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Costello v. Planning Board of the Borough of Little Silver

A-2746-06T1 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; PERMITTED USES — A court should not second guess a land use board by ruling that a basketball court, which would not be a permitted use, is equivalent to a patio or a tennis court, which might be a permitted use.

Two property owners sought to build a basketball half-court on their property and had to apply for a variance because their lot already had undersized frontage. Their proposal for the project included soil excavation and installation of non-concrete flooring, a post for the hoop, and a post for a light for playing after dark. At the hearing before the planning board, one of the property owners testified that the court would not be used past 10:00 p.m. in accordance with noise ordinances, and that the light would not encroach on neighboring properties. On behalf of objectors, a planner testified to the effect that a basketball court was not a principal use according to the municipal code and therefore a variance would be required. A planner testified on behalf of the applicants that a basketball court was a customary accessory use to a single family house. The board held that a basketball court was a structure, not a permitted use, and denied the application.

The property owners challenged the board’s decision. The lower court reversed the denial, finding that the proposed basketball court was not a structure. It also found that it was a permitted accessory use and that there was no impact on the undersized lot frontage. The lower court pointed out that when the ordinance allowing tennis courts and paved patios was enacted, home basketball courts were not popular or frequently used. On an appeal brought by the board, the Appellate Division pointed out that if the wording of an ordinance was clear and unambiguous it was to be interpreted only according to its wording. Thus, it found that the lower court substituted its own discretion in place of the board’s regarding the definition of a permitted use. The Court also found that the lower court had incorrectly determined that a basketball court was equivalent to a patio or a tennis court. Further, the Court differentiated between a basketball hoop on a garage and the basketball half-court proposed by the property owners. As a result, the Court reversed the lower court’s decision which had reversed the board’s denial.


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