Caseflicks

New Jersey Superior Court Appellate Division • 2005

DaPurificacao v. ZON. BD. OF ADJUST.

873 A.2d 582 | 377 N.J. Super. 436

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Takeaway

In short, this case holds that an unlisted residential use is not an implied accessory use unless it is closely related to, subordinate to, and customary with the property's principal residential use; a large racing-pigeon coop on a small residential lot did not meet that test.

Background

Manuel DaPurificacao owned a single-family home on a 50-by-140-foot lot in a Union Township residential zone. After buying the property in 1981, he built a shed for his pigeons without a permit. In 1988, again without a permit or variance, he added a structure above his garage to house the birds. By 1999, the coop housed eighty-five racing pigeons.

The Township issued summonses alleging that the structure exceeded the allowable height for an accessory use and that the pigeon coop itself was an impermissible accessory structure. Before the summonses were adjudicated, DaPurificacao asked the zoning board to declare the coop a permitted accessory use. The board denied that request in March 2000.

DaPurificacao brought an action in lieu of prerogative writs challenging the board's decision and the ordinances' constitutionality. The trial court upheld the board's conclusion that the coop was not a permissible accessory use and allowed the municipal enforcement case to proceed. The municipal court found him guilty of maintaining a nonconforming use and of the height violation. After consolidating his municipal appeal with the remaining constitutional claims, the Law Division rejected his constitutional arguments, reaffirmed the zoning determination, and upheld the convictions. He appealed.

Issues

Issue #1

Whether a racing-pigeon coop on DaPurificacao's residential lot was a permitted or implied accessory use under Union Township's zoning ordinances.

Holding

No. The coop was neither an expressly permitted accessory use nor an implied accessory use incident to a residence.

Reasoning

The ordinances defined an accessory use as one naturally and normally incident and subordinate to the principal use of a structure or lot. The residential-zone ordinance listed permitted accessory uses, such as private garages, limited-height storage sheds, fences, pools, parking, and similar residential structures. A separate provision stated that all uses not expressly permitted by the zoning chapter were prohibited. A pigeon coop did not appear among the permitted uses.

The court declined to treat the absence of pigeon coops from the permitted-use list as automatically dispositive. New Jersey's implied-accessory-use doctrine permits an unlisted use when the facts establish that it is naturally and normally incidental to the principal use. Thus, the court examined whether this particular pigeon coop could qualify by implication despite the ordinance's express lists.

Under the governing test, an incidental use must be subordinate in significance to the principal use, reasonably related to that use, and customary in the relevant zone. The court found no close or obvious connection between maintaining a residence and keeping a large pigeon coop. Nor was the practice customary in Union Township: among approximately 52,000 residents, only one other pigeon coop existed during the relevant period, and that coop had closed by the board hearing.

A trial-level case involving a pigeon coop on a two-acre residential parcel in an agricultural zone did not control. The court found that setting materially different from DaPurificacao's small lot in a residential zone and therefore did not need to decide whether the earlier case had been correctly decided.

Issue #2

Whether the accessory-use ordinances were unconstitutionally vague, facially or as applied, because they did not specifically identify pigeon coops and allowed for implied accessory uses.

Holding

No. The ordinances gave constitutionally adequate notice and were not vague either facially or as applied to DaPurificacao's pigeon coop.

Reasoning

Vagueness must be assessed in context and in light of an ordinance's purpose; the Constitution does not demand identical precision from every type of regulation. A zoning ordinance also cannot reasonably be expected to enumerate every possible lawful use of property.

Union Township used established zoning terms by defining an accessory use as one naturally and normally incident and subordinate to the principal use. It supplemented that definition with specific lists of permitted residential accessory uses and prohibited uses, then plainly stated that all unlisted uses were prohibited. This structure gave adequate notice that a pigeon coop was not expressly authorized.

The possibility that a court may recognize an unlisted use as an implied accessory use did not make the ordinance unclear. That doctrine provides limited flexibility for a use not anticipated when the ordinance was enacted; it does not erase the ordinance's stated standards or deprive property owners of fair notice. Applying those standards here, the court found no constitutional uncertainty about the impermissibility of DaPurificacao's coop.