PETER MCLAUGHLIN v. HOWELL TOWNSHIP ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1129-10T4

PETER MCLAUGHLIN,

Plaintiff-Appellant,

v.

HOWELL TOWNSHIP ZONING BOARD

OF ADJUSTMENT, KAREN WILKIN

and JAMES URBANO, JR.,

Defendant-Respondents.

_____________________________________

November 1, 2011

Submitted September 20, 2011 - Decided

Before Judges Reisner and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-004919-07.

Peter McLaughlin, appellant pro se.

Ronald J. Troppoli, attorney for respondent Howell Township Zoning Board of Adjustment.

Mehr, LaFrance & Williams, attorneys for respondents Karen Wilkin and James Urbano, Jr., join in the brief of respondent Howell Township Zoning Board of Adjustment.

PER CURIAM

Plaintiff Peter McLaughlin appeals the September 23, 2010 Law Division order affirming defendant Howell Township Zoning Board of Adjustment's (the Board) interpretation of the Howell Township (the Township) zoning ordinance, which determined that a structure on defendants Karen Wilkin and James Urbano's horse farm used to house farm labor was an accessory use. Plaintiff's property borders the horse farm and his residence is twenty feet from the property line near the structure at issue here. Having considered plaintiff's contentions in light of the applicable law, we affirm.

I.

The record reflects that defendants Wilkin and Urbano own a fifteen-acre horse farm in the Township where they have been breeding and selling Frisian horses since 1999. The property has a residence, a barn and stable, a fenced paddock, and a structure formerly used as a chicken coop. In 2001, Wilkin applied to the Township for permission to convert the former chicken coop, which is about forty feet from plaintiff's property line, into an efficiency apartment for a farm laborer to live in while working on the farm. At first an employee of the Township Land Use Office informed her that farm labor housing would be a permitted accessory use; shortly thereafter, the same employee informed her that such a use would need a variance.

Rather than appeal to the Board, Wilkin received a determination from the Monmouth County Board of Agriculture that the use of the structure as farm labor housing was an accessory use to the principal use of farming. Wilkin proceeded with the renovations and a person moved into the structure to work on the farm. Thereafter, the State Agricultural Development Committee determined that the Agricultural Board did not have any statutory authority under the Right to Farm Act, N.J.S.A. 4:1C-1 to -55, to address farm laborer housing. We affirmed the agency's decision. In re Wilkin, No. A-5916-04 (App. Div. October 25, 2006) (slip op. at 13).

Subsequently, in 2007, defendant property owners sought an interpretation from the Township zoning officer concerning whether the structure was an accessory use. The zoning officer determined that the structure was not an accessory use. Wilkin and Urbano submitted an application to the Board appealing the zoning officer's determination. In the alternative, Wilkin and Urbano sought a variance in the event the Board upheld the zoning officer's decision. Plaintiff objected to both applications.

At the hearing before the Board on August 13, 2007, Wilkin testified that in 2003, after the Township first told her that the structure was a permitted accessory use, she made the necessary repairs to the structure, converting it into an efficiency apartment, got the proper permits and obtained a certificate of occupancy. Wilkin stated that she needed a person on the property to help with the approximately twenty horses as well as provide security for her very valuable animals. Additionally, their veterinarian, Dr. Klayman, testified that in his professional opinion the farm needed a full-time caretaker on the site. He also testified that it was usual for horse breeding facilities to have housing for farm laborers to provide necessary care and security for livestock, and he personally knew of many farms in the Township with similar arrangements. Upon questioning by plaintiff, the doctor stated that he had never met the man living in the structure so he was unable to confirm that the man worked directly with the horses.

The Board permitted plaintiff to cross-examine witnesses, make a statement, and submit evidence at the hearing. Plaintiff opined that the use of the structure as a residence so close to his property was an invasion of his privacy and a violation of the entire zoning plan. Plaintiff stated that he could see the structure from his residence, and he would rather be looking at the old chicken coop than have a person living so close to his home. He also attempted to introduce evidence concerning Wilkin's noncompliance with construction codes in renovating the structure, but the Board determined it was not relevant to the accessory use issue.

At the completion of the hearing, the Board unanimously voted that the structure was an accessory use permitted in the ARE-6 zone. In its resolution, the Board found that the operation of the horse breeding farm constituted an agricultural use within the definition of the land use ordinance. The Board further found that farm labor housing is "commonly, habitually, and by long practice established as reasonably associated with the primary use" as required by the definition of accessory use within this zone. In addition, the resolution stated that the proposed housing "fits well within the parameters of an accessory use." The Board also determined that the horse farm and the farm structures on the property are "related compatible buildings constituting one basic use." Moreover, the Board noted that it had previously ruled in a similar situation that farm labor housing for a caretaker on a horse farm was an accessory use. Further, the Board pointed out that it did not address plaintiff's complaints that Wilkin had construction work done on the structure without permits as the Board does not have jurisdiction over code enforcement.

Thereafter, plaintiff filed an action in lieu of prerogative writs before the Law Division challenging the Board's determination. In a September 7, 2010 opinion, the court affirmed the Board, holding that the Board's decision was fully supported by the record. The court found that the evidence before the Board showed that a structure to house farm laborers was a use customarily associated with, and both subordinate and incidental to, the principal use of horse farming. This appeal followed.

II.

On appeal, plaintiff raises the following contentions for our consideration.

1. THE LAW DIVISION'S DETERMINATION THAT AN AGRICULTURAL HOUSING UNIT IS AN ACCESSORY USE UNDER HOWELL TOWNSHIP LAND USE ORDINANCE AND DOES NOT HAVE TO MEET THE FIFTY FOOT SIDE YARD REQUIREMENT AS A PRINCIPAL BUILDING SHOULD BE OVERTURNED BECAUSE IT GOES AGAINST THE FUNDAMENTAL PURPOSE AND INTENT OF THE ORDINANCE.

2. THE LAW DIVISION'S DECISION SHOULD BE OVERTURNED BECAUSE ITS FINDING THAT THE SUBJECT STRUCTURE WAS UTILIZED AS FARM LABOR HOUSING WAS ARBITRARY, CAPRIC[IOUS] AND UNREASONABLE AND WAS NOT SUPPORTED BY SUBSTANTIAL TESTIMONY OR CREDIBLE EVIDENCE IN THE RECORD.

3. THE DEFENDANT BOARD ERRED IN ITS FINDING THAT THE SUBJECT STRUCTURE['S] NON-CONFORMING SETBACK WAS A PRE-EXISTING CONDITION.

4. THE LAW DIVISION SHOULD HAVE OVERTURNED THE DEFENDANT BOARD'S INTERPRETATION BECAUSE THE DEFENDANT BOARD FAILED TO SHOW THAT THEIR INTERPRETATION WOULD NOT BE A SUBSTANTIAL DETRIMENT TO THE PUBLIC GOOD.

5. THE PLAINTIFF WAS NOT AFFORDED SUFFICIENT LATITUDE TO ESTABLISH HIS POSITION BEFORE THE DEFENDANT BOARD OR THE LAW DIVISION.

a. PLAINTIFF WAS LED TO BELIEVE HE COULD NOT COMMENT, OFFER TESTIMONY OR QUESTION WITNESSES WITH RESPECT TO THE INTERPRETATION

b. THE PLAINTIFF WAS CUT SHORT BY THE DEFENDANT IN HIS ARGUMENT THAT THE DEFENDANT APPLICANT HAD CREATED SOMETHING THAT WAS NON-CONFORMING.

c. [THE TRIAL JUDGE] CLAIM[ED] THAT HE WAS BOUND BY THE LAW THAT WAS SET FORTH IN THE RECORD AND THAT ALL THE LAWS AND ORDINANCES HAD TO BE SET FORTH IN THE RECORD BEFORE THE BOARD OR HE COULD NOT CONSIDER THEM.

In reviewing a zoning board's decision, we are bound by the same standard as the trial court. Grubbs v. Slothower, 389 N.J. Super. 377, 382 (App. Div. 2007). A municipal board's fact finding should control if supported by substantial evidence in the record, but a court of law is not bound by the board's determination on legal matters. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). However, due to its thorough familiarity with local conditions and the community's characteristics, courts usually accord deference to a board's interpretation of its zoning ordinance. Grubbs, supra, 389 N.J. at 382. For this reason, a board's decision is presumed to be valid and will only be set aside if it is arbitrary, capricious or unreasonable. Berkeley Square Ass'n, Inc. v. Zoning Bd. of Adj., 410 N.J. Super. 255, 263 (App. Div.), certif. denied, 202 N.J. 347 (2009).

III.

The Township of Howell General Code 188-69, entitled "Agricultural Rural Estates Zones (ARE-1, ARE-3, ARE-6)" describes permitted principal, accessory and conditional uses for those zones. Section 188-69B(1) includes agricultural property as a permitted principal use. Section 188-69B(2) defines permitted accessory uses to include those uses that are "customarily incidental and ancillary to a permitted use." Plaintiff argues that the Board's determination that the structure was an accessory use failed to give due regard to the purpose of the agricultural zones, which included preservation of rural and agricultural uses. Hence, he argues, only one principal building may be erected on any lot, and farm labor housing is a second principal use, not an accessory use.

As the ordinance defines accessory use in general terms, we must consider the circumstances of the property for a determination of whether the use in question is an accessory use. See Tanis v. Tp. of Hampton, 306 N.J. Super. 588, 601 (App. Div. 1997); Shim v. Washington Tp. Planning Bd., 298 N.J. Super. 395, 400-03 (App. Div. 1997). Under the Township ordinance the accessory use must be "customarily incidental and ancillary" to the permitted use. As we have previously held, "incidental" in this context incorporates two concepts: the use must be minor in significance compared to the primary use and the use in question must bear a reasonable relation to the primary use. Charlie Brown of Chatham v. Bd. of Adj. of Chatham Tp., 202 N.J. Super. 312, 324 (App. Div. 1985). By allowing "customarily incidental" accessory uses, an ordinance impliedly permits "any use that logic and reason dictate are necessary or expected in conjunction with the principal use of the property." Wyzykowski, supra, 132 N.J. at 519. Accordingly, our inquiry must be whether the claimed accessory use bears a close resemblance and obvious relationship to the main use. Ibid.

The Board made specific findings in its resolution that farm labor housing is commonly, habitually and by long practice established as reasonably associated with the primary use of a horse farm. Wilkin presented expert testimony to demonstrate that most of the farms in the area had labor housing on their property due to the unique needs of horse farming. We are satisfied that the Board's determination, that the structure's use as farm labor housing was reasonably associated with the primary use of horse farming and, thus, such use constitutes a permitted accessory use to the present farm use, is amply supported by the record. Plainly, allowing horse farming as a principal use implies that farm labor might need to be housed on the property. Hence, we reject plaintiff's argument that the Board acted arbitrarily or capriciously in making that decision.

Plaintiff's request for the Board to determine whether the structure was an accessory use was made pursuant to N.J.S.A. 40:55D-70(b), which permits the Board to "[h]ear and decide requests for interpretation of the zoning . . . ordinance." "Once made, the board's decision is final and binding as to all interested parties, including enforcement officials, unless successfully appealed." Colts Run Civic Ass'n v. Colts Neck Tp. Zoning Bd. of Adj., 315 N.J. Super. 240, 246 (Law Div. 1998); see also DePetro v. Tp. of Wayne Planning Bd., 367 N.J. Super. 161 (App. Div.), cert. denied, 181 N.J. 544 (2004). As the Board's interpretation eliminated the necessity of considering Wilkin's alternative request for a variance, we reject plaintiff's argument that the Board's decision was erroneous for failing to make the necessary findings for granting a variance.

After having carefully reviewed that record, we conclude that plaintiff's remaining arguments are without merit sufficient to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.