue is a pre-existing nonconforming use by virtue of the l979 ordinance, and the yeshiva did not exist on the property until 2005. Distilled to its essence, there was basically no disagreement between Rabbi Charlop and the Preservation Association's planning expert, Chadwick, that the yeshiva added an element of use that was not encompassed within either expert's understanding of a synagogue. Rabbi Charlop's testimony supported the finding that the yeshiva constituted a school in addition to a synagogue. As he stated, "[a] synagogue is not necessarily a yeshiva because it is not a house of study . . . ." Rabbi Charlop's testimony established that, with the addition of the yeshiva, the synagogue also had become "a house of study." His opinion that a yeshiva automatically becomes a house of worship by virtue of its religious studies and prayer obligations does not change the fact that when this particular house of worship gained its protected status as a nonconforming use, its use had not encompassed the additional, distinct use of a yeshiva. The lease required a separation of entities. Additionally, the testimony demonstrated that in contrast to those students who attend Hebrew school at the synagogue on specific days in addition to their secular school attendance, the yeshiva students generally do not attend public or any other schools and participate in religious studies and prayer on a daily basis for extended hours.
Contrary to plaintiffs' assertion, it is not fatal to the Board's decision that it failed to identify any "baseline" from which to support its finding that the yeshiva constituted an intensification of the synagogue. That argument ignores the fact that the "baseline" here was undisputed and clearly identified by the terms of the lease and the occupation of the building by the Yeshiva. It is clear the Board engaged in precisely the analysis required by the Supreme Court in Bellville and its progeny. The Board examined the synagogue's use of the property before the Yeshiva began its operation, how the Yeshiva used the property, the relevant ordinances, and the effect of the Yeshiva's operations on the neighborhood.
We must also be mindful of the fact that, as emphasized by the Board and Judge Lawson, the Board's determination was a threshold one. It focused on the limited issue before it --whether "land use approval is required and the Zoning Officer erred in allowing the Yeshiva to be established without such approvals" -- and concluded that municipal oversight through the variance procedure was mandated under the evidence presented through lay and expert testimony.
The record demonstrates the Board's determination was not arbitrary, capricious or unreasonable. A synagogue may have many facets. However, the evidence showed a significant contrast between the property's long-time use solely as a synagogue and the Yeshiva's operations, which result in different land use implications. The daily congregation of teenage boys staying into the late night, the stream of traffic, the noise, and the housing of the six rabbinical students in the parsonage all established that the character of the property became distinctly different when it operated as a yeshiva.
In their final point, plaintiffs assert the alternate argument that even if the Yeshiva's use were to be viewed as a separate school use, such use would still be permitted on the site under N.J.S.A. 40:55D-66. We are not persuaded the statute is applicable here. N.J.S.A. 40:55D-66(b) provides:
No zoning ordinance governing the use of land by or for schools shall . . . discriminate between public and private nonprofit day schools of elementary or high school grade accredited by the State Department of Education.
Zoning ordinance 97 does not discriminate between public and private day schools. Plaintiffs' contention that the yeshiva functioned as any other "day" school is simply not supported by the record. Six junior rabbis live on-site. No evidence was presented that they were necessary to serve the rabbinical needs of the limited number of congregants of the synagogue; rather, they are apprenticed to the yeshiva. Moreover, although the majority of students may have slept in homes off-site, they spent much of their time and engaged in many social and recreational activities in which a teenager might engage in his own home or neighborhood at the site during extended hours, often late into the night. Additionally, no evidence was presented that the yeshiva was a state-accredited school.
The synagogue intended to continue its former use and add another one. Even if that additional use were a public school permitted in the zone, it still would require a variance as an expansion of a nonconforming use because the property would be supporting two distinct uses, one of which was nonconforming, rather than the single pre-existing nonconforming use.