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Wilson v. City of Jersey City Zoning Board of Adjustment

A-6642-03T1 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; INCIDENTAL USE—Commonality and impact are two significant factors that are often determinative of whether an incidental use is customary.

A landowner sued a municipal zoning board after the board held that a tennis court he had either constructed or was in the process of constructing on the roof of his building was not a permitted use. The municipality’s Department of Housing, Economic Development & Commerce, Zoning Division (Division) initially issued a violation warning regarding the tennis court. Thereafter, the landowner “submitted a number of judicial opinions for the” Division’s review and, as a consequence, the Director of the Division released a memorandum voiding the violation, finding the landowner’s rooftop tennis court “to be an acceptable accessory use of one’s property for recreational purposes.” Thereafter, some of the landowner’s neighbors appealed the Director’s decision to the Division. Shortly after that, the neighbors, along with a member and Secretary of the Board who also served as Principal Planner of the municipal Planning Division, went before the Board and voiced their opposition to the landowner’s tennis court. The neighbors contended that: 1) the landowner’s tennis court was not expressly permitted by the relevant zoning ordinance; 2) tennis courts were forbidden from the area since their size and lot width are beyond what is permitted in the zone; 3) the tennis court and its concomitant lights and fencing would violate the height limitation for an accessory use; and 4) a variance is required since the tennis court exceeded the permitted height in the zone. The board then reversed the Division Director’s ruling.
After the board rendered its decision, the landowner went to the Law Division, arguing that tennis courts were permitted uses and that the Secretary of the Board’s staff comments were actually unsworn expert testimony that could not be property cross-examined. Thereafter, the lower court reversed the board and remanded the matter based on the ‘tainted’ testimony of the Board Secretary. Additionally, the lower court held that there was no conflict of interest “simply based on [the Secretary’s] dual-role status,” permitting her to testify on remand and finding that the landowner’s due-process right would be wholly protected so long as the Secretary was first sworn and subject to cross-examination. On remand, the Secretary argued to the board that upholding the Division Director’s decision would permit “any property owner in the ... district to construct a tennis court no matter what the size of the lot.” Subsequently, the board again voted to reverse the Division Director’s decision.

The landowner filed another complaint with the Law Division, arguing that: 1) the board deliberated insufficiently for it to make a proper decision; 2) the board didn’t follow the judge’s remand instructions; 3) the Board lacked a quorum” since two of its six members did not read the prior transcripts and reports and were therefore barred from voting; 4) tennis courts are allowable uses as a matter of law; and 5) there was insufficient evidence on the record to support the Board’s decision. The board continued to contend that, tennis courts were permitted in large lots but not small lots. The Law Division thereafter affirmed the board’s decision and the landowner appealed to the Appellate Division.

The Court held that “commonality and impact” are “[t]wo significant factors ... [that] are often determinative of whether an incidental use is customary.” Thus, the Court upheld the board’s decision, finding that “the Board’s inability to reconcile the adverse effects that a lighted rooftop tennis court would have on adjoining premises, together with [the] fact that the vast majority of the lots in the ... zone” can not sufficiently contain a tennis court, are “factual findings embodying the elements of impact and commonality essential to its decision respecting permitted accessory use.” The Court also held that the board’s findings were based on “sufficient credible evidence in the record.” Moreover, it also found that the prospective tennis court “was not an incidental customary accessory use” in the zone “because it lacked commonality and had a detrimental impact on the surrounding properties.” Further, the Court added that the board’s decision neither prohibited all recreational usage, nor prevented the landowner from seeking a use variance from the provisions of his municipality’s zoning ordinance. Finally, the Court concluded that the board’s decision was not arbitrary, unreasonable, or capricious.

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