The opinion
Heher, J.
(dissenting). The lands and structures of Villa Walsh, named in honor of Archbishop Walsh, its founder and patron, constitute a unitary whole devoted to religious and scholastic instruction and training, an educational institution that also includes the training of religious for teaching, a normal school approved and supervised by the New Jersey Department of Education. Such was the use when the zoning ordinance came into being. The Villa is a “teaching community” that provides teachers for the parochial schools in ETew Jersey. The school children now under the tuition of the school’s graduate teachers in ETew Jersey number 12,000 plus. There is a distinct need for enlarged facilities, not alone to provide more teachers for the ever-increasing enrollment of children in the parochial schools, but largely to supply the means of better trained teachers, a public service of the highest order.
The land comprises 100 acres situate at the intersection of Western Avenue and Pickatinny Road, in Morris Township; it has several buildings used for classrooms, workshops, dormitories, and other school purposes. Such was also the case when the zoning regulation was adopted. The proposed building would provide study and conference rooms, an auditorium, recreation rooms, reception rooms, and other modern facilities for the instruction and training of teachers. *208 Those now living, teaching and receiving instruction at Villa Walsh are in two groups: professed nuns, of whom 23 are in residence during the Eall, Winter and Spring, and students, 52 in number. The students comprise novices, postulants, and juniors. In recent years the resident nuns and students numbered between 75 and 80 during the Eall, Winter and Spring. In the Summer the number varies from 140 to 150. The nuns return during the Summer for graduate study and training, and the student enrollment is greater. The new building would house the nuns and students now in residence, but in the course of five years there will be 200 nuns and students in residence for teaching and instruction during the Summer months. The need- is imperative, it is but fair to say; and if it is not supplied abandonment of the present site, there is reason to believe, would necessarily follow as unsuited to the use to which it is now devoted. The school has no suitable location elsewhere and, even though it had, the removal could not be accomplished without great economic waste.
And the topography at the site of the proposed building would render it of little practical use for one-family residences. The “drop from the roadway to the lowest point of the new building site” is 40 feet; the building “at the front or driveway side would be 2% stories in height there, and, at the back, due to that slope, the building would be more than 2Yz stories from the ground level there.” An architect called as a witness by the defendant corporation gave voice to the opinion that it “would be very costly, due to the topography of the land,” to use it for one-family residences. And another of its witnesses, a real estate broker of unquestioned competence, corroborated this belief; he testified that, “due to the topography, the property would have a very limited market for any purpose other than the type that is already there”; it “would be totally unfit in its present condition for a one-family residence unless the present buildings, except the former main residence, were torn down”; and in his “opinion the proposed new building would in no way be a deterrent to the erection of one-family residences *209 on Western Avenue.” The new building would be located 500 feet from Pickatinny Road and 1,200 feet from Western Avenue; and, situated as it would be to the rear of the present buildings, it could not be seen from Pickatinny Road, nor would it be visible from Western Avenue.
And in the immediate vicinity of the Villa there is a large armory and the Tufts Dog Kennel.
Thus, there is a substantial basis for the findings of the board of adjustment, these among others: “by reason of its unusual topography and the existence of a large brick mansion, a chapel and two dormitory and classroom buildings,” the locus “is unsuited for the construction of single family homes unless the present buildings are destroyed, which would be costly and impose severe hardship upon” the Villa; the Villa, “since 1930,” in the pursuit of its mission of “educational and religious instruction,” “has spent substantial sums of money on improvements including a chapel, school and dormitory buildings, and sewage and water facilities”; the “present buildings are inadequate as facilities for teaching and training teachers and nuns and lack proper amount of living space for the comfort and convenience of those in residence at Villa Walsh”; the Villa “performs a public service in the training of its students and nuns to teach in the parochial schools throughout New Jersey” and in the Township of Morris, “and the training of competent teachers is of increasing importance to, both the State and the community because of the increased number of children both in public and parochial schools”; the proposed building “is needed to provide adequate classrooms, recreational rooms and other accessory facilities and to meet the standards of the Department of Education”; the Villa “requires” the proposed building for the “performance of the purposes and objects for which it was organized and established” and in which it has been “continuously engaged on the premises since 1930”; there are “presently peculiar and exceptional practical difficulties and severe hardships on the applicant as owner of the premises in connection with its already existing use of the premises, which will continue unless the variance *210 sought is granted”; the granting of the variance “would not affect the present character of the surrounding property,” and “would be without substantial detriment to the public good and would not substantially impair the intent and purpose of the Zoning Ordinance,” and the requirements of N. J. S. A. 40:55-39(d) have been met “in that the foregoing findings are special reasons justifying the variance sought.”
The township committee approved the recommendation of the variance made by the board of adjustment for the reasons thus given and for the following reasons: “part of said building is to be used for religious purposes, which uses are permitted in the residential zone in which the property is located”; “part of said building is to be used for a school to train teachers for which there is a shortage in blew Jersey”; the “topography of said land where the proposed building will be located and the immediate area is not adaptable to the erection of dwellings thereon,” and “the most appropriate use of said land can be made by the erection of said building thereon”; “it would not depreciate the value of the land and buildings of the surrounding property”; the “denial of said application would create a hardship for the reasons herein stated”; the granting of said variance will “correct a maladjustment and an inequity in the operation of the general regulations of the zoning ordinance,” and “will not substantially impair the intent and purpose of the zoning plan and zoning ordinance.”
The Villa’s land is in its entirety the subject of a nonconforming use, as an integral part of the religious and educational institution itself, and as such it is within the protection of R. S. 40:55-48, securing the continuance of any “non-conforming use or structure” “upon the lot or in the building so occupied.” But any structure “may be restored or repaired in the event of partial destruction thereof”; and the holding is that at the very least the new structure would contravene what is said to be the implied limitation of this provision. Under the statute cited supra, a non-conforming use may be continued, and the landowner *211 may restore or repair buildings so used, but he may not “enlarge such use without express permission from appropriate authority.” Sitgreaves v. Board of Adjustment of Town of Nutley, 136 N. J. L. 21, 27 (Sup. Ct. 1947); DeVito v. Pearsall, 115 N. J. L. 323 (Sup. Ct. 1935). And to that end the police power is invoked, to vary the application of the general rule for the enlargement of the structures for the selfsame preexisting use, and such is the rationale of the determination now under review.
The variance allowed here is fully defensible under N. J. S. A. 40:55-39 (d), as sustained by “reasons peculiar to the particular piece of land which give it a unique character or status calling for relief to avoid what would otherwise constitute an arbitrary application of the general rule,” the minority thesis in Ward v. Scott, 16 N. J. 16, 27 (1954). And it is equally supportable as within the majority interpretation there of the clause of subdivision (d) permitting a variance “in particular cases and for special reasons.” See also Beirn v. Morris, 14 N. J. 529 (1954). Certainly, the mere extension of the buildings devoted to school uses permissible in the case at hand by the variance thus given is not less in keeping with the constitutional and statutory policy of zoning, and the local regulations in the exercise of the police power to that end, than the construction of a retail shopping center on vacant lands in an exclusively residential zone permitted in Ward v. Scott, as “in the public interest” and grantable “without substantial detriment to the public good” and without “substantial impairment” of the “intent and purpose of the zone plan and zoning ordinance.” The refusal of leave to expand a non-conforming educational use, serving as it would a need of public concern, is hardly reconcilable with the creation of a non-conforming retail commercial use in a residential zone barred to business uses, especially where, as here, the facilities are devoted in part to permissible religious uses.
It is embedded in our organic law that the landowner’s right to the free use and enjoyment of his property, according to his own choice, is subject to reasonable regulation and *212 control by the State in the exercise of the police power; and the inquiry is whether there is a real and substantial relation between the means adopted in a given case and the public health, safety, morals, comfort or convenience, or the general good and welfare, in zoning according to the statutorily enumerated considerations, one or more. Brandon v. Board of Commissioners of Town of Montclair, 124 N. J. L. 135 (Sup. Ct. 1940), affirmed 125 N. J. L. 367 (E. & A. 1940); Schmidt v. Board of Adjustment of City of Newark, 9 N. J. 405 (1952). See also Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114 , 71 L. Ed. 303 (1926).
And it would seem that, by the very nature of the use itself, the enlargement of buildings devoted to school function and service such as we have here is not within the reason and spirit of the non-conforming use provision of R. S. 40 :55 — 48. See collation of cases in 36 A. L. R. 2d 655. Can it be that our universities within an exclusive residence zone may not expand their building facilities on the campus, as a peremptory limitation upon a non-conforming use? Would not a denial of the extension constitute a wholly unnecessary and unjust invasion of the fundamental right of property ? See Brandon v. Board of Commissioners of Town of Montclair, supra. The entire tract is within the exemption of the non-conforming use. De Felice v. Zoning Board of Appeals, 130 Conn. 156 , 32 A. 2d 635 , 147 A. L. R. 161 (Sup. Ct. Err. 1943). The Villa cannot be denied the lawful use of its land, in the pursuit of its essential function, where there is no discernible legitimate public interest to be served by the use restriction. The burden cannot be in excess of the public need. The principle is basic to constitutional use zoning. A municipality has no power “to prohibit the doing of lawful acts which do not affirmatively appear to serve the public convenience or welfare.” Village of University Heights v. Cleveland Jewish Orphans’ Home, 20 F. 2d 743 (6 Cir. 1927), 54 A. L. R. 1008, certiorari denied 275 U. S. 569 , 48 S. Ct. 141 , 72 L. Ed. 431 (1927). See also Western Theological Seminary v. City of Evanston, 325 Ill. 511 , 156 N. E. 778 (Sup. Ct. 1927), where a regulation *213 forbidding the structural expansion of a theological school in a residence “A” district was held to be unreasonable and arbitrary, in that there was no reasonable ground to apprehend that the proposed buildings would menace health, morals, comfort, safety, or general welfare of the community. Beirn v. Morris, supra, had an altogether different factual context. The reasonableness of land use control of necessity depends upon the circumstances of the particular case.
And it is fundamental that the judicial authority may not substitute its own independent judgment for the specialized judgment of the agency entrusted by the Legislature with the administrative function, where the findings of the local authority have a substantial basis in the record; and such, I submit, is plainly the case here. Beirn v. Morris, supra.
I would affirm.
William J. Bkennan, Jr., J., joins in this opinion.
For reversal — Chief Justice Vanderbilt, and Justices Oliphant, Waoheneeld and Burling — 4.
For affirmance — Justices Hepier, Jacobs and Brennan — 3.