Petition for Writ of Certiorari — Kuhl v. Board of Adjustment

rig Dp

971989 JUN 8 1998

OFFICE OF THE cig.

No. 97-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

ANDRZEJ KUHL, STEPHEN SCHLESINGER,

BARBARA SCHLESINGER, MARY ALLEN, ROBERT

C. HOLMES, THOMAS KELLY, PATTERSON SMITH,

ALICE F. FREED, PATRICK FINNEGAN, CULLEN

MCVOY AND ELIZABETH MCVOY,

Petitioners,

against

BOARD OF ADJUSTMENT OF THE TOWNSHIP OF

MONTCLAIR AND B’NAI KESHET MCNTCLAIR

JEWISH CENTER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF NEW JERSEY

Robert C. Holmes

Cullen McVoy

Petitioners pro se

Service agent on behalf

of petitioners:

Patterson Smith

23 Prospect Terrace

Montclair, NJ 07042

(973) 744-3291

i

Questions Presented

1. Where the state land use law gives religious groups

as a class preferred treatment in obtaining a use variance to

install a house of worship in a residential zone, with the result

that surrounding neighborhoods are forced to suffer greater

harm, does this advance religion in violation of the

Establishment Clause?

2. Where preferred treatment means that a zoning

board must determine the moral benefits of the religious use

and weigh them against harm to the neighborhood, does this

Cause excessive government entanglement with religion in

violation of the Establishment Clause?

3. Where the Free Exercise Clause is invoked to give

preferred treatment to an underrepresented religious group in

order to foster religious diversity, without finding that the

group’s religious freedom has been abridged, does this

advance religion and cause excessive government

entanglement with religion in violation of the Establishment

Clause?

i

Table of Contents

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COI SE oi irsicaic cs checrisscsucore ophuceandscoadiahas iaacrasmennitekanin 3

PUNE oo saioncninishapuascinnecok:naosiecneainetandcaamahaernsbineiits 3

Statutes and Constitutional Provisions ..............0...:::ccceceeee: 4

TURN OE PORES 65.5 hnes ss cceenineememonane: 5

PIII i iciscicensnassccicdansonpicalpaaatiana saligiebc ta a beiesunaneiinen 7

‘POINT I. The Establishment Clause prohibits the state

from advancing religion in general by classifying houses of

worship as “inherently beneficial,” thereby giving them

special zoning treatment to the detriment of surrounding

UNION. iS ices scacencearicn one ogee eettopcoonese 9

POINT II. The state may not invoke the Free Exercise

Clause to advance one religion over another, or religious

use over secular use in the name of religious “diversity”

and in the absence of any finding of religious restraint. ....18

CONIIIE oo oo RA ae eee aa 22

APPENDIX

A. Application of B ‘nai Keshet Montclair Jewish Center

(Montclair Board of Adjustment, rendered Jan. 18, 1995)... la

B. Application of B'nai Keshet Montclair Jewish Center

(Montclair Board of Adjustment, rendered July 19, 1995)...7a

C. Kuhl v. Board of Adjustment (Superior Court, Law

Division, Essex County, entered April 23, 1996, Docket No.

ESX L-2960-95 and ESX L-10865-95) (not otherwise

SOUND oss ieee asus crue ee nieineens 17a

D. Kuhl v. Board of Adjustment, __N.J. Super __, (App.

Div. 1997) (Appellate Division of Superior Court, entered

November 14, 1997, Docket No. A-5987-95T1)............... 55a

E. Kuhl v. Board of Adjustment, _N.J. __, (1998) (Supreme

Court, entered March 11, 1998, Docket No. 45,294)........ 60a

i

l

Table of Authorities

Cases

Abington Township v. Schempp, 374 U.S. 203 (1963)

ana Aci aie ee cap bedeehaesenenacavenwees 12, 16, 17

Cantwell v. Connecticut, 310 U.S. 296, (1940) .......... ee. 11

City of Boerne v. P.F. Flores, Archbishop of San Antonio

and United States, _U.S. ___, 117 S.Ct. 2157, 138

L.Ed.2d 264, 1997 U.S. LEXIS 4035 (June 25, 1997)12, 21

Committee for Public Education v. Nyquist, 413 U.S. 756

ra iss ahneg okts sonxinasssteeadanevecdlnaseranombiacnastyi 17

Cornerstone Bible Church v. City of Hastings, 948 F.2d 464

SN, Gs ciacccscvyatssaccevardakaxswbecenctsrinessenies 14, 18

Coventry Square, Inc. v. Westwood Zoning Board of

Adjustment, 138 N.J. 285, 296, 650 A.2d 340 (1994)......10

Engel v. Vitale, 370 U.S. 421 (1962) ..........cc01:cccsseoereees 16, 17

Grand Rapids School Dist., 473 U.S. at 389, 105 S.Ct. at

er OE I oss sacs san veh ssacenesvtusodessharantaieensenve 11

Heffron v. International Soc'y for Krishna Consciousness,

Pe es I IE CUE Bai ihinscnidsvasvnronnetasndansenssisessbveines 1]

Lemon v. Kurtzman, 403 U.S. 602 (1971)... eee ‘eo, a7

Mueller v. Allen, 463 U.S. 388 (1983).............ccccceeeeeeeeeeeees 17

Simon & Schuster, Inc. v. Members of the New York State

Crime Victims Board, 502 U.S. 105, 112 S.Ct. 501, 116

a cdccincuarastevsmies 14, 18

Skaf v. Zoning Bd. of Adjustment of Asbury Park, 35 N.J.

BME BER LPM TAIN. SPIO assess cvsscesecessrnvesseesssansees 14, 15

Torcaso v. Watkins, 367 U.S. 488, 495 (1961).............. 11, 12

Wallace v. Jaffree, 472 U.S. 38, 52-55 (1985)............:008. 13

Walz v. Tax Comm'n of New York, 397 U.S. 664 (1970)

2

Statutes

DER We OIE hae. ss ccs cba ctatiaiincs Liab steamer weuanies 9,10, 18

Religious Freedom Restoration Act of 1993 (42 USC

AOU OO Ot. Sed., “RERA’) | .n..5cccccsscerseesccesveses a, ims 80, Be

3

Orders Below

Application of B'nai Keshet Montclair Jewish Center

(Montclair Board of Adjustment, rendered January 18, 1995),

APPENDIX A

Application of B’nai Keshet Montclair Jewish Center

(Montclair Board of Adjustment, rendered July 19, 1995),

APPENDIX B

Kuhl v. Board of Adjustment (Superior Court, Law

Division, Essex County, entered April 23, 1996, Docket No.

ESX L-2960-95 and ESX L-10865-95 (not otherwise

reported), APPENDIX C

Kuhl v. Board of Adjustment, _ N.J. Super __ , (App.

Div. 1997)(Appellate Division of Superior Court, entered

November 14, 1997, Docket No. ), APPENDIX D

Kuhl v. Board of Adjustment, __ NJ. __ , (1998)

(Supreme Court, entered March 11, 1998, Docket No. ),

APPENDIX E

Jurisdiction

The order of the New Jersey Supreme Court dismissing

petitioner's appeal for failure to raise a _ substantial

constitutional question was entered on March 11, 1998. The

jurisdiction of this Court is invoked under 28 U.S.C, Sec.

1257.

4

Statutes and Constitutional Provisions

New Jersey Municipal Land Use Law, 40:55D-70(d):

The board of adjustment shall have the power to: . . .

In particular cases and for special reasons, grant a

variance to allow departure from regulations pursuant to

article 8 of this act to permit: (1) use... . in a district

restricted against such use. .

No variance or other relief may be granted under the

terms of this section unless such variance or other relief can

be granted without substantial detriment to the public good

and will not substantially impair the intent and the purpose of

the zone plan and zoning ordinance.

United States Constitution, Amendment I:

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof. . .

lta

5

Statement of Facts

Montclair has a population of less than 40,000 with 54

houses of worship and ample zoning accommodation for

more. Rather than build in a permitted zone, respondent B’nai

Keshet Montclair Jewish Center applied to the Board of

Adjustment for a use variance and site-plan approval to create

_a religious complex on a property in an “R-1” single-family

residential zone. The property consisted of one-and-a-half

acres containing an historic home. The applicant proposed to

use the home for a school, and add a building three times its

size containing offices, assembly space, full catering facilities

and a large front-yard parking lot.

At the hearings, the Board scheduled a special session to

hear thirty supporters of B’nai Keshet, virtually all of whom

lived outside the neighborhood (and many outside of

Montclair), including priests, rabbis and ministers of various

denominations, as well as speakers on constitutional law.

They deplored that Montclair should require a variance for a

house of worship anywhere in town and insisted that the

applicant was entitled to special treatment pursuant to the

Religious Freedom Restoration Act of 1993 (42 USC 2000 bb

et. Seq., “RFRA”).

On January 18, 1994, the Board approved the use of the

property for a house of worship but denied the applicant’s site

plan, citing intense overdevelopment of the site (Appendix A).

The applicant submitted a revised site plan that provided for a

building equally large as originally proposed but with a much

reduced parking lot that forced parking onto neighboring

streets. This second site plan was approved by the Board on

July 19, 1995 (Appendix B).

Petitioners raised their constitutional arguments on

appeal to Superior Court, which affirmed the Board’s action

on April 10, 1996 (Appendix C, pages 34a and 35a). On

appeal to the Appellate Division the Superior Court’s ruling

was affirmed on November 14, 1997 (Appendix D). On

6

appeal to the New Jersey Supreme Court the appeal was

dismissed for failure to raise a substantial constitutional

question on March 11, 1998 (Appendix E).

7

Argument

The New Jersey Municipal Land Use Law authorizes the

grant of a use variance based on “special reasons.” According

to case law, applicants for such a variance must show that the

use advances one or more of the purposes of zoning listed in

the statute, and that the property is particularly suited to the

proposed use. They must also show, by an “enhanced

standard of proof,” that regardless of the benefits of the use, it

will not cause substantial detriment to the neighborhood or

zone plan.

An exception is made for applicants proposing a use

which is deemed “inherently beneficial.” They are entitled to

preferred status which eliminates the above requirements in

favor of a less stringent legal standard and burden of proof.

They need only show that the benefits of the use outweigh the

detriments (the “balancing test”). This requires the local

zoning board to determine the public value of the inherently

beneficial use, and if it is great enough, grant the application

even though the use would otherwise be found to cause

substantial detriment. The result is that the neighborhood is

exposed to greater harm where the applicant qualifies for

preferred status.

The New Jersey courts have held that inherently

beneficial uses are those which provide public services

benefiting the general health and welfare, including hospitals,

schools, housing for the poor and homeless, senior citizen

congregate housing, community residences for the disabled,

facilities for victims of domestic violence and child care

centers. These are “privatized” public services which

supplement those provided by governmental agencies, and

which might otherwise be excluded by zoning restrictions in

inhospitable local communities.

The rulings below add to the list a new class of facility

which does not belong—all houses of worship regardless of

what public services they provide. This elevates houses of

8

worship, which exist primarily for the benefit of their

members, to the same level as public service facilities which

provide for the general health and welfare without regard to

religious affiliation. The rulings also place houses of worship

on a higher level than equivalent secular facilities which are

protected by the Free Speech Clause of the First Amendment,

such as civic and philanthropic clubs, museums, art galleries,

theaters, meeting halls and other places of assembly. This

violates the Establishment Clause.

Moreover, the balancing test requires the zoning board

to determine how much the religious use will benefit the

public, and the greater the benefit, the greater the harm that

can be imposed upon the surrounding neighborhood in the

form of increased noise and congestion. Giving all religious

institutions this benefit to the direct detriment of private

citizens constitutes undue support of, and entanglement with,

religion in violation of the Establishment Clause.

On top of this blanket preference for religious

institutions, the rulings below use the Free Exercise Clause as

it was never intended—as an affirmative ground for special

zoning treatment of particular religious institutions regardless

of whether their religious freedom was ever abridged. In the

name of religious freedom, preference is given to a particular

group based upon a finding that it is underrepresented in

Montclair, and will therefore contribute to religious

“diversity.” This runs afoul of the Establishment Clause.

The Free Exercise Clause is thus being misused to

further religious freedom where there is no religious restraint.

This group’s exercise of religion was never restrained in

Montclair, by its zoning laws or otherwise. The group was

granted a variance to build a house of worship in a single-

family zone, yet there was no good reason why it could not

have built in an area zoned for such use. The Town’s zone

plan made ample provision for religious uses in other zones,

but the group had rejected such properties because they were,

—————————————=—=—————

9

in the words of the Appellate Division, “either too expensive

or would not meet the congregation’s needs.”

Absent a finding of restraint of free exercise of religion,

special treatment based on the Free Exercise Clause can only

mean affirmative support of religion in violation of the

Establishment Clause. It means support of one religious group

over others which cannot claim to be underrepresented in the

community, and over secular groups which ipso facto make

no contribution to religious freedom.

Here the religious identity of the applicant won approval

of a plan to impose an oversized religious complex with

inadequate parking upon a quiet residential neighborhood. We

submit that this exceeds constitutional limits and warrants

review by this Court.

POINT I

The Establishment Clause prohibits the state

from advancing religion in general by classifying

houses of worship as “inherently beneficial,”

thereby giving them special zoning treatment to

the detriment of surrounding neighborhoods.

The Municipal Land Use Law (N.J.S.A. 40:55D)

provides for the granting of a use variance upon a showing,

among other things, of “special reasons” for making an

exception to the existing zone plan. The courts have

construed special reasons to mean that the use advances the

“purposes of zoning” listed in the statute. (N.J.S.A. 40:55D-

2) Thus, applicants for such a use variance must show (1) that

the use advances one or more of the purposes of zoning listed

in the statute, (2) that the property is particularly suited to the

proposed use and (3) that by an “enhanced standard of

proof,” regardless of the benefit of the use, it will not cause

substantial detriment to the neighborhood or zone plan.

Medici v. BPR Co., 107 N.J. 1, 526 A.2d 109 (1987).

10

There is one major exception to this rule. One of the

purposes of zoning listed in the statute is promotion of the

“general public welfare” (N.J.S.A. 40:55D-2(a)). The courts

have held that uses which by their nature advance this purpose

are “inherently beneficial” and are afforded special treatment.

They are permitted a lower legal standard and burden of proof

to obtain a variance, and the surrounding neighborhood is

expected to tolerate a greater degree of detriment as a result

of the use than one which is not inherently beneficial. Sica v.

Bd. of Adj. of the Tp. of Wall, 127 NJ. 152, 165 (1992).

Applicants under the preferred standard are excused

from all of the above burdens of proof, they need only show

that the benefits of the proposed use, on balance, outweigh

the detriments. (Sica, supra). Under this “balancing test” the

more a zoning board values the particular “inherently

beneficial” use, the more detriment the board can impose

upon the surrounding neighborhood as a result of that use.

The list of uses which are deemed inherently beneficial is

derived from an ad hoc process of Statutory amendment and

judicial construction. The New Jersey Supreme Court has

made reference to housing for the poor and homeless, low

and moderate income housing, senior citizen congregate

housing, community residences for the disabled, facilities for

victims of domestic violence and child care centers, health

care facilities for the elderly, private schools and hospitals

(See Sica, supra; C. oventry Square, Inc. v. Westwood Zoning

Board of Adjustment, 138 NJ 285, 296, 650 A.2d 340

(1994)) Other uses havé been added to the list by the

Legislature: community residences for the developmentally

disabled (N.J.S.A. 40:55D-66.1), community centers for

victims of domestic violence (/d.), and child care centers

(N.J.S.A. 40:55D-66.6).

The lower courts held that under the Municipal Land

Use Law religious institutions per se are “inherently

beneficial” and therefore entitled to special treatment in

1]

obtaining a use variance. This constitutes undue state support

of, and entanglement with, religion in violation of the

Establishment Clause. It places religious groups, which exist

primarily for the benefit of their members, on an equal footing

with organizations that provide public services benefiting the

general welfare, health, order and security without regard to

religious affiliation.

At the same time, the ruling below places houses of

worship on a higher footing than equivalent secular facilities

which are also protected by the First Amendment (Free

Speech Clause) such as civic and philanthropic clubs,

museums, art galleries, theaters, meeting halls and other

places of assembly. It also fosters undue entanglement in that

it requires local zoning boards to make an assessment of the

benefit of the religious use to the public and weigh that

benefit against the harm it will do to the neighborhood: and

zone plan.

The First Amendment to the United States Constitution

provides that “Congress shall make no law respecting an

establishment of religion.” This provision, the Establishment

Clause, has been applied to the states since Cantwell vy.

Connecticut, 310 U.S. 296, (1940). This Court has held that

the Establishment Clause prohibits the states from favoring

religion over the secular, as well as one religious sect over

another. See for example Torcaso v. Watkins, 367 U.S. 488,

495 (1961) (Government cannot “constitutionally pass laws

or impose requirements which aid all religions as against non-

believers . . .”); Grand Rapids School Dist., 473 US. at 389,

105 S.Ct. at 3225, 87 L.Ed.2d at 281 (Establishment Clause

is violated “when the government fosters a close identification

of its powers and responsibilities with those of any—or all—

religious denominations.”)

This Court has held that a broad grant to religious

groups of preferential legal standards and lower burdens of

proof violates the Establishment Clause. See Heffron vy.

i2

International Soc’y for Krishna Consciousness, 452 U.S.

640, 652 (1981) (“Nor for present purposes do religious

organizations enjoy rights to communicate, distribute, and

solicit on the fairground superior to those of other

organizations having social, political, or other ideological

messages to proselytize.”); Abington Township v. Schempp,

374 U.S. 203 (1963); and Torcaso v. Watkins, 367 U.S. 488,

495 (1961) (government cannot “constitutionally pass laws or

impose requirements which aid all religions as against non-

believers ....”). A judicial decision which applies an easier

standard to houses of worship than to secular uses under the

assumption that religion is per se a public good violates the

strict neutrality approach required by this Court and the First

Amendment.

In addition, most recently, in City of Boerne v. PF.

Flores, Archbishop of San Antonio and United States, _

U.S. , 117 S.Ct. 2157, 138 L.Ed. 2d 264, 1997 US.

LEXIS 4035 (June 25, 1997), this Court found ~

unconstitutional the Religious Freedom Restoration Act of

1993. Although the Court did not ultimately rule based on the

Establishment Clause, Justice Stevens, in his concurring

opinion, expressed the view that the statute violated the

Establishment Clause because it gave a procedural advantage

to a religious institution which was not available to secular

groups:

In my opinion, the Religious Freedom Restoration

Act of 1993 (RFRA) is a “law respecting an

establishment of religion” that violates the First

Amendment to the Constitution.

If the historic landmark on the hill in Boerne

happened to be a museum or an art gallery owned

by an atheist, it would not be eligible for an

exemption from the city ordinances that forbid an

enlargement of the structure. Because the

landmark is owned by the Catholic church, it is

13

claimed that RFRA gives its owner a federal

statutory entitlement to an exemption from

generally applicable, neutral civil law. Whether

the Church would actually prevail under the

statute or not, the statute has provided the

Church with a legal weapon that no atheist or

agnostic can obtain. This governmental

preference for religion, as opposed to irreligion, is

forbidden by the First Amendment. Wallace v.

Jaffree, 472 U.S. 38, 52-55 (1985)

Further, the Sixth Circuit Court of Appeals made the

following observation in Lakewood, Ohio Cong’n of

Jehovah's Witnesses, Inc. v. Lakewood, 699 F.2d 303,

footnote 2 (6th Cir.), cert. denied, 464 U.S. 815 (1983):

Courts striking down such ordinances [that

exclude churches from residential districts] have

reasoned that the presence of churches in

residential areas is beneficial to the public morals

and welfare.... This reasoning is problematical

because an ordinance permitting churches but

excluding secular interests also protected by the

First Amendment runs afoul of the Establishment

Clause. On the other hand, not all political and

social organizations have been traditionally

viewed as beneficial to public welfare and morals.

Therefore, the original rationale for permitting

churches in residential areas fails.

If houses of worship are deemed to be inherently

beneficial, they are being given preferred treatment over other

secular interests that are protected by the First Amendment.

: The Free Speech Clause of the First Amendment protects

museums, art galleries, club houses, theaters, meeting halls

and other places of assembly. These facilities are frequently

zoned out of single-family residential neighborhoods and none

| |

BEM TEA OPS es Sig Nee

14

of them are listed as inherently beneficial. In fact, civic and

philanthropic organizations have been expressly held not to be

inherently beneficial For example, a woman’s club,

incorporated “to create an organized center of thought and

action among women for their intellectual and social

advancement and united effort to assist in civic and

philanthropic work,” was excluded from this preferred

category. Skaf v. Zoning Bd. of Adjustment of Asbury Park,

35 N.J. Super 215 (App. Div. 1955) Thus, since like-kind

secular activities are not given the benefit of inherently

beneficial status under New Jersey law, neither can houses of

worship.

The inclusion of religious places of assembly on the

inherently beneficial list compels inclusion of all places of

assembly. In Simon & Schuster, Inc. v. Members of the New

York State Crime Victims Board, 502 U.S. 105, 112 S.Ct.

501, 116 L.Ed.2d 476 (1991) this Court held that it is

presumptively unconstitutional under the Freedom of Speech

Clause to place burdens on speech because of its content. To

justify such different treatment of speech, the government

must show that the law is necessary to serve a compelling

state interest and is narrowly drawn to achieve that end.

On the basis of this fundamental principle, houses of

worship across the country have overturned zoning schemes

which allow for theaters within a commercial district but not

houses of worship (i.e., speech with secular or political

content allowed within the commercial zone while speech

with a religious content is prohibited). See Cornerstone Bible

Church v. City of Hastings, 948 F.2d 464 (8th Cir. 1991).

This argument works both ways. Just as a zoning scheme

cannot lock out religious speech where secular speech is

allowed, a zoning scheme cannot lock out secular speech

where religious speech is allowed. Thus, by affording

religious expression the benefit of the less restrictive

“balancing test,” the benefit of that same standard must be

15

accorded to all forms of expression. The New Jersey courts

have not extended that benefit. Skaf, supra.

The New Jersey tribunals below held that since religion

promotes “morals” and the “general welfare,” placing religion

in a preferred category does not violate the Establishment

Clause. We submit that this is not the case. The standard for

determining the proper application of the Establishment

Clause is the three-pronged test of Lemon v. Kurtzman, 403

U.S. 602 (1971). Under the Lemon test, a statute must meet

three criteria: (1) it must have a secular legislative purpose,

(2) its primary effect must be one that neither advances nor

inhibits religion and (3) it must not foster excessive

government entanglement with religion.

New Jersey’s grant of special zoning treatment to houses

of worship, per se, while excluding equivalent secular

facilities cannot meet any of the above tests under Lemon.

Conferring special treatment based solely upon the religious

use of a facility cannot be said to have a secular legislative

purpose, and such a rule clearly has the effect of advancing

religion. The truly neutral way to accommodate religious

facilities is to simply allow them in a zone that permits places

of assembly, both religious and secular.

As to entanglement, it is inevitable that a zoning board

will become unduly entangled with religion in carrying out its

duties under the statute as construed by the New Jersey

courts. The board must assess the benefit of the religious use

to the public in order to weigh it against its detriment to the

neighborhood and zone’ plan. This means making inquiries

into, and judgments regarding, the effectiveness of the

religious teachings of the congregation in improving the

morals of the community, and then weighing it against the

physical harm the use will do to the neighborhood. The result

is that the Board’s finding regarding moral benefit has a direct

bearing on how much the surrounding neighborhood will be

required to suffer in terms of increased noise and congestion.

16

Even assuming that all religions promote morals and the

general welfare, this is not a basis for the state to confer a

special benefit. Mandating that public schools open with Bible

readings or recitation of non-denominational prayers could

arguably be said to promote “morals” and the “general

welfare,” but this Court has found that both these practices

aid religion and are thereby prohibited under the

Establishment Clause. See Engel v. Vitale, 370 U.S. 421

(1962) (the government may not prescribe any particular form

of prayer to be used in schools) and Abington School District

v. Schempp, 374 U.S. 203 (1963) (Bible readings and the

Lord’s Prayer at the opening of the school day are “religious

practices.”)

The lower courts relied on Walz v. Tax Comm’n of New

York, 397 U.S. 664 (1970) for the proposition that the

Establishment Clause is not violated when New Jersey

characterizes houses of worship as an inherently beneficial

use. That reliance is misplaced. Justice Burger’s majority

opinion sustains the tax-exempt status of religious

organizations but only because (1) statutes of this type date

back to the framers of the U.S. Constitution, (2) the statute in

question was clearly and broadly drawn to include hospitals,

libraries, playgrounds, scientific, professional, historical and

patriotic groups, and (3) experience has shown that statutes

of this type result in less government entanglement with

religion.

In contrast, the inherently beneficial category is (1) a

recently created legal concept which was (2) never defined by

statute but injected and enlarged by the courts on an ad hoc

basis, excluding many of the facilities cited in Waltz, and

which (3) fosters government entanglement with religion by

requiring a zoning board to determine and then balance the

benefits of the religious use against the harm it does to the

neighborhood and zone plan.

Failure to meet any aspect of the Walz exception is fatal

Set A ST AL GS RS

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17

under the Establishment Clause. As this Court clarified in

Lemon v. Kurtzman, supra, its decision in Walz substantially

relies on the fact that the type of tax exemption in question

pre-dated the formation of the Republic and was approved by

the founding fathers. Since zoning is a concept that dates back

only to the turn of this century, this aspect of the Walz test is

not met here.

In addition, it is a fatal flaw to draw a category for

special treatment too narrowly. This is shown by a

comparison of Committee for Public Education v. Nyquist,

413 U.S. 756 (1973), in which this Court held that a tax

credit for non-public school tuition that primarily benefits

parochial schools violates the Establishment Clause, with

Mueller v. Allen, 463 U.S. 388 (1983) in which this Court

held that a tax deduction for all parents for all educational

expenses does not violate the Establishment Clause. Here the

concept of inherently beneficial is determined haphazardly on

a case-by-case basis by the New Jersey courts, occasionally

assisted by piecemeal legislation, in an effort to give meaning

to the otherwise undefined Municipal Land Use Law concept

of “special reasons.”

Note that Lakewood, Ohio Cong’n of Jehovah's

Witnesses, quoted above, was decided after Walz v. Tax

Comm'n of New York, supra. Thus, the Sixth Circuit in

Lakewood, noting that the Establishment Clause would be

violated by a zoning ordinance which expressly permits

houses of worship but not secular places of assembly, does

not agree with New Jersey’s very broad reading of Walz.

Moreover, this Court has held that legislation mandating that

children receive religious education in the public schools is

not saved merely because the same legislative scheme also

mandates that they be instructed in personal hygiene.

Abington Township v. Schempp, 374 U.S. 203 (1963); Engel

v. Vitale, 370 U.S. 421 (1962).

In the absence of a compelling state interest that

18

distinguishes the detrimental effects flowing from a civic

clubhouse or art theater from that of a house of worship, they

may not constitutionally be treated differently. See Texas

Monthly, Inc. v. Bullock, 489 U.S. 1, 103 L.ed. 2d 1, 109

S.Ct. 890 (1989) (strikes down sales tax exemption

exclusivély for religious publications); Simon & Schuster, Inc.

v. Members of the New York State Crime Victims Board, 502

U.S. 105, 112 S.Ct. 501, 116 L.Ed. 2d- 476 (1991) (It is

presumptively unconstitutional under the Freedom of Speech

Clause of the First Amendment to place burdens on speech

because of its content; to justify such differential treatment of

speech, the government must show that the regulation is

necessary to serve a compelling state interest and is narrowly

drawn to achieve that end); and Cornerstone Bible Church v.

City of Hastings, 948 F.2d 464 (8th Cir. 1991) (Freedom of

Speech Clause prevents enforcement of zoning regulations

that prohibit a house of worship from locating in a zone

where secular places of assembly can locate).

POINT II

The state may not invoke the Free Exercise

Clause to advance one religion over another, or

religious use over secular use in the name of

religious “diversity” and in the absence of any

finding of religious restraint.

The rulings below expressly invoked the Free Exercise

Clause of the First Amendment to give additional special

treatment to this particular religious group. The Courts

below upheld the ruling of the Montclair Board of

Adjustment which found, as a separate and distinct basis for

granting the use variance, as follows:

The proposed house of worship also promotes the

purposes of zoning set forth in N.J.S.A. 40:55D-

2. The public interest at stake is manifest; free

1 EOS ER EON SPE EMRE COTE EE Ee

19

exercise of religion and freedom of worship were

recognized by the framers of the Constitution as

inalienable rights. The proposed use is clearly in

furtherance of the general welfare and contributes

to Montclair’s goal to continue as a diverse

community.

The Board weighed this finding, among others, against

the detriment that the proposed use would cause to the

neighborhood and zone plan, and found that the religious

benefit outweighed the overcrowding, noise and traffic

congestion that would result from this use. The Board’s

reliance on this finding violates the Establishment Clause.

The Board found that the applicant’s congregation

should be favored over other religious groups, as well as

secular groups, because the construction of a new synagogue

(for a congregation long established in Montclair) would

contribute to Montclair’s goal of continuing as a “diverse

community.” This ruling set up an “affirmative action

program” for variance applicants. It gave preference to one

religion over others because most existing denominations—

being ipso facto well represented—would fail to meet such a

religious diversity test as the Board framed it.

Even if all religious applicants in town could pass the

“diversity” test, it would only increase the unconstitutional

advantage given by the Board to religious institutions over

secular ones. Thus, the Board erred when it considered the

religious “diversity” of the Montclair community when

deciding whether to grant or deny this use variance

application for a house of worship.

The pitfalls of the Board’s involvement in such issues are

manifest. If indeed the Board has the power to determine

which religious groups are under-represented in Montclair

and therefore entitled to special treatment, then it must be

concluded that the Board would also have the power to find

that another religious group (or the same in a subsequent

20

application) was adequately accommodated (or even over-

represented) in Montclair, and therefore was not entitled to

special treatment. Needless to say, if the Board were to

exercise this power, the religious community would be the

first to complain of a violation of free exercise of religion, and

with good reason.

In addition, the Board’s religious diversity ruling gives

preference to religious uses over secular. No secular group

could claim to contribute to religious diversity in Montclair,

and it therefore could never receive the special treatment the

Board gave this applicant. To redress the imbalance, the

Board would have to give similar preference to secular

institutions that contribute to diversity in exercising First

Amendment rights, such as freedom of speech or assembly.

This could produce the anomalous result of favoring variance

applications for specialty book stores, art movie theaters and

headquarters of fringe political groups, while disfavoring

those in the mainstream of expression and ideology.

The Board expressly weighed this congregation’s

specific religious orientation, along with the other positive

criteria, against the detriment that would be caused by the

proposed use in this single-family neighborhood. In this

manner the Board undeniably gave one religious institution a

significant procedural advantage over secular institutions.

While the Board purported to advance religious “freedom,” in

fact it was advancing religion itself.

In constitutional terms “freedom” is the absence of

restraint. Yet the Board made no finding that this

congregation was being restrained in any way from the free

exercise of its religion. Nor did the record contain a scintilla

of evidence that the denial of a use variance would have

compromised the applicant’s free exercise of religion. Thus,

when the Board referred to the advancement of “free exercise

of religion” it could not be referring to any alleviation of a

restraint. And, if the advancement of “free exercise of

21

religion” is not legally possible under these facts, then the

conclusion is inescapable that the Board’s finding advances

religion itself. This is a patent violation of the Establishment

Clause.

In the Boerne case (supra) this Court held that Congress

could not rely upon its authority to enforce the Free Exercise

Clause of the First Amendment as a basis for passing RFRA.

This was because RFRA sought to provide affirmative

protection of religious freedom by regulating activity which,

according to applicable court rulings, did not violate the

Constitution. Here the Board of Adjustment, which is

appointed by the municipal government, did just that. The

Board sought to prevent an unconstitutional restraint of free

exercise of religion by affording preferential treatment to a

congregation which was under no unconstitutional religious

restraint.

The record shows that Montclair’s zoning ordinances

make ample accommodation for religious facilities in

appropriate zones, but the applicant had not found property in

one of those zones which it both wanted and could afford.

The Master Plan and zone ordinance allow houses of worship

as permitted conditional uses in six different multi-family,

residential-office, and neighborhood-commercial zones. Of

the 54 congregations in Montclair, 14 are located in what

have evolved into single-family zones but none of these

required a variance at the time it was constructed. The

remaining 42 are located in permitted zones.

The Board made no finding that the applicant had

experienced difficulty locating property to purchase in a

permitted zone. The record shows that the applicant had no

problem that would not be encountered by any religious

group, or for that matter any group looking for a place of

assembly. The applicant simply preferred to locate in a single-

family zone where the ordinances had maintained a quiet

22

neighborhood with lower real estate prices commensurate

with residential use.

Conclusion

For all the foregoing reasons the petition for writ of

certiorari should be granted.

ANDRZEJ KUHL

STEPHEN SCHLESINGER

BARBARA SCHLESINGER

MARY ALLEN

ROBERT C. HOLMES

THOMAS KELLY

PATTERSON SMITH

ALICE F. FREED

PATRICK FINNEGAN

CULLEN McCVoy

ELIZABETH MC VOY

Petitioners, pro s

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APPENDIX A

RESOLUTION OF MONTCLAIR BOARD

OF ADJUSTMENT

Filed January, 18, 1995

B’Nai Keshet Montclair Jewish Center

99 South Fullerton Avenue

WHEREAS, B’Nai Keshet Montclair Jewish Center, did

make application to the Board of Adjustment of the

Township of Montclair to construct an addition to the

southerly side of the existing principal building to be utilized

for religious services and religious school and related

activities with onsite accessory parking on property

designated as Lot I in Block 2110 on the Township tax map

and located in the R-| One Family Residential Zones and

WHEREAS, the applicant sought site plan approval and

variances as follows:

1. A variance pursuant to N.J.S.A. 40:55D-70d(1) to

allow the proposed use which is not a permitted use in the R-

1 zone pursuant to Montclair Code Section 224-36.

2. A variance pursuant to N.J.S.A. 40:55D-70c to allow

a parking area in the front yard contrary to Montclair Code

Section 224-41E.

WHEREAS, the applicant submitted a site plan, floor

plan amid details prepared by Nadaskay/Kopelson,

Architects, bearing a final revision date of August 31, 1994,

and a property survey prepared by Alfred J. Clark, Inc., dated

June 11, 1993; and

WHEREAS, this matter came on to be heard at meetings

of the Board of Adjustment held on April 20, May 18, June

15, July 20, August 17, September 7, 21, 28, October 12. 19.

26, November 2, 16, 30, December 1, 7, 12, 1994, at which

time it was established that notice was properly published

and the property owners within 200 feet of the property in

2a

question had been properly served; and

WHEREAS. the Board carefully reviewed the testimony

presented and established the following findings:

|. B’Nai Keshet Montclair Jewish Center is a Jewish

Reconstructionist Congregation which has been established

in the Montclair community for over 15 years and which has

lost its lease at the First Baptist Church on Church Street and

has outgrown its ability to function in shared rented space.

The congregation currently has Saturday morning services

from 10:00 am. until 12:00 noon and Friday evening services

from 7:30 p.m. until 10-00 p.m. Religious instruction of

children occurs on Sunday mornings from 9:00 a.m. until

12:00 noon and on Wednesday afternoon from 4:00 p.m.

until 6:00 p.m. The property would also be used for services

on holy days, bar mitzvahs, speakers and committee

meetings.

2. The applicant proposes an addition which when

combined with the existing principal building would create a

structure of approximately 12,132 Square feet on property

which contains 1.4 acres. The property has been used as an

art school for over 25 years pursuant to a use variance

granted to the Yard School of Art, Inc. by the Board of

Adjustment on October 18, 1967

3. The proposed house of worship is “inherently

beneficial” thus satisfying the positive criteria under N.J.S.A.

40:55D-70d. State v. Cameron, 184 NJ Super. 66 (Law Div.

1982), aff'd, 189 NJ. Super. 404 (App. Div. 1983), rev’d. on

Other grounds 100 NJ. 586 (1985); Kali Bari Temple v.

Board of Adj. 271 NJ. Super. 241 (App. Div. 1994);

Sugarman y. Township of Teaneck, 272 NJ Super. 162

(App. Div. 1994).

4. The proposed house of worship also promotes the

purposes of zoning set forth in NJS A 40:55D-2. The

public interest at stake is manifest, free exercise of religion

and freedom of worship were recognized by the framers of

the Constitution as inalienable rights. The proposed use jis

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clearly in furtherance of the general welfare and contributes

to Montclair’s goal to continue as a diverse community.

5. The proposed addition to the southerly side of the

existing principal building would result in a combined

structure approximately 31.5 feet high, with a linear

measurement of 140 feet along South Fullerton and 96 feet

facing south. The result would be a combined structure at

significant variance with the single-family homes to the north

and west. The proposal is out of scale with the general

character of the neighborhood recognizing the existence of

Hawthorne Towers, a multi-level apartment building adjacent

to the subject property as well as a garden apartment complex

located catty-corner from the subject lot and St. Luke’s

Church one block north on South Fullerton Avenue. The

proposed combined structure is massive and will have a

substantial adverse visual impact on the neighborhood and

must be reduced and substantially detached in order to meet

the negative criteria.

6. The existing Red Gables building is listed on both the

National and State of New Jersey Registers of Historic

Places. The Master Plan seeks to preserve the Township’s

rich and varied architecture so that the historic character of

the community is maintained. In this regard, the Board finds

the testimony of Jan Hird Pokorny, an expert in historic

preservation architecture, presented by the objectors to be

persuasive. Mr. Pokorny testified that the structure is a better

than typical example of its period and is important because it

was designed, built and owned by an important Montclair

citizen. Mr. Porkorny argued and the Board concluded that

the applicant’s proposal was inconsistent with good historic

preservation principles in that (1) the proposed addition when

attached would be too large relative to the original building

covering the entire south facade (2) it would be

inappropriately connected to the Original structure in such a

manner as to fail to distinguish what had been added and (3)

it would inappropriately attempt to mimic architectural

4a

details instead of providing compatible details.

Consequently, the historical integrity of Red Gables would

be severely negatively impacted by the applicant’s proposal.

The Board finds that an addition of limited size constructed

primarily as a separate structure with design, materials and

height compatible to. but not mimicking the Red Gables

building, would satisfy the negative criteria.

7. The objectors asserted a house of worship at the

proposed location would adversely impact neighborhood

property values. The Board finds the testimony presented by

the objectors in support of this contention as well as the

applicant’s attempt to refute the assertion. failed adequately

to support their conclusions with sufficient credible evidence.

The Board finds that based upon existing churches located in

R-1 zones, adjacent single-family homes continue to be well

maintained and show no substantial adverse impact as to

property values.

8. The applicant seeks approval to construct a 52-car

parking lot in the front yard contrary to Montclair Code

Section 224-41E which prohibits accessory parking areas

between the principal building and the street. It is at least

arguable that the property’s unusual shape and configuration

combined with the lawfully existing structure thereon give

rise to a hardship. It is also at least arguable that the proposed

accessory parking area to be utilized in connection with the

inherently beneficial religious use advances the purposes of

the Municipal Land Use Law. The scale and location of the

applicant’s planned parking lot, however, fails to meet the

negative criteria thus requiring denial of the variance. The

proposed parking area is located at the highly visible corner

of South Fullerton Avenue and Hawthorne Place adjacent to

a substantial number of single-family homes to the north and

west as recognized in the Master Plan. The lighted 52-car

parking lot as proposed fails to provide a desirable visual

environment. The scale and location of the proposed parking

lot is inconsistent with the established single-family

Sa

residential character of the neighborhood to the north and

west and would have a substantial adverse impact. The intent

of the zoning ordinance is clear, visual intrusion and

increased noise and activity generated by the parking area as

; proposed would cause substantial detriment to the

i neighborhood and run afoul of the intent and purpose of the

zone plan and zoning ordinance.

WHEREAS, the Board, based on the foregoing findings,

and the additional findings placed on the record on December

12, 1993, concluded that pursuant to the New Jersey

i Supreme Court case of Sica v. Board of Adjustment of Tp. of

. Wall, 127 N.J. 152 (1992), the proposed religious use is

| significant and inherently beneficial and promotes the public

: good of Montclair through implementation of the conditions

below, on balance, the grant of the variance would not cause

| substantial detriment to the public good; and

WHEREAS, the Board, based on the aforementioned

findings, concluded that with respect to the front yard

parking variance, the applicant failed to prove that the

variance could be granted without substantial detriment to the

public good and would not substantially impair the intent and

purpose of the zone plan and zoning ordinance pursuant to

; N.J.S.A. 40:55D-70c(1);

| WHEREAS, the Board, based on the aforementioned

findings, concluded that with respect to the front yard

parking variance, the applicant failed to prove that the

benefits of the deviation would substantially outweigh any

detriment and failed to prove that the variance could be

:

granted without substantial detriment to the public good and

would not substantially impair the intent and purpose of the

zone plan and zoning ordinance pursuant to the requirements

i ot N.JS.A. 40:55D-70c(2);

NOW, THEREFORE, BE IT RESOLVED, by the

Board of Adjustment of the Township of Montclair, that the

within application of B’Nai Keshet Montclair Jewish Center

for a use variance is hereby approved subject to the following

Eee mR ae NER EEN SEO

6a

conditions to be addressed as part of a revised site plan:

1. The addition shall be constructed primarily as a

separate structure to be located on the northerly portion of the

property, and may be minimally connected with the existing

building and shall be residential in appearance.

2. The addition shall not greatly exceed 8,000 square

feet of floor area (excluding the balcony and basement) so as

to be keeping in scale with neighboring homes.

3. The design, materials and height of the addition shall

be compatible with, but not mimic, Red Gables.

4. The basement of the addition shall be used for storage

only

5. The ornamental brick wall and corner sitting pavilion

along the South Fullerton Avenue frontage of the property

shall be restored and preserved.

6. Front yard parking spaces are to be avoided and the

applicant shall provide a parking plan showing the maximum

number of on-site parking spaces consistent with the

minimum negative impact.

7. Non-religious outdoor activities shall be permitted

only during daylight hours.

8 Non-religious activities on the subject property shall

be limited to no later than 10:00 p.m. on weekdays and 12:00

p.m. on weekends. ei!

NOW, THEREFORE, BE IT FURTHER RESOLVED,

by the Board of Adjustment of the Township of Montclair,

that the application for a variance to allow front yard parking

is hereby denied.

NOW, THEREFORE, BE IT FURTHER RESOLVED,

that a copy of this resolution be transmitted to the applicant,

Township Manager, Township Council and Township Clerk.

Ta

APPENDIX B

RESOLUTION OF MONTCLAIR BOARD OF

ADJUSTMENT

Filed July 19, 1995

B’Nai Keshet Montclair Jewish Center

99 South Fullerton Avenue

WHEREAS, B’Nai Keshet Montclair Jewish Center, did

make application to the Board of Adjustment of the

Township of Montclair to use the existing Red Gables for a

house of worship, religious school. administrative and other

accessory uses until the new structure is constructed and

thereafter to use both for such purposes with on-site

accessory parking on property designated as Lot I in Block

2110 on the Township tax map and located in the R-1 One

: Family Residential Zone; and

WHEREAS, the applicant received approval for a use

variance subject to a number of conditions including

submission of a revised site plan as well as denial of a front

yard parking variance as set forth in a resolution adopted by

the Board on January 18, 1995; and

WHEREAS, the applicant submitted architectural plans

prepared by Paul Segal Associates, Architects, dated April

25, 1995 and bearing a final revision date of May 17, 1995,

engineering plans prepared by Frank H. Lehr Associates,

dated April 26, 1995 and bearing a final revision date of May

22, 1995 and a landscape plan prepared by Paul Sionas,

Landscape Architect, dated April 26, 1995 and bearing a

| final revision date of May 31, 1995; and

WHEREAS, the applicant sought variances from

N.J.S.A. 40:55D-70c to allow: (1) a front yard setback of 34

feet for the proposed new addition where a minimum of

41.69 feet is required pursuant to Montclair Code Section

. 224-40B(2) and (2) less than the required fifty parking spaces

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8a

required by Montclair Code Section 224-91; and

WHEREAS, this matter came on to be heard at meetings

of the Board of Adjustment held on May 17, 22, 31 and June

7, 14, 15, 22, 1995 at which time it was established that

notice was properly published and the property owners

within 200 feet of the property in question had been properly

served; and

WHEREAS, the Board carefully reviewed the testimony

presented and established the following findings:

1. The proposed new structure to be located on the

northerly portion of the property is designated primarily as a

separate building linked to the existing building with an open

air pergola with plantings. The design breaks up the massing

of the structure into three distinct sections; a sanctuary and

kiddush room, a small, recessed connector for prayer

preparation, and an administrative wing. The design of the

new structure substantially resembles two residential

dwellings. The location of the kitchen in the rear of the new

structure allows service functions to be hidden from street

view. The materials to be used are consistent with the various

and diverse architectural elements of the neighborhood. The

overall design creates a house of worship that meets the

needs of the congregation and is compatible with the

residential neighborhood.

2. The square footage of the floor area of the proposed

new structure is approximately 7,000 square feet (excluding

the balcony and basement) as to be keeping in scale with

neighboring structures.

3. The historical integrity of Red Gables is maintained

by the applicant’s plan. The design, materials, and height of

the new addition are compatible with, but do not mimic, Red

Gables. The new structure is clearly distinguishable from the

existing building, the plan does not involve any structural

changes to the exterior of the existing building, and applicant

will restore the existing building, which is in need of

extensive repair.

9a

4. The applicant stipulated that the basement of the new

structure shall be used for storage only.

5. The ornamental brick wall and corner sitting pavilion

along the South Fullerton Avenue frontage of the property

shall be restored and preserved which will enhance the visual

appearance of the property.

6. The landscaping plan subject to the conditions below

is “exceptional” and represents an aesthetic benefit to the

public. The landscaping will provide appropriate screening of

the new structure, air conditioning units, refuse container,

and parking area, and will be compatible with the

landscaping of the neighborhood. The landscaping plan

provides for the preservation of the existing formal garden,

the large Copper Beech tree on the corner of South Fullerton

Avenue and Hawthorne Place, and numerous other existing

plantings. The plan includes a fence and hedge along the

property line with Hawthorne Towers that meet the

Township’s standards and specifications.

7. The lighting plan includes fixtures that are residential

in appearance and, subject to the conditions below, will not

adversely impact the neighborhood and meet the Township’s

standards and specifications.

8. A one way traffic pattern through the on-site parking

area minimizes the impervious asphalt coverage on the site,

minimizes the driveway width, and as revised below,

promotes safe ingress to and egress from the site, and

promotes safe drop-off and pick-up of children for religious

school. The directional signs meet all Township standards

and specifications.

9. The applicant seeks approval for a front yard setback

variance in connection with the new structure to allow a 34

foot setback from South Fullerton where 41.69 feet is

required. This minimal deviation of 7.69 feet will be virtually

imperceptible from the street. The new structure has a series

of undulations so only a small portion of the new structure’s

frontage encroaches into the front yard setback, which serves

10a

to break up the massing so as to provide interest and

variation to the front view. The property’s unusual shape and

configuration, especially at its narrowest east-west

dimension, combined with the exceptional situation uniquely

involving and affecting the lawfully existing structure on the

property would result in peculiar and exceptional practical

difficulties to the applicant in the design of the new addition

on the site. The minimal variance facilitates-rear yard parking

obviating the need for more intrusive front yard parking.

Moreover, the front yard setback variance promotes the

purposes of zoning and furthers the inherently beneficial use

of the property as a house of worship and religious school by

allowing a pedestrian walkway between the parking area and

the new addition, which promotes safety and other purposes

of zoning. The front yard setback as proposed is consistent

with the front yard setbacks in the neighborhood and does

not result in substantial detriment to the public good or

substantial impairment of the intent and purpose of the

zoning plan and ordinance.

10. The applicant seeks approval for a parking area for

less than the required 50 cars based upon the applicant’s

stipulation of not more than 400 persons on site at any one

time. The evidence established that the number of spaces in

the proposed parking area will meet the usual needs of the

congregation for its staff, Saturday morning services, and

other activities. Off-site parking for High Holy Day services

and other infrequent large events will not cause a substantial

detriment to the neighborhood and is in keeping with the

practice of most other houses of worship in Montclair. The

parking area is designed to be shielded year round from the

surrounding residential homes by landscaping and the new

structure and the existing building. The unusual shape and

configuration of the property and the exceptional situation

uniquely involving and affecting the lawfully existing

structure on the property are reasons for granting the

variance, otherwise, the strict application of the zoning

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ordinance would result in peculiar and exceptional practical

difficulties to the applicant in the design of a 50 car parking

lot. The proposed parking area, as revised below, with angled

spaces behind the existing building and 90 degree spaces

behind the new structure, is a more attractive site layout than

a conforming parking plan, avoids front yard parking,

maximizes the light, air and green space on the site, and

meets the usual and customary parking needs for the

applicant’s activities. The reconfigured on-site traffic

circulation may necessitate a variance for less than the

required four foot parking area setback in the driveway area

connecting the two portions of the parking lot, however, such

a variance would be de minimis, would be justified by the

unusual shape and configuration of the property and the

exceptional situation uniquely involving and affecting the

lawfully existing structure on the property, as well as the fact

that it promotes the inherently beneficial use of the property,

and would not result in substantial detriment to the public

good or substantial impairment of the intent and purpose of

the zone plan and zoning ordinance. The scale and location

of the parking area optimizes the number of on-site parking

spaces with the minimum negative impact for this site and

the neighborhood. Moreover, the variance(s) promote the

purposes of zoning and furthers the inherently beneficial use

of the property as a house of worship and religious school by

promoting safety, beautifying the property, preserving an

historic site and is consistent with the Municipal Land Use

Law. The parking plan is not inconsistent with the master

plan and contributes to Montclair’s goal to continue as a

diverse community.

11. Use of Red Gables for a house of worship, religious

school, administrative and other accessory uses until the new

structure is constructed which does not exceed currently

available on-site parking as per the ordinance will not

negatively impact the neighborhood and _ will not

substantially impair the intent and purpose of the zone plan

12a

and zoning ordinance.

12. All of the findings and conclusions contained in the

Board’s resolution dated January 18, 1995 are incorporated

herein.

WHEREAS, the Board, based on the foregoing findings,

concluded that with respect to the front yard setback

variance, the applicant proved that: (1) by reason of the

exceptional narrowness and shape of the property and the

exceptional situation uniquely affecting the lawfully existing

historical landmark structure on the site, strict application of

the front yard setback requirement would result in peculiar

and exceptional practical difficulties and/or undue hardship

to the applicant and a variance from such strict application of

the regulation would relieve such peculiar and exceptional

practical difficulties and/or hardship, in accordance with

N.J.S.A. 40:55D-70c(1); (2) and the variance would advance

the purposes of the Municipal Land Use Law and the benefits

of the variance would substantially outweigh any detriment

in accordance with N.J.S.A. 40:55D-70c(2); and (3) the

variance would be granted without substantial detriment to

the public good and would not substantially impair the intent

and purpose of the zone plan and zoning ordinance; and

WHEREAS, the Board, based on the foregoing findings,

concluded that with respect to the variance for number of

parking spaces, the applicant proved that: (1) by reason of the

exceptional narrowness and shape of the property and the

exceptional situation uniquely affecting the lawfully existing

historical landmark structure on the site, strict application of

the 50 car parking space requirement would result in peculiar

and exceptional practical difficulties and/or undue hardship

to the applicant and a variance from such strict application of

the regulation would relieve such peculiar and exceptional

practical difficulties and/or hardship, in accordance with

N.J.S.A. 40:55D-70c(1); (2) the variance would advance the

purposes of the Municipal Land Use Law and the benefits of

the variance would substantially outweigh any detriments in

a ee skew.

a

13a

accordance with N.J.S.A. 40:55D-70c(2); and (3) the

variance could be granted without substantial detriment to the

public good and would not substantially impair the intent and

purpose of the zone plan and zoning ordinance: and

WHEREAS, the Board, based on the foregoing findings,

concluded that the proposed site plan complies with the

standards contained in the site plan ordinance and the site

plan conditions contained in the Board’s January 18, 1995

resolution and can be granted without substantial detriment to

the public good and without substantial impairment of the

intent and purpose of the zoning plan and zoning ordinance

pursuant to N.J.S.A. 40:55D-76(b).

WHEREAS, the Board, based on the foregoing findings,

concluded that the request for site plan waivers to use the

three existing garage parking spaces and for a minor

encroachment of the angled parking spaces into the aisle of

the parking area behind Red Gables are reasonable and

within the general purpose and intent of the site plan

ordinance; literal application of the site plan ordinance is

impracticable and would exact undue hardship because of the

peculiar shape and narrowness of the property and the

existing building on the site.

NOW, THEREFORE, BE IT RESOLVED, that the

within application for preliminary and final site plan approval

including interim use of Red Gables as described herein and

variances to allow less than the required front yard setback,

parking area setback if necessary and number of parking

spaces and site plan waivers is hereby approved subject to the

following conditions:

1. The on-site traffic circulation shall be reversed so that

traffic shall enter from South Fullerton Avenue and exit onto

Hawthorne Place, with the landscaping at Hawthorne Place

to be reconfigured as necessary to provide adequate sight

distance while still minimizing the visibility of the parking

area, with the exit driveway angled to the east onto

Hawthorne Place restricted to right turn Only. The applicant

l4a

shall maximize the number of parking spaces under the

reconfigured circulation which may result in the loss of a few

parking spaces, however, at least 28 parking spaces

(including three garage spaces) shall be provided.

2. No use of Red Gables that will exceed the currently

available on-site parking as per the ordinance, shall occur

prior to the construction of the parking area approved herein.

3. There shall be no exterior or interior structural

changes to Red Gables beyond ordinary maintenance and

repair.

4. Light fixtures near property lines shall incorporate

appropriate light shielding so as to minimize spillover onto

adjoining properties.

5. The Yard School sign shall be removed.

6. The applicant shall develop and implement a

maintenance plan for the stormwater drainage system to

ensure its continued functioning.

7. The applicant shall obtain Soil Conservation District

certification and comply with all applicable regulations.

8. The applicant shall install and maintain directional

arrows in the driveway.

9. The applicant shall comply with the outstanding

requirements contained in the Township Engineer’s

memorandum dated June 6, 1995.

10. The lighting in the parking area shall utilize a timer

so that the lights will go off one-half hour after use of the

property ends each day.

11. The stormwater drainage system shall be inspected

at the end of construction by the Township Engineer and

cleaned by the applicant if necessary.

12. Appropriate fencing shall be in place around the

dripline of the Copper Beech tree at all times during

construction.

13. The applicant shall have an ongoing obligation to

replace landscaping which does not survive.

14. The applicant shall install appropriate landscaping

15a

along the entire north side of the new building consisting of

approximately one-half evergreen plantings of various

species and heights and one-half other suitable plantings

which shall be subject to review and approval by the

Township Arborist.

15. As stipulated by the applicant, no more than four

hundred persons shall be permitted on the property at any one

time.

16. The applicant shall install curbing along the

southerly property line of Hawthorne Place.

17. The construction details for the exit at Hawthorne

Place, including the driveway apron and sidewalk, shall be

reviewed by the Township Engineer to prevent an uneven

sidewalk.

18. The applicant shall apply yellow paint along the

curb at a distance of 5 feet on either side of the driveway at

the South Fullerton entrance and the Hawthorne Place exit to

discourage on-street parking which may impede the entrance

and exit.

19. The applicant shall restore the exterior of Red

Gables, perimeter walls and corner sitting pavilion.

20. The Historic Preservation Commission shall review

and approve maintenance work on the building as required

by the Historic Preservation Ordinance.

21. The applicant shall remove the dirt pile within three

months of securing DEP approval which shall be diligently

pursued.

22. Garage parking spaces shall be reserved for

employees.

23. The applicant shall revise the stormwater drainage

plan so as to raise the outlet of inlet seven to the highest

elevation feasible; walls or sumps shall be used to maximize

detention in the inlets; the four inch pipe on the southerly

side of the entrance driveway shall be relocated to the

northerly side of the driveway and shall be perforated pipe

surrounded by stone.

16a

24. The applicant shall install a trench drain at the end

of the driveway joining South Fullerton Avenue.

25. The north and west walls of the new structure shall

be designed and constructed to minimize sound impact on the

neighbors.

26. The windows facing Hawthorne Place shall be fixed

and double-paned.

27. Any of the aforesaid conditions which will

necessitate amendment of the plans on file shall require

submission to and approval by the Township Engineer

without any further submission or reappearance before the

Board of Adjustment.

28. The applicant, as stipulated, shall comply with the

conditions contained in the resolution of approval adopted by

the Board on January 18, 1995.

NOW, THEREFORE, BE IT FURTHER RESOLVED,

that a copy of this resolution be transmitted to the applicant,

Township Manager, Township Council and Township Clerk.

Oe ee ee Ee ee ee ee ee ree

ce OR eis aig * te eae

17a

APPENDIX C

DECISION OF SUPERIOR COURT OF NEW JERSEY

Entered April 10,. 1998

Kuhi et al. v. Township of Montclair et al.

Docket No. ESX-L-2960-95

Docket No. ESX-L-10865-95

This proceeding is an appeal from the resolutions of the

Montclair Board Of Adjustment (“Board”) adopted after a

total of 26 hearings approving a use variance and site plan

and other variances sought by the defendant B’Nai Keshet

Montclair Jewish Center (“applicant”) in order to establish a

permanent house of worship.

On November 23, 1993, applicant applied to the Board

for a use variance pursuant to N.J.S.A. 40:55D-70(1) to allow

a house of worship, religious school and related activities at

property located at 99 South Fullerton Avenue at the corner

of Hawthorne Place. The property is located in the R-I Zone,

in which zone a house of worship is not a permitted use in

Montclair. The applicant also sought site plan approval and a

variance pursuant to NJSA. 40:55D-70c to allow a

placement of a 52 car parking lot in the front yard contrary to

Montclair Code Section 224-41E.

Applicant is a nonprofit New Jersey Corporation

organized and devoted to religious and educational purposes

and is a Jewish Reconstructionist congregation, consisting of

150 families, founded over fifteen years ago by a group of

Montclair residents. Over seventy-five percent of the member

are Montclair residents. The Congregation has been sharing

space in the First Baptist Church Community House in

Montclair for the past seven years. The space is insufficient

and restricted due to the shared arrangement. As a result, the

Congregation engaged in a three-year search for a permanent

home for its religious services and religious school. The

18a

search led to the subject property which is the subject matter

of this litigation.

The subject property, consisting of approximately 1.4

acres, contains an existing 4,920 square foot (exclusive of

attic) structure known as “Red Gables”. The Red Gables

building was constructed around 1906 and is listed on both

the National and State of New Jersey Registers of Historic

Places. The property has been used as an art school for over

twenty-five years pursuant to a use variance granted to the

Yard School of Art, Inc. by the Board on October 18, 1967.

At the time of the application to the Board the building was

deteriorating and in need of exterior repairs and did not

comply with current code requirements, including BOCA,

Americans with Disability Act and fire safety.

To the north of the site, South Fullerton Avenue is

mixed use, to the south and west of the subject property are

single-family homes. The character of Hawthorne Place is

mixed residential, including multi-family. Adjacent to the

site to the east is Hawthorne Towers, a six story. one hundred

thirty-three unit high rise apartment building with a ninety-

four car parking lot.

Diagonally across Hawthorne Place is the 38 unit

Williamsburg Garden Apartment complex with offices next

door. In close proximity to the site are a number of other

institutional uses including the Masonic Hall First

Congregational Church, Library, Social Agencies Building,

Women’s Club of Montclair and the St. Luke’s Church

complex.

The applicant’s initial site plan contemplated a 7,212

square foot addition to the southerly side of the existing

building which would result in total square footage of 12,132

(exclusive of basement and attic). The applicant stipulated

that the attic and basement would not be used for any

purposes other than storage. Throughout the proceedings, the

applicant sought approval for a sanctuary that would seat a

maximum of four hundred people. During the site plan phase,

19a

the applicant formally stipulated that no more than four

hundred persons would be permitted on the property at any

one time.

The testimony presented below was that the

Congregation currently conducts Saturday morning services

from 10:00 a.m. to 12:00 noon attended by 30-35 people,

except when there are Bar or Bat Mitzvahs when attendance

may rise to 100-125. Friday evening services are conducted

once a month from 7:30 p.m. to 10:00 p.m. attended by

approximately 25 people. Attendance on holidays ranges

from 50 to a few hundred.

During the school year, religious instruction of children

occurs on Sunday mornings from 9:00 a.m. to 12:00 noon for

approximately 50-60 students ages 8 to 13, and from 10:00

a.m. to 12:00 noon for another 50 students ages 4 to 7. On

Wednesdays, religious instruction for approximately 50-60

students, ages 8-13, occurs between 4:00 p.m. and 6:00 p.m.

The applicant’s traffic expert, Peter Messina, testified

that both South Fullerton Avenue and Hawthorne Place are

sufficiently wide and adequately lit to allow safe parking of

cars on the street. Parking demand for weekly Saturday

morning services and monthly Friday evening services would

be no more than 15 cars. During the annual three day High

Holy Day period when the site might be utilized to its

maximum 400, the “worst case” scenario would be parking

demand of approximately 125-135 cars. Ample room exists

in the area to accommodate easily on street parking of 100

vehicles. The traffic expert testified that such infrequent

parking of that number of cars in the street would not have a

detrimental impact on the community.

The applicant presented the testimony of a professional

planner, Roger DeNiscia. Mr. DeNiscia found the proposed

use of the site as a house of worship and to provide religious

instruction of children as well as customary ancillary uses

was “inherently beneficial”. He concluded that approval of

the proposed use would not change the character of the area

20a

and would not result in any negative impact. Both planning

witnesses called by the Objectors, Dean Boorman and Roy

DeBoer, agreed that the proposed use is “inherently

beneficial” thus, automatically satisfying the positive criteria

for a use variance pursuant to N.J.S.A. 40:55D-70d(I).

The Objectors presented the testimony of a number of

witnesses including Jan Hird Pokorny, an expert in historic

preservation architecture. Mr. Pokorny testified that the

structure is a better than typical example of its period and is

important because it was designed, built and owned by an

important citizen of Montclair. Mr. Pokorny argued that the

applicant’s proposal was inconsistent with good historic

preservation principles in that the proposed addition (1) when

attached would be too large relative to the original building

covering the entire south facade, (2) would be

inappropriately connected to the original structure in such a

manner as to fail to distinguish what has been added and (3)

would inappropriately attempt to mimic architectural details

instead of providing comparable details.

Many of the neighbors also spoke out against the

addition which, when attached to the Yard School building,

would result in a structure with a linear measurement of 140

feet along South Fullerton Avenue and 96 feet facing south.

While the proposed 7,212 square foot addition was not out of

scale with existing properties. the testimony showed that it

would be visually too massive if attached directly to the

existing Yard School. The Board heard testimony with regard

to some of the larger mansions that exist in Montclair

including some on South Fullerton that actually exceed in

area that of the proposed 12,000 square foot combined

structure. Several properties in the immediate area were

identified as having 8,000 square foot residences. The

proposed 52 car parking lot located in the front yard of a

corner lot was of paramount concern. Many neighbors argued

the placement of the parking lot would result in an

unsatisfactory visual intrusion in the neighborhood.

2la

During the sixteenth meeting on its application, the

applicant indicated it would be willing to consider detaching

the proposed addition from Red Gables and relocate it to the

north and connect it to the existing structure by a small

hallway or portico. The applicant also raised the possibility

of bifurcating the proceeding to enable the Board to rule on

its use variance application and subsequently submitting a

new site plan.

At the seventeenth meeting, after hearing negative

comments with regard to the site plan. the applicant elected

to bifurcate the application. The Board then ruled upon the

use variance application.

The Board ruled that the proposed use was inherently

beneficial, thus, automatically satisfying the positive criteria

pursuant to N.J.S.A. 40:55D-70d(l). The Board went on to

find that the proposed house of worship also promotes the

purposes of zoning set forth in N.JU.S.A. 40:55D-2 as the

proposed use is clearly in furtherance of the general welfare.

The Board approved the use variance and established various

conditions to be addressed as part of the revised site plan in

order to reduce the negative impact on the neighborhood as

follows:

1. The addition shall be constructed primarily as a

separate structure to be located on the northerly portion

of the property, and may be minimally connected with

the existing building and shall be residential in

appearance.

2. The addition shall not greatly exceed 8,000 square

feet of floor area (excluding the balcony and basement)

So as to be keeping in scale with neighboring homes.

3. The design, materials and height of the addition shall

be compatible with, but not mimic, Red Gables.

22a

4. The basement of the addition shall be used for storage

only.

5. The ornamental brick wall and corner sitting pavilion

along the South Fullerton Avenue frontage of the

property shall be restored and preserved.

6. Front yard parking spaces are to be avoided and the

applicant shall provide a parking plan showing the

maximum number of on-site parking spaces consistent

with the minimum negative impact.

7. Non-religious outdoor activities shall be permitted

only during daylight hours.

8. Non-religious activities on the subject property shall

be limited to no later than 10:00 p.m. on weekdays and

12:00 p.m. on weekends.

The variance request to allow parking in the highly

visible front yard as proposed was denied as failing to meet

the negative criteria.

The Board adopted a resolution memorializing approval

of the use variance and denying the request for front yard

parking on January 18, 1995. No action was taken on the site

plan. On March 10. 1995 plaintiffs filed a complaint in lieu

of prerogative writ, Docket No. ESX-L-2960-95. seeking to

reverse the Board’s grant of the use variance.

Applicant submitted a revised preliminary site plan to

the Board for nonbinding informal discussion pursuant to

Montclair Code Section 184-3, which plan was considered at

a conceptual hearing held on April 19, 1995. On April 27,

1995, the applicant reapplied for site plan approval and

variances to allow (1) a minor deviation from the required

front yard setback for the proposed structure and (2) less than

the required number of parking spaces.

Under the revised site plan the new structure is to be

23a

situated on the northerly portion of the property and broken

up into three distinct sections; a sanctuary and kiddush room,

a small connecting link, and an administrative wing which

reduces the visual scale of the construction. The kitchen is to

be located to the rear to allow service functions to be hidden

from the street. The new structure is to be minimally

connected to the existing building by an open air trellis

arcade.

The landscaping plan provides substantial screening of

the new structure, air conditioning units, refuse container and

parking area and is compatible with the landscaping of the

neighborhood. The landscaping plan provides for the

preservation of the existing formal garden, the large copper

beech tree on the corner of South Fullerton Avenue and

Hawthorne Place, and numerous other plantings.

The design of the new structure, although compatible

with, doesn’t mimic Red Gables. The materials to be used are

consistent with the various and diverse architectural elements

of the neighborhood. No structural changes were proposed to

Red Gables beyond ordinary maintenance and repair.

The parking lot. which contains less than the required

number of parking spaces, is to be relocated to the rear of the

property adjacent to Hawthorne Towers with the result that

the new building will act to screen the parking from the

single-family residences. The relocation of the parking from

the front yard was recognized as an improvement by the

objectors’ planner. The testimony was that there was more

than adequate on-site parking provided to accommodate

typical parking demand related to religious services, religious

school and meetings and that adequate street parking exists in

the area to accommodate the shortfall during infrequent

special events of High Holy Days so as not to adversely

impact the neighborhood. It was further testified to that one-

way traffic pattern minimizes conflicts, provides adequate

access for emergency vehicles and is common in facilities

such as this.

24a

While the facade of the building as a whole complies

with the setback, a small portion of the new structure will

provide less than the required setback from South Fullerton.

Corners of several of projections minimally violate the front

yard requirement. According to expert testimony, the

minimal deviation will be visually imperceptible from the

street with no adverse impact on the neighborhood.

Following eight hearings, on June 22, 1995 the Board

commenced its deliberations. The Board reviewed the

conditions imposed by the grant of the use variance and

determined the site plan complied. The landscaping plan

drew praise and was found to be “extraordinary”. With

respect to the front yard setback variance, the Board found

the “minimal variance” would be visually imperceptible from

the street and was justified by the narrowing of the property

and by the fact that it furthers the inherently beneficial use.

The variance for less than the required number of parking

spaces was also granted as being justified by the shape of the

property and the fact that it results in a “more attractive site

layout”.

The Board approved the application for site plan

approval and bulk variances by a vote of 5 to 1, subject to a

number of conditions. One of the conditions, imposed for the

benefit of the neighborhood, required reversing the on-site

traffic circulation so that traffic will enter from South

Fullerton Avenue and exit onto Hawthorne Place with the

exit driveway angles to the east. This change will increase

site visibility and reduce the visual impact on adjoining

properties.

On July 19, 1995 the Board denied as moot plaintiffs’

appeal of the zoning officer’s decision to allow B’Nai Keshet

to occupy two rooms of Red Gables for office use. The denial

was memorialized by resolution adopted on August 16, 1995.

On September 8, 1995, plaintiffs filed a complaint in

lieu of prerogative writ seeking, inter alia, to reverse the

Board’s grant of site plan approval and variances, Docket

25a

No. ESX-L-10865-95. This second action was consolidated

with the prior appeal pursuant to a pretrial order entered on

December 22, 1995.

I

BIFURCATION

Plaintiffs assert that the procedure followed in this case

in which applicant bifurcated its joint application for use

variance from its applications for site plan approval in the

seventeenth meeting of the Board denied plaintiffs due

process. Plaintiffs argue that by permitting bifurcation at that

juncture the Board had no acceptable site plan before it to

grant the use variance and find that the negative criteria if the

Statute was satisfied. Plaintiffs assert

“the Board satisfied the negative criteria by

creating, in its own mind, an entirely different site

plan than the one proposed, and concluding that

this imaginary site plan met the negative criteria.”

Plaintiffs also allege that the failure to have full site plan

before it when it approved the use variance, subject to the

applicant’s submitting an acceptable plan at a later date,

violated procedures under the Municipal Land Use Law

citing Field v. Franklin Township. 190 N.J.Super. 326

(App.Div. 1983), cert. denied 5 NJ. 183 (1983). In the Field

case the Planning Board granted a preliminary approval of a

developer’s plan unit development application subject to 21

terms and conditions. The Township Council found that the

developer failed to provide sufficient information with regard

to feasibility of this three (3) sewerage disposal options. The

Law Division held that the action of the Township Council in

remanding the matter for further findings on the sewer

feasibility issue violated the Municipal Land Use Law. On

appeal to the Appellate Division the decision of the trial court

was reversed. The question before the Appellate Court was

-~

26a

whether the record before the Township Council was

sufficient to justify its conclusion. The appellate court

answered that question in the affirmative. It is interesting to

note that when the Township Council affirmed the decision

of the Planning Board as to other issues that were subject to

the fulfillment of certain terms and conditions at some

unspecified future time, this decision was upheld by the

Appellate Division. Id. at 335. Thus, the Field case, which

did not involve granting of a use variance without a full site

plan before the Board, is distinguishable.

In Linden Merchants Ass’n v, Linden, 214 N.J. Super.

33 (L.Div. 1986) the applicant applied for a use variance

which was bifurcated from the site plan application. The

Zoning Board approved the use variance and its decision was

affirmed by the City Council, the Law Division and

Appellate Division of the Superior Court. After the appeal of

the variance had been determined, the Board of Adjustment

heard and approved the site plan application. Plaintiff

appealed that approval to the City Council which affirmed

the Board of Adjustment’s action.

Before the Law Division the objectors contended that

the various portions of the bifurcated proceedings was for a

total project and that in order for there to be a complete

variance the entire project had to be totally described and set

forth in a site plan. The objectors further contended that site

plan approval was part of the variance proceeding.

The trial court rejected the objectors contention and held

it is clear that for the fact that the approval

variances in 1983 was condition upon subsequent

site plan approval, the site plan application is a

separate application. The site plan proceeding

should be governed by law in effect when these

proceedings were held in 1985.

[214 N.J Super. at 39]

27a

N.JLS.A. 40:55D-76b provides that:

b. The board of adjustment shall have the power

to grant, to the same extent and subject to the same

restrictions as the planning board, subdivision or

site plan approval pursuant to article 6 of this act

[40:55D-37 et seq.] or conditional use approval

pursuant to section 54 of this act [40:55D-67],

whenever the proposed development requires

approval by the board of adjustment of a variance

pursuant to subsection d. of section 57 of this act.

(C. 40:55D-70). The developer may elect to submit

a separate application requesting approval of the

variance and a subsequent application for any

required approval of a subdivision, site plan or

conditional use. The separate approval of the

variance shall be conditioned upon grant of all

required subsequent approvals by the board of

adjustment. No such subsequent approval shall be

granted unless such approval can be granted

without substantial detriment to the public good

and without substantial impairment of the. intent

and purpose of the zone plan and zoning ordinance.

As originally enacted, the Land Use Law did not specify

that the applicant could elect to delay filing the application

for subdivision or site plan review until after the decision of

the board with respect to the requested use variance. The act

now makes it clear that the applicant has the option to submit

his application for site plan review or subdivision approval

after the decision with respect to the primary application to

permit the use variance. N.J.S.A. 40:55D-76b permits

consecutive as well as concurrent applications. The board of

adjustment may require the applicant to submit at least a

minimal site plan to show the board what the proposed use

will consist of and the general location of buildings, parking

areas and the like.

28a

On the basis of the plan as submitted and the seventeen

hearings held, the Board had ample information from which

it could understand the nature of the use and its relationship

to and potential impact on the neighborhood. Based upon the

evidence submitted the Board determined that changes had to

be made to the plan and set down conditions which mandated

such changes. In approving the variance, the Board was not

acting in a vacuum. It was acting against the background of

the plan presented and the evidence offered by the applicant

and the Objectors. It was able to assess the application, its

impact and what had to be done to alleviate the negative

impacts.

The concept of “bifurcation” found in N.J.S.A. 40:55 D-

76 (b) is for the benefit of the applicant. A Board my approve

an application for a use variance accompanied by only a

general description of the project and stipulate conditions

which would have to be reflected in the site plan. It makes no

difference that an applicant starts with a detailed site plan and

then submits a revision based upon conditions set down by

the Board in approving the variances. The goal is to

determine whether the applicant is able to propose a plan

which the Board will accept as satisfying the statutory

criteria. Russell v. Tenafly, 31 NJ. 58, 66 (1959).

N.JS.A. 40:55D-76 (b) requires that the “separate

approval of the variance be conditioned upon grant of all

subsequent approvals.” The statute goes on to provide that no

“such subsequent approval shall be granted” until the

negative criteria are established. The Board may grant the use

variance, but nothing is finally approved until the negative

criteria have actually been satisfied in the site plan portion.

The variance portion analyzed the application in the context

of Sica v. Bd. of Adj. of Tp. of Wall, 127 NA. 152 (1992)

i.e., what conditions may be imposed which would eliminate

the detrimental effects so that the balance would be in favor

of the variance. Then, when the site plan incorporating the

conditions was approved, the Board found that the negative

29a

criteria had been satisfied as required by the statute. The

“bifurcation” procedure adopted by the Board was simply a

convenient way of dealing with what had become an

unwieldy and overwhelming case. The Board, recognizing

that it was dealing with an inherently beneficial use, had

concluded that with certain conditions it could agree that the

positive aspects of the plan would outweigh the negative. The

Board was in no way constrained to approve the revised site

plan if it did not conform to the conditions set down in the

original approval.

SCOPE OF JUDICIAL REVIEW OF ZONING &

PLANNING BOARD DECISIONS

The judicial scope of review of a determination made by

a Zoning Board or Planning Board is extremely limited. The

factual determinations of a Board are presumed to be valid.

The question before the Court is whether the Board acted

arbitrarily, capriciously or unreasonably in exercising its

quasi-judicial function. Kramer v. Bd of Adjust. Sea Girt, 45

N.J. 268 (1965). The party challenging the action of the

Board has the burden of proof that the action by the Board

was arbitrary and capricious. Rowatti v. Gonchar, 101 NJ.

46 (1985).

A Board’s resolution of factual issues must stand if

supported by sufficient credible evidence. Rowatti v.

onchar. supra at 51. The decision of the Board carries with

it the presumption of validity and correctness, Ardolino v.

Florham Park Bd. of Adj, 24 NJ. 94(1957), which

constitutes a recognition of the fact that the Board members

are the ones most familiar with the community’s

characteristics and needs:

“Such public bodies, because of their peculiar

knowledge of local conditions, must be allowed

wide latitude of delegated discretion. Courts cannot

30a

substitute an independent judgment for that of the

Board in areas of factual dispute; neither will they

exercise or review the original jurisdiction of such

Boards or trespass upon their administrative work.”

(Kramer v. Bd of Adjust. Sea Girt 45 N.J. at 296]

See also Burbridge v. Mine Hill Tp., 117 N.J. 376,

385 (1990).

The court is not empowered to substitute its independent

judgment for that of the Board. Kramer, supra at 296.

Medical Realty v. Board of Adjustment, 228 N.J.Super. 226,

233 (App.Div. 1988); see also Kenwood Assocs. v. Board of

Adjustment Englewood, 141 N.JSuper, 1, 4 (App. Div.

1976) (citing Stolz v. Ellenstein, 7 N.J. 291 (1951)); Peoples

Trust Co. of Bergen County v. Board of Adjustment of

Hasbrouck Heights. 60 N.J Super. 569 (App.Div. 1959).

The reviewing court must determine whether the Board

followed the statutory guidelines and properly exercised its

discretion. Burbridge v. Minehill Tp., supra. In order to

conclude that the Board properly exercised its discretion, the

reviewing court must find that there was evidence on the

record below upon which the Board based its decision.

Kramer, supra at 285. In making its factual determinations, a

board will undoubtedly make decisions as to the credibility

of witnesses, and those decisions, where reasonably made,

are “conclusive on appeal.” Id. at 288. This principal applies

with respect to expert witnesses as well. The board is free to

accept or reject the testimony of an expert as it sees fit and to

choose between experts. Allen v. Hopewell Tp. Zoning Bd.,

227 N.J.Super. 574, 581 (App Div. 1988), certif. den. 11 3

N.J. 655 (1988).

The reviewing court may overturn a determination of a

board of adjustment only if it finds no basis in the record for

the board’s conclusions, and/or it determines that the board

improperly applied the relevant statutory requirements to the

Lb si inlhielaaae ami

3la

factual situation. Burbridge v. Mine Hill Tp. supra. at 385.

The general nature of the review “of a board’s actions is to

determine ‘whether the board below followed the statutory

>,»

guidelines and properly exercised its discretion’.

Wyzykowski_v. Rizas, 132 NJ. 509, 522 (1993). The

plaintiffs have the “heavy burden of proving” that the

Board’s action was arbitrary, capricious or unreasonable,

Kenwood Assoc., supra, since, the action of the Board is

presumed to be valid. Id., (citing Rexon v. Haddonfield

Board of Adjustment, 10 N.J. 1, 7 (1952)); Bove v. Emerson

Board of Adjustment, 100 N.J.Super. 95, 101 (App. Div.

1968).

Applicant filed its application pursuant to N.JS.A.

40:55D-70 (d) which provides:

“In particular cases and for special reasons [the

Board of Adjustments may], grant a variance to

allow departure from regulations pursuant to

Article 8 of this Act to permit: (1) a use or principal

structure in a district restricted against such use or

principal structure...

No variance or other relief may be granted under

the terms of this section unless such variance or

other relief can be granted without substantial

detriment _to the public good and will not

substantially impair the intent_and the purposes of

the zone plan and zoning ordinance .." NJS A.

40:55D-70 (d). Emphasis Supplied.

The New Jersey Courts have interpreted this statute as

requiring that the applicant must satisfy two separate criteria

to be entitled to a subsection “d” use variance. Medici v.

BPR Co., 107 NJ. 1, 4 (1987); Burbridge v. Mine Hill

Township, 117 NJ. 376 (1990). First, the applicant must

show that “special reasons” exist why the Board should grant

relief under subsection “d”.

32a

“Special reasons” is a flexible concept that exists

whenever a variance proposes to secure any of the purposes

of zoning listed in N.JLS.A. 40:55D-2. Kessler v. Bowker,

174 NJSuper. 478, 485 (App.Div. 1979). A court, in

reviewing “special reasons” in connection with a “d”

variance must look at the entire picture and consider all the

reasons in the aggregate and not isolate one reason alone as

being legally insufficient. Wichatunk Village. Inc. v.

Township of Marlboro, 118 N_J. r. 445 (Ch. Div. 1972).

It is only required that applicant meet one of the purposes of

zoning to satisfy the “special reasons” prong of the test,

Hudanich v. Avalon, 183 N.J.Super. 244 (L. Div. 1981). To

qualify as a “special reason” that “promotes the general

welfare”, a use must be either inherently beneficial, or

particularly suited to the proposed use. Medici v. BPR Co.,

supra at 18.

Plaintiffs do not challenge the principle that

“inherently” beneficial uses are in and of themselves “special

reasons” for the grant of variances. Rather, plaintiffs argue

that houses of worship are not inherently beneficial uses, and

that a finding that it is inherently beneficial would violate the

establishment clause of the Constitution, and, therefore the

so-called enhanced quality of proof mandated for non-

inherently beneficial uses by the Supreme Court in Medici v.

BPR _Co., supra is applicable to this case. Under the

“enhanced” standard, the applicant cannot satisfy the -

negative criteria unless it can “reconcile the grant of a use

variance with the ordinance s continued omission of the

proposed use from those permitted in the zone....” 107 N_J. at

4

Some five years after Medici, in Sica the Supreme Court

clarified Medici and stated categorically “that the enhanced

standard does not apply to inherently beneficial uses.” 127

N.J. at 155. The Court then went on to lay down a four-part

process to be employed by a board of adjustment in applying

the negative criteria to a use variance application involving

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an inherently beneficial use.

First: “[I]dentify the public interest at stake.”

Second: “[I]dentify the detrimental effect that will

ensue from the grant of the variance.” Certain effects, such as

increased traffic, will inevitably “attend any non-residential

use in a residential zone.” Such an effect “need not outweigh

an inherently beneficial use that satisfies the positive

criteria.”

Third: “[R]Jeduce the detrimental effect by imposing

reasonable conditions on the use... If so, the weight accorded

the adverse effect should be reduced by the anticipated effect

of those restrictions.

Fourth: “[WJeigh the positive and negative criteria

and determine whether, on balance, the grant of the variance

would cause a substantial detriment to the public good.” 127

N.J. 165-166.

In the case at bar, the Board found applicant’s proposed

house of worship use to be “inherently beneficial” and then

proceeded to apply the four-part Sica analysis. It imposed a

series of conditions and concluded that “through the

implementation of the conditions below, on balance, the

grant of the variance would not cause substantial detriment to

the public good.”

House of Worship is an Inherently Beneficial Use

Our courts have spoken to the issue on several occasions

and always found houses of worship to be inherently

beneficial. In Kali Bari Temple v. Board of Adj., 271 NJ.

Super. 241 (App. Div. 1994), the applicant sought a use

variance to permit the use of a portion of his home as a place

of worship, while retaining the “residence use for the

remainder of the house. In denying the application, the board

of adjustment found that the proposed use “cannot be

classified as inherently beneficial”. Id. at p. 246. The

Appellate Division reversed, specifically finding that church

uses have been found to be inherently beneficial and that they

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are “clearly in furtherance of the public morals and general

welfare.” id at p. 248. The fact that the religious services

were to be conducted in a residence in no way altered the

“inherently beneficial” determination. Ibid. The nature of the

court’s finding was further supported by the fact that after

finding the use to be inherently beneficial. the court went on

to apply the four-part Sica test, a test which only relates to

inherently beneficial uses

Objectors also attempt to distinguish Sugarman _v.

Township of Teaneck Bd. of Adjustment, 272 N.J. Super.

162 (App. Div. 1994), certif. den. 137 N.J. 310 (1994), on the

grounds that the house of worship use in that case was

classified as a conditional use in the zone. Since the plan did

not conform to the conditional use criteria of the ordinance,

application was made for a use variance under N.JLS.A.

40:55D-70d(3). Once the plan did not meet the conditional

use criteria it was treated as if it were non-conforming. The

board of adjustment found the house of worship to be an

inherently beneficial use satisfying the special reasons

criterion. Both the Law Division and the Appellate Division

affirmed. 272 N.J. Super. p. 172. (“...[T]he Congregation

satisfied the ‘special reasons’ requirement....”); See also State

v. Cameron, 184 N.J.Super. 66, 75 (L. Div. 1982), affd, 189

N.J. Super. 404 (App. Div. 1983), rev’d on other grounds 100

N.J. 586 (1985) (“... [RJeligious institutions are beneficial to

the public welfare by their very nature....”); Cox, New Jersey

Zoning and Land Use Administration (1995) p. 138 (“It has

also been noted that churches and other places of worship fall

into the category of inherently beneficial.”)

No Constitutional Violation in Recognizing House of

Worship as Inherently Beneficial Use.

The New Jersey “inherently beneficial use” doctrine as

applied in zoning cases relates to both secular and religious

uses. That a religious use may satisfy the “inherently

_ beneficial” standard does not disqualify the religious use or

|

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the standard. While religious uses are not to receive special

preferential treatment, by the same token they are not to be

the targets for discriminatory treatment. In Walz v. Tax

Comm’n, 397 U.S. 664 (1970), the United States Supreme —

Court rejected an “Establishment” challenge to a property tax

exemption for real or personal property used for religious,

educational or charitable purposes.

Uses which are inherently beneficial are those which

promote the general welfare. They may be commercial or

non-profit. Such uses include religious schools, senior citizen

housing, public housing and telephone towers. Andrews v.

Ocean Twp. Board of Adjustment, 30 NJ. 245 (1959);

Jayber, Inc. v. Municipal Council, 238 N.J.Super. 165 (App.

Div. 1990), certif. den. 122 NJ. 142 (1990); DeSimone v.

Greater Englewood Housing Corp. No. 1, 56 NJ. 428

(1970); and Nynex Mob. Comm. Co. v. Hazlet Tp., 276

N.J.Super. 598 (App. Div. 1994). As noted earlier, our courts

have repeatedly held that religious uses fall within the same

category as they are “clearly in furtherance of the public

morals and general welfare.” Kali Bari Temple v. Bd. of

Adj., supra. at 248. See also the concurring opinion of Justice

Clifford in State v_ Cameron, 100 NJ. 586, 606 (1985) that

“courts have held that religious activity itself is in

furtherance of public morals and general welfare.”

Identifying the general welfare benefits of religious uses

and according such uses the same benefits as are granted

other inherently beneficial uses in no way violates either the

United States or the New Jersey Constitutions. The

recognition that, because they further the express purpose of

New Jersey zoning of promoting “morals” and “general

welfare” (N.US.A. 40:55D-2(a)), religious institutions are

entitled to the very same treatment as other uses which

further the same goals, in no way establishes or

unconstitutionally favors the religious uses.

Objectors particularly point to the reference in the fourth

finding of the Board’s resolution of January 18, 1995 to

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“Montclair’s goal to continue as a diverse community.” They

argue that this amounts to favoring one religious group over

another. The Board’s actions in recognizing this religious

group’s needs are in no way in derogation of the needs-of any

other religious group. No other religious group is being

deprived of anything by the grant of the approvals to the

instant applicant.

It is perfectly legitimate for a board of adjustment to

recognize the needs of a particular user. religious or secular,

and its place within the community. In Andrews v. Ocean

Twp. Board of Adjustment, 30 N.J. 245 (1959), a Catholic

parochial school sought a variance for the construction of a

new building in order to alleviate overcrowding. The

Supreme Court “found it indisputable that the education of

children furthered the general welfare and that a need existed

for additional parochial schools within the community.”

Burbridge v. Mine Hill Tp., supra at 394.

In State v. Cameron, supra., Justice Clifford stated in his

concurring opinion:

[T]he Supreme Court echoed Justice Douglas’

observation that ‘[w]e are a religious people whose

institutions presuppose a Supreme Being.’... The

Court reminded us of the rich diversity of our

religious beliefs, and that by accommodating all

forms of religious expression, ‘governmental action

has “follow[ed] the best of our traditions” and

” >

“respect[ed] the religious nature of our people”.

[Cameron, supra, 100 NJ. at 609 (Clifford, J.

concurring) (quoting Lynch v. Donnelly, 465 U.S.

668 (1984).)]

Objectors raise the constitutional argument of “undue

entanglement” with respect to the condition imposed in the

first resolution setting time limitations of 10:00 p.m. on

weekdays and 12:00 p.m. on weekends for non-religious

activities. Objectors argues that this condition imposes upon

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the municipal zoning officer the responsibility of determining

what is religious activity. However, the condition is only one

of a total of 36 conditions imposed by the Board in its two

resolutions and was included only because the applicant

volunteered the limitation. Speculation as to the validity of

any defenses that might be raised to any future enforcement

proceeding does not invalidate this facially valid agreed to

limitation of use. Orloski v. Borough of Ship Bottom, 226

N.J.Super. 666, 677-679 (L.Div. 1988), affd 234 N.J.Super. 1

(App.Div. 1989).

The Board Properly Applied Sica

Sica created a four part test to be employed in applying

the negative criteria to an inherently beneficial use. The

Board applied that test to the application before it.

a) Identify public interest - The Board found as

follows with respect to the proposed use:

(i) The proposed !..use of worship is inherently

beneficial.

(i) The proposed house of worship is in furtherance

of the general welfare and promotes purposes of

zoning set forth in the Municipal Land Use Law.

(ili) Free exercise of religion is the public interest

which is at stake.

(iv) The Montclair Master Plan “seeks to preserve

the Township’s rich and varied architecture so

that the historic character of the community is

maintained.”

b) Identify detrimental effects - The Board found

several detrimental effects in the plan as originally presented:

(i) The new structure as originally proposed “is

massive and will have a substantial adverse

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visual impact on the neighborhood and must be

reduced and substantially detached....”

(ii) The new structure as originally proposed is

“inconsistent with good historic preservation

principles” in that it would be too large relative

to the original building, it fails to distinguish

what had been added and it would

inappropriately “mimic architectural details

instead of providing compatible details.”

(iii) “The scale and location of the proposed parking

lot is inconsistent with the established single-

family residential character of the neighborhood

to the north and west....”

Having fully-complied with the first two parts of the

_ Sica test, the Board then proceeded to the third part which is

to “reduce the detrimental effect by imposing reasonable

conditions.” The Board imposed a series of conditions which

were to be “addressed as part of a revised site plan.” In the

main, these conditions were aimed at addressing the specific

detriments identified by the Board while complying with part

2 of Sica. These conditions include the following:

~ (1) The addition is to be located on the northerly

portion of the property, residential in appearance

and “minimally connected” with the existing

building.

(ii) Addition is not greatly to exceed 8,000 square

feet of floor area.

(iii) The design, materials and height of addition are

to “be compatible with, but not mimic" the

existing building.

(iv) Front yard parking is to be avoided.

Based upon these and the other conditions set forth in

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the resolution, the Board concluded it could grant the use

variance, that is that the negative criteria would be satisfied.

The Board clearly found that, once the conditions were

addressed to its satisfaction in a revised site plan, the adverse

effects of the plan would be reduced, and, therefore, under

part 4 of Sica, on balance, the grant of the variance would not

cause a substantial detriment to the public good.

In accordance with the directions of the Board, the

applicant submitted a revised site plan which addressed those

conditions set down by the Board which were aimed at

reducing the detrimental effects of the original proposal. In

its Resolution of June 22, 1995 approving the revised site

plan, the Board found that the applicant had indeed satisfied

the Board’s conditions and thereby reduced the detrimental

effects:

(i) The design of the new building breaks up the

massing of the structure, resembles two

residential dwellings and is compatible and in

scale with a residential neighborhood and

neighboring structures.

(ii) The design, materials and height of the new

addition are compatible with but do not mimic

the existing historic building.

(iii) The proposed parking “is a more attractive site

layout than a conforming parking plan, avoids

front yard parking, maximizes the height, air and

green space on the site” and “optimizes the

number of on-site parking spaces with the

minimum negative impact...

The Board’s Findings Were Based Upon Credible

Evidence in the Record

The findings made by the Board in its first resolution are

essentially consistent with the testimony provided by

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Objectors. The Objectors own witnesses confirmed that the

use is inherently beneficial. Further, it was the Objectors’

expert in historic preservation, Mr. Pokorny, who testified

that the plan was inconsistent with historic preservation

principles in three respects:

(i) The proposed addition when attached would be

too large relative to the existing Yard School;

(ii) The proposed building would be inappropriately

connected to the original structure; and

(iii) The proposed building would inappropriately

attempt to mimic architectural details. Various

neighbors argued that the placement of the

parking lot in the front yard was the “single most

objectionable part of the application.”

The Board considered all of this testimony and, while

approving the variance, laid down the conditions previously

described which were aimed at ameliorating the negative

effects identified by Objectors and their witnesses.

During the site plan consideration proceedings, the

applicant presented the testimony of an architect, who is also

an expert in the adaptive reuse of historic buildings, to the

effect that the new site plan being presented addressed the

very issues identified by Objectors and their witnesses. In

particular, the new design will:

a) Separate the new building from the existing

Yard School with the result that the ‘‘mass’’ will

have been broken up and a size similar in scale

and character to the neighborhood will have

been achieved;

b) Parking will be screened from the neighborhood

by the buildings on the site;

4la

¢) Materials will be consistent with those used in

the neighborhood; and

d) The new building would not be as high as the

existing Yard School structure.

The Board had ample testimony in the record on which

to base its conclusions that, with mitigation of the negative

effects identified by Objectors and their experts, the use

variance and site plan could be approved without substantial

detriment to the public good. These conclusions were not

arbitrary or capricious and are not subject to reversal, even if

another fact-finder might have reached a different result.

Burbridge v. Mine Hill Tp., 117 N.J. at 385; Rowatti v.

onchar, 101 N.J. at 51-52.

Ill

THE GRANT OF THE PARKING VARIANCE

WAS SUPPORTED BY SUBSTANTIAL

CREDIBLE EVIDENCE IN THE RECORD AND

SATISFIED THE STATUTORY CRITERIA.

While the standard of review of the grant of bulk

variances is the same as that for the grant of use variances,

the standards for grant of the variance differ. Pursuant to

N.J.S.A. 55D-70c, the grant of a bulk variance is authorized

(i) upon the finding of hardship arising out of specific

physical characteristics of the property involved or the

structures existing on the property or (ii) where the purposes

of the Municipal Land Use Law would be advanced by a

deviation from the zoning requirements and the benefits of

such deviation would outweigh any detriment. In both cases,

however, the negative criteria must nevertheless be satisfied.

In the instant case, the Board found that the requested

variances for reduced parking was justified under both of the

standards.

42a

C(1) Variance

NJS.A. 50:55D-70c was amended in 1985 in

recognition of the fact “that hardship can be created not only

by the physical characteristics of the land, but by reason of

the existence of a structure already located on it which may

create an ‘exceptional situation’ sufficient to justify a zoning

variance.” Cox, supra, at p. 91.

In the instant case, the Red Gables is a historic site. It is

in deteriorating condition. It has been on the market for six

years with no takers. Several of the Objectors had themselves

previously considered but then rejected purchasing the

property The applicant’s plan provides a means of

preserving the historic structure.

Applicant’s revised site plan provided for a total of 31

parking spaces, in lieu of the 50 required by the local

ordinance. The traffic report and testimony presented by

applicant showed that, except for the High Holy Days and

special events, e.g., the occasional Bar or Bat Mitzvah, the 31

on-site spaces will be more than adequate to serve the

Congregation’s requirements. Based upon the evidence

presented, the Board found that the “[o]ff-site parking for

High Holy Day services and other infrequent large events

will not cause a substantial detriment to the neighborhood

and is in keeping with the practice of most of the houses of

worship in Montclair.”

As justification for the grant of the variances under c(i),

the “hardship” standard, the Board pointed the following:

1. | The unusual shape and configuration of the

seven-sided lot with its inconsistent depths and

corners at odd angles.

3 The exceptional situation “uniquely

involving and affecting” the existing Yard School

building

The Board concluded that, in light of these

43a

circumstances, “strict application of the zoning ordinance

would result in peculiar and exceptional practical difficulties

to the applicant in the design of a 50 car parking lot.”

This is precisely the type of situation contemplated by

the language of the statute referring to an “exceptional

situation uniquely affecting... structures lawfully existing

thereon.” See J Hawryla vs. Board Adjustment, 249 NJ.

Super. 568 (App. Div. 1991), in which a bulk variance was

upheld in order to preserve a unique foundation. In the

instance case, the alternative to allowing some deviation

would likely be the continued deterioration and decay of the

Red Gables leading to its ultimate destruction, or at the least

a major change in the historic structure. The constraints

imposed on preserving the building in its existing form

provide the basis for granting the variance.

Objectors’ arguments that the C(1) variance is

inapplicable to this case because the hardship is “self-

created” and because other lots in the area contain historical

structures and cannot accommodate 50 car parking lots are

without substance. First, the obtaining of a use variance does

not constitute a self-created hardship, rather it establishes the

approved use as permitted at the location. The bulk

limitations on the implementations of the newly permitted

use must then be analyzed in the same manner as they would

be analyzed in the case of a use permitted by ordinance.

Second, Objectors argue that the lot is “too small” to

accommodate parking for 50 cars. The original site plan

submitted by Congregation provided for a 52-car parking lot.

That plan was rejected because of the location which was

found to have a detrimental effect on the neighborhood and

because, in light of the testimony presented, the proposed

number of spaces was found to be excessive. The parking

area was reduced in size and relocated in order to meet

objections raised by Objectors.

The northern end of the property was rejected for the

parking area by the Board when granting the use variance.

44a

The parking cannot be located on the southern end because

that would necessitate razing Red Gables, a historic site. The

limitation established by the Board in connection with the

use variance and the historic designation of Red Gables

combine to create “an extraordinary and exceptional situation

uniquely affecting” the only property in the area approved for

a house of worship use and “the structures” thereon. The

effect of these circumstances need not result in the inability

to make any use of the property. Rather, a variance may be

granted if the limitations inhibit the extent of a lawful use of

the property. Kaufmann v. Planning Bd. for Warren Twp.,

110 NJ. 551, 562 (1988); Bressman v. Gash, 131 NJ. 517

(1993)

C(2) Variance

With respect to C(2) standard, ie. advancing the

purposes of zoning, the Board noted the following:

1. The proposed plan is more attractive than a

conforming plan, avoids front yard parking,

maximizes light, air and green space on the site.

2. The variance furthers the inherent beneficial

use of the site, promotes safety, beautifies the

property and results in the preservation of a

decaying historic site.

Objectors argue that the standards for the C(2) variance

have not been met. Objectors contend that the grant of the

parking variance will not be in conformity with Montclair’s

“community development plans” since those plans “are that

religious institutions not be allowed in the R-! zone.”

We begin with the fact that the Board approved the use

by its Resolution 4, January 18. 1995. It is against the

background of the newly-permitted use that the parking

variance is to be analyzed in terms of its furtherance of the

purposes of zoning and whether it presents a better zoning

45a

and planning alternative for the property which will benefit

the community. Kaufmann v Planning Bd. for Warren Tp.,

Supra at 563. The Board identified the various specific

purposes of zoning that are addressed by the parking plan and

the manner in which those purposes present a better zoning

alternative for the lot on which the house of worship is to be

located as opposed to requiring adherence to the 50-car

standard:

1. Parking Plan “maximizes the light, air and

green space on the site.”

“[P]rovide adequate light, air and open space.”

NJS.A. 40:55D-2c.

2. The landscaping plan resulting from the

parking lay-out is “exceptional,” “represents an

aesthetic benefit to the public” and “will provide

appropriate screening of the new structure, air

conditioning units, refuse container, and parking

area...” - Promote “a desirable visual

environment.” N.J.S.A. 40:55D-2i.

“

3 “The historical integrity of Red Gables is

maintained” by the overall site plan including

parking -“[P]romote the conservation of historic

sites.” N.J.S.A. 40:55D-2).

See Com ial Realty v. Fir. lantic, 235 N.J. Super. 577

(App. Div. 1989), affd 122 NJ. 546 (1991), in which a

reduction in parking spaces to the number actually shown to

be required was approved as a means of providing

landscaping.

Based upon the record before it, the Board properly

concluded that the revised parking plan would permit the

promotion of morals, and general welfare”, ie. the house of

worship, in a land use configuration that would present a

46a

better zoning alternative for the community than would

insistence upon 50 parking spaces.

Negative Criteria

Objectors argue that the Board approved a “site plan

with essentially no off-street parking....”. In fact, against a

code requirement of 50 spaces, the Board approved a plan

with 31 spaces. The evidence presented showed that the

parking provided “will meet the usual needs of the

congregation and its staff.” There is available on-street

parking for unusual situations which would accommodate the

shortfall of 19 spaces as well as any additional required

parking beyond the ordinance standard. In any event, such on

street parking would be limited to a few hours on a few days

out of the entire year, and such use of on street parking “is in

keeping with the practice of most other houses of worship in

Montclair.”

Based upon the record before it, the Board had ample.

basis for concluding that the variance for reduced parking

could be granted without substantial detriment to the

neighboring area.

Ill

SUBJECT MATTER JURISDICTION

Plaintiffs filed a Complaint in Lieu of Prerogative Writ

following the adoption of the January 18,1995 resolution

approving the use variance. At the commencement of the site

plan hearing, May 17,1995 Objectors challenged the

jurisdiction of the Board to consider the application, citing

the pending Superior Court action. The Board rejected the

challenge, but the Board attorney advised them that they had

the right to seek a stay from the courts. Objectors never

sought such relief.

Objector’s have raised the jurisdictional argument in

this action, citing Kramer v. Bd. of Adjust. Sea Girt. 80

47a

N.J Super. 454 (L.Div. 1963), affd on other grounds, 45 N.

268 (1965); nv. Mayor il of T lark, 102

NJ.Super. 84 (L.Div. 1968), affd, 108 N.J.Super. 74

(App.Div. 1969) and Orloski r i m

226 N.J.Super. 666 (L.Div. 1988). There are indeed many

Situations in which the pendency of an appeal deprives a

lower court of jurisdiction to act further in the matter under

appeal. The purpose of such a rule is to prevent the lower

court from doing anything which will adversely affect the

power of the reviewing court to reverse or modify the order

or judgment which is the subject of the appeal. The rule

serves the obvious purposes of promoting judicial efficiency

and avoiding inconsistent and duplicative proceedings.

However, in those cases in which the proceeding before the

original tribunal involves a matter which is separate and

distinct from the issue on appeal, the Original tribunal is not

divested of jurisdiction. Carlucci v. Carl i, 265 N.J. Super.

333 (Ch. Div. 1993). If the new issue presented to the

Original tribunal “does not have the Capacity to affect (i.e.

render moot) the pending appeal, it is a ‘new case’ and the

pending appeal (of an unrelated ‘case’) does not preclude the

trial court from considering the ‘new case’.” Id. at p. 339.

Each of the cases cited by Objectors involved attempts

by the original tribunal to modify the very decision which

was then the subject of the appeal. In known the Board of

Adjustment “revoted” on the very same resolution which was

then the subject of an appeal. In her motion the township

council adopted a resolution approving a variance, and then,

during the pendency of an appeal, rescinded the grant of the

variance. In Orloski the plaintiffs had been denied

subdivision approval, appealed from such denial, and, while

such application was pending, filed another subdivision

application.

The first prerogative writ action filed by Objectors

related to the variance application. The second proceeding

related to the site plan. The final site plan was not before the

48a

Board when it approved the variance and so could not be

implicated in the appeal from the first resolution.

N.LS.A. 40:55D-1 7f. which stays proceedings in the

limited case of an appeal to the governing body is an

exception to the general rule that appeals from actions of

planning boards and boards of adjustment do not create an

automatic stay. The general rule is that, in the absence of a

judicial stay, a successful applicant before a board may

obtain a building permit and proceed with its project at its

own risk, notwithstanding the pendency of an appeal to the

Superior Court. Only in the case of an appeal to the

governing body does the automatic stay come into effect.

IV

AN INFORMAL REVIEW OF THE SITE PLAN

On April 19, 1995, in compliance with the Open Public

Meetings Act, N.JLS.A. 10:4-6 et _seq., the Board met with

representatives of the applicant in an informal review of the

proposed site plan. In presenting its drawings to the board in

the informal review, applicant was not seeking approval. It

was only seeking comment. Objectors argue that this

proceeding constituted an “advisory” proceeding and that the

Board was unable to make an impartial decision because it is

somehow affected by the informal review hearings.

Such informal reviews are specifically contemplated by

the Municipal Land Use Law and are common every-day

occurrences in this State. NJ.S.A. 40:55D-10.1 provides in

part as follows: ,

At the request of the developer, the planning board

shall grant an informal review of a concept plan for

a development which the developer intends to

prepare and submit an_ application for

development.

In the instant case, the Board of Adjustment was acting

49a

with the same powers as a planning board with respect to the

site plan aspects of the application.

The board of adjustment shall have the power to

grant, to the same extent and subject to the same

restrictions of the planning board, subdivision or

site plan approval pursuant to Article 6 of this

act...whenever the proposed development requires

approval by the board of adjustment of a variance

pursuant to subsection d of section 57 of this act

(C. 4D:55D-70). (Emphasis added.) N.JLS.A.

40:55D-76(b).

Further, the review was specifically authorized under

the provisions of Section 184 of the Montclair Code.

In Cox. New Jersey Zonin nd___ Land e

Administrative Law, (1995) p. 270 the author states:

While boards of adjustment have traditionally had

site plans submitted to them in connection with

such variances they were not submitted pursuant to

the requirements of a local ordinance, so that the

board did not become involved in having to check

all the requirements of the ordinance against the

papers submitted. In the last few years, it has

become necessary for boards of adjustment to

become used to dealing with site plans on the basis

of formal submissions pursuant to local ordinances.

Since most planning boards refer all site plan

applications to their planner for review and report,

and also to such other officials as the municipal

engineer, and planning board attorney for their

review and recommendations, many zoning boards

of adjustment have adopted the policy of handling

all such applications in the same way as they are

handled by the planning board. such a procedure is

highly desirable and since zoning boards of

adjustment lack the expertise of planning boards in

50a

dealing with such applications, it is strongly

recommended that this procedure be followed.

This Court concludes that when a site plan application is

properly before a board of adjustment, the board has the

same power as a planning board to informally review” a

concept plan for a development.”

V

RECUSAL OF THE BOARD CHAIRMAN

At the meeting held on April 19, 1995, prior to

consideration of the applicant’s site plan application, plaintiff

Robert Holmes requested Board Chairman William Harrison

recuse himself. Mr. Holmes alleged that Mr. Harrison

“actively participated” in the Administrative Zoning

Officer’s determination that the applicant could utilize Red

Gables for limited office use and storage. Mr. Holmes

conceded he had no first hand knowledge of any such “active

participation”. Instead, the basis for the claim seems to be a

reference to a third party discussion made in a

correspondence from the co-president of the applicant to

Michael LaPlace, Assistant Planner.

The concern was addressed unequivocally by Chairman

Harrison:

Just so the record’s clear, I had no discussions with

Mr. LaPlace concerning any decision he made. I

did not even know he made a decision until I read,

I guess it was last week’s Montclair Times, or the

week before’s Montclair Times. I didn’t even know

he had rendered a decision related to Red Gables.

Ms. Kadus did call me, not for, and informed me

what had been done. I did, at no point did I advise

her as to what course of action that she should take

concerning the request that had been made or even

Mr. Sullivan as to what I should do.

a

Sla

I did not give any approval.

The request for recusal was again made by Mr. Holmes

at the public hearing on the appeal from the Administrative

Zoning Officer’s decision. Again, Mr. Harrison indicated he

did not give any advice whatsoever with respect to this issue.

N.J.S.A. 40:55D-69 governs conflicts of interest in the

context of a Zoning Board of Adjustment and provides “[n]Jo

member of the board of adjustment shall be permitted to act

On any matter in which he has, either directly or indirectly,

any personal or financial interest”. Under the common law a

public official is disqualified from participating in quasi-

judicial proceedings in which the official has a conflicting

interest that may interfere with the impartial performance of

his duties as a member of the public body. Wyzykowski v.

Rizas, 132 N_J. 509, 523 (1993); Petrick v. Plan Bd. of Jersey

City, 287 N.J.Super. 325 (App.Div. 1996).

“The decision as to whether a particular interest is

sufficient to disqualify is necessarily a factual one and

depends upon the circumstances of the particular case”. Van

Itallie_v. Franklin Lakes, 28 NJ. 258, 268 (1958) (citing

Aldom v. Borough of Roseland, 42 N.C. Super. 495, 503

(App. Div. 1956)). “The question will always be whether the

circumstances could reasonably be interpreted to show that

they had the likely Capacity to tempt the official to depart

from his sworn public duty”. Van Itallie, supra, 28 N.C. at

268.

Local governments would be seriously

handicapped if every possible interest, no matter

how remote and speculative, would serve as a

disqualification of an official. If this were SO, it

would discourage capable men and women from

holding public office. Of course, courts should

scrutinize the circumstances with great care and

should condemn anything which indicates the

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likelihood of corruption or favoritism. But in doing

so they must also be mindful that to abrogate a

municipal action at the suggestion that some

remote and nebulous interest is present, would be

to unjustifiably deprive a municipality in many

important instances of the services of its duly

elected or appointed officials. The determinations

of municipal officials should not be approached

with a general feeling of suspicion, for as Justice

Holmes has said, “universal distrust creates

universal incompetency”.

Graham v. United States, 231 U.S. 474, 480 (1913).

The only discussion by anybody with first hand

knowledge as to what occurred was Chairman Harrison’s

clear and unequivocal denial of any participation in the

decision of the Administrative Zoning Officer. The double-

hearsay relied upon by Mr. Holmes is insufficient in this case

to show Mr. Harrison departed from his sworn public duty in

reviewing the site plan application and appeal regarding the

use of the property.

VI

APPEAL FROM THE DECISION OF THE

ZONING OFFICER WAS MOOT

Subsequent to the Board’s grant of the use variance on

December 12, 1994 to B’Nai Keshet. Applicant sought

permission to utilize two rooms in the existing Yard School

for office use and in addition storage of materials. The

proposed office use would be a continuation of the prior

office use of the premises by the Yard School. No structural

alterations were proposed to the existing building and

permission was granted by the Administrative Zoning Officer

on December 22 and February 14, 1995.

By letter dated March 23, 1995, Robert Holmes wrote to

the Administrative Zoning Officer and advised that he

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believed the limited office use was “not authorized” since:

“...@ revised site plan has not been submitted, let alone

approved. Without an approved site plan, the B’Nai Keshet

‘use’ variance is a nullity”. On April 4, 1995 plaintiffs Robert

Holmes, et al. filed an appeal of the Administrative Zoning

Officer’s decision to allow the aforementioned limited use.

On June 22, 1995, the Board granted applicant site plan

approval and the right to use the existing Yard School for a

house of worship, religious school, administrative and other

accessory uses until the new structure is constructed and

thereafter to use both for such Purposes with on-site

accessory parking. The resolution memorializing the

approval adopted by the Board on July 19, 1995 conditioned

said approval as follows:

2. No use of Red Gables that will exceed the

currently available onsite parking as per the

ordinance, shall occur prior to the construction of

the parking area approved herein.

Following its adoption of the site plan resolution which

specifically provided for limited interim use, the Board

properly dismissed as moot the appéal of the Administrative

Zoning Officer’s earlier decision to allow the limited use of ~

Red Gables. This action was memorialized by resolution of

the Board adopted on August 16, 1995.

CONCLUSION

The Board devoted 26 hearings to the instant

application. The Board heard extensive testimony presented

on behalf of the applicant and the Objectors. No limitation

was placed on the Objectors’ Opportunity to express their

Opposition to the plan. After full and fair hearings, the Board

adopted a carefully thought-out resolution which documented

the Board’s reasoning in granting the approvals. That

reasoning was fully in accord with the Statutory requirements

and the evidence presented, and, under the standards of

54a

review applicable to this type of case, must be affirmed by

this Court.

For the reasons set forth in its opinion the Court will

grant judgment to defendants and dismiss all challenges by

Objectors to the action of the Board in connection with

applicant’s application for a use variance, site plan approval

and bulk variances.

Respectfully,

Alvin Weiss, A.J.S.C.

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APPENDIX D

DECISION OF SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

Entered November 25, 1997

Kuhl et al., plaintiffs-Appellants | Docket No. A-5987-95T 1

v.

Township of Montclair of Montclair, et al.

Defendants-Respondents

PER CURIAM

Plaintiffs have challenged the Board of Adjustment of

the Township of Montclair’s grant of a use variance which

was followed by the grant of site-plan approval and two “c”

variances to defendant, B’Nai Keshet Montclair Jewish

Center (Center) plaintiffs’ Complaints in Lieu of Prerogative

Writs were heard together on March 27, 1996, by the

Honorable Alvin Weiss, J.S.C. On April 10, 1996, the judge

delivered his opinion affirming the Board’s procedures and

grants. He thereafter entered judgment dismissing the

complaints. Plaintiffs appeal.

Judge Weiss’ opinion accurately summarizes the

testimony and evidence before the Board, and, therefore, we

do not recite the facts. Further, the judge thoroughly

discussed the issues presented and correctly decided them.

Thus, we affirm the judgment dismissing the complaints,

substantially for the reasons Judge Weiss expressed in his

Opinion. ‘

The contention that houses of worship should not be

treated as inherently beneficial uses is without merit. There is

direct benefit to the general population from the proposed

facility. That it may be run by a religious organization does

not detract from the inherent benefits it provides by

promoting the morals and general welfare of the community.

56a

Kali Bari Temple v. Redington Township Bd. of Adjustment,

271 N.JL. Super. 241, 248 (1994). The cases relied on by the

Board and Judge Weiss demonstrate that religious facilities

are properly placed in the inherently beneficial category.

Sugarman v. Teaneck Township, 272 N.J. Super. 162, 172

(App. Div.), certif. denied, 137 N.J. 310 (1994); Kali Bari

Temple, supra, 271 N.J. Super. at 248-49; State v. Cameron,

184 NJ. Super. 66, 75 (Law Div. 1982), aff'd, 189 NJ.

Super. 404 (App. Div. 1983), rev’d on other grounds, 100

N_L 586 (1985).

Plaintiffs also contend that Montclair is adequately

zoned for houses of worship by permitting them as a

conditional use in most zones, and that the Center could have

purchased property in one of those zones. However, the

record supports the finding that the Center made an

exhaustive search for a facility. It being the only

reconstructionist Jewish congregation in the area, existing

facilities were not compatible with the beliefs of its members.

Property that came on the market after the Center signed the

contract to purchase the site in question cannot be

considered, as it would force the Center to refrain from

fulfilling its contractual obligations. Other potential buildings

were either too expensive or would not meet the

congregation's needs

There is no basis for plaintiffs’ contention that granting

the variance violates the establishment clause. The First

Amendment states that “Congress shall make no law

respecting an establishment of religion, or prohibiting the

free exercise thereof.” U.S. Const. amend. I. The standard for

determining application of the Establishment Clause is the

following three-prong test of Lemon v. Kurtzman, 403 U.S.

602, 612, 91 §_ Ct 2105, 29 L.Ed.2d 745, 755 (1971) : (1)

whether the challenged law or conduct has a secular purpose;

(2) whether its principal or primary effect is to advance or

inhibit religion, and (3) whether it excessively entangles

government with religion. See Ran-Day’s County Kosher.

57a

Inc. v. State, 129 NJ. 141, 152 (1992), cert. denied, 507 US.

952, 113 5. Ct. 1366, 122 L.Ed.2d 744 (1993).

We find no treatment afforded the Center that would not

similarly and typically have been granted other non-profit

uses. See Walz v. Tax Comm’n of New York, 397 US. 664,

90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) (statute exempting

from real property taxes realty owned by association

organized exclusively for religious purposes does not violate

establishment clause as other organizations such as hospitals

and libraries receive similar treatment); Rosenberger _v.

University of Virginia, 515 U.S. 819, 115 5. Ct. 2510, 132 L.

Ed. 2d 700 (1995) (holding that State-affiliated university did

not violate Establishment Clause by assisting and funding

campus religious organization as_ similar nonreligious

organizations are comparably treated).

Plaintiffs have no cause to object to the resolution

merely because it conditions the hours during which the

Center could use the premises for non-religious activity.

Moreover, we see no violation of the Lemon prohibition

against excessive government entanglement with religion.

See tiniv. Felton, SC (66 USLW. 3253)

Oct. 6, 1997 (noting that interaction between church and state

is inevitable and as a result, some level of involvement

between the two will be tolerated under the Establishment

Clause so long as it is not ‘excessive’). Government will

often make a judgment as to whether a practice is religious.

For instance, the State exempts from taxation property used

for religious purposes, NJS.A. 54:4-3.6, and courts may

have to determine whether property owned by a church is

being used for religious purposes. See, e.g., Goodwill Home

& Missions, Inc. v. Garwood Borough, 281 N.J. Super. 596,

600 (App. Div.), appeal dismissed, 143 NJ. 317 (1995).

The Board’s grant of a variance is presumed valid and it

may be set aside only upon a showing that it was arbitrary,

unreasonable or capricious. Kramer v. f Adjustment

of Sea Girt, 45 NJ. 268, 296 (1965) ; Pullen v. South

58a

- Plainfield Planning Board, 291 NJ. Super. 1, 6 (App. Div.

1996) “Underlying the presumption is the recognition that

such boards possess special knowledge of local conditions

and must be accorded wide latitude in the exercise of their

discretion.” Sica vy. Board of Adjustment of T ip of

Wall, 127 NJ. 152, 167 (1992). The Board’s factual findings

and conclusions are entitled to great weight and may not be

disturbed if supported by sufficient credible evidence in the

record. Rowatti v. Gonchar, 101 N.J. 46, 52 (1985); Pullen,

supra, 291 N.J. Super. at 7. Its acceptance or rejection of

either lay or expert testimony is binding on appeal, if

reasonably made. Shim _v. Washington Township Planning

Bd., 298 N.J. Super. 395, 412 (App. Div. 1997); Hawrylo v.

Board of Adjustment of Hardin ip, 249 NJ. Super.

568, 579 (App. Div. 1991).

A variance for a house of worship in a residential zone

is governed by NJS.A. 40:55D-70(d) (1), which gives

boards the discretion to grant a variance to permit “ause in

a district restricted against such use” upon a showing of

special reasons and satisfaction of the negative criteria. There

are two prongs to the negative criteria: (1) the variance can

be granted without substantial detriment to the public good,

and (2) the variance will not substantially impair the intent

and the purpose of the zone plan and zoning ordinance.

N.J.S.A. 40:55D-70(d). The public good prong requires the

board to carefully weigh the impact of the variance on the

neighborhood. Chirichello v. Zonin

Monmouth Beach, 78 N.J. 544, 556 (1979).

In Sica, supra, our Supreme Court held that in dealing

with inherently beneficial uses boards must apply a

“balancing test” which requires them to: (1) identify the

public interest at stake, recognizing that some uses are “more

compelling” than others; (2) identify the detrimental impact

of the variance; (3) study whether the detrimental impact can

be mitigated by imposing reasonable conditions, and (4)

weigh the positive criteria against the negative criteria “and

59a

determine whether, on balance, the grant of the variance

would cause substantial detriment to the public good.” Sica,

supra, 127 NJ. at 164-66; New — Cellular Tel. Co.

v. Borough of South Plainfield, _ N.J. Super. _ (1997);

see also N.L.S.A. 40:55D-70 (as amended June 30, , 1997.)

We are convinced, as was Judge Weiss, that the Board

acted properly in balancing the interests of all concerned.

Further, the Board acted within its discretion in granting the

“C” variances required by the revised site-plan. N.J.S.A.

40:55D-70(c) (2) allows the grant of such variances where

the purposes of the MLUL would be advanced by a deviation

from a zoning ordinance requirement “and the benefits of the

deviation would substantially outweigh any detriment.” See

Kaufmann v. Warren Township Planning Bd., 110 N.J. 551,

566 (1988); Bressman _v. Gash, 131 NJ. 517 (1993) ;

mmercial Real Resour __v. First Atlantic

Properties Co., 235 N.J. Super. 577, 594 (App. Div. 1989),

aff'd, 122 N.J. 546 (1991).

The Board took great pains to preserve the historic

building and identified the detrimental effects of the

proposal. It disapproved the initial site-plan because the

addition was incompatible with the historic building and the

parking lot was in the front yard. It caused modifications to

be made and placed limits on the location and time of non-

religious activities so as not to disturb the neighbors.

Finally, regarding plaintiffs’ contention that the Board

improperly allowed applicant to bifurcate the application, we

find that the Board acted in accordance with the power

granted it pursuant to NJ.S.A. 40:55D-76(b). We add that all

parties were dealt with fairly under the procedures employed

by the Board. Further, plaintiffs’ jurisdictional argument is

without merit. Judge Weiss acting as the appeal tribunal was

not offended by the Board’s continued proceedings and we,

therefore, see no basis on which plaintiffs should be heard to

object.

Affirmed.

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APPENDIX E

ORDER OF SUPREME COURT OF NEW JERSEY

DISMISSING APPEAL FOR FAILURE TO RAISE

A SUBSTANTIAL CONSTITUTIONAL QUESTION

Filed March 11, 1998

Docket No. 45,294

Andrej Kuhl, et al., Plaintiffs-Respondents,

V.

Board of Adjustment of the Township of Montclair, et al.

Defendants

and

B’Nai Keshet Montclair Jewish Center,

Defendant-Movant.

This matter having been duly presented to the Court, it is

ORDERED that the motion to dismiss the appeal (M-838) is

granted; and it is further

ORDERED that the motion for summary affirmance (M-839)

is dismissed as moot.

WITNESS, the Honorable Deborah T. Poritz, Chief Justice,

at Trenton, this 10th day of march, 1998.

Stephen Townsend

CLERK OF THE SUPREME COURT