On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-272-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...