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Costello v. Planning Board of the Borough of Little Silver

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 14, 2008

GARY COSTELLO AND NANCY COSTELLO, PLAINTIFFS-RESPONDENTS,
v.
PLANNING BOARD OF THE BOROUGH OF LITTLE SILVER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-272-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 22, 2007

Before Judges A. A. Rodríguez and C. S. Fisher.

Gary and Nancy Costello (Applicants) are the owners of residential property in Little Silver. They sought to build a basketball half-court measuring thirty-five by forty-five feet, with one eleven-hundred watt halide light eighteen-feet in height, in their backyard. Applicants were required to file an application for a bulk variance because of an existing undersized lot frontage. The Planning Board of the Borough of Little Silver (Board) held a public hearing on November 1, 2005, at which objectors announced their intentions to challenge the application. Pursuant to N.J.S.A. 40:55D-70b, the objectors sought an interpretation of the applicable zoning ordinance to determine whether a basketball court was a permitted accessory use. As a result of the protest, the Board held a hearing on the objector's application for interpretation.*fn1

The objectors offered the testimony of Thomas Thomas, a licensed professional planner. Thomas opined that a basketball court is not a principal use pursuant to the Borough ordinance or to the Residential Site Improvement Standards (RSIS), N.J.A.C. 5:21-1.1 to -8.1. Therefore, a variance would be required. Thomas concluded that when the RSIS standards conflict with a municipal standard, the RSIS standards are controlling.

According to Thomas, the Borough ordinance only provides four basic accessory uses: off-street parking, private swimming pools subject to special provisions in the ordinance, signs and other customary accessory uses in buildings which are clearly incidental to the principal use and building, including a private garages, boathouses or bathhouses. He testified that, other than a swimming pool, most accessory uses are passive and generally relate to the living activity for a residence. He conceded that not everything that is a permitted customary use is listed in the ordinance.

In opposition to the objector's challenge, Applicant Gary Costello testified that he wanted to install a basketball court so that he, his friends, his children and their friends could play basketball. He said he would not use the court past 10:00 p.m. because the town noise ordinance prohibits noise after that time. According to Costello, the maximum number of players would be eight; the material used for the court is soft, which would make much less noise; and that the appearance would be nicer than cement or asphalt. Costello answered a question concerning basketballs landing in a neighbor's yard by asserting that it would not occur because the court would be fifteen feet from the property line.

Peter Lamberson, an employee of Rhino Sports, which had been contracted to install the basketball court, testified that the court is installed by excavating eight inches of soil, laying four inches of crushed stone, then pouring a concrete pad. On top of the concrete, the footings for the basketball hoop and the volley posts for the multi-sports would be poured and then actual floorings would be installed. Lamberson stated that the single light would be facing away from the neighbor's home and towards the Applicants' property. Based upon the design of the light, there would be no spill of light into the neighbor's property. Given the setbacks, Lamberson stated that any runaway basketballs would be contained in Applicants' yard. He testified that the sound generated by a bouncing ball on this surface would be less than that generated on a wood or concrete floor.

Victor Furmanec, a licensed professional planner in New Jersey, was called as an expert by the Applicants. Furmanec noted that the Applicants' property is in the R-1 zone, which has permitted and accessory uses. He opined that a basketball court is a customary accessory use to a single family residence.

He also opined that the RSIS did not apply to this specific court and that it was exempted as a structure under the Borough ordinance.

Two Borough residents testified in favor of permitting the basketball court. No one, including the objectors, testified against granting the application.

The Board interpreted the ordinance and determined that a basketball court was a structure and was not a permitted use. Therefore, a variance pursuant to N.J.S.A. 40:55D-70d as to the use and a variance pursuant to N.J.S.A. 40:55D-70c concerning the nonconformity of the setback of the proposed accessory structure was required. Applicants had not sought such variances. Accordingly, the application was denied.

Applicants filed an action in lieu of prerogative writs. After hearing oral argument, the judge found that: (1) constructing a sports court is a permitted customary accessory use; (2) a sports court is not a structure as defined by the Borough ordinance and, in any event, the sports court does not have an excessive floor area since it does not have any walls from which to conduct such measurement; and (3) the proposed sports court does not impact on the pre-existing lot frontage or lot size. The judge determined that:

[F]or the same reasons [that] pavement, patios and tennis courts are exempt, so should the sport court be. I am convinced that the town fathers and mothers of Little Silver when they wrote this ordinance didn't even know about sports courts. There weren't even those kinds of basketball courts in existence. Basketball courts and sports courts weren't popular and had they been in existence at the time, I am sure that the statute or the ordinance at issue would have included right after tennis courts, sports courts.

The judge also noted that the Board had not given an adequate explanation of why the proposal was denied and that the denial could not be justified under any existing ordinance. Therefore, he concluded that the Board's action was arbitrary, unreasonable and capricious. The judge rejected the Board's decision and ordered the Board to approve the application, subject to the voluntary limitation that the basketball court should not be used past 10:00 p.m.

The Board appeals, contending that "the Law Division erred by: (1) not liberally construing the ordinance in favor of the municipality;" (2) ruling that "the Zoning Ordinance could not be reasonably read as excluding basketball courts from the definition of a permitted structure;" and (3) ruling that "the proposed basketball court was a 'customary accessory use.'" We agree.

When the Law Division reviews a decision where the municipality was allowed to exercise discretion, for example a decision to grant a variance, the judge must recognize that the Legislature has vested the municipality with that discretion. Booth v. Bd. of Adj., 50 N.J. 302, 306 (1967). Then a rebuttable presumption arises that the municipality has properly exercised its discretion. Harvard Enterprises, Inc. v. Bd. of Adj., 56 N.J. 362, 368 (1970). Therefore, the trial court may not substitute its judgment for that of the municipal body unless it is proven that the board's action was arbitrary, unreasonable or capricious. Ibid.; Kramer v. Bd. of Adj., 45 N.J. 268, 296-97 (1965).

However, when the municipal body has not made a discretionary decision but has interpreted an ordinance, no deference need be given because a court can interpret an ordinance as well as the municipal body. Cherney v. Matawan Borough Zoning Bd., 221 N.J. Super. 141, 144-45 (App. Div. 1987); Grancagnola v. Planning Bd., 221 N.J. Super. 71, 75 (App. Div. 1987); Jantausch v. Borough of Verona, 41 N.J. Super. 89, 96 (Law Div. 1956), aff'd, 24 N.J. 326 (1957). That is the case here. Our standard of review is the same: we owe no deference to the trial court's interpretation. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). Rather, we interpret the ordinance following the canons and principles of statutory construction.

It is settled that in construing a statute, "[w]e are required to 'effectuate the legislative intent in light of the language used and the objects sought to be achieved." Wendling v. N.J. Racing Comm'n, 279 N.J. Super. 477, 482 (App. Div. 1995) (citing State v. Maguire, 84 N.J. 508, 514 (1980)). Courts "must give effect to the language employed by the legislative body in order to properly effectuate the legislative design." Dixon v. Gassert, 26 N.J. 1, 9 (1958).

Thus, "a court must first look to the language of the statute itself." Macysyn v. Hensler, 329 N.J. Super. 476, 485 (App. Div. 2000) (citing Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 128 (1987)). "Each word in the statute must be given its plain meaning; no word should be rendered inoperative or superfluous." Ibid. (citing Dempsey v. Mastropasqua, 242 N.J. Super. 234, 238 (App. Div. 1990), certif. denied, 126 N.J. 330 (1991)). Indeed, where the language "'is precise and unambiguous there is no room for judicial interpretation or for resort to extrinsic materials. The language speaks for itself.'" Ibid. (citing Vreeland v. Byrne, 72 N.J. 292, 302 (1977)).

Applying that standard, we conclude that the Board correctly determined that the proposed basketball court is a structure and not a permitted use. Therefore, because the applicable variances were not sought, the Board was also correct in denying the application.

With respect to the "structure" issue, the judge made a conclusory finding that the Board has not "given adequate explanation of why the purpose was denied." Therefore, "the Board's action, . . . is arbitrary, unreasonable and capricious." We disagree.

The ordinance defines the term "structure" as follows:

"Structure" means anything constructed, assembled or erected, the use of which requires location on the ground or attachment to something having location on or in the ground, and shall include antennas, tanks, towers, advertising signs, or devices, bins, tents, lunch wagons, trailers, dining cars, camp cars or similar structures on wheels, or other supports, used for business or living purposes. The word "structure" shall not apply to service utilities entirely below ground or fences, pavements, curbs, sidewalks, patios, gasoline fuel pumps or tennis courts. [Little Silver, N.J., Rev. General Ordinances, Ch. 16A, art. II, § 2.3 (emphasis added).]

The judge concluded that a basketball court should be analogous to the items exempted from the above definition because a basketball court is no different than "pavement," a "patio" or a "tennis court."

However, the judge ignored the express language of the ordinance, which exempts "pavement," "patio" and "tennis courts" from its sweep. We must presume that if the drafters had intended for "basketball courts" to be an exempted structure, they would have expressly stated so.

Moreover, where a specific situation is not expressly addressed in the statute, we must construe the ordinance "consonant with the probable intent" of the drafters had they anticipated the situation at hand. AMN, Inc. v. So. Brunswick Twp. Rent Leveling Bd., 93 N.J. 518, 525 (1983); Matlack v. Burlington County Bd. of Chosen Freeholders, 194 N.J. Super. 359, 361 (App. Div.), certif. denied, 99 N.J. 191 (1984). Therefore, we must conclude that the drafters deliberately drew a distinction between a tennis court and a basketball court in defining an exempt structure. This is particularly so because the court's construction of the ordinance must be "liberally construed in favor of the municipality." Terner v. Spyco, Inc., 226 N.J. Super. 532, 539 (App. Div. 1988); Colts Run Civic Ass'n v. Colts Neck Twp. Zoning Bd., 315 N.J. Super. 240, 247 (Law Div. 1998).

Here, the judge disregarded this canon of construction and substituted his own personal view that pavement, patios and tennis courts must have been viewed by the drafters as being the same as a basketball court. We reject this approach and adopt the Board's argument that the exception in the ordinance must be limited to the express language. Clearly, the ordinance sought to define the term "structure" broadly and to limit the exemptions to those expressly stated.

As for the customary accessory use issue, an "accessory use" is defined in the Borough's code as: a subordinate use or building, the purpose of which is incidental to that of a main use or building on the same lot, except that any structure with a floor area in excess of seven hundred (700) square feet or a building containing living space shall be subject to the setback requirements for principal buildings. [Little Silver, N.J., Rev. General Ordinances, Ch. 16A, art. II § 2.3.]

We held in Tanis v. Twp. of Hampton, 306 N.J. Super. 588 (App. Div. 1997), that a two-prong test must be utilized to determine whether a use is customary. First, a court must determine whether the proposed use has "commonly, habitually and by long practice been established as reasonably associated with the primary use." Id. at 605 (quoting Charlie Brown of Chatham v. Bd. of Adj., 202 N.J. Super. 312, 324 (App. Div. 1985)). We noted that "the operative fact is not how often the primary use requires or involves the alleged accessory use, but whether incidents of the accessory use are often found in conjunction with this particular primary use." Id. at 604. Second, the court must focus "on the impact of the [proposed] use on the surrounding neighborhood and the zoning plan." Id. at 606. We observed: "[u]se by a family of a home under our customs includes more than simple use of a house and grounds for food and shelter. It also includes its use for private religious, educational, cultural and recreational advantages of the family. Ibid. (quoting Borough of Chatham v. Donaldson, 69 N.J. Super. 277, 282 (App. Div. 1961)).

Applying that standard, we conclude that although having a basketball hoop attached to a garage or at the end of a driveway may be a customary accessory use to a residence, a basketball court with an elevated eleven-hundred watt light is not. For one thing, basketball courts, according to the record, are not of long practice in Little Silver. Moreover, the impact on the neighborhood of using a basketball hoop in a driveway is less than the impact of the proposed basketball court.

The Board further contends that: (1) the judge erred by overturning the Board's resolution of denial "as the Board had no ability to grant the relief being requested as it had lost jurisdiction over the application;" and (2) in the alternative, "assuming the Law Division's interpretation of the ordinance was correct, the court still erred in granting approval of the application rather than remanding the matter to the Planning Board for further proceedings." These issues are now moot by virtue of our decision. Nonetheless, we agree. The Law Division has no authority to approve the application. It must remand to the Board for reconsideration in light of the court's holding.

The judgment of the Law Division, setting aside the Board's decision, is reversed.


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