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CATHERINE DRESKIN AND RONALD OLENDER v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF JACKSON


November 29, 2010

CATHERINE DRESKIN AND RONALD OLENDER, PLAINTIFFS-APPELLANTS,
v.
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF JACKSON,
ELITE WRESTLING AND STEPHEN RIVERA, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1237-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: November 10, 2010 - Decided: Before Judges Fisher, Simonelli and Fasciale.

In this prerogative writ case, plaintiffs Catherine Dreskin and Ronald Olender appeal from a final order of the Law Division finding that the decision of the Zoning Board of Adjustment of the Township of Jackson (the Board) to grant a conditional use variance to defendants Elite Wrestling and Stephen Rivera was not arbitrary, capricious, or unreasonable. We affirm.

Rivera owns a house and a pole barn located in a residential zone. Rivera and Elite Wrestling (applicant) sought approval from the Board to use the pole barn as a wrestling school. Plaintiffs own the adjacent property consisting of a single family dwelling, and objected to that use.

A wrestling school could be permitted as a "home occupation" upon compliance with section 109-6(2) of the Jackson Township Zoning Ordinance which provides that:

(1) Such . . . occupation of one or more members of the resident family, shall constitute, either entirely or partly, the means of livelihood of such member or members; and

(2) Such . . . occupation shall be conducted in clearly secondary or accessory use to the primary residential use of the principal structure; and

(3) Such occupation may be pursued in the principal dwelling structure or in a secondary building which is accessory to such principal structure; and

(4) The retail sale of goods or services in structures designed or altered to make such activities the primary use of the site shall not be construed hereunder to be a "home occupation."

"Home occupations" are permitted on residential property provided that conditions A-L of section 109-112 of the Township's zoning ordinance are met. Condition F requires that "[t]he home occupation shall not adversely affect property owners or interfere with their quiet enjoyment of their property." The applicant sought a conditional use variance because condition F was not met. The applicant also requested a waiver of a site plan requirement because the pole barn was in existence and in use.

The Board conducted a public hearing on February 4, 2009, listened to the testimony from several lay and expert witnesses, considered various exhibits, and approved the application and site plan waiver. The Board passed a resolution that memorialized its findings of fact and conclusions of law, and imposed certain limitations on the conditional use variance.

On December 22, 2009, Judge Vincent J. Grasso issued a comprehensive nineteen-page written opinion. In Judge Grasso's de novo review of the record he found that the Board's decision to grant the variance and waiver of site plan was not arbitrary, capricious, or unreasonable. The judge concluded that the wrestling school is permitted as a "home occupation," provided that conditions 109-112 are satisfied. The judge concluded that the wrestling school constituted only a part of Rivera's livelihood, comprised a secondary use of the property, is pursued in a secondary building, and is not engaged in the retail sale of goods. The judge recommended "that the Board engineer and/or zoning officer closely monitor the performance and completion of those conditions imposed by the Board designed to address plaintiffs' objection to the facility."

On appeal, plaintiffs argue that the wrestling school is not cognizable as a "home occupation" and that the applicant failed to establish the standards for a conditional use variance. We disagree.

When reviewing the decision of a municipal zoning board, a trial court must defer to the determination of the board, unless the municipal body's action was arbitrary, capricious and unreasonable. Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296-97 (1965). This court must give the board the same deference as the trial court. Ibid. "[C]courts will defer to a decision if it is supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion." Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998). However, we do not give special deference to the trial court's legal conclusions and interpretations of the law. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).

Contrary to plaintiffs' argument, Judge Grasso adhered to the proper standard of review and he made sufficient findings of fact to support his decision that the Board's exercise of discretion was not arbitrary, capricious or unreasonable. Burbridge v. Governing Body of Mine Hill Twp., 117 N.J. 376, 385 (1990); Rowatti v. Gonchar, 101 N.J. 46, 51-52 (1985); Kramer, supra, 45 N.J. at 296 (1965).

The arguments made by plaintiffs are without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set forth by Judge Grasso in his written decision of December 22, 2009.

Affirmed.

20101129

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