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Congregation Anshei Roosevelt v. Planning and Zoning Board of the Borough of Roosevelt

A-1390-09T3 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; HOUSES OF WORSHIP — The addition of a religious school use to a prior, nonconforming use in the zone by a house of worship that never had a religious school within it, is an expansion of that prior, nonconforming use.

A yeshiva, as tenant of a synagogue in a residential zone, operated a private school at the synagogue. The zoning ordinance had no provision allowing private schools as permitted or conditional uses in the district. The synagogue itself was a pre-existing, nonconforming use under a zoning ordinance which permitted, as a conditional use, houses of worship inhabiting a minimum acreage. Pressured by declining membership, the synagogue had entered into the lease with the yeshiva for a religious school, adult education services, and a dormitory. Practically, as testified by a neighborhood group challenging the yeshiva’s use, students were there from early in the morning through the late hours of the next early morning, numerous cars were always parked in the neighborhood, and it was noisy as students played outside through all hours of the day and night.

The planning board, as affirmed by the lower court as not acting arbitrary, capricious and unreasonable, concluded the yeshiva was an intensification of a prior nonconforming use, and therefore required a variance from the conditional use standards prohibiting a school. Both the board and the court relied upon testimony showing that the yeshiva was a separate and distinct use from that of the synagogue. The yeshiva offered a school of study and learning, while the synagogue presented only prayer services. The synagogue appealed, arguing that the yeshiva’s activities were a core synagogue function comporting with, and encompassed within, the pre-existing use of the property as a house of worship.

The Appellate Division rejected the synagogue’s argument and affirmed the lower court’s decision. It found that the board and lower court performed the correct analysis of fact and law. The Court reaffirmed that a restrictive standard must be used to evaluate whether a particular use intensifies or changes an existing nonconforming use. The law permits an associated use only if it is a continuance of substantially the same kind of use as that for which the premises were devoted to at the time of the passage of the applicable zoning ordinance. It reviewed the record before the planning board and concluded it supported the board’s conclusion that the yeshiva’s use constituted both a change of use and an intensification of a nonconforming house of worship use that required a variance application. When this house of worship gained its protected status as a nonconforming use, its use had not encompassed the additional, distinct inclusion of a yeshiva.

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