Prior to the enactment of an ordinance in 1979, Congregation Anshei Roosevelt operated a synagogue on 1.875 acres located in an R-40 district which provides for houses of worship on at least two acres as conditional uses but does not allow private schools. At some point, the Congregation obtained a variance to permit operation of a nursery school by a tenant. In 2005, due to declining membership, the Congregation entered into a lease under which the Yeshiva would operate a religious school for residential students and day students who would not attend any other schools. The Yeshiva agreed to provide the Congregation with rabbinical services, community outreach programs, and other pastoral services. After the Yeshiva’s ninth-grade students began to arrive, neighbors complained. The zoning officer determined that the use did not violate the ordinance. After taking evidence about traffic, hours of operation, and noise, the board reversed, holding that the Yeshiva was an impermissible expansion of a nonconforming use. The Congregation’s federal court suit was dismissed as unripe and the Third Circuit affirmed. A state trial court determined that a variance was required and limited the Yeshiva’s enrollment to 31 students, pending appeal. The appellate court affirmed. The Yeshiva did not meet the standards for an accessory use but had become the primary use. Rejecting an argument that expansion of a nonconforming use occurs only when there is structural expansion, the court stated that the board and trial court performed the correct analysis in examining the change and intensification of use. The use as a school was not within either expert’s understanding of what constitutes a synagogue.
Congregation Anshei Roosevelt v. Planning and Zoning Bd. of the Borough of Roosevelt, 2011 WL 408789 (NJ App. 2/9/2011)
The opinion can be accessed at: http://law.justia.com/cases/new-jersey/appellate-division-unpublished/2011/a1390-09-opn.html
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