JEFFREY MADOLE v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF HOWELL

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4076-06T24076-06T2

JEFFREY MADOLE and

LYDIA IAVARONE,

Plaintiffs-Respondents,

v.

ZONING BOARD OF ADJUSTMENT

OF THE TOWNSHIP OF HOWELL,

Defendants,

and

ROBERT SCHMIDT and

JUDY SCHMIDT,

Intervenors-Appellants.

___________________________________________________________

 

Argued February 11, 2008 - Decided

Before Judges Lintner, Graves and Alvarez.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, L-3725-06.

Michele R. Donato argued the cause for

appellants.

Robert A. Rothstein argued the cause for

respondents (Rothstein, Mandell, Strohm &

Must, attorneys; Mr. Rothstein, on the

brief).

PER CURIAM

After the Howell Township Board of Adjustment (Board) denied their application for a use variance to operate "a dog obedience training facility," plaintiffs Jeffrey Madole and Lydia Iavarone filed a complaint in lieu of prerogative writs alleging the Board's decision "was arbitrary, capricious and unreasonable." Following a bench trial, the court entered an order on February 28, 2007, granting the variance and imposing conditions. On appeal, intervenors Robert Schmidt and Judy Schmidt contend the Board's decision was sound, and the trial court erred by substituting its judgment for that of the Board. Because we agree the Board's decision should have been sustained, we reverse the order entered by the trial court.

Plaintiffs reside at 319 Oak Glen Road in Howell Township, Monmouth County, on a 3.67-acre lot (the property), which is owned by Lydia Iavarone. The property is designated as lot 40 in block 41 on the tax maps, and it is located within an ARE-6 (Agricultural Rural Estate) Zoning District, which requires a minimum lot area of six acres. The purpose and permitted land uses in the ARE-6 zone are as follows:

188-69. Agricultural Rural Estate Zones (ARE-1, ARE-2, ARE-3, ARE-6).

A. Purpose. The purpose of the ARE-1, ARE-2, ARE-3 and ARE-6 Zones is to minimize the impacts of development in areas located outside of the centers identified in the Township's Master Plan. The goals include preservation of rural and agricultural uses and preservation of rural character. Many areas include significant environmental constraints, including wetlands, floodplains, rare and endangered species habitats, aquifer recharge areas and high quality watersheds.

B. Permitted uses.

(1) Principal uses.

(a) Agricultural and horticulture.

(b) Single-family residences.

(c) Municipal buildings and other public purpose buildings owned by the Township, as well as quasi-public uses limited to fire stations and first-aid buildings.

(d) Community residences for the developmentally disabled and community shelters for victims of domestic violence that contain less than six occupants.

(2) Accessory uses.

(a) Accessory uses customarily incidental and ancillary to a permitted use.

(b) Home occupations as regulated in this chapter.

(3) Conditional uses.

(a) Houses of worship.

(b) Schools with state-approved curricula.

There is a one-story residential dwelling on the property, together with, "an above ground private swimming pool with deck and an accessory shed structure," "[a] wood frame kennel with a concrete pad and fenced pen areas to the rear of the dwelling," and "[a] wood frame garage structure and 2 wood frame kennels with various fenced pen areas attached to the buildings." Plaintiffs own nine dogs, some of which were rescued from various shelters. These dogs are all properly licensed, and they do not violate any Township ordinances. Plaintiffs also own two donkeys, two pygmy goats, three pot-bellied pigs, and fourteen cats. The area surrounding the property is similarly zoned ARE-6, and consists primarily of a church and a 7.793-acre lot containing the single home dwelling and horse farm of the intervenors, Robert and Judy Schmidt.

Jeffrey Madole is a dog trainer who has operated in the Howell Township area for many years. In 2003, he began training dogs on the property under the name True Companion Dog Training. Typically, private clients would allow their dogs to remain on plaintiffs' property for ten to fourteen days, during which time they would receive basic obedience skills training. Plaintiffs have also trained some dogs to be companions for children with autism. However, it was acknowledged by plaintiffs' attorney that the training of dogs for autistic children was "still [for] private clients" and not "charity work."

On April 30, 2004, the Howell Township Code Enforcement Official issued the following complaints and summonses to plaintiffs: (1) "Failure to obtain a variance to operate dog training center (True Companion)"; (2) "Operating a dog training center (boarding dogs) without obtaining a kennel license"; (3) "Failure to obtain developers permit and building permit for construction, erection, or alterations for dog training center"; and, (4) "Use not permitted within the ARE[-]6 zone." These summonses were apparently held in abeyance pending the outcome of the variance application proceedings. After receiving the complaints and summonses, plaintiffs "ceased business," and they sought a use variance to operate a dog obedience training facility.

Hearings were held by the Board on April 10, 2006, and June 26, 2006. At the April hearing, plaintiffs' engineer and planner, William Stevens, testified that plaintiffs' proposed use conformed "with the tenor of [the township's] master plan and their zoning ordinance[s]." Stevens described the master plan of the ARE-6 zone as permitting uses that were "agricultural" and "very low-density." He further stated,

the site is particularly suited to the use because of the low-density area or neighborhood that we are in, there are very few residential dwellings that would be affected by this particular use. And as I said earlier, the use should the Board grant this variance, will remain basically unchanged from the use that is there now. There will be a very [negligible] change that I don't believe will be noticeable.

Additionally, Stevens noted there was adequate parking for plaintiffs' expected clientele to drop off and pick up their dogs; no outside employees would need to be hired; and the plaintiffs' premises were properly fenced.

During the public comment portion of the meeting, several individuals indicated they were concerned that plaintiffs' commercial venture would have a negative impact on the quality of their lives and the value of their property. For example, Connie Kirman, daughter of the intervenors, testified plaintiffs' use of their property to house dogs was an "existing hell for . . . [the] three years that they've been doing what they are doing." She also stated she could no longer ride or board her horse at her parents' farm due to excessive barking and training activities. Her mother, Judy Schmidt, complained of "multiple barking dogs, banging of dog kennels 7:30 in the morning til 9 o'clock at night. . . . [g]unshots, training gun dogs, yelling commands while training. . . . [and d]ogs charging and barking at our horses." Robert Schmidt testified "the resale value [of their home] would be quite a bit less if we had a kennel next door," and he noted there was "no pressing need in Howell for another kennel/training facility" because "[t]here [are] thirteen of them listed as boarding facilities . . . [and] seven as training facilities."

Stoney Douthitt, a pastor who resided in the church rectory next to plaintiffs' property also testified at the April 10, 2006, hearing. He stated he never had a problem with odor emanating from plaintiffs' property, never had any complaints about barking by plaintiffs' dogs, and never heard any gunshots coming from plaintiffs' property.

At the next Board hearing on June 26, 2006, plaintiffs agreed to limit the number of dogs being trained on their property to seven dogs, in addition to the nine they already owned. Plaintiffs also agreed not to train hunting dogs or police dogs on the premises. Zig Panek, the town's certified tree expert, testified three sides of plaintiffs' property were properly "buffered" from the surrounding areas, but the southern boundary, the side facing intervenors' residence and horse farm, was "in question." Panek suggested the planting of smaller shrubs and installing a stockade fence to create a fifty foot buffer between the two properties. Moreover, according to Panek, plaintiffs were "very willing" to comply with the plan he devised. During the public comment portion of the meeting, a number of individuals objected to a commercial use being allowed in the ARE-6 zone, and the intervenors once again voiced their concern regarding the barking, increased traffic, and overall negative impact that plaintiffs' proposed commercial use would have on neighboring properties.

At the conclusion of the hearing on June 26, 2006, a unanimous Board voted to deny plaintiffs' variance application. On August 11, 2006, plaintiffs filed a complaint in lieu of prerogative writs and, following a trial on February 2, 2007, plaintiffs succeeded in overturning the Board's decision. This appeal followed.

Generally, courts recognize the discretionary power the Legislature has vested in boards of adjustment to grant or deny use variances. Booth v. Bd. of Adjustment of Rockaway, 50 N.J. 302, 306 (1967); Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965). Boards of adjustment "are thoroughly familiar with their community's characteristics and interests and are the proper representatives of its people, [and] are undoubtedly the best equipped to pass initially on such applications for variance." Ward v. Scott, 16 N.J. 16, 23 (1954); see also Kramer, supra, 45 N.J. at 296 ("[P]ublic bodies, because of their peculiar knowledge of local conditions must be allowed wide latitude in the exercise of delegated discretion."). The law, therefore, presumes a board's decision to grant or deny a variance will be made "with proper motives and for valid reasons." Kramer, supra, 45 N.J. at 296. The party challenging the decision bears the burden of proving otherwise. Ne. Towers, Inc. v. Zoning Bd. of Adjustment of W. Paterson, 327 N.J. Super. 476, 493 (App. Div. 2000).

Through the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, the Legislature has placed the discretionary authority to render variance determinations with the local boards, which possess unique knowledge of the local conditions. Kramer, supra, 45 N.J. at 296. A reviewing court may not substitute its own judgment for a board's factual determinations. Ibid. It is not the court's role "to determine if the decision was wise or unwise." Ne. Towers, Inc., supra, 327 N.J. Super. at 493; see also Kaufmann v. Planning Bd., Warren Twp., 110 N.J. 551, 558 (1988).

The court's role is limited to an examination of whether a board has the power to take the action it did and, if so, whether the decision was supported by "substantial evidence" in the record. Kramer, supra, 46 N.J. at 296. Courts may set aside zoning decisions of a local board only when arbitrary, capricious, or unreasonable. Ibid.; Scully-Bozarth Post #1817 of Veterans of Foreign Wars of U.S. v. Planning Bd. of Burlington, 362 N.J. Super. 296, 314 (App. Div.), certif. denied, 178 N.J. 34 (2003).

Under the MLUL, a zoning board of adjustment is empowered "[i]n particular cases for special reasons" to grant variances that will permit "a use or principal structure in a district restricted against such use or principal structure." N.J.S.A. 40:55D-70(d)(1). However, no variance may be granted under the MLUL "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 the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70(d).

To obtain a variance, an applicant must satisfy both the "positive," or "special reasons" criteria, and the negative criteria of the statute. Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 37 (App. Div. 2003); Ne. Towers, Inc., supra, 327 N.J. Super. at 487. Special reasons fall into three categories: (1) inherently beneficial uses, "such as a school, hospital or public housing facility"; (2) where the landowner would suffer undue hardship if the variance were not granted; or (3) where the proposed site is particularly suited for the use. Saddle Brook Realty, L.L.C. v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 75-76 (App. Div. 2006). Additionally, "the negative criteria consist of two elements: No relief may ever be granted unless it can be done (1) without substantial detriment to the public good, and (2) without substantially impairing the intent and purpose of the zone plan and zoning ordinance." William M. Cox, New Jersey Zoning and Land Use Administration 8-1, at 223 (2007).

In this case, after taking extensive testimony during two separate hearings, the Board determined plaintiffs' proposed use did not meet the enhanced proofs required of non-inherently beneficial uses under Medici v. BPR Co., 107 N.J. 1 (1987). Regarding the positive criteria, the Board found no "special reason which would benefit the general public," which would compel the Board to grant a use variance. The Board noted the plaintiffs' property, which is already undersized by zone standards, "is not especially suitable for a dog training facility [simply] by virtue of its farm-like appearance." As in Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 211-12 (App. Div. 1999), the Board recognized plaintiffs' failure to show "there was a lack of [dog training] facilities . . . in Howell Township or nearby communities." The Board also noted "that if the Township deemed facilities of these kinds to be appropriate for this Zone, it would be permitted, or at least a conditional use at this location."

The Board also found plaintiffs failed to satisfy the negative criteria necessary to grant a land use variance under N.J.S.A. 40:55D-70(d). The Board determined "there would be adverse impacts upon the neighborhood" due to an increase in traffic and noise level associated with the operation of a commercial dog training facility. Therefore, instead of promoting the "general welfare" of the public, plaintiffs' proposed use would adversely affect the "quality of life" of surrounding areas. This finding was amply supported by the testimony of the intervenors, Judy and Robert Schmidt, their daughter Connie Kirman, and other individuals who objected to plaintiffs' application.

Additionally, the Board found the proposed use was "inconsistent with other permitted uses in the zone" and the variance could not "be granted without substantial detriment to the Zone Plan, to the Master Plan, and to the surrounding neighborhood." This is supported by the lack of commercial activity in the surrounding zones, as well as the fact that plaintiffs' property is already undersized for an ARE-6 zone. Thus, the Board's findings and conclusions were based on sufficient credible evidence in the record, and the Board's decision to deny plaintiffs' application was not "arbitrary, capricious or unreasonable." Kramer, supra, 45 N.J. at 296-97.

Contrary to the trial court's finding, it is also clear plaintiffs' proposed use does not qualify as a "home office use" under 188-64 of the Howell Township municipal code. Paragraph B of 188-64 mandates that to qualify as a home office use, "[t]here shall be no exterior storage of materials," "[t]here shall be no change to the exterior of buildings or structures because of the use, and no outside appearance of a business use, including, but not limited to, parking, storage, or lights," "[t]he home office use operates solely within the residence, no outdoor activities permitted; the home office use shall not be evident from outside of the home," "[t]he use does not require any increased or enhanced electrical or water supply," and "[t]he capacity and quality of sanitary sewerage affluent is typical of normal residential use, and creates no potential or actual detriment to the sanitary sewer system or its components." Moreover, "[b]oarding and breeding kennels for dogs and cats" are explicitly prohibited from being considered a home office use under 188-64.

In this case, the animals were to be housed outside and trained in plaintiffs' yard, the plaintiffs acknowledged the need to get a separate septic tank for the animal waste, exterior pens were built for the dogs, "low level site lighting" was installed, and increased electricity was used to power air conditioning and heat in the exterior buildings where the dogs were housed. Therefore, even if plaintiffs' proposed use does not qualify as a kennel under the Howell Township municipal code, the use still fails to satisfy the conditions of a home office use in a number of respects.

We are convinced from our review of the record that the decision by the Board to deny plaintiffs' application for a use variance was not arbitrary, capricious, or a manifest abuse of its discretionary authority. Therefore, the trial court should have deferred to the Board's decision. See Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005) ("The proper scope of judicial review is not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record."). Accordingly, the order granting the use variance is reversed, and the Board's decision is reinstated.

Reversed and remanded for entry of an order consistent with this opinion.

Defendant Zoning Board of Adjustment of the Township of Howell is not participating in this appeal.

One member of the Board recused himself and one member abstained.

(continued)

(continued)

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A-4076-06T2

March 6, 2008