Appellate judges affirm use of property by Geese Police

Appellate judges affirm use
of property by Geese Police

A three-judge panel in the Appellate Division of the Superior Court of New Jersey has handed the Geese Police another legal victory.

On June 26, judges Michael P. King, Steven L. Lefelt and Francine I. Axelrad affirmed the June 19, 2000, decision of Superior Court Judge Jamie S. Perri.

A year ago Perri, sitting in Freehold, reversed a decision by the Howell Zoning Board of Adjustment that denied David Marcks, the owner of the Geese Police, from operating his business at his property on Squankum-Yellowbrook Road, Howell.

Marcks uses the property, which is in a mixed-use agricultural, horticultural and residential zone, to house and train border collies that are transported around the state and remove geese from public and private properties. The business owner resides in a house on the property.

Employees of the Geese Police drive to the property each day to pick up the dogs and take them on their appointments. The employees return the dogs to the Squan-kum-Yellowbrook Road property each evening.

Perri’s decision reversing the zoning board was appealed by Marcks’ neighbors Ted and Dawn Betz. Neither the township nor the zoning board appealed Perri’s decision in which she declared Marcks’ present use of the property a legal agricultural use and reversed the zoning board’s decision.

In affirming Perri’s decision of a year ago, the appellate judges said, "The record supports the judge’s conclusion that the dogs produce social benefits preventing geese from congregating in public areas where they are a nuisance and a health hazard, dispersing the geese to less populated or unpopulated areas. ... The record also supports the conclusion that the present use conforms to the physical and operational characteristics of more traditional agricultural uses."

The appellate judges went on to say, "The present use also conforms to the purpose of the zone as expressed in (township codes): ‘to minimize the impacts of development’ and ‘preservation of rural character.’ "

King, Lefelt and Axelrad said, "We agree with (Perri’s) conclusions when she said, ‘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. This is precisely what (Marcks) has done, by taking an outmoded element of agricultural management, the herding of sheep and cattle, and modifying it to better serve the needs of man as they evolve.’ "

The appellate judges said, "Preserva-tion of open space and control of residential development is a primary purpose of the (zoning) ordinance. (Perri’s) decision, which the township and the zoning board do not challenge on this appeal, is entirely consistent with this expressed purpose of the local legislation."

In commenting on Perri’s ruling and the affirmation of that ruling by the appellate judges, Betz said, "Where I believe Judge Perri went wrong is that she made the assumption that the Geese Police is a farmlike operation. She did not have evidence or testimony before her that describes the intensive commercial operation, the number of employees and the impact of that operation on the neighbors.

"The appellate court also did not have that testimony. Judge Perri based her decision on Mr. Marcks’ testimony before the zoning board. None of the judges heard testimony that would help them see that the commercial operation at the property outweighs the farming operation. We object to the commercial nature of the property," Betz said.

Betz said he has seen the appellate court’s decision, but has not discussed his next move with his attorney, George T. Dougherty, of the firm Katz and Dougherty, Lawrenceville.

For his part Marcks, the Geese Police owner, said, "This is exactly the sanity I was waiting to see. The judges found I fit the zone; I am the zone."

Marcks also said that although he is thrilled with the ruling, in hindsight it means he never needed to apply for a variance and "needlessly spent a fortune" in legal costs in an attempt to obtain a variance he never needed.

Marcks said, however, that he is not one to dwell on the past and would like to once again turn his full attention to his family and business now that the courts have resolved the matter.

The Geese Police were recently featured in a skit on the Comedy Central cable television show The Daily Show with Jon Stewart, and Marcks said he has been getting calls for a franchise setup of his business in other states since America Online and the Associated Press did features on the Geese Police following The Daily Show appearance.

Marcks was represented in the appellate court by attorney Gerald N. Sonnenblick, of the firm Sonnenblick, Parker and Selvers, Freehold Township.

The case was argued before judges King, Lefelt and Axelrad on May 31 by Dougherty and Sonnenblick.

Tri-Town News staff writer Kathy Baratta contributed to this story.