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

Hall, J.

(concurring). This litigation actually involves the perplexing problem of the permissible extent of local land use control of regional, tax-exempt institutions — be they private schools of religious or secular sponsorship educating children from more than one municipality, or other beneficial non-governmental educational, religious, charitable, hospital and like institutions the services of which transcend local boundaries.

In treating this problem, the primary frame of reference is that under present law planning and zoning regulation in New Jersey must be confined within municipal lines and each municipality may legislate with substantially no regard for the over-all area of which it is a part. The second frame of reference, well illustrated in this case, is that such facilities necessarily increase in size and number with the density of population and require sizeable tracts of land. In such areas lands at all adequate for facilities of this kind are scarce and becoming more so. They generally do not belong *219 in commercial or industrial areas and suitable sites are likely to be found only in sections already zoned for residential use. Moreover, the availability of appropriate land is even more restricted by the absence of the power of eminent domain. On the other hand, there can be no doubt that such institutions have a physical impact on a residential neighborhood which can be unduly dissonant unless buffers and other conditions are imposed. It is equally true that in almost every case they cost the municipal taxpayer some money because they usually create a need for additional governmental installations and services without any return in the form of taxes. Furthermore, local residents frequently share in the benefits of the institutions only to a limited extent and sometimes not at all.

I fear that so far we have come up with little of a constructive nature by way of answer to this basic question and that, as far as the parties in interest in this case are concerned, after five years of litigation we have succeeded only in marching them up hills and down again, with more of the same in prospect. This unfortunate result may be due in part to legal and practical limitations on the judicial function in problems of this kind, the work-a-day solutions of which are better handled legislatively and administratively. Courts in deciding the constitutional and statutory issues presented in this class of cases cannot go much beyond establishing outer boundaries of the zoning power and setting forth guide lines to aid proper local implementation of the power so delineated. I suggest, however, that we have not gone as far as we can and should in these respects in this case.

Perhaps what I have to say here might well have been stated to some extent in connection with the opinion on the first appeal. 42 N. J. 556 (1964). However, the only issue then decided, by reason of the narrow basis on which the trial court disposed of the case, was that public schools, and thus private schools, are in this State within the zoning power, or at least certain aspects of it, as a matter of legisla *220 tive contemplation. The majority felt that the nnreached matter of the validity, in the Ho-Ho-Kus setting, of the ordinance amendment prohibiting all schools and other institutional uses except churches and public parks and playgrounds in the highest residential zone should first be determined by the trial court. I did not believe that we were intending to deal definitively with the extent or implementation of the power. Two references to that phase of the matter indicated to me that we were suggesting the trial court ought to consider it. The first was in this comment:

“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. Rather 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." (42 N. J., at p. 563).

The second was in tlie following suggestion:

“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.” (42 N. J., at p. 566).

I did not understand, as the present majority states, that we had decided in the prior opinion the unqualified proposition “that schools may be excluded from the highest residential district.”

The trial court on the remand simply found, however, the blanket prohibition of all schools in the E-l zone to be unreasonable and arbitrary in toto on bases which I agree are legally untenable. The practical effect of the decision is to say that, at least in Ho-Ho-Kus,. private schools must be permitted at any location in the highest residential district *221 without any zoning conditions or safeguards. It seems little different in pragmatic result from that which would ensue if the view that the zoning power does not extend to any schools were to prevail.

While Ho-Ho-Kus could permit private schools and other tax-exempt institutions in residential districts without limitation, as many zoning ordinances do and as Ho-Ho-Kus did before the amendment in controversy, I do not think it can be compelled to. The amendment establishes, at the very least, that the municipality no longer wishes to go that far — a choice which I think a court must recognize as matter of law and fact. Not to do so is to follow the line of cases which say, in analogous situations, that such institutions are immune from any police power regulation in the land use control field on the ground that such regulation bears no substantial relation to the promotion of the public health, safety, morals or general welfare of the community because these uses are themselves in furtherance of the public morals and general welfare. See, e. g., Diocese of Rochester v. Planning Board, 1 N. Y. 2d 508, 154 N. Y. S. 2d 849, 136 N. E. 2d 827 (Ct. App. 1956); Board of Zoning Appeals of Town of Meridian Hills v. Schulte, 241 Ind. 339 , 172 N. E. 2d 39 (Sup. Ct. 1961); In re O’Hara’s Appeal, 389 Pa. 35 , 131 A. 2d 587 (Sup. Ct. 1957). Such reasoning confuses issues and disregards the long established basis for general police power regulation of all kinds of activities. Just because an institution is thought to be a good thing for the community is no reason to exempt it completely from restrictions designed to alleviate any baneful physical impact it may nonetheless exert in the interest of another aspect of the public good equally worthy of protection. Cf. Allendale Congregation of Jehovah’s Witnesses v. Grosman, 30 N. J. 273 (1959), appeal dismissed 361 U. S. 536 , 80 S. Ct. 587 , 4 L. Ed. 2d 538 (1960); School District of Philadelphia v. Zoning Board of Adjustment, 417 Pa. 277 , 207 A. 2d. 864 (Sup. Ct. 1965). Consequently I am in accord that the judgment of the trial court must be reversed.

*222 What is most unsatisfactory to me, however, is that the plaintiff is now left with only the possibility of applying for a use variance for “special reasons” under N. J. S. A. 40:55-39d. That possibility may well be illusory indeed, under the current scope of judicial review of municipal administrative action, if the borough board of adjustment denies a recommendation or the governing body disapproves the recommendation in the event one is made. While I think it is safe to say that a court, on an administrative record akin to the present evidence, would sustain the grant of a variance, see Andrews v. Ocean Township Board of Adjust ment, 30 N. J. 245 (1959); Blade v. Town of Montclair, 34 N. J. 105 (1961); Burton v. Town of Montclair, 40 N. J. 1 (1963), it is not at all certain that the denial of a variance would be upset. See Mayer v. Montclair Board of Adjustment, 32 N. J. 130 (1960); cf. St. Cassian’s Catholic Church v. Allen, 40 N. J. 46 (1963).

My conviction is that, while a municipality cannot be required to permit tax-exempt institutions at any location without conditions or restrictions, it also may not exclude them from any zone by unqualified prohibition. Rather such institutions should have the right to locate on any appropriate site where the physical impact of their operations can be alleviated to a reasonable extent by the imposition of suitable conditions and restrictions. I have in mind, for example, a tract so situated and large enough to accommodate the projected functions and activities as well as motor vehicle traffic and parking in order that considerable insulation will thereby be created for the benefit of immediate neighbors, together with such additional buffers and restrictions as are needed. In addition, the exterior structural design should not be completely out of keeping with the district, as would be the case of a ten-story building in a high-class one-family area.

My reasons for this view are essentially found in the thesis I advanced in the dissenting opinion in Vickers v. Township Committee of Gloucester Township, 37 N. J. 232, 252 *223 (1962), which need not be repeated at length. See also discussions in Haar, “Regionalism and Realism in Land-Use Planning,” 105 U. Pa. L. Rev. 515 (1957); Note, “Churches and Zoning,” 70 Harvard L. Rev. 1428 (1957); Note, “Zoning Against the Public Welfare: Judicial Limitations on Municipal Parochialism,” 71 Yale L. J. 720 (1962). Regional or, for that matter, local institutions generally recognized as serving the public welfare are too important to be prevented from locating on available, appropriate sites, subject to reasonable qualifications and safeguards, by the imposition of exclusionary or unnecessarily onerous municipal legislation enacted for the sake of preserving the established or proposed character of a community or some portion of it (which seems to be the principal reason for Ho-Ho-Kus’ antipathy to plaintiff’s school) or to further some other equally indefensible parochial interest. And, of course, if one municipality can so act, all can, with the result that needed and desirable institutions end up with no suitable place to locate. In my view, such action is not legitimately encompassed by the zoning power and the courts have the power to and should say so. The substantive question seems to me to fall clearly within the following language from the foundation case of Village of Euclid, Ohio v. Ambler Realty Co., 272 U. S. 365 , 47 S. Ct. 114, 119 , 71 L. Ed. 303, 311 (1926) : “It is not meant by this, however, to exclude the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way.”

Municipalities greatly prize the New Jersey system of substantial home rule. But it should encompass responsibilities as well as rights and they should not be heard to object that they must take some of the bitter with the sweet when the public good thereby advanced necessarily transcends municipal boundaries. That the particular institution which circumstance brings into the community may cost some additional tax moneys does not dictate a different approach. The next town may well have to undertake a similar burden next year. *224 If none can exclude, all will be equally subject to the same possibility of bearing the burden.

Methods to deal with the right I would thus recognize can be provided for, it seems to me, in either of two ways. The first would be by advance provision in the zoning ordinance for such uses as special exceptions pursuant to N. J. S. A. 40:55—39b. The required ordinance standards therefor would have to be broad enough to give the board of adjustment the necessary flexibility in passing upon and imposing particular conditions in each case. If the ordinance does not so provide, as in the case of Ho-Ho-Kus, the "special reasons” variance under N. J. S. A. 40:55-39d ought to be available and adequate, provided the judiciary takes the view, stronger than that presently prevailing, as I think it can and should, that such a variance must be granted in appropriate fact situations subject to reasonable conditions prescribed by the local agency. See Cunningham, "Flexible Zoning and the New Jersey Special Reasons Variance Procedure,” 15 Zoning Digest 169 (1963). (This is in reality the judicial approach followed today with respect to hardship variances under N. J. S. A. 40:55-39c, even though the opinions state and purport to follow the same scope of review rule as in cases of use variances. See Ardolino v. Florham Park Board of Ad justment, 24 N. J. 94 (1957). Note my view as to the proper scope of judicial review of municipal legislative land use regulation action expressed in the Vickers dissent; 37 N. J., at pp. 258-261, the rationale of which I think is equally applicable to municipal administrative action. I have deep concern about according the same deference to the actions of such agencies as is done in the case of state administrative bodies.)

As far as the present case is concerned, I would require that an application for a variance by the plaintiff be so considered both at the local level and on any judicial review

Schettino, J., joins in this opinion.