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Enzio Columbro, Karen A. Columbro, and Larry Marino v. Lebanon Township Zoning Board of Adjustment

March 23, 2012

ENZIO COLUMBRO, KAREN A. COLUMBRO, AND LARRY MARINO, PLAINTIFFS-APPELLANTS,
v.
LEBANON TOWNSHIP ZONING BOARD OF ADJUSTMENT, MICHAEL EDWARDS, AND FRANCES EDWARDS, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-469-10.

The opinion of the court was delivered by: Fasciale, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted February 27, 2012 -

Before Judges Sabatino, Ashrafi and Fasciale.

The opinion of the court was delivered by

Plaintiffs Enzio Columbro and Karen Columbro (husband and wife) and Larry Marino appeal from a April 8, 2011 order dismissing their complaint in lieu of prerogative writs and affirming a May 26, 2010 resolution of the Lebanon Township Zoning Board of Adjustment (the Board) granting a conditional use variance to defendants Michael Edwards and Frances Edwards (the Edwards) to operate a welding business from their residential property.

We affirm.

On appeal, plaintiffs contend that the trial court erred in concluding that under the Lebanon Township Ordinance, the Edwards' 2,150 sq. ft. garage constituted an "accessory" to their residence, and that their business constituted a "home occupation." Plaintiffs also argue that the Board's decision to grant a conditional use variance to the Edwards was arbitrary, capricious, and unreasonable, and that the trial court should have reversed the decision.

We affirm substantially for the reasons articulated in the cogent decision of Judge Peter A. Buchsbaum, who conducted the prerogative writs trial. Columbro v. Lebanon Twp. Zoning Bd. of Adjustment, L-469-10 (Law Div. April 8, 2011) (slip op. at 1-2). Given the circumstances of the Edwards' conditional use and the liberal nature of the Lebanon Township Ordinance, the judge correctly determined that the welding business could be appropriately classified as a "home occupation." Further, we conclude that the Board's action was not arbitrary, capricious, or unreasonable, and that the judge properly affirmed its grant of the variance.

I.

In 1998, the Edwards purchased a 6.4 acre parcel of property in Lebanon Township and began operating a welding business known as "Off Road Welding, Inc." The property is located within the "residential, resource conservation district" (RC zone), an area that requires a minimum lot of 7.5 acres for a single-family home. The property contains the Edwards' 1,676 sq. ft. home and their 2,150 sq. ft. three-bay garage, which has two outside two-story storage racks for metals and other materials.

On December 5, 2008, the Edwards filed an application with the Board for a "conditional use" variance pursuant to N.J.S.A. 40:55D-70d(3) to operate a "home occupation" from the garage. Pursuant to Lebanon Township's Ordinance, a "home occupation" is a "conditional use" permitted in the RC zone. Ordinance 400-4 (definitions) defines "home occupation" as "[a]ny activity, except an exempt home occupation, carried out for gain by a resident conducted as a conditional use in the resident's dwelling unit or permitted accessory building." The ordinance defines "accessory use or structure" as "[a] use or structure subordinate to and customarily incidental to the principal use or structure on the same lot." Ordinance 400-11B(6)(a) lists ten applicable standards governing a "home occupation":

[1] The home occupation shall be conducted entirely within a principal building or a permitted accessory building.

[2] Not more than 20% of the gross floor area of the principal building, not including any cellar, shall be used for the home occupation, and the home occupation shall not occupy more than 2,000 square feet of all buildings.

[3] Not more than two light commercial vehicles may be kept on the premises in connection with the home occupation.

[4] Not more than two nonresidents of the premises shall be employed in connection with the home occupation.

[5] Not more than one delivery and one shipment per day of goods, chattels, materials, supplies, or items of any kind shall be made either to or from the premises in connection with the home occupation except in a vehicle owned by the resident and kept on the premises.

[6] Not more than two home occupations shall be permitted in a principal building and/or the permitted accessory building.

[7] There shall be no nuisance element detectable beyond the property line in connection with the home occupation.

[8] The amount and method of storage of any hazardous material proposed to be kept on the premises shall be indicated on the application.

[9] Only a single sign, not to exceed 20 inches by 30 inches, shall be permitted.

[10] The municipal agency having jurisdiction shall determine a reasonable off-street parking requirement consistent with proposed use and zoning ordinance.

Essentially, the Edwards' application sought three variances from those standards: Ordinance 400-11B(6)(a)(1) (all activities to be conducted inside); Ordinance 400-11B(6)(a)(2) (gross floor area of buildings devoted to accessory use not to exceed 2,000 sq. ft.); and Ordinance 400-11B(6)(a)(4) (no more than two nonresidential employees).*fn1 The Board conducted six nonconsecutive days of hearings spread over a year and heard testimony from several neighbors concerned about their property value and quality of life. The Columbros also testified that the Edwards' business produced loud noises, noxious odors, vehicular commotion, dust and dirt, and property destruction.

Plaintiffs presented expert testimony from David Zimmerman, a professional planner, who opined that there was a substantial impact on surrounding properties in violation of the ordinance. Zimmerman quoted the definition of accessory use in Lebanon Township as "a use or structure subordinate to and customarily incidental to the principal structure on the same lot." He stated that there was a need for the variances and noted Columbro's testimony regarding excessive fumes, odors, noise, and activity. Zimmerman identified three non-conformities on the property: a lot size of 6.44 acres rather than 7.5 acres; a lot width of 131 feet rather than 350 feet; and a lot width of 235 feet rather than 350 feet. He also opined that the lot was too small for the welding business, and that there were 9,000 sq. ft. occupied by the paved area, garage, and storage area. Nonetheless, during cross-examination, he agreed that he ...


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