MICHAEL GOOCH v. PETER DAWKINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6233-06T26233-06T2

MICHAEL GOOCH AND

DIANE GOOCH,

Plaintiffs-Appellants/

Cross-Respondents,

v.

PETER DAWKINS,

JUDITH DAWKINS,

Defendants-Respondents/

Cross-Appellants,

and

BOROUGH OF RUMSON BOARD

OF ADJUSTMENT,

Defendant-Respondent.

 

Argued April 15, 2008 - Decided

Before Judges Winkelstein, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-4302-05PW.

Douglas J. Katich argued the cause for appellants/cross-respondents (Ansell Zaro Grimm & Aaron, attorneys; Mr. Katich, of counsel and on the brief; Hussam Chater, on the brief).

Gregory R. Milne argued the cause for respondents/cross-appellants (Foss San Filippo & Milne, attorneys; Mr. Milne, Roger J. Foss and Dennis L. Bliss, on the brief).

Bernard M. Reilly argued the cause for respondent, Borough of Rumson Board of Adjustment (Dowd and Reilly, attorneys; Mr. Reilly, on the brief).

PER CURIAM

Defendants Peter and Judith Dawkins filed an application to the Borough of Rumson Board of Adjustment to obtain a use variance to demolish an existing pool house on their 10.4-acre riverfront property and to construct a larger accessory residential structure for the property's caretaker. The Board granted the variance. Plaintiffs, owners of an adjacent lot, filed an action in lieu of prerogative writs challenging the Board's decision. The trial court affirmed the Board.

On appeal, plaintiffs argue that the Board arbitrarily determined that "special reasons" existed to grant the variance; that the site was not particularly suited for the proposed structure; and that the Board erroneously determined that defendants satisfied the negative criteria. Defendants cross-appealed, arguing first that a settlement agreement between plaintiffs and defendants was improperly set aside by the trial court, and second, that the trial court erroneously denied its motion to disqualify plaintiffs' law firm, Ansell Zaro Grimm & Aaron (the Ansell firm), from representing plaintiffs on appeal from the Board's decision.

We affirm the decision of the Board to grant the variance. That renders moot defendants' cross-appeal that the settlement agreement should be enforced. We reverse the trial court's order denying defendants' motion to disqualify plaintiffs' counsel; we conclude that the Ansell firm has a conflict of interest. Consequently, the Ansell firm may not represent plaintiffs with regard to the subject matter of this litigation in the future.

I

Defendants' property is located on West River Road in Rumson. They purchased it in 2000 from the estate of Jean Wrightson, and completed building their home in 2004. The existing accessory residence, which had a living room, two bathrooms, two dressing rooms, a bedroom, and a kitchen, was on the property when they purchased it.

Plaintiffs own an 8.4-acre property immediately to the east of defendants' property. The lot directly to the west of defendants' lot is owned by Louis Eisenberg. These properties border River Road to their front and the Navesink River to their rear.

The property is zoned R-1 residential. The minimum lot size in the zone is 1.5 acres. The applicable zoning ordinance, amended in 1990, provides: "No accessory building shall be used for residential purposes by any person or persons, including members of the family or the occupants of the principal building or domestic servants or others employed on the premises."

Defendants filed an application with the Board proposing to "construct an accessory residential structure and tennis court." They sought to remove an existing pool and "accessory residential building," referred to as a "pool house," and to construct a "caretaker's cottage." The cottage would be for "an employee and possibly that person's family who would live there, and be on the property all the time . . . [to] monitor the utilities and the systems within the house or . . . take care of any immediate problem." The caretaker would provide security and maintenance services.

The existing pool house measures 1798 square feet, and the proposed cottage, which would be built on the site of the existing structure, would include 2189 square feet of living space and a 555-square-foot garage for two tractors, a snow removal machine, and other equipment. The existing structure is forty-one feet high, and the proposed structure would be twenty-four feet high. Arthur Hanlon, the architect of defendants' home, testified that the proposed caretaker's cottage would sit at a low elevation in a "slate bowl."

Plaintiff Michael Gooch claimed that the proposed structure would lie sixty-three feet from his property line and 150 feet from the front of his house. He objected to the location of the proposed cottage, asserting that it would result in "a negative outlook from [his] front courtyard," and that whoever lived there "would have something of a direct view right into [his] bathroom." Documents submitted by defendants indicate the closest point of the proposed cottage would be 205 feet from plaintiffs' house.

Claudia Levy, defendants' landscape architect, testified that the landscape design would include dense tree plantings that would make it "very difficult to identify almost any structure across the property line." Defendants' planner, Raymond Liotta, provided a summary of the area's geography. He testified that at least nine other lots in the neighborhood have accessory residential structures developed for residential purposes, and that defendants' proposal would be "in concert" with those.

Liotta testified that defendants' proposal would be consistent with three purposes of zoning, constituting special reasons in favor of the Board's grant of a use variance. First, it would "promote sufficient space in appropriate locations for private residential uses in order to meet the needs of New Jersey citizens," in that the cottage was in character with similar structures on other lots in the neighborhood, and that the location and low elevation on defendants' property will hide it from neighboring properties. Second, the cottage would "promot[e] a desirable visual environment" through "creative design techniques and civic design arrangement" by building it on sunken ground, lower than adjacent properties. Finally, the proposal would promote the general welfare by housing people responsible for the property's security, thus reducing the burden on the borough's police force.

Liotta further opined that negative effects of the proposal would be mitigated by the landscaped screening and the location and elevation of the cottage. He claimed that even though the ordinance had been changed to prevent the building of this type of structure, the improvements created no detriment to the zone plan because the intent of the change was not to bar a caretaker or employee from residing on the property, but rather to "reduce the proliferation of rental units to people who were unrelated to the property owner."

Defendants presented the testimony of Shiela Labrecque regarding the use of the existing pool house. She was a friend of the Wrightsons and the executor of Jean Wrightson's estate. She testified that Jean Wrightson hosted parties at the pool house, and that friends often stayed there. Jean Wrightson's niece Victoria lived there in 1994 and 1995, and friends of Jean Wrightson lived in the guest house "most of the summers when Jean was alive."

During the course of the Board hearings, the parties placed a settlement on the record. The Board subsequently passed a resolution on August 16, 2005, approving defendants' application subject to a number of conditions, incorporating the specifics of the settlement. The resolution included the following language:

5. A revised landscaping plan will be negotiated and jointly agreed to by the applicant and objector (Gooch) and submitted for approval to the Board engineer by September 10, 2005, having a stated goal of providing the reasonably substantial screening of the accessory residential structure from view from adjoining Lot 14 in all seasons, including sightlines from upper floors of the principal house on that adjoining lot. . . .

[(emphasis added).]

Plaintiffs objected to the language "reasonably substantial screening," asserting that their understanding of the settlement was the "total and complete screening of a structure to the greatest extent possible." The Board rejected plaintiffs' interpretation, and plaintiffs challenged the Board's approval in court.

During the court proceeding, sometime in 2006, plaintiffs retained attorney Douglas Katich, of the Ansell firm, who joined the firm in 2005. Defendants moved to disqualify the firm, because in 2000 they had retained Richard Brodsky of that firm for advice and representation on a zoning application to the Board relating to the same property. Defendants' relationship with Brodsky ended on May 27, 2003.

The trial court denied defendants' application to disqualify the Ansell firm. The court also ruled that the parties did not reach a settlement before the Board. Consequently, the court remanded the application to the Board.

At the reconvened Board hearings, plaintiffs presented the testimony of Jeffrey Wrightson, the son of the former owners of defendants' property, who lived there from 1962 until 1991 or 1992. His father died in 1988, and his mother died in 1998. He testified that the pool house was built in 1966. His father would not allow people to live in the pool house, but his mother's friends would occupy the pool house on weekends and summers beginning after his mother installed an air conditioner in the "early '90s." In 1994 and/or 1995, his cousin also lived there.

Plaintiffs' planner, Thomas A. Thomas, testified that defendants' proposed use would violate the zoning ordinance and that their proposal did not promote "a desirable visual environment" with respect to the general public. He also opined that allowing a second home on the same lot would "diminish" the purposes of the Rumson Master Plan.

Thomas disagreed with Liotta's conclusion that defendants' proposal would further the purposes of the Municipal Land Use Law (MLUL). He testified the improvements were a "non-permitted residential use"; would not promote a "desirable, visual environment"; and would not "promote sufficient space in appropriate locations." He asserted that the current pool house could be "painted and fixed up."

With regard to negative criteria, Thomas testified that defendants' application impairs the zoning plan of the Borough; that "the governing body specifically identified [defendants' proposed] uses as not only not permitted . . . but . . . also explicitly shown as uses which should not be incorporated into . . . or approved as even an accessory use." According to Thomas, the proposed structure would have a negative visual impact on plaintiffs from their driveway, and the improvements would only benefit the defendants. Thomas admitted, however, that the general upgrading of structures has a positive effect on the community at large, and that "upgrading a structure is always desirable" if within the terms of the zoning ordinance.

Judith Dawkins testified that the existing pool house is visible from the Eisenbergs' property, but that it is not visible from the road, which is three-tenths of a mile away. She hosts large charity events at her home, where as many as 350 members of the public would see the proposed cottage. Defendants employ five people on the estate.

Liotta again testified that the proposal would promote the general welfare by assisting police efforts in security. The proposal would promote a "desirable, visual environment," and the proposal was consistent with how the neighborhood has developed. He opined that the proposal was consistent with the Master Plan's goal of obtaining "the most appropriate use of land consistent with the neighborhood character and the suitability for development." Nevertheless, he acknowledged that the building could be aesthetically improved simply by painting and renovating it, although doing so would not promote the same "architectural style" as the Dawkins's principal home.

Approving defendants' application for a variance, in its resolution of January 16, 2007, the Board made the following relevant findings:

15. As to the accessory residential structure proposed, the Board concludes that subject property is particularly suitable . . . for the proposed use/structure and that granting of the variance will promote several of the purposes of zoning as shall be detailed herein. . . . There is an existing structure, in poor and outdated condition, that is to be replaced by the more architecturally attractive and compatible proposed structure. The proposal does not increase the number of structures on site, and would likely reduce the number of structures that could be located on the property if the existing structure was merely renovated and an additional storage/maintenance equipment structure was proposed. The structure is sufficiently distant from the street or river so as not to be visible from those locations. . . . The large size and maintenance requirements of the property, its location and amenities, that there is a preexisting structure in poor condition for which replacement is appropriate and beneficial, and the preexisting and enhanced screening making the structure of very minimal visual impact to other properties or the street or river front, all combined to make this property particularly suitable for the proposed accessory residential structure for a caretaker residence.

16. The granting of this variance will . . . promote several of the purposes of zoning. It will promote the public safety and general welfare by providing and permitting an on site caretaker's residence on a large estate residence/property that warrants such an on site presence for maintenance and security purposes and assistance. . . . Rather than have the caretaker commute to the premises from some other location . . ., it seems far more logical to allow such caretaker to live on site (with dependents) in an adequate residence. Estates of this size and caliber have traditionally and historically had an on site resident caretaker; the reasons for such tradition being the need for maintenance and security on such properties. In addition, the structure is being increased in size partially to provide storage space for necessary maintenance and landscaping equipment on site to maintain the premises, decreasing the need for outside contractors or equipment to drive to the site. Both these purposes will decrease traffic to the site, to the public benefit. . . . [T]he large estate house and grounds could obviously be subject to security concerns, particularly given that the house is not visible and considerably distant from the street. . . . An on site caretaker would certainly be a substantial asset and assistance in avoiding security problems, assisting the Police Department in monitoring the premises for security concerns, and coordinating with the police regarding security responses or requirements.

. . . .

18. . . . Also, this structure, as it is a replacement of an existing outdated structure in place, will preserve the existing open space and character of this estate and area.

19. The allowance of this structure will also promote a desirable visual environment through creative development techniques and housing arrangements. . . . [A]llowing for an on site employee presence will certainly greatly assist in the proper maintenance and visual appearance of the site. . . . The additional housing will be provided with no adverse impact upon the Borough or neighborhood.

The Board also concluded that the existing building had a "preexisting status as a nonconforming accessory residential structure/use." It was constructed in the 1960s, and at that time it could be used as a residence. The Board found that "given its full fixtures, utilities, and furnishings (including beds), the structure was used or available to be used on occasion for guests or other temporary residents." It also found:

[T]he evidence indicates that in the late 1980s/early 1990s the structure was utilized for regular, although perhaps intermittent, residential use by friends of the family . . . . There was in fact no real testimony of the structure being used for anything else, nor was there any . . . evidence indicating that the entitlement to the use of this structure as an accessory residential structure was ever abandoned by the prior owner.

The Board also found no evidence suggesting that defendants abandoned that preexisting status.

The trial court affirmed the Board's decision. It found that the Board was permitted to consider the preexisting nonconforming use and structure, and that the preexisting use had not been abandoned. The court concluded that the 1990 zoning amendment did not preclude the Board's authority to grant a use variance in this case; special reasons supported the approval; and defendants satisfied the negative criteria.

II

In addressing the issues on appeal, we are bound by the same standard as the trial court when it considers the appeal of a municipal board's action. Cohen v. Bd. of Adjustment, Borough of Rumson, 396 N.J. Super. 608, 614-15 (App. Div. 2007); N.Y. SMSA, Ltd. P'ship v. Bd. of Adjustment, Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). "[A] decision of a zoning board may be set aside only when it is 'arbitrary, capricious, or unreasonable.' A Court will not substitute its judgment for that of a board 'even when it is doubtful about the wisdom of the action.'" Cell South of N.J., Inc. v. Zoning Bd. of Adjustment, W. Windsor Twp., 172 N.J. 75, 81-82 (2002) (citations omitted); Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965).

"Boards of adjustment, 'because of their peculiar knowledge of local conditions, must be allowed wide latitude in the exercise of the delegated discretion.'" Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990) (quoting Medici v. BPR Co., 107 N.J. 1, 23 (1987)). This court "will not disturb a board's decision unless [it] find[s] a clear abuse of discretion." Cell South, supra, 172 N.J. at 82; Kramer, supra, 45 N.J. at 296-97. Nevertheless, "a board's denial of a variance is entitled to greater deference than a decision to grant the variance." Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 38 (App. Div. 2003).

The MLUL provides that the board of adjustment has the power:

d. In particular cases for special reasons, [to] grant a variance to allow departure from regulations . . . to permit (1) a use or principal structure in a district restricted against such use or principal structure, [or] (2) an expansion of a nonconforming use . . . .

. . . .

No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.

[N.J.S.A. 40:55D-70d.]

Before granting a variance, a board of adjustment "must make two critical findings: (1) that 'special reasons' exist for the variance, and (2) that the variance 'can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.'" Burbridge, supra, 117 N.J. at 384-85; Kohl v. Mayor & Council, Borough of Fair Lawn, 50 N.J. 268, 276 (1967).

There are three categories of circumstances in which "special reasons" may be found:

(1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility; (2) where the property owner would suffer "undue hardship" if compelled to use the property in conformity with the permitted uses in the zone; and (3) where the use would serve the general welfare because "the proposed site is particularly suitable for the proposed use."

[Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 76 (App. Div. 2006) (citations and quotations omitted).]

Here, the issue is whether defendants' proposal falls into the category of serving "the general welfare."

"Special reasons" takes its definition from the general purposes of the zoning law in N.J.S.A. 40:55D-2, which include "the promotion of the general welfare, of safety and health, [and] of a desirable visual environment." Burbridge, supra, 117 N.J. at 386. The question is "'whether the special reasons, taken as a whole, are founded affirmatively in one or more of the zoning objectives set forth' in [the statute]." Id. at 393 (quoting Kramer, supra, 45 N.J. at 287). In a case where the variance sought does not inherently serve the public good, "the applicant must prove and the board must specifically find that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use. Medici, supra, 107 N.J. at 4.

Both the Board and the trial court found special reasons to exist. The record supports that conclusion. Defendants' property is 10.4 acres, and it is located in a neighborhood of estate residences. Defendants host charity events at their home, which as many as 350 people attend, and members of the public would routinely view the proposed cottage. Liotta, defendants' planner, testified that the proposed building would constitute an aesthetic improvement, as being in the same "architectural style" as the principal home on the property. The Board made a finding that the proposal would aesthetically improve that building, which the public would be viewing. Liotta also testified that the caretaker living at the cottage would be responsible for security of the premises. The Board found that granting the variance so as to allow a caretaker to live there would enhance security and assist the Borough's police efforts. The Board also found that, given that the caretaker would be able to live at the cottage, traffic to the site would decrease because maintenance personnel and equipment would be located on site. Furthermore, the Board observed that though the proposed building will also include a 555-square foot garage for maintenance equipment, this will eliminate the need to build another structure elsewhere on the property.

While a benefit will inure to defendants by granting the use variance, those public benefits discussed above may result as well. The findings have a reasonable basis in the evidence. Fallone Props., L.L.C. v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 561 (App. Div. 2004). "It is not our function to disapprove a Board's determination, even when a contrary result might also have been reached." Randolph Town Ctr. Assocs. v. Twp. of Randolph, 324 N.J. Super. 412, 418 (App. Div. 1999).

Plaintiffs claim that the improvement to the cottage would be nothing more than a mere convenience to the general public. They support their argument with our decision in Saddle Brook Realty, supra, in which, finding that a variance allowing a proposed fast food restaurant in a strip mall was not warranted, we concluded that the fast food restaurant "would be a convenience to some customers of the existing retail stores[,]" and that "such a convenience does not constitute 'an inherent benefit to the general welfare' that can support the finding of 'special reasons.'" 388 N.J. Super. at 77-78 (citation omitted).

We do not consider our decision in Saddle Brook Realty to be dispositive here. The variance there concerned a commercial property in a strip mall, where fast food restaurants were prohibited. It is factually dissimilar to the situation at hand. And significantly, the Saddle Brook Realty court determined that the particular strip mall was not particularly suitable for a fast food restaurant. Id. at 78. Here, as we will discuss, the Board properly concluded that defendants' property, and the proposed improvement on the property, were particularly suited for the proposed use.

Plaintiffs claim that the Board's findings that special reasons included aesthetic improvements and promotion of appropriate population densities were arbitrary, capricious and unreasonable. Although we agree with plaintiffs that the Board's finding relating to population densities was not supported by the record, the aesthetic improvement that would be accomplished by the construction of the cottage qualifies as a special reason.

One purpose of zoning laws is to "promote a desirable visual environment through creative development techniques and good civic design and arrangement." N.J.S.A. 40:55D-2i. Indeed, an aesthetic improvement alone may constitute a sufficient special reason to justify a variance. Cf. Burbridge, supra, 117 N.J. at 387 ("[A]esthetic improvement alone can be a sufficient special reason to justify a variance to expand a pre-existing nonconforming use."). In making this determination, aesthetic benefits are to be "weighed against the extent of the expansion." Id. at 390.

Here, aesthetic improvements were a valid special reason and supported by the record. The Board noted that the proposed structure would be more architecturally attractive and that the presence of an on-site employee will assist in the "maintenance and visual appearance of the site." Nevertheless, as we have indicated, aesthetic improvement was not the only special reason found by the Board.

III

Plaintiffs argue that the record did not support the Board's finding that the property was particularly suited for the proposed caretaker's cottage, see Medici, supra, 107 N.J. at 4, and that the Board acted arbitrarily in so finding. We disagree.

The Board specifically found that defendants' property was "particularly suitable and suited for the proposed use/structure." It noted:

[T]he facts detail that subject property is a large river front estate, with a main house of approximately 21,253 [square feet] and very extensive and manicured landscaping and grounds. At 10.4 acres, the property is one of the largest properties in the Borough and the second largest in the entire R1 zone, and is the largest of the Navesink River front estate properties along River Road. There is an existing structure, in poor and outdated condition, that is to be replaced by the more architecturally attractive and compatible proposed structure. The proposal does not increase the number of structures on site, and would likely reduce the number of structures that could be located on the property if the existing structure was merely renovated and an additional storage/maintenance equipment structure was proposed. The structure is sufficiently distant from the street or river so as not to be visible from those locations. There will also be enhanced landscape screening and buffer plantings provided so as to decrease the visibility of the structure from the two adjoining properties, including [plaintiffs'] Lot 14. [These] combine[] to make this property particularly suitable for the proposed accessory residential structure for a caretaker residence.

The record supports these findings. The property is 10.4 acres and reaches from River Road to the Navesink River. The properties on the north side of River Road, such as this property, are estate properties. Defendants' property is the largest property in the R-1 zone north of River Road.

The proposed structure would be located at the site of the existing structure. Liotta testified that the proposed building would be "in a sunken area and . . . hidden to some extent from the neighboring properties," making the actual location on the parcel particularly suited for this structure.

The Board accepted this testimony as persuasive in finding that the property and its location were particularly suitable for defendants' proposal. The size of the property, and the existence of an old, dilapidated structure on it, were valid reasons to support the Board's decision. Given the level of deference owed to the Board, and particularly to its knowledge of the characteristics of the Borough of Rumson, see Fallone, supra, 369 N.J. Super. at 561, we find no basis to disturb the Board's findings.

Plaintiff argues that defendants were required, and failed, to show that there was a need for the proposed caretaker's cottage in the municipality. Plaintiffs rely, at least in part, on our decision in Funeral Home Management, Inc. v. Basralian, 319 N.J. Super. 200 (App. Div. 1999). There, we "found peculiar suitability special reasons exist where, generally, the use is one that would fill a need in the general community, where there is no other viable location, and where the property itself is particularly well fitted for the use either in terms of its location, topography or shape." Id. at 210. Nonetheless, we do not construe Basralian to require an applicant for a variance to prove a community need for the proposed use. That is not a requirement of either N.J.S.A. 40:55D-70d or the controlling case law. See New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 6 (1999) (simply stating that "to satisfy the positive criteria, an applicant must prove that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use"); Ward v. Scott, 16 N.J. 16, 22 (1954) (upholding a use variance in part because the planned development "is designed to meet current needs of nearby areas which have already been developed and future needs of other areas which have not yet been developed"). While the surrounding community's need for a certain use variance may weigh in favor of granting an application, such a showing is not necessary, as long as special reasons are otherwise demonstrated.

IV

We next address plaintiffs' argument that the Board erroneously found that defendants failed to establish the negative criteria because they did not demonstrate the "enhanced quality of proof . . . that the grant of a use variance is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Medici, supra, 107 N.J. at 4.

The MLUL provides:

No variance or other relief may be granted under the terms of this section, including a variance . . . involving an inherently beneficial use, without a showing that such variance . . . 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.

[N.J.S.A. 40:55D-70d.]

Plaintiffs do not argue on appeal that defendants failed to show that the variance may be granted without substantial detriment to the public good. Rather, they assert that defendants did not make an enhanced showing that the grant of the use variance is not inconsistent with the intent and purpose of the master plan and zoning ordinance. Medici, supra, 107 N.J. at 4.

The Board found that the 1990 changes to the zoning code did not prohibit it from granting variances for accessory residential structures. It explained the history of accessory residential structures in the R-1 zone. It found that "[t]he allowance and encouragement of such accessory residential structures . . . was part of the history and character of the Borough and resulted in much of the diversity in housing stock in the Borough that still exists today."

The Board also found, when considered in the context of the history of the area, that the governing body was concerned, when passing the amendment, that "the blanket allowance of accessory residential structures in numerous zones . . . was becoming too liberal and prone to development abuses," and that they "were . . . becoming subject to overdevelopment because of the rapidly increasing value of housing stock and rents in Borough property." The Board found that the zoning change "grew out of the recognition that the extensive further relatively uncontrolled allowance and development of such accessory residential units . . . could lead to adverse alteration to the character of the Borough and its housing stock." The Board stated that the governing body "did not intend that such structures could never be approved in uniquely suited circumstances under the properly applied variance authority of the Zoning Board." Finally, the Board found that variance approval was appropriate in a case, such as this, where "the property is large and uniquely suited and such an accessory caretaker residence is needed and appropriate."

Liotta testified that the governing body changed the ordinance "because [it was] attempting to reduce the proliferation of rental units to people who were unrelated to the property owner." He also testified to the uniqueness of the area, given the large estate properties between the road and the river. He testified that "master plan principle number two" was satisfied, which referred to the "most appropriate use of land consistent with the neighborhood character and its suitability for development." Board member David Murphy noted that the change was made with the understanding that the zoning board may grant variances on case by case bases.

"[P]lanning boards are granted 'wide latitude in the exercise of the delegated discretion' due to their 'peculiar knowledge of local conditions,'" and "local officials are 'thoroughly familiar with their communities' characteristics and interests' and are best suited to make judgments concerning local zoning regulations." Fallone, supra, 369 N.J. Super. at 561 (citations omitted). Based on the record before the Board, we do not conclude that the Board's findings as to these issues were arbitrary or unreasonable. Defendants have a 10.4-acre lot in a zone providing for a minimum lot size of 1.5 acres. Nine other properties located between River Road and the Navesink River have accessory residential structures. The Board discussed the zoning history and the nature and character of defendants' neighborhood in finding that granting the variance was appropriate. This court owes deference to the Board's findings.

V

Next, we briefly address plaintiffs' argument that the Board erroneously found that the existing pool house constituted a preexisting, nonconforming residential structure. We conclude that based on the testimony of Labrecque and Wrightson, the Board properly found that the building had a preexisting, nonconforming status as an accessory residential structure, and that the use had not been abandoned. The Board properly considered the way in which the existing pool house has been used, both before and after the change in zoning. See Kramer, supra, 45 N.J. at 293. In any event, we agree with the Board's conclusion that "'special reasons' for approving this 'd' variance for the proposed accessory residential structure/use for a caretaker's residence exist without regard to whether the structure had a preexisting status as a nonconforming accessory residential structure/use."

VI

Finally, we turn to that portion of the cross-appeal that challenges the trial judge's order denying defendants' motion to disqualify the Ansell firm. As we indicated, we believe the judge erred in finding that no conflict of interest existed.

Whether a conflict of interest exists is a question of law and is entitled to plenary review. J.G. Ries & Sons, Inc. v. Spectraserv, Inc., 384 N.J. Super. 216, 222 (App. Div. 2006). The Rules of Professional Conduct (RPC) provide: "A lawyer who has represented a client in a matter shall not thereafter represent another client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of the former client unless the former client gives informed consent confirmed in writing." RPC 1.9(a).

"When lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by . . . RPC 1.9 . . . ." RPC 1.10(a). "[T]his provision 'applies a per se rule of imputed disqualification to lawyers currently practicing together in close association, without regard to whether there has been an actual sharing of client confidences. This situation presents the clearest case for imputed disqualification, and therefore the strictest rule is applied.'" Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 217 (1988) (quoting G. Hazard and W. Hodes, The Law of Lawyering 191 (1986)).

A motion for disqualification also "calls for [the reviewing court] to balance competing interests, weighing the 'need to maintain the highest standards of the profession' against 'a client's right freely to choose his counsel.'" Dewey, supra, 109 N.J. at 218 (citations omitted). "However, '[o]nly in extraordinary cases should a client's right to counsel of his or her choice outweigh the need to maintain the highest standards of the profession.'" Herbert v. Haytaian, 292 N.J. Super. at 426, 438 (App. Div. 1996) (quoting Dewey, supra, 109 N.J. at 220). Such determinations are fact-sensitive. Dewey, supra, 109 N.J. at 220.

Here, in 2000, defendants retained Richard Brodsky of the Ansell firm "for advice and representation on a zoning application to the Rumson Board of Adjustment." Peter Dawkins certified that he did so for advice regarding the zoning issues relating to the demolition of the pool house and construction of a caretaker's cottage. Brodsky and defendants discussed concerns of both plaintiffs and the Eisenbergs about the issue. He was involved with developing a strategy to obtain the necessary variances from the zoning board. Defendants' relationship with Brodsky ended on May 27, 2003.

Katich was retained by plaintiffs in 2006 to represent them in appealing the Board's decision to grant variances relating to the caretaker's cottage. On remand, Thomas J. Hirsch had represented plaintiffs before the Board, but after the Board granted the variance, defendants retained Katich.

The services rendered by the Ansell firm to both plaintiffs and defendants involved the same property, proposal, zoning restrictions, objectives, and neighbors. Although plaintiffs retained the Ansell firm's services only for appeal and review of the Board's decisions, it is an appeal of the same matter for which the Ansell firm had provided defendants counsel. A conflict exists under RPC 1.9(a) and 1.10(a) warranting disqualification.

In sum, we affirm the Board's decision granting the variance. The cross-motion seeking enforcement of the purported settlement agreement is moot. We reverse the order denying defendants' motion to disqualify plaintiffs' counsel and order that counsel is precluded from representing plaintiffs in any future proceedings regarding the subject matter of this litigation.

 

Although the Board of Adjustment is also a defendant on appeal, all references to defendants in this opinion are to Peter and Judith Dawkins.

Plaintiffs are not challenging the grant of the variances to construct a tennis court.

N.J.S.A. 40:55D-1 to -163.

(continued)

(continued)

30

A-6233-06T2

May 9, 2008