On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-4302-05PW.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Yannotti and LeWinn.
Defendants Peter and Judith Dawkins filed an application to the Borough of Rumson Board of Adjustment to obtain a use variance to demolish an existing pool house on their 10.4-acre riverfront property and to construct a larger accessory residential structure for the property's caretaker.*fn1 The Board granted the variance. Plaintiffs, owners of an adjacent lot, filed an action in lieu of prerogative writs challenging the Board's decision. The trial court affirmed the Board.
On appeal, plaintiffs argue that the Board arbitrarily determined that "special reasons" existed to grant the variance; that the site was not particularly suited for the proposed structure; and that the Board erroneously determined that defendants satisfied the negative criteria. Defendants cross-appealed, arguing first that a settlement agreement between plaintiffs and defendants was improperly set aside by the trial court, and second, that the trial court erroneously denied its motion to disqualify plaintiffs' law firm, Ansell Zaro Grimm & Aaron (the Ansell firm), from representing plaintiffs on appeal from the Board's decision.
We affirm the decision of the Board to grant the variance. That renders moot defendants' cross-appeal that the settlement agreement should be enforced. We reverse the trial court's order denying defendants' motion to disqualify plaintiffs' counsel; we conclude that the Ansell firm has a conflict of interest. Consequently, the Ansell firm may not represent plaintiffs with regard to the subject matter of this litigation in the future.
Defendants' property is located on West River Road in Rumson. They purchased it in 2000 from the estate of Jean Wrightson, and completed building their home in 2004. The existing accessory residence, which had a living room, two bathrooms, two dressing rooms, a bedroom, and a kitchen, was on the property when they purchased it.
Plaintiffs own an 8.4-acre property immediately to the east of defendants' property. The lot directly to the west of defendants' lot is owned by Louis Eisenberg. These properties border River Road to their front and the Navesink River to their rear.
The property is zoned R-1 residential. The minimum lot size in the zone is 1.5 acres. The applicable zoning ordinance, amended in 1990, provides: "No accessory building shall be used for residential purposes by any person or persons, including members of the family or the occupants of the principal building or domestic servants or others employed on the premises."
Defendants filed an application with the Board proposing to "construct an accessory residential structure and tennis court."*fn2
They sought to remove an existing pool and "accessory residential building," referred to as a "pool house," and to construct a "caretaker's cottage." The cottage would be for "an employee and possibly that person's family who would live there, and be on the property all the time . . . [to] monitor the utilities and the systems within the house or . . . take care of any immediate problem." The caretaker would provide security and maintenance services.
The existing pool house measures 1798 square feet, and the proposed cottage, which would be built on the site of the existing structure, would include 2189 square feet of living space and a 555-square-foot garage for two tractors, a snow removal machine, and other equipment. The existing structure is forty-one feet high, and the proposed structure would be twenty-four feet high. Arthur Hanlon, the architect of defendants' home, testified that the proposed caretaker's cottage would sit at a low elevation in a "slate bowl."
Plaintiff Michael Gooch claimed that the proposed structure would lie sixty-three feet from his property line and 150 feet from the front of his house. He objected to the location of the proposed cottage, asserting that it would result in "a negative outlook from [his] front courtyard," and that whoever lived there "would have something of a direct view right into [his] bathroom." Documents submitted by defendants indicate the closest point of the proposed cottage would be 205 feet from plaintiffs' house.
Claudia Levy, defendants' landscape architect, testified that the landscape design would include dense tree plantings that would make it "very difficult to identify almost any structure across the property line." Defendants' planner, Raymond Liotta, provided a summary of the area's geography. He testified that at least nine other lots in the neighborhood have accessory residential structures developed for residential purposes, and that defendants' proposal would be "in concert" with those.
Liotta testified that defendants' proposal would be consistent with three purposes of zoning, constituting special reasons in favor of the Board's grant of a use variance. First, it would "promote sufficient space in appropriate locations for private residential uses in order to meet the needs of New Jersey citizens," in that the cottage was in character with similar structures on other lots in the neighborhood, and that the location and low elevation on defendants' property will hide it from neighboring properties. Second, the cottage would "promot[e] a desirable visual environment" through "creative design techniques and civic design arrangement" by building it on sunken ground, lower than adjacent properties. Finally, the proposal would promote the general welfare by housing people responsible for the property's security, thus reducing the burden on the borough's police force.
Liotta further opined that negative effects of the proposal would be mitigated by the landscaped screening and the location and elevation of the cottage. He claimed that even though the ordinance had been changed to prevent the building of this type of structure, the improvements created no detriment to the zone plan because the intent of the change was not to bar a caretaker or employee from residing on the property, but rather to "reduce the proliferation of rental units to people who were unrelated to the property owner."
Defendants presented the testimony of Shiela Labrecque regarding the use of the existing pool house. She was a friend of the Wrightsons and the executor of Jean Wrightson's estate. She testified that Jean Wrightson hosted parties at the pool house, and that friends often stayed there. Jean Wrightson's niece Victoria lived there in 1994 and 1995, and friends of Jean Wrightson lived in the guest house "most of the summers when Jean was alive."
During the course of the Board hearings, the parties placed a settlement on the record. The Board subsequently passed a resolution on August 16, 2005, approving defendants' application subject to a number of conditions, incorporating the specifics of the settlement. The resolution included the following language:
5. A revised landscaping plan will be negotiated and jointly agreed to by the applicant and objector (Gooch) and submitted for approval to the Board engineer by September 10, 2005, having a stated goal of providing the reasonably substantial screening of the accessory residential structure from view from adjoining Lot 14 in all seasons, including sightlines from upper floors of the principal house on that adjoining lot. . . . [(emphasis added).]
Plaintiffs objected to the language "reasonably substantial screening," asserting that their understanding of the settlement was the "total and complete screening of a structure to the greatest extent possible." The Board rejected plaintiffs' interpretation, and plaintiffs challenged the Board's approval in court.
During the court proceeding, sometime in 2006, plaintiffs retained attorney Douglas Katich, of the Ansell firm, who joined the firm in 2005. Defendants moved to disqualify the firm, because in 2000 they had retained Richard Brodsky of that firm for advice and representation on a zoning application to the Board relating to the same property. Defendants' relationship with Brodsky ended on May 27, 2003.
The trial court denied defendants' application to disqualify the Ansell firm. The court also ruled that the parties did not reach a settlement before the Board. Consequently, the court remanded the application to the Board.
At the reconvened Board hearings, plaintiffs presented the testimony of Jeffrey Wrightson, the son of the former owners of defendants' property, who lived there from 1962 until 1991 or 1992. His father died in 1988, and his mother died in 1998. He testified that the pool house was built in 1966. His father would not allow people to live in the pool house, but his mother's friends would occupy the pool house on weekends and summers beginning ...