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Ackerman v. Howell Township Zoning Board of Adjustment

A-3649-08T2 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; PERMITTED USES — Where a property owner alleges that he or she is engaging in a hobby, and not a business, at his or her home, but the facts reveal the actual activities being conducted were not merely those of participating in a hobby, but actually were the operation of a continuing and regular business, the owner is in violation of the municipality’s zoning ordinance by reason of actually operating a hobby-business.

An owner had four acres of land with both a residence and a storage structure that had been outfitted with electricity, water, and drainage. She secured necessary permits to build the storage structure by representing that she intended to use it for “personal storage” purposes. Instead, the building was converted to, and served as, a dog kennel. The kennel connected to fenced dog runs covering a significant portion of the yard. The property was located in an agricultural/rural zone which permitted single-family residences and accessory uses customarily incidental and ancillary to residential uses. Eventually, the owner was charged with violating the zoning ordinance for operating a dog kennel. She was told she needed a use variance. The owner denied operating a business and filed a request with the zoning board of adjustment to consider her activities as a non-business hobby activity, and thus a permitted use on her property. The board concluded her activities were consistent with a kennel business, and not a hobby. She filed suit appealing the board’s ruling, and the lower court remanded the matter to the board to conduct a full hearing.

At the hearing that followed, the owner testified that she owned eight female dogs for breeding, and sold between ten and twelve puppies each year. She had a website describing her breeding activities, and described herself as one of the top German Shepherd breeders in the country. She considered herself engaged in a very expensive hobby and was not reporting any income or claiming offsetting deductions because she spent far more per year than she earned. The municipality’s land use officer testified that the owner’s application to build her personal structure failed to reveal that she would house animals in the building. This would have required approval from the county board of health. Further, the owner’s earlier permit application to build dog runs had been denied.

The board voted unanimously to deny the owner’s requested interpretation of the ordinance, ruling the owner’s use was a business that required a use variance. It found the owner was running a breeding business and routinely sold dogs at her residence despite operating at a loss, even using a website to advertise availability. The board also found the personal structure had been illegally converted to a kennel. The owner amended her complaint, contending the board’s decision was arbitrary, capricious, and unreasonable. The lower court affirmed the board’s decision, finding that the owner had engaged in breeding knowing this would result in producing more dogs than she would keep, and selling those dogs for financial gain. The court also observed that the owner’s breeding activities were systematic and intense, and that she had outfitted her property for that purpose. The owner appealed.

The Appellate Division affirmed the lower court’s decision, finding the record supported a finding that the activities conducted on the property were not merely those of rearing pets or participating in a hobby, but actually was the operation of a continuing and regular business where as many as twelve or fourteen dogs were boarded at one time, where most eventually were sold. The activities were hardly incidental and ancillary to a residential use as the owner had constructed an elaborate facility in her backyard to accommodate her practice. The Court held that the governing zoning ordinance specifically identified boarding and breeding kennels for dogs and cats as a prohibited home occupation use, and the municipality’s general code prohibited conducting a kennel business in one’s home.

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