Skip to main content



Dreskin v. Zoning Board of Adjustment of the Township of Jackson

A-3168-09T3 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; HOME OCCUPATIONS — Where a land use board does not arbitrarily, capriciously or unreasonably determine that a particular property falls within the municipal ordinance’s definition of a “home occupation,” a court will give deference to such a decision if the decision is supported by the record.

The owner of a house and pole barn, located in a residential zone, sought zoning board approval to use the pole barn as a wrestling school. A neighboring homeowner objected. The issue raised was whether a wrestling school could be permitted as a “home occupation” under the municipality’s zoning ordinance. Basically, the zoning ordinance described a home occupation as: (1) Where one or more members of the resident family, derived, entirely or partly, a means of livelihood from the occupation; (2) the occupation would be a clearly secondary accessory to the primary residential use of the principal structure on the property; and (3) the occupation could be pursued in either the principal dwelling or in a secondary building, accessory to the principal dwelling. If it qualified as a home occupation, then the business would need to meet certain other conditions of the zoning code, the relevant condition in this case being that “[t]he home occupation shall not adversely affect property owners or interfere with their quiet enjoyment of their property.”

Because of the requirement that the home occupation not interfere with other property owners, the applicant sought a conditional use variance. In addition, the applicant also “requested a waiver of a site plan requirement because the pole barn was in existence and in use.” After hearing testimony considering various exhibits, the zoning board approved the application and the site plan waiver. The neighbor appealed and the lower court, in a “comprehensive nineteen-page written opinion, following a de novo review of the record [] found that the Board’s decision to grant the variance and waiver of site plan was not arbitrary, capricious, or unreasonable. The [lower court] concluded that the wrestling school [was] permitted as a ‘home occupation,’ provided that” various conditions were met.

The neighbor was still not satisfied and took a further appeal. In that appeal to the Appellate Division, the neighbor argued “that the wrestling school [was] not cognizable as a ‘home occupation’ and that the applicant failed to establish the standards for a conditional use variance.” The Court disagreed. In doing so, it deferred to the zoning board, as was required of the lower court as well. Unless a municipal body’s action is arbitrary, capricious or unreasonable, courts are obligated to give deference to land use board decisions if supported by the record and “not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion.”


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com