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Acorn Montessori School v. Bethlehem Township Planning Board

380 N.J. Super. 216, 881 A.2d 784 (Law Div. 2005)

ZONING; VARIANCES; SCHOOLS — Pre-school, after-school and Summer school programs with educational themes are accessory to a permitted school use.

A private school applied for variances to use its property as a primary school for children ages three and older. It was to have preschool, after school, and summer school programs. The school also applied for a variance to build a residence for an employee who would perform maintenance and security functions. The planning board denied the school’s request to build a residence on the school’s property. It held that the school did not show that the residence was an incidental or customary use at other private or public schools, and therefore it was not considered an accessory use. With respect to the after school program, the board held that it was tantamount to a day care program. Accordingly, it was not considered for an educational purpose, and was not an accessory use to a school program. The board denied the school’ s proposal to enroll pre-kindergarten age children, finding that since no such programs were offered in public schools, it was also a day care program and not part of a permitted school use. Lastly, with respect to the summer school, the board found that it was not incidental to and customarily related to schooling. It found it to be a summer camp, which was not an accessory use to a school. If true, it was a separate and non-permitted use. The school appealed.

The lower court reversed the board’s denial of the use for the preschool, after school, and summer school uses, but upheld the denial of a variance to permit a residence on the property. It noted that because the case involved the definition of “education,” it was a matter of law to interpret the zoning ordinance. Therefore, the planning board’s findings were not afforded any deference. The Court also found that the testimony as to the educational emphasis of the summer and preschool programs was one-sided. The school’s witnesses offered testimony regarding the educational aspects of its programming. It showed that there was an educational theme to each. Testimony showed that the children studied the same materials during the after school program as they did in the regular school day. The school also showed that even though there were outdoor activities during the summer program, it had an educational theme, making it an educational experience and not merely a camp. The Court further found the school’s evidence to be clear and convincing, and held that the summer school and after school programs were accessory to the permitted use as a school. According to the Court, the board heard no testimony to rebut the school’s witnesses, but merely rejected their testimony out of hand based on the board members’ preconceived notions as to the purposes and accessory uses of a school program. Lastly, the Court affirmed the board’s rejection of the residence, finding that it was not a traditional and customary use at public and private schools. Therefore it was not a permitted accessory use.

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