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Adams v. Delmonte

March 26, 1998

DONALD ADAMS, LINDY FOOTE *FN1 , WILLIAM H. GARRISON, SR., JEAN REDSTONE, JAMES WHITESELL AND DAVID COUTCH, PLAINTIFFS-APPELLANTS,
v.
PAUL L. DELMONTE, TOWNSHIP OF UPPER PITTSGROVE, ZONING BOARD OF ADJUST- MENT OF TOWNSHIP OF UPPER PITTSGROVE, PLANNING BOARD OF UPPER PITTSGROVE TOWNSHIP, AND ROBERT GERLACK, ZONING OFFICER, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Salem County.

Before Judges Havey, Newman and Bilder.

The opinion of the court was delivered by: Havey, P.j.a.d.

Argued February 17, 1998

In this land-use litigation, defendant Zoning Board of the Township of Upper Pittsgrove determined that defendant Paul L. DelMonte's septic tank cleaning business, operated out of his residence, was a "home occupation" qualifying as a conditional use under the Township's zoning ordinance. Eight months later, the defendant Planning Board granted DelMonte's conditional use application.

Plaintiffs, DelMonte's neighbors, challenged both the Zoning Board's interpretation of the ordinance and the Planning Board's conditional use approval. The trial Judge concluded that plaintiffs' challenge to the Zoning Board's determination was time-barred under R. 4:69-6(b)(3). The Judge also upheld the Planning Board's grant of the conditional use permit to DelMonte, rejecting plaintiffs' contention that the Township's conditional use ordinance was unconstitutionally vague. We hold that, while plaintiffs' complaint challenging the Zoning Board's decision was untimely, the trial Judge should have invoked the "interest of Justice" exception under R. 4:69-6(c). We also conclude that, on the stipulated facts, DelMonte's septic tank cleaning service is not a "home occupation." Accordingly, we reverse and remand the matter for the entry of judgment in plaintiffs' favor.

DelMonte's property, approximately thirty acres, is located in the LR-CL zone (low density residential-cluster option). The zone embraces a wooded, environmentally-sensitive area. The purpose of the zone is to restrict concentrated development which may have an adverse impact on the environment. Permitted uses include agriculture and single-family dwellings on two-acre lots. The ordinance permits a variety of conditional uses, including recreational facilities, nursery schools, health care facilities and libraries. All conditional uses are subject to certain general standards, not directly pertinent to the issues before us.

Home occupations are also among the permitted conditional uses. The ordinance defines a "home occupation" as:

An occupation or profession which is clearly incidental to the use of the lot and dwelling for residential purposes and which complies with the standards and requirements of the Zoning Chapter.

A home occupation is permitted only as a "conditional accessory use for a single family detached dwelling unit[.]" The home occupation must be operated by a family member, have no more than two nonresident employees, and utilize no more than twenty-five percent of the gross habitable floor area of the residential structure. Further, no more than one sign is permitted on the residential lot identifying the home occupation. The residential character of the lot and building shall not be changed by the profession, business or service operated by the owner, and "o occupational sounds shall be audible at any property line . . . ."

DelMonte, who has been in the business of cleaning septic tanks since 1959, purchased the subject property around 1992. It is improved with a single-family dwelling and an out-building for the storage of equipment. DelMonte keeps a small number of cattle, hogs and chickens on the property and farms approximately twenty acres.

Responding to neighbors' complaints, Zoning Officer Robert Gerlack inspected DelMonte's property in May 1994. He observed three tank trucks, and learned that at least one other person was working with DelMonte in the septic tank cleaning business. Gerlack advised DelMonte that his business was a home occupation and instructed him to apply to the Planning Board for a conditional use permit. The Planning Board declined to consider the application since there had been no determination by the Zoning Board respecting the correctness of the Zoning Officer's interpretation of the home occupation provision of the ordinance. The Planning Board did not retain jurisdiction.

The matter was presented to the Zoning Board as an appeal from the Zoning Officer's interpretation of the ordinance. See N.J.S.A. 40:55D- 70a. At the September 22, 1994 Zoning Board hearing, DelMonte stated that his business utilized two operating tank trucks, and that he had one inoperable tank truck on the premises. His business consists of taking phone calls in his house from potential customers and then dispatching one or both of the trucks, which usually start out around 8 a.m. and finish between 3 p.m. and 6 p.m., with occasional late night emergency calls. DelMonte has one other employee. He acknowledged that on occasion he had transferred sewage into the inoperable truck. However, he stated that he ultimately takes the sewage to the County Utilities Authority. He denied storing the sewage waste overnight.

Several neighbors testified, complaining of noise in the early morning, sometimes starting at 3:30 a.m., from truck traffic entering and leaving DelMonte's property as often as seven times a day. One neighbor complained of a "chemical-type smell" emanating from the premises. Plaintiff, Charles Lindefoot, testified that after noticing an "awful smell of sewage," he went to DelMonte's property and observed "sewage dumped on the ground next to the woods near my property." Lindefoot was deeply concerned about the dumping because of a nearby stream which runs through the neighborhood. Plaintiff, Donald Adams, testified that he had observed a transfer of sewage product from a "honey wagon" to a black trailer on DelMonte's property. At one point during Adams' testimony, a question was raised concerning the number of gallons of septic waste being hauled to and from the site.

By resolution dated October 27, 1994, and published on November 9, 1994, the Zoning Board upheld the decision of the Zoning Officer that DelMonte's enterprise was a home occupation. The Board found in part:

Thus, the Board has based its decision on the use of two "tanker" trucks by Mr. DelMonte, the fact that he has two non-resident employees, will construct no separate office or facilities to be used in his septic business and that he will not store or transfer septic waste on the property. Under these facts, the Board concludes that the proposed use falls within ...


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