Judge: Geese Police an agricultural use
Case remanded to
Howell zoning board
Chalk one up for the Geese Police of Howell. A zoning board ordinance interpretation decision that appeared to put the future of the business at its present location in doubt has been overturned by a Superior Court judge.
After a year of legal wrangling that ended up costing him $37,800, Geese Police owner David Marcks learned last week that Superior Court Judge Jamie S. Perri, sitting in Freehold, determined that his business, which is based at his home on Squankum-Yellowbrook Road in an ARE-2 zone, is an agricultural use and therefore acceptable in the zone.
In point of fact, Perri determined that the residential use of the zone was secondary to the agricultural.
The distinction is important to note, as Marcks’ legal battle originated out of complaints from his next door neighbors Ted Betz, a former councilman, and his wife, Dawn.
Betz and his wife lodged complaints with Howell’s code enforcement office last summer, claiming that Marcks’ business was operating in violation of the zoning.
They hired an attorney to represent them as objectors of record during Marcks’ subsequent application before the zoning board that sought to allow his business to continue operating.
Marcks uses the property to raise and train border collies that are used in the herding and relocation of geese flocks from areas where they are an unwanted nuisance.
The area of Squankum-Yellowbrook Road in question was rezoned about four years ago while Betz was a member of the Township Council, going from a Special Economic Development zone to an Agricultural-Residential Enterprise zone.
After moving to the 5-acre Squankum-Yellowbrook Road residence from his previous home and base of operations on Easy Street in the township, Marcks applied to Howell for and received construction permits to renovate an existing three-car garage on his property into a home office.
Marcks said when he made these applications he fully disclosed what his business was and where it was located.
Marcks said that upon receiving all the construction permits needed for the renovations, he believed he was operating in compliance with zoning laws.
Among their complaints, the Betzes cited a quality of life issue in that the Geese Police dogs are removed in separate trucks with pick-ups beginning around 5 a.m. At present, Marcks has 15 dogs on-site and has erected a stockade and natural tree fence between his and the Betz property.
The zoning board, in making its original interpretation of the ordinance denying Marcks’ petition to continue operating, held that dogs did not fit the criteria for an agricultural use.
Perri saw things differently, referring in her decision to Howell’s ordinance defining agricultural use which delineates agriculturally accepted animals as "…beef cattle, sheep, swine, horses, ponies, mules or goats including the breeding, boarding, training and grazing of any or all of such animals…"
Perri found that the "…inclusion of horses, mules and ponies indicates that animals which provide services, either by way of labor or recreation, are deemed to be useful to man."
Perri went on to state that the fact that the dogs perform their services off-site is an irrelevancy to the issue of whether their use is to be considered agricultural in nature and likened their use to the "more traditional" agricultural use of a horse farm that boards, breeds and trains horses that are then transported off-site because their "fee-generating activities are performed off-site."
The judge said the fact that the animals in question are dogs rather than horses does not "…materially alter the essential agricultural features…" of the enterprise.
Ultimately, the judge observed that "…as the economic viability of traditional farming enterprises in Monmouth County declines, creative agricultural uses offer a sound alternative to the pressure of rampant residential development."
Perri observed that "…50 years ago, few could have envisioned that American habits and interests would change to the point that ostriches would be raised as an alternative source of lean meat or that llamas would be trained to served as caddies on golf courses."
Marcks, who was represented by attorney Gerald Sonnenblick of Freehold Township, was elated with Perri’s decision and said, "I knew I fit the zoning. I fit the zoning on Easy Street and I fit the zoning here."
Marcks said he could seek restitution for the tickets he received citing him for zoning violations and/or the money he spent seeking the use variance following the board’s interpretation of the ordinance.
"I could, but I wouldn’t even consider it. I just want to live my life and let bygones be bygones," he said.
In her decision, Perri remands to the zoning board a reconsideration of the garage-office use, noting that she had only been asked to rule on the interpretation of the zoning ordinance.
However, in her decision Perri also notes that all but two of the sitting zoning board members received their appointments from Betz and questions the "appearance of conflict."
Board member Fred Portilla stepped down from any participation in the matter, citing a conflict in hearing the matter without stating what that conflict might be.
Board member Scott Pearson, who ran unsuccessfully for a seat on the Township Council last year and published campaign literature featuring an endorsement of his candidacy by Betz, did not step down, stating at the time that he didn’t believe he was in conflict.
According to Perri’s decision, "…There need not be an actual conflict of interest before a member can be disqualified from hearing a particular matter. The determining factor is whether there is a potential for conflict."
Efforts to reach zoning board Chairman John Van Noy and zoning board attorney Ronald Troppoli for comment and also to ask if the board would appeal the decision were unsuccessful by press time Monday.

