DaPurificacao v. ZON. BD. OF ADJUST.
873 A.2d 582, 377 N.J. Super. 436 (2005)
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Rule of Law:
A use not expressly permitted by a zoning ordinance is not an implied accessory use unless it is naturally and normally incident to the principal use and is customary in the community. The lack of other similar uses in the municipality is strong evidence that the use is not customary.
Facts:
- In 1981, Manuel DaPurificacao purchased a single-family home on a 50 by 140-foot lot in a residential zone in Union Township.
- Soon after, without a specific permit, DaPurificacao built a shed to house his sixty-five pigeons.
- In 1988, he constructed an additional structure on top of his garage to house his pigeons, again without obtaining a permit or variance.
- By 1999, the coop housed eighty-five pigeons.
- At the time of the legal proceedings, there was only one other pigeon coop among the 52,000 residents of Union Township, and it had already been closed down.
Procedural Posture:
- In 1999, the Township of Union issued summonses to Manuel DaPurificacao for maintaining a pigeon coop that violated local zoning ordinances.
- DaPurificacao applied to the Zoning Board of Adjustment for a determination that his coop was a permitted accessory use, but the Board denied his application on March 22, 2000.
- DaPurificacao filed a complaint in lieu of prerogative writs in the state trial court (Law Division) to reverse the Board's decision.
- On October 3, 2001, the trial court affirmed the Board's decision.
- Subsequently, in municipal court proceedings, DaPurificacao was found to have violated the ordinances.
- DaPurificacao appealed the municipal court convictions to the Law Division, which consolidated the appeal with remaining constitutional issues from the prerogative writ action.
- On January 17, 2003, the trial court rejected DaPurificacao's constitutional arguments and affirmed the municipal court convictions.
- DaPurificacao (appellant) then appealed the trial court's judgment to the Superior Court of New Jersey, Appellate Division, with the Zoning Board and Township as respondents.
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Issue:
Does the housing of racing pigeons on a small residential lot constitute a permitted accessory use under a township zoning ordinance that does not expressly list it and where such use is not customary in the community?
Opinions:
Majority - C.S. Fisher, J.A.D.
No. The housing of racing pigeons on a residential lot is not a permitted accessory use where the local ordinance does not expressly permit it and the use is not customary in the community. The court reasoned that Union Township's ordinances explicitly state that any use not expressly permitted is prohibited. To determine if the pigeon coop could be an 'implied' accessory use, the court applied a two-part analysis. First, the use must be 'naturally and normally incident and subordinate to the principal use,' which is residential living. Second, and more importantly, the use must be 'customary.' Citing precedent, the court defined a customary use as one 'so necessary or commonly to be expected that it cannot be supposed that the ordinance was intended to prevent it.' Given that there was only one other pigeon coop in a township of 52,000 residents (which had since been removed), the court concluded that housing pigeons is not a customary activity for homeowners in Union Township and therefore cannot be considered a permitted implied accessory use.
Analysis:
This decision clarifies the standard for determining an implied accessory use under zoning law, placing significant weight on the 'customary' nature of the activity within the specific municipality. It establishes that a property owner's personal hobby, even if long-standing, does not automatically qualify as a protected accessory use if it is not common in the community. The ruling reinforces the authority of municipalities to strictly interpret their zoning ordinances and places a high burden on landowners seeking to establish an unlisted use, especially in dense residential zones. This precedent makes it more difficult for property owners to argue for the legality of unusual hobbies or uses that are not expressly permitted by local zoning codes.
