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Township of Lebanon v. Hunterdon County Board of Construction Appeals

2006 WL 1027656 (N.J. Super. Law Div. 2006) (Unpublished)

ZONING; VARIANCES — Where applicable federal regulations treat a cottage and its related bed and breakfast inn as one building, it is not improper for a land use board to rule that a construction official is wrong when he or she strictly interprets a zoning variance to require the inn manager to reside in the cottage under the theory that the two structures are, for absolutely all purposes, two separate buildings.

A property owner successfully applied to the municipal board of adjustment to convert its property from residential use to a bed and breakfast inn. The resolution granting the variance limited the bed and breakfast inn to five rooms of double occupancy and recognized that the manager would reside in a cottage located on the property. The property has only one driveway, one septic system, one water well, and linked electronics and telephone systems. The municipality’s construction official refused to issue a certificate of occupancy when he found out that the manager intended to live in the inn, not the cottage. After the County Board of Construction Appeals reversed the municipal construction official’s denial of a certificate of occupancy, the municipality sued, claiming that the federal Americans with Disability Act (ADA) required the inn to accommodate people with disabilities. The county board believed the bed and breakfast inn was exempt from the ADA.

In its capacity as a reviewing court, the a court may review a county board’s legal conclusions and interpretations of the ADA de novo. Here, the issue before the Court was whether the word “building” as used in the regulations promulgated pursuant to the ADA, is fixed or open to interpretation. The regulations exempt inns with five or less rooms and in which the manager resides from ADA compliance. The County board had interpreted the word “building” to include the separate cottage. Under that interpretation, as long as the property owner lived in the cottage, the inn would be exempt from ADA compliance. The Court found no reason behind requiring the manager to live in the inn as opposed to a cottage on the same property. It could not see what would be accomplished in terms of providing more protection to persons with disabilities if the property owner relocated to the inn. Further, considering the federal interest in interstate commerce, the Court did not see any change if the property owner lived in the cottage or in the inn. It was bound to accept federal agency interpretations of its own regulations and statutes, and the applicable federal regulations treated the cottage and the inn as one building. Therefore, the county board decision was sustained and the municipal construction official was ordered to grant the certificate of occupancy.

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