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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 822

## Text

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
ant FP iii aa eles auesncivenicos i
eee OF FI oi ict ien naw l
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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i SIE ES ASAE ee gD GO I PE OR lp WEG ERO SEF TOT RAE 8 EEE VR ga Pasha e vate

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”.

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“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

37a

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

38a

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

39a

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

40a

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 Rea

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1677%3A1. Public record. Not legal advice.