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Columbro v. Lebanon Township Zoning Board of Adjustment

HNT-L-469-10 (N.J. Super. Law Div. 2011) (Unpublished)

VARIANCES —When a zoning ordinance has only been recently amended to expand the permissible use for a property, a land use board should be reluctant to grant a variance that would permit a further expansion of the same use.

A welding business applied to a municipality’s board of adjustment for variances from three of ten applicable standards that governed home occupations as a conditional use. The standards limited the gross floor area of buildings devoted to the accessory use to 2,000 square feet, allowed no more than two non-residential employees on site, and required that all work activities be conducted indoors. The variances were needed because the welding business required outside storage for gas canisters and a rack for leftover metal, and the owners of the business wanted to have three employees on site. Further, the size of the garage building was 2,150 square feet.

Hearings were conducted over several days. Expert testimony was offered as to the variances sought, and the board members individually visited the site and the neighboring properties. The board voted that the use was a valid home occupation and granted all three variances. The owners had testified that the three employees on site would be there, perhaps, 10% of the time; that there was no light nuisance at the property line; and that noise levels would be basically in compliance with state standards and created no nuisance. Additionally, the owners stated that some of observed truck movement on site was related to their own private property or was a backhoe for personal use on the site. Lastly, they stated that while some work had previously been done outdoors, now all of it was being done indoors with the doors closed.

Expert testimony offered that the business was indeed an incidental use of the property. The home and its driveway, play areas, and a lake around it, all constituted residential uses separate from any business. The owners had testified that 90% of the business’s work was done offsite, and that only one commercial van was situated at the residence. The board also heard testimony that a berm had been installed along the rear boundary of the property and a shield had been placed over an allegedly offending light on the garage. Board members testified that their personal inspection of the site did not reveal any offending fumes or odors. Additionally, the board’s planner testified that there had been no nuisance violations at the site.

First, the board found the location was properly classified for a conditional use variance, and there was no nuisance factor which would intrude on neighboring properties. The board then addressed whether the requested variances could be reconciled with the original policy decision to permit home occupations in the residential zone. The board found that the difference between the 2,000 square feet maximum and the building’s actual 2,150 square feet was minimal, the existence of three non-resident employees working mainly offsite did not change the character of the use, and the extent of materials stored outside was not significant. The board also concluded the use did not have a negative impact on the surrounding properties and did not impair the residential zone plan.

The neighbors sued to challenge the board’s finding that the business was a permitted accessory use, and the board’s grant of the three variances. As to whether the business was a proper accessory home use, the Court found the board could consider the credibility of all offered testimony, both witness and expert, including its own personal experience, as to whether the site presented a viable nuisance in its weighing of evidence. The Court held that it was in the board’s province to decide whether there was any nuisance or significant external impact by reason of noises, odors or excessive trucking at the site. It also held that it was not arbitrary for the board to conclude that the area occupied by the residential use encompassed areas of the property other than the 1,676 square feet of the house, such that the 9,000 square feet allocated to the business use had to be understood in the context of the residential use of the great bulk of the property.

As to the variances, the Court pointed out that variances from a conditional use require a lesser showing than what is imposed on an applicant for a totally new use, and that in evaluating the grant of a variance, courts must defer to the experience and expertise of a local board of adjustment. In this matter, the Court found the board could rationally find that a 2,150 square foot building was a minimal size deviation that would not likely engender a highly increased amount of activity such as to cause a significant impact on neighboring properties.

The Court also found the board’s grant of the variance allowing some outside storage activities to be reasonable because its decision was based upon evidence of the carefully controlled and confined minimal use on a site that was largely screened so as to have minimal effect on surrounding properties.

The Court, however, held the board’s decision to permit three employees on site to be arbitrary and capricious, as the governing home occupation ordinance had only recently been amended to allow two rather than one non-resident employee on site. The court was mindful of the owner’s testimony that even during the slowest business period the three employees were each on site only 32 hours a week. Despite the owner’s testimony that the three employees would be on site only 10% of the time going forward, the court was concerned as to how to enforce the amount of time an employee would work on site versus working off site.

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