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Pagano v. Zoning Board of Adjustment of Township of Edison

May 1, 1992

FRANK PAGANO AND TOM ZECCHINO T/A T & F OUTDOOR SPORTS, PLAINTIFFS,
v.
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EDISON, DEFENDANT



Wolfson, J.s.c.

Wolfson

WOLFSON, J.S.C.

I. Factual Background

Plaintiffs Frank Pagano and Tom Zecchino (trading as T and F Outdoor Sports) appeal from the September 17, 1991 resolution of the Zoning Board of Adjustment of the Township of Edison (the "Board") denying their application for a use variance to permit the utilization of the portion of premises located at 523 Raritan Center Parkway for a pistol range and for retail sales of hunting and fishing supplies.*fn1 The subject property is located in the L-I (PUD) zone which allows neither the pistol range nor retail sales.*fn2 A public hearing was held on June 18, 1991, at which the applicants provided the testimony of Frank

Pagano (one of the partners of T and F Outdoor Sports) and Jack Giordano (a Port Authority police officer and National Rifle Association (NRA) certified firearms instructor) in support of the variance request.

Mr. Pagano testified*fn3 that the applicants were licensed to sell firearms by both Federal and State authorities as would be all employees, and that these requirements would be continually monitored by Municipal, State, and Federal authorities. Though not a planner, he opined that the proposed location for the pistol range, in the Raritan Center, was an appropriate site due to its location away from residential areas, while being convenient to Edison residents who presently must travel to other municipalities to engage in recreational shooting. He also concluded that the operation of the pistol range was safe, noting as follows:

No more than one individual would utilize a shooting stall at one time; NRA certified officers would provide instruction and insure range safety; Range safety equipment would be installed according to the specifications of Detroit Armory, an experienced company in the installation of range safety equipment;

Special security arrangements, including a vault for the storage of the firearms, electronic sensors, as well as direct emergency access to the local police department, would be installed.

In response to concerns about the noise levels that would be generated by the proposed use, Pagano explained:

Inside the range, hearing protection (as well as eye protection) would be mandatory through the use of special equipment;

Soundproofing would be required within the facility;

Little, if any, noise would be discernible outside the range, and that the existing mechanic shop, which shared the existing structure, would be louder;

That any requirements of the health department in this context would be addressed and satisfied.*fn4

The next witness was Jack Giordano, a Port Authority police officer and NRA certified firearms instructor, who testified as follows:

The shooting range installation company, (Detroit Armory) would use "state of the art" equipment and techniques and has been recognized as being safe, clean and otherwise desirable insofar as such ranges are concerned.

The U.S. government estimates that 70 million Americans own firearms and that there is a firearm in one out of every two homes.

From 1968 to 1988 firearms accidents dropped 52 percent, primarily because of places to shoot, practicing and increased effectiveness of safety programs and training.

Legal shooting ranges enhance the safety of persons both outside and within as contrasted against the discharge of firearms in a basement or outdoors. The patrons of the range would most likely come from Edison although some would come from other areas.

The patrons would likely be good citizens.

Many police officers would utilize the range since they do not have a facility available on their own time.

Training would be provided to all employees working the range as NRA certified firearms instructors.

Several citizens also testified both in favor of and in opposition to the proposed use, although such testimony for the most part, lacked an adequate factual foundation, representing mere "opinions" or "feelings".*fn5

The public hearing was closed on August 20, 1991. Following the Board's deliberations the application was denied four

votes to three. A resolution memorializing this decision was adopted on September 17, 1991, which essentially concluded:

(1) that the applicants had failed to establish "special reasons" as a matter of law;

(2) that the use variance, if granted, would result in substantial detriment to the public good and would substantially impair the intent and purpose of the Township's master plan and zoning ordinance; and

(3) that the applicant failed to reconcile the proposed pistol range with the omission of this type of use from the L-I zone or any other district within the Township.*fn6

II. Scope of Review

In reviewing any decision of a zoning board, the court's power is tightly circumscribed. In recognition of the fact that local officials are "thoroughly familiar with their communities' characteristics and interests and . . . are undoubtedly the best equipped to pass initially on such applications for variances," Ward v. Scott, 16 N.J. 16, 23, 105 A.2d 851 (1954), the Board's decisions are cloaked with a presumption of validity, which presumption attaches to both their acts and their motives. ...


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