Posted by: Patricia Salkin | August 23, 2012

NJ Appellate Court Upholds Board’s Decision that Welding Business was a Valid Home Occupation

In 1998, Michael and Francis Edwards purchased a 6.4 acre parcel in Lebanon, N.J., which thereafter served as their residence as well as the location of their welding business, Off-Road Welding. In addition to the residence, the lot contains a 2,150-square-foot, three-bay garage, with outside storage racks for metal materials. The property is located in a Residential, Resource Conservation District (RC zone), where a minimum of 7.5 acres is required for a single-family residence, and home occupations are listed as a conditional use.

Lebanon Township has an ordinance controlling home occupations which requires that (1) all work take place inside the residence or a permitted accessory structure, (2) that no more than 20 percent of the residence be used for the business and that the business not encompass more than 2,000 total square feet on the property, (3) that no more than two light commercial vehicles be located on the property, (4) that no more than two non-residents of the property be employed through the home occupation, (5) that there be no more than one delivery and one shipment coming and going from the property daily, except where shipments are made by the resident in his or her own vehicle, (6) that no more than two home occupations exist on the same parcel, (7) that the home occupation create no nuisance conditions beyond the property line, (8) that there be proper care and storage of hazardous materials, (9) that only a single sign of a designated size be erected, and (10) that the municipality establish appropriate off-street parking rules for the home occupation.

In December 2008, the Edwards applied for a conditional use variance seeking relief from three of these conditions in order to continue operation of his welding home occupation — the requirements that all activities be conducted inside, that the gross square footage devoted to the home occupation not exceed 2,000 square feet and that no more than two non-residents be employed by the home occupation. The Lebanon Township Board of Adjustment held six public hearings on the variance request over the course of one year, hearing experts in favor and opposed to the application, including neighbors who complained of noise, noxious odors, traffic, dust, and negative impacts on property values. The board then decided, in April 2010, to issue the conditional use variances requested by the Edwards and to grant site plan approval. In May 2010, the Board adopted a 34-page resolution incorporating the evidence and testimony submitted on the application during the hearings, as part of the record supporting their decision.

Plaintiffs, neighboring landowners, filed a complaint in lieu of prerogative writs, arguing that the Board had improperly determined the Edwards’ welding business was a home occupation and challenging the issuance of variances as arbitrary, capricious, and that the Edwards had not presented sufficient evidence to support their application. In April 2011, the trial court decided in favor of the Board, upholding all of the Board’s decisions except the granting of a variance on the number of nonresident employees. Plaintiffs here appeal.

On appeal, the plaintiffs argued that the welding business should not have been upheld as a “home occupation” because the use was not merely incidental to the residential use, and because it altered the character of the parcel from residential to light industrial. However, the court noted that the Lebanon ordinance on home occupations was expansive, permitting 2,000 square feet of accessory structure, two commercial vehicles, onsite storage of hazardous materials and up to two non-resident employees. Further, the site was also used as a residence by four individuals, who lived there permanently and used other portions of the property for purely residential purposes. Therefore, the court felt it was not irrational for the Board to have concluded that the primary use of the site was for residential purposes and that the business use was an incidental home occupation use.

The court rejected plaintiffs’ contention that the precedent in Adams v. Del Monte, 309 N.J. Super. 572 (N.J. App. Div. 1998) should have applied here. In Adams, the business being operated as a home occupation was a septic tank cleaning business, involving the regular coming and going of several 3,000-gallon tank trucks carrying, at times, septic wastes regulated as hazardous substances. The Adams court noted that, unlike home occupation activities carried out by a carpenter or electrician, who would perform much of their work off-site, the septic tank cleaning business could not be fairly considered a use incidental to the residential use, and it was not a home occupation. By contrast, the court here held that the exception in Adams for carpenters and electricians was more analogous to the Edwards’ activities than the septic tank cleaning business at issue in that case. Therefore, Adams did not preclude the court from concluding the Edwards’ welding business was a home occupation, but rather provided some support for treating the welding business as a home occupation like the carpentry and electric activities discussed in Adams.

Further, plaintiffs challenged the Board’s decision as arbitrary and capricious, because the Edwards had failed to show that the use was appropriate given that the property did not conform to limitations imposed in the ordinance and because the Board failed to adequately consider nuisances created by the business. While the Edwards’ 2,150-square-foot garage exceeded the ordinances 2,000-square-foot limitation on space usable for the home occupation, the court held that the excess in size was minimal, that the size limitations were imposed after the construction of the garage, and that the Board could have rationally determined that the additional 150 square feet did not negatively impact the public good. Plaintiffs also failed to show that the Board had ignored all testimony on nuisances, or that the Board had acted in an arbitrary or capricious manner in considering all testimony before them, weighing that testimony, and making a determination based on all the facts, according to the court. Finding no evidence that the Board made its decision in an arbitrary or capricious manner, plaintiffs’ claims were dismissed in their entirety.

Columbro v. Lebanon Township Zoning Board of Adjustment, 2012 WL 967508 (N.J. Super. A.D. 3/23/12)

 


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