On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-004919-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2011
Before Judges Reisner and Hayden.
Plaintiff Peter McLaughlin appeals the September 23, 2010 Law Division order affirming defendant Howell Township Zoning Board of Adjustment's (the Board) interpretation of the Howell Township (the Township) zoning ordinance, which determined that a structure on defendants Karen Wilkin and James Urbano's horse farm used to house farm labor was an accessory use. Plaintiff's property borders the horse farm and his residence is twenty feet from the property line near the structure at issue here. Having considered plaintiff's contentions in light of the applicable law, we affirm.
The record reflects that defendants Wilkin and Urbano own a fifteen-acre horse farm in the Township where they have been breeding and selling Frisian horses since 1999. The property has a residence, a barn and stable, a fenced paddock, and a structure formerly used as a chicken coop. In 2001, Wilkin applied to the Township for permission to convert the former chicken coop, which is about forty feet from plaintiff's property line, into an efficiency apartment for a farm laborer to live in while working on the farm. At first an employee of the Township Land Use Office informed her that farm labor housing would be a permitted accessory use; shortly thereafter, the same employee informed her that such a use would need a variance.
Rather than appeal to the Board, Wilkin received a determination from the Monmouth County Board of Agriculture that the use of the structure as farm labor housing was an accessory use to the principal use of farming. Wilkin proceeded with the renovations and a person moved into the structure to work on the farm. Thereafter, the State Agricultural Development Committee determined that the Agricultural Board did not have any statutory authority under the Right to Farm Act, N.J.S.A. 4:1C-1 to -55, to address farm laborer housing. We affirmed the agency's decision. In re Wilkin, No. A-5916-04 (App. Div. October 25, 2006) (slip op. at 13).
Subsequently, in 2007, defendant property owners sought an interpretation from the Township zoning officer concerning whether the structure was an accessory use. The zoning officer determined that the structure was not an accessory use. Wilkin and Urbano submitted an application to the Board appealing the zoning officer's determination. In the alternative, Wilkin and Urbano sought a variance in the event the Board upheld the zoning officer's decision. Plaintiff objected to both applications.
At the hearing before the Board on August 13, 2007, Wilkin testified that in 2003, after the Township first told her that the structure was a permitted accessory use, she made the necessary repairs to the structure, converting it into an efficiency apartment, got the proper permits and obtained a certificate of occupancy. Wilkin stated that she needed a person on the property to help with the approximately twenty horses as well as provide security for her very valuable animals. Additionally, their veterinarian, Dr. Klayman, testified that in his professional opinion the farm needed a full-time caretaker on the site. He also testified that it was usual for horse breeding facilities to have housing for farm laborers to provide necessary care and security for livestock, and he personally knew of many farms in the Township with similar arrangements. Upon questioning by plaintiff, the doctor stated that he had never met the man living in the structure so he was unable to confirm that the man worked directly with the horses.
The Board permitted plaintiff to cross-examine witnesses, make a statement, and submit evidence at the hearing. Plaintiff opined that the use of the structure as a residence so close to his property was an invasion of his privacy and a violation of the entire zoning plan. Plaintiff stated that he could see the structure from his residence, and he would rather be looking at the old chicken coop than have a person living so close to his home. He also attempted to introduce evidence concerning Wilkin's noncompliance with construction codes in renovating the structure, but the Board determined it was not relevant to the accessory use issue.
At the completion of the hearing, the Board unanimously voted that the structure was an accessory use permitted in the ARE-6 zone. In its resolution, the Board found that the operation of the horse breeding farm constituted an agricultural use within the definition of the land use ordinance. The Board further found that farm labor housing is "commonly, habitually, and by long practice established as reasonably associated with the primary use" as required by the definition of accessory use within this zone. In addition, the resolution stated that the proposed housing "fits well within the parameters of an accessory use." The Board also determined that the horse farm and the farm structures on the property are "related compatible buildings constituting one basic use." Moreover, the Board noted that it had previously ruled in a similar situation that farm labor housing for a caretaker on a horse farm was an accessory use. Further, the Board pointed out that it did not address plaintiff's complaints that Wilkin had construction work done on the structure without permits as the Board does not have jurisdiction over code enforcement.
Thereafter, plaintiff filed an action in lieu of prerogative writs before the Law Division challenging the Board's determination. In a September 7, 2010 opinion, the court affirmed the Board, holding that the Board's decision was fully supported by the record. The court found that the evidence before the Board showed that a structure to house farm laborers was a use customarily associated ...