Three L Corp. v. Board of Adjustment, City of Newark

• Decision Date: 03 March 1972
• Citation: 118 N.J.Super. 453,288 A.2d 312
• Parties: THREE L CORPORATION, Plaintiff, v. BOARD OF ADJUSTMENT, CITY OF NEWARK, Defendant.
• Court: New Jersey Superior Court

Page 453

118 N.J.Super. 453

288 A.2d 312

THREE L CORPORATION, Plaintiff, v. BOARD OF ADJUSTMENT, CITY OF NEWARK, Defendant.

Superior Court of New Jersey Law Division.

March 3, 1972.

John C. Love, Newark, for plaintiff (Joseph Charles, Trenton, on the brief).

Louis Asarnow, Newark, for defendant.

HARRISON, J.C.C. (temporarily assigned).

Plaintiff Three L Corporation brings an action in lieu of prerogative writs pursuant to R. 4:69 to review the decision of the Newark Board of Adjustment denying its application for a use variance to operate a day nursery for a maximum of 30 children at 107--113 Grumman Avenue. Plaintiff is the contract purchaser of the above premises, a 93 100 lot with a 2 1/2-family residence and two-car garage, located in a Second Residential District. The building inspector initially denied the permit for this purpose on the grounds that the proposed use is not permitted in the zone. Plaintiff appealed and the board denied its application following a hearing on September 7, 1971 based upon the findings that plaintiff's use would (1) increase traffic congestion, (2) change the residential character of the neighborhood and (3) decrease property values. Involved herein is the application of the zoning law, N.J.S.A. 40:55--39.

The Newark zoning ordinance enacted June 9, 1954 applicable to this Second Residential District permits only the establishment of single-family homes, two- and three-family attached dewllings, public schools (elementary and high), Private schools not conducted for a profit, not to include nursery schools, museums and libraries, physician's and dentist's offices if located in their homes, and home occupations. The Rabbinical College of New Jersey previously owned and operated the premises under a use variance granted August 1, 1956 to operate the premises as a college.

We first dispose of the issue of whether the ordinance itself unconstitutionally discriminates against private schools conducted for profit so as to deprive their owners of property without due process and of the equal protection of the law. The function of this court in an action in lieu of prerogative writs pursuant to R. 4:69--4 is to review the facts and make independent findings thereon. Appellate courts, not trial courts, generally should rule on issues of constitutionality. Chalmers v. Chalmers, 117 N.J.Super. 474, 478, 285 A.2d 77 (Ch.Div.1971). The constitutional validity of the distinction between profit and nonprofit private day schools under N.J.S.A. 40:55--33.1 has already been upheld in this State in St. Cassian's Catholic Church v. Allen, 77 N.J.Super. 99, 185 A.2d 420 (Law Div. 1962), rev'd on other grounds 40 N.J. 46, 190 A.2d 667 (1963), which interpretation has been iterated in Tp. Com., Denville v. Bd. of Ed., Morris City, 59 N.J. 143, 279 A.2d 842 (1971).

As the protection of the statute does not apply to the type of school involved here, the vehicle for the accommodation of zoning with individual situations is either a special exception if provided for in the ordinance, or a variance as authorized in N.J.S.A. 40:55--39. Special reasons, public good, and purpose of the ordinance are to be considered in determining, as we must here, whether the local board soundly exercised its discretion. See Roman Catholic Diocese of Newark v. Ho-Ho-Kus, 47 N.J. 211, 217, 220 A.2d 97 (1966).

A private day nursery thus being unauthorized in a Second Residential District, a variance is sought under N.J.S.A. 40:55--39, providing in pertinent part as follows:

The board of adjustment shall have the power to:

d. Recommend in particular cases and for special reasons to the governing body of the municipality the granting of a variance to allow a structure or use in a district restricted against such structure or use. Whereupon the governing body or board of public works may, by resolution, approve or disapprove such recommendation. * * *

No relief may be granted or action taken under the terms of this section unless such relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.

Two critical findings are required by statute: (1) an affirmative finding that 'special reasons' 'in particular cases' exist; and (2) negative findings applicable in all zoning relief situations that the 'relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.' The applicant is required to supply competent and credible evidence to apprise the board of the nature of the zoning burden sought to be alleviated and to demonstrate that the statutory requirements have been fulfilled. Tomko v. Vissers, 21 N.J. 226, 238, 121 A.2d 502 (1956).

' Special reasons' is a flexible concept that may be broadly defined by the purposes of zoning, such as health, morals or the general welfare, set forth in N.J.S.A. 40:55--32. De Simone v. Greater Englewood Housing Corp., 56 N.J. 428, 440, 267 A.2d 31 (1970); Ward v. Scott, 11 N.J. 117, 93 A.2d 385 (1952). The court in Bonsall v. Mendham Tp., 116 N.J.Super. 337, 344, 282 A.2d 410, 413 (App.Div.1971), points out that 'No rigid formula has been devised to test a valid (d) variance on general welfare grounds and each case must turn upon its own circumstances.' The cases in this State in which a significant factor has been the contribution of the proposed use to the 'general welfare' have all dealt with uses which Inherently serve the public good, schools readily fitting into such classification. That activity in itself provides a basis for a finding of 'special reasons.' Kohl v. Mayor, etc., Fair Lawn, 50 N.J. 268, 279, 234 A.2d 385 (1967). The court in Kunzler v. Hoffman, 48 N.J. 277, 225 A.2d 321 (1966), dealing with a private profit mental hospital, provides guidelines for circumstances which have been accepted by the courts as 'special reasons' within subsection 39(d) and which will be shown to apply to the circumstances in our case: (1) urgent need for the type of facility in question; (2) substantial benefit to public, town, community; and (3) no real or substantial threat to residences.

Relief from a denial of a variance may be had only upon a finding by the reviewing court that the refusal was arbitrary, capricious and unreasonable, amounting to a manifest abuse of discretionary authority. Bonsall v. Mendham Tp., Supra, 116 N.J. at 343, 282 A.2d 410. My review of the record herein leads me to the conclusion that a sound exercise of discretion required that the board permit the variance and not deny it on untenable grounds. I hold such denial to be arbitrary in view of the evidence presented as follows:

The board cited increased traffic congestion and parking problems as one ground for refusal of the variance. Several objectors at the hearing complained that traffic to and from the school would add to the already congested Weequahic Park exit. However, there was considerable evidence rebutting these assertions. Mr. Jemmott, owner of plaintiff corporation, testified that a two-car garage on the property provides parking accommodations for the resident staff. Inquiries from neighborhood parents suggested that an estimated 10 to 15 children would live within walking distance of the school. Hours of arrival and departure tailored to the individual mother's working schedule would prevent rush hour congestion. If a traffic situation were created, the corporation promised to furnish group transportation. Although residents expressed fears and hypothesized heavier traffic and parking problems, they did not show, nor did the board find, potential 'unmanageable congestion,' as required by Black v. Montclair, 34 N.J. 105, 114, 167 A.2d 388 (1961). In Grate v. Tp. of Springfield, 117 N.J.Super. 130, 143, 283 A.2d 768, 775 (Law Div.1971), the court held that even though one purpose of zoning is to relieve street congestion,

* * * a municipality should not use the zoning power to regulate minor traffic problems in rapidly growing communities, and such powers should be used only to deal with such problems in their major aspects as they affect the entire community or major portion thereof.

The 30-student maximum for the proposed day nursery makes it reasonably certain that there would be no profound effect on community traffic patterns.

Defendant further claims that traffic congestion, coupled with noise of children playing, would destroy the peace and quiet of the area. Plaintiff offered competent, credible and uncontradicted evidence that the regular program, qualified instructors and constant supervision as required by the State would assure the...