Roman Catholic Diocese of Newark v. Ho-Ho-Kus Borough

202 A.2d 161, 42 N.J. 556, 1964 N.J. LEXIS 236

• Court: Supreme Court of New Jersey
• Decided: June 24, 1964
• Status: Published

Opinions

The opinion of the court was delivered by

Weintraub, C. J.

This is a zoning case. In October 1960 plaintiff, Roman Catholic Diocese of Newark, purchased a parcel of some 20 acres in the most highly restricted residence district (R-l) of the Borough of Ho-Ho-Kus upon which it intended to erect a regional high school for some 1,500 boys. At the time of the purchase, the zoning ordinance permitted the contemplated use, but plaintiff’s plans led to a reconsideration of the ordinance and finally to an amendment which barred all schools from the R-l district but continued to permit public and parochial schools through the high-school level in the other three residential districts.

The amendment was assailed upon sundry grounds, including the charge of arbitrariness and denial of due process of law. Much testimony was taken. No findings were made however, the trial court deeming the case to be controlled by chapter 138, L. 1961, which was adopted-during the pendency of the ease. That statute, which appears in the annotated statutes as N. J. S. A. 40:55-33.1, reads:

“No planning or zoning ordinance heretofore or hereafter enacted by any municipality governing the use of land by, or for, schools shall, by any of its terms or provisions or by any rule or regulation adopted in accordance therewith, discriminate between public and private day schools, not operated for profit, of elementary or high school grade.”

On its face, the ordinance in question applies equally to public and private schools, but the trial court held that a municipality cannot zone with respect to public schools and hence a zoning restraint upon a private school is necessarily discriminatory. We certified the ensuing appeal before argument in the Appellate Division.

We are unable to accept the trial court’s view of the statute. The statute obviously was drawn on the thesis that a municipality may zone as to public schools and upon that premise sought to insure equality of zoning treatment for private schools. A legislator voting for that law could hardly have understood it to mean that thenceforth a private school shall be immune from zoning. That, of course, is the effect of the trial court’s treatment of the statute. If the Legislature so intended, it would have said so in such simple terms. It would not ordain that private schools shall be subject to nondiscriminatory zoning in order to say they shall not be subject to any zoning at all.

If public schools are beyond the local zoning power, then the statute in question is meaningless and a nullity. We cannot, however, say the Legislature erred in assuming the zoning power does apply. No statute expressly exempts public schools from zoning and no judicial decision has found the exemption. Indeed, we heretofore assumed that public schools are

subject to zoning. See Yanow v. Seven Oaks Park, Inc., 11 N. J. 341 (1953); Andrews v. Ocean Twp. Board of Adjustment, 30 N. J. 245 (1959); St. Cassian’s Catholic Church v. Allen, 40 N. J. 46 (1963); but cf. Trinity, &c., Church v. Morris Plains Bd. of Adjustment, 72 N. J. Super. 425, 431-32 (App. Div. 1962).

Plaintiff cites Bloomfield v. New Jersey Highway Authority, 18 N. J. 237, 244 (1955); Aviation Services, Inc. v. Morristown, 20 N. J. 275 (1956); and Washington Twp. v. Ridgewood, 26 N. J. 578 (1958), in which it was held that the particular public projects involved were not subject to the zoning ordinance of the municipality in which they were situate. In each of those cases there was the likelihood of a conflict in interest which could defeat or hamper the project if the zoning power were applicable. In Bloomfield the project was restaurant and service station facilities on a toll highway. In Aviation Services the project was a municipal airport authorized by statute to be developed within the borders of another municipality. And in Washington Township the statute authorized a municipality to condemn lands in another municipality in connection with its water needs. We concluded in each case that the Legislature intended the municipality in which the improvement was to be located should not be able to block it by zoning.

Here the prospect of discord is quite remote, for the school districts, whether regional or not, share a common interest with the municipalities themselves. Ordinarily there is no reason for a school board and the local governing body to quarrel about zoning matters. Hence, although unquestionably the school board as the State’s agent to discharge the State’s constitutional duty to provide for a system of free public schools, Art. VIII, § IV, par. 1, is a distinct entity essentially independent of the local governing body, Gualano v. Board of School Estimate, 39 N. J. 300, 303 (1963); Botkin v. Westwood, 52 N. J. Super. 416, 425 et seq. (App. Div.), appeal dismissed 28 N. J. 218 (1958), there is a community of interest which augurs for good relations between them. Of course the Legislature could place the public school beyond the zoning power as it is in some jurisdictions, see Town of Atherton v. Superior Court, 159 Cal. App. 2d 417, 324 P. 2d 328 (D. Ct. App. 1958); Congregation Temple Israel v. City of Creve Coeur, 320 S. W. 2d 451, 454 (Mo. Sup. Ct. 1959), but we see no constitutional command that it do so.

Plaintiff cites N. J. S. A. 18:11-11 which provides that the plans and specifications for a school building are not subject to municipal approval and a building permit shall not be required. Kaveny v. Montclair, 71 N. J. Super. 244 (App. Div.), certif. denied 36 N. J. 597 (1962). That statute must be considered with R. S. 18 :11-8 which requires approval of such plans and specifications by the State Board of Education. Indeed N. J. S. A. 18:13-11 comes from L. 1928, c. 186, where it appeared as a proviso to what is now R. S. 18 :11-8. The reason for the 1928 statute is given in its sponsoring statement:

“All work in connection with the erection or alteration of school buildings is under the supervision of the State Board of Education. The Attorney General has ruled that a local building permit is not necessary in connection with school work. Some still feel that a local permit is necessary. The purpose of this act is to definitely settle the question.”

In short, the subject having been committed to a state agency, the municipal role was eliminated to avoid a division of responsibility.

Thus with respect to the sufficiency of the school plant itself the Legislature has both vested responsibility in a state agency and expressly barred the municipality. Yo such legislation exists as to zoning. In this connection we are referred to N. J. S. A. 18:2-4, subd. h under which the State Board of Education “may” withhold approval of a “secondary school” if its “location” shall not warrant its establishment or continuance. That statute quite plainly does not charge the State Board with responsibility for the total zoning interests of the community but rather enables the State Board permissively to disapprove a specific site because it is unsuitable in the limited context of the need for and utility of a secondary school.

And so also N. J. S. A. 40:55-1.13 does not bespeak a purpose to place schools beyond the zoning power. That statute, which applies only if a planning board has adopted a master plan or a portion of a master plan, provides that the governing body or other public agency “before taking action necessitating the expenditure of any public funds, incidental to the location, character or extent” of a project, shall refer the proposal to the planning board for review and recommendation. A “school board” is specifically listed among the agencies subject to this requirement. The statute provides that the recommendation of the planning board may be overridden, and for present purposes we may accept the Attorney General’s opinion that a school board may override the recommendation without the concurrence of the municipal governing body. Op. A. G. 1954, No. 8. The statute, however, does not relate to compliance with zoning restrictions. Rather it deals with the suitability of a specific site or location for a public improvement, see Saddle River Country Day School v. Saddle River, 51 N. J. Super. 589, 602 (App. Div. 1958), affirmed o. b. 29 N. J. 468 (1959), and hence, although a school board has the final say with respect to the precise location, it does not follow that it may ignore the zoning ordinance.

In summary, then, there is no statute under which zoning responsibility with respect to public schools has been vested in another agency or expressly denied to the municipality. We see no reason, therefore, to dispute the assumption in N. J. S. A. 40:55-33.1 that public schools are subject to local zoning.

We of course do not mean that the Legislature intended that the governing body may block public education by barring schools throughout the municipality or by relegating schools to areas that are obviously unsuitable. Eather the Legislature found it appropriate to permit the municipality to consider the total needs of the community in all of its zoning aspects to the end that schools 'will be in appropriate districts and upon plots of ample size and with suitable buffers to contain within the perimeter of the property those influences which could be unduly hurtful to others.

This discourse upon the amenability of public schools to zoning should not obscure the question before us. That question is whether the Legislature intended private schools to be bejrond zoning control. While undoubtedly the public interest could be left with the school board, it would be poor policy to permit private schools to locate anywhere at all and to be unrestrained as to size of plot, sideyards, etc. The private organization is not accountable to the electorate directly or indirectly, and even if it wanted to keep in mind the total zoning interests of the community, still it could not draw upon a power to condemn or to tax in its quest for the optimum location. We should hesitate to impute so questionable a purpose to the Legislature.

Plaintiff alternatively suggests the statute be read to permit zoning regulation as to lot size, setback, buffers, etc., but not as to land use. Thus a private school could locate its facilities in any district but would have to obey local regulations reasonably designed to insulate the neighborhood from the noise and activity which schools, especially secondary schools with their athletic facilities, can readily generate. This approach would be more palatable ^,s a policy matter than the approach we rejected above, but the answer is that the Legislature has not adopted it.

The statute is plain enough if it is read without stress and strain. There is disagreement upon whether public schools may constitutionally be treated differently in zoning matters from private schools furnishing equivalent education. See Tustin Heights Ass’n v. Board of Supervisors, 170 Cal. App. 2d 619, 339 P. 2d 914, 922-23 (D. Ct. App. 1959); St. John’s Roman Catholic Church v. Darien, 149 Conn. 712, 184 A. 2d 42 (Sup. Ct. Err. 1962); City of Miami Beach v. State, 128 Fla. 750, 175 So. 537 (Sup. Ct. 1937); Catholic Bishop of Chicago v. Kingery, 371 Ill. 257, 20 N. E. 2d 583 (Sup. Ct. 1939); Diocese of Rochester v. Planning Board, 1 N. Y. 2d 508, 154 N. Y. S. 2d 849, 136 N. E. 2d 827, 834 (Ct. App. 1956); State v. Sinar, 267 Wis. 91, 65 N. W. 2d 43 (Sup. Ct. 1954). We adverted to the question without deciding it in Andrews, supra (30 N. J., at p. 252). The statute before us resolved that issue by requiring equality of treatment. We so read the statute in St. Cassian’s Catholic Church, supra (40 N. J. 46). That case involved a variance for a parochial school granted before the statute was enacted, and the question was whether one of the conditions of the variance discriminated against the school in violation of the statute. We did not say the statute placed private schools beyond zoning control and hence the variance was no longer needed. Rather we accepted the continued vitality of the variance, and upheld the condition upon a finding that other public schools met the requirements of that condition and hence there was no discrimination in fact.

Here the ordinance applies equally to public and private schools. The borough is small, with an area of but 1.76 square miles and 3,988 residents as of the 1960 census. It is almost wholly residential. About half its area is in the R-l district. The R-l district has the highest requirements of the four residential districts, is countrified in atmosphere and facilities, and the homes are in the $60,000 class on lots of one-acre minimum. A public .elementary school situate in the R-3 district is centrally located and there was testimony that it will meet the total need even when the municipality is fully developed. As to secondary education, the borough has provided for instruction by contract with the Village of Ridge-wood at its high school. There was testimony that the borough would never need a secondary school of its own. Also in the R-3 district is St. Luke’s Regional Parochial School, which is both an elementary and á secondary school, with a student population of 1,512, of whom 164 reside in the borough. In this setting the municipality barred both public and private schools from the R-l district.

The ordinance is nondiscriminatory as between public and private schools. If there is a grievance, it is of another kind. The municipality has zoned in terms of its own local need, whereas plaintiff wishes to meet a regional need through a facility of relatively little utility to the residents of the borough. Not every municipality will welcome a tax-exempt enterprise whose contribution is essentially extraterritorial. Hence motivations are suspect when at a late hour an ordinance is adopted to bar the improvement on a site already in hand. Perhaps the problem should be given to a state agency removed from the pull of local interests. Indeed, we directed reargument to explore the question whether the State Board of Education has jurisdiction of it. We are satisfied it does not and hence the case must be adjudged under a statutory scheme which leaves the zoning decision in municipal hands.

The substantial issue upon which the trial court made no finding is whether it is arbitrary to bar the use of plaintiff’s property for a secondary school. The issue is constitutional insofar as it is claimed that the ban offends due process of law. The issue is also statutory insofar as it involves the question whether the municipality exceeded the statutory authority or departed from state policy. In this connection it is appropriate to comment upon so much of the testimony and argument as stresses the tax implications of the proposed use.

We have held that a municipality may consider revenues in its plan for a well balanced community. Gruber v. Raritan Twp., 39 N. J. 1, 9-11 (1962). Thus it may provide for industrial or commercial uses which are less demanding in public services than residential uses. It is, however, another matter to bar tax-exempt facilities on the ground that they are financially burdensome by reason of that exemption. The exemption is granted by the State because of the contribution of the exempt facility to the public good. It may be that an exemption will mean a net burden for the taxpayers of a particular municipality, but the municipality must nonetheless abide by state policy. Indeed, our Constitution of 1947 expressly preserved the then existing exemptions of real and personal property used exclusively for religious, educational, charitable or cemetery purposes and owned by a nonprofit corporation or association. Art. VIII, § I, par. 2. And N. J. S. A. 40:55-33.1, while not bearing the interpretation given it in the trial court, does serve to evidence the Legislature’s concern for nonprofit private schools which furnish elementary and high school education.

No municipality may quarrel with this policy. Hence it may not zone against a private school, place it in one district rather than another, or refuse it a variance on the ground that it is exempt from taxation. See Diocese of Rochester v. Planning Board, supra (1 N. Y. 2d 508, 154 N. Y. S. 2d 849, 136 N. E. 2d, at p. 836).

The matter is remanded for trial of the issue of arbitrariness in the light of the views we have expressed. We should add that if it is held to be unreasonable to bar the proposed use upon a finding that the zoning objective may be readily achieved by appropriate regulation as to plot size, setback, buffers, etc., the municipality should be given an opportunity to legislate to' that end.

As to the other issues presented to us, we think it enough to state our conclusions. We see no merit in plaintiff’s attack upon the procedure used in adopting the amendatory ordinance nor in the charge that a councilman had a disqualifying interest. Nor do we find substance in defendant’s sundry constitutional attacks upon N. J. S. A. 40:55-33.1, and we add that as to the charge that the statute invidiously discriminates between profit and nonprofit private schools, the statute would not fall in its entirety if the challenge were good for the reason that the offending words would be sever-able, and hence the issue is not involved in this case.

If it wishes, plaintiff may seek a variance at this juncture, and if the variance should be denied, litigate the validity of that action along with the attack upon the ordinance itself.

The judgment is reversed and the matter remanded for further proceedings not inconsistent herewith.