Opinion
Argued January 29, 1951 —
Decided February 5, 1951.
Appeal from Superior Court, Law Division, Somerset County, Daniel J. Brennan, J.
Before Judges FREUND, PROCTOR and ROGERS.
Mr. Robert R. Daly argued the cause for the plaintiff-appellant ( Messrs. Daly, Hillis, Hall McCormick, attorneys).
Mr. Leon Gerofsky argued the cause for the respondents ( Mr. William T. Stewart, Jr., of counsel).
On appeal from a judgment of the Superior Court, Law Division, in which Judge Daniel J. Brennan filed the following opinion:
"This is a proceeding in lieu of prerogative writ. The question for resolution is whether or not an enterprise devoted to the boarding of horses, instruction in horsemanship and recreational pursuits is a private school within the purview of a zoning ordinance which permits public school and private school use in the primary residence district.
"The pertinent facts are that the plaintiff acquired premises in the Township of Bedminster, Somerset County, which by the provisions of a zoning ordinance adopted by the Township in 1946, were situated in a primary residence district wherein the use of premises is restricted to residences and inter alia to schools.
"At or about the time the plaintiff acquired title she made application to the defendant Apgar, building inspector, for permission to use the premises as a day school and school of equitation. The intended use is one wherein plaintiff instructs children in horsemanship and supervises them in water sports and other recreational activities. The enterprise is entitled variously Chalet School of Equitation, Chalet Day Camp and Junior Equitation Club. It offers a year-round program for after-school and Saturday recreational activities for children of all ages above three years. For the program plaintiff boards horses of her patrons for a fee, making an allowance thereon to those who permit their animals to be used by her for instruction. Although the enterprise purports to be a school it is significant that the children who attend are in regular attendance in the public schools located in the surrounding area.
"On March 21, 1949, plaintiff applied to the building inspector for a permit for the intended use which was refused. On May 18, 1949, the refusal was sustained by the board of adjustment. In substance the plaintiff's contention is that the enterprise in the light of its activities is a private school within the intendment of the ordinance. The contention of the defense is to the contrary.
"There follows the pertinent language of the zoning ordinance, article IV, paragraph 3:
"`ARTICLE IV. USE REGULATIONS CONTROLLING RESIDENCE ZONES.
`In a residence zone, no building or premises shall be used and no building shall be erected or altered which is arranged, intended or designed to be used, except for one or more of the following uses: * * *
`3. Churches, libraries, public museums, public schools, and private schools.'
"Learned counsel for the plaintiff suggests the derivative advantages culturally and socially of a knowledge of the art and science of equitation. This argument seems to me quite beside the point. The legislative definition of private school is ( R.S. 18:19-7), `As used in this article: "Private schools" means a school attendance at which is a sufficient compliance with the compulsory education requirements contained in the State Statutes.'
"Learned counsel for the plaintiff also suggests that there is a poverty of definition of the word school even in such a well-known authority as Bouvier, but an examination of Bouvier ( Rawles' Third Revision) discloses the definition of a school to be as follows: `An institution of learning of a lower grade than a college or university. A place of primary instruction. As used in the American Reports, the term generally refers to the common or public schools existing under the laws of each state and maintained at the expense of the public.'
"Examination of Webster's New International Dictionary discloses this definition among others of the word school: `A place for instruction in any branch or branches of knowledge; an establishment for imparting education; also, the institution or collective body of teachers and learners in such a place. When without qualification, school is now familiarly used of an institution for teaching children; as, he went through school and college. Schools (in this sense), conducting the twelve years of study between the ages of about six to eighteen, are in the United States commonly classified as: primary school, covering the first four years; grammar school, covering the second four; and high school, covering the third four.'
"The matter here for resolution is apparently one of novel impression in this jurisdiction but instructive cases on what is meant by school are as follows: People ex rel. McCullough v. Deutsche Evangelisch Lutherische Jehovah Gemeinde Ugeanderter Augsburgische Confession, 249 Ill. 132, 94 N.E. 162 (1911), which is on the question of taxation; The Matter of Townsend, 195 N.Y. 214, the subject matter being a liquor license; Shoen v. Bowne, 79 N.Y. Supp.2d 292, a zoning ordinance case. Village of East Hampton v. Mulford, 65 N.Y. Supp.2d 455 (June 1946). The latter cited case reflects a condition substantially similar to that here the subject matter of consideration. The court held in that case: `A provision of Village Zoning Ordinance, permitting schools in residential districts, unless a chief activity thereof is one customarily carried on as a gainful business, does not permit conduct of riding academy for gain in such district, even if liberal construction of word "school" would include such an academy.' My examination of the plaintiff's testimony leads me to the conclusion that the plaintiff's approach here is an attempt to suggest by her rather guarded testimony that the enterprise she proposes to conduct is a private school. My own reaction is that it is nothing more than what is generally known as a riding academy with auxiliary recreational facilities.
"It appears to me quite clear that the words `private school' in the zoning ordinance of the defendant township are used in their traditional sense and not in any all-embracing sense, and are intended to describe that class of school which is purely academic in character. If the defendant township had intended to include a class of activity proposed by the plaintiff, reason and logic would command that those activities be specifically mentioned in the opposite section of the ordinance, which viewpoint is, I think, buttressed by examination of article IV, paragraph 4, of the zoning ordinance which indicates at substantial length the permitted uses other than those referred to in paragraph 3, and is as follows: `Community center building; service building for use of municipality; fire house; telephone exchange without shop; store room or outdoor storage; chartered membership club catering primarily to local residents and their guests; golf club with a duly organized membership not conducted primarily for gain; chartered lodge or fraternal assembly quarters for local residents not conducted primarily for gain; hospital or sanitarium primarily for local residents and not treating contagious diseases except incidentally; and charitable and philanthropic institutions, ministering primarily to local residents and not of a correctional nature.'
"There will be a judgment in favor of the defendants and against the plaintiff.
"Submit appropriate order according to the views here expressed."
The judgment is affirmed for the reasons expressed in the opinion of Judge Brennan in the court below.