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Gooch v. Dawkins

A-6233-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; USE VARIANCES — A land use board can properly decide that granting a use variance allowing a secondary structure to be used as a dwelling in a residential zone would be a benefit to the neighborhood because of the presence of a caretaker and maintenance equipment on the applicant’s property, thereby negating the need of traffic to and from the property for maintenance purposes.

Two property owners owned a large estate where their home and a pool house stood. According to a municipal ordinance, secondary structures could not be used as dwellings in a residential zone. Thus, the property owners sought a variance for the removal the pool house and to build a cottage for the property’s caretaker. The proposed cottage, which also included a garage for storage of maintenance equipment, was to have more floor area than, but would not be as high as, the pool house. The caretaker’s responsibilities consisted mainly of providing maintenance and security for the property.

The municipal zoning board, over the objections of a neighbor, granted the variance. Additionally, the board found that the pool house had a preexisting status as a non-conforming use and that for forty years the former owner of the property had used it to house guests during the summer months. In an action brought by the neighbor objecting to the board’s granting of the variance, the lower court affirmed the board’s decision to grant the variance and found that there was no basis to conclude that the non-conforming use had been abandoned.

On an appeal by the neighbor, the Appellate Division pointed out that municipal boards were given discretion in reaching their decisions because of their special knowledge of local conditions. It also pointed out that in determining whether to grant a variance, municipal boards were required to find that special reasons existed for the granting of the variance and also that there would be no detriment to the public good or impairment of the zoning plan if a variance is granted. The Court added that special reasons for granting a variance included the criteria of serving the public good. In this case, it agreed with the board’s findings that granting the variance would benefit the immediate neighborhood because the presence of the caretaker and maintenance equipment on the property such as tractors and snow removal equipment, negated any need for traffic to and from the property owners’ estate for maintenance purposes. The Court also agreed with the board’s findings that the caretaker’s presence enhanced security and that the proposed cottage was an aesthetic improvement over the pool house, finding that the board properly decided that the property was particularly suited for the proposed use due to its size and extensive maintenance requirements. It affirmed the board’s granting of the variance.

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