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Colts Run Civic Association v. Colts Neck Township Zoning Board of Adjustment

315 N.J. Super. 240, 717 A.2d 456 (Law Div. 1998)

ZONING—Raising racing pigeons is a permitted accessory use to a residential use in a zoning district that provides for a mixture of residential and agricultural uses.

A homeowner of a single-family residence located in the Township’s “AG” or Agricultural District raised racing pigeons. The property was in an area developed under a residential cluster plan. Under that plan, residential uses are permitted, but the stated purpose of the zoning plan includes “continuation of farming.” The homeowner’s intention was to maintain “racing pigeons” in a coop structure on the property. That structure would comply with the setback requirements of the AG district and would house forty or fifty pigeons. The homeowner represented that it raised, trained, and bred pigeons as a hobby and not for profit. After the homeowner contracted to purchase the property, it was advised that its proposed use for the property was not a permitted accessory use and that it would have to make application to the zoning board of adjustment for relief. Subsequently, the zoning board of adjustment adopted a resolution finding that an existing ordinance permitted the construction of the contemplated “domestic animal shelter” and that no variance was needed. The zoning board based part of its decision on the fact that “the proposed use is exclusively that of a self-contained hobby for the property owner.” The homeowner then applied for a building permit, which was denied because by that time the municipality had passed a new ordinance which prohibited the construction of such animal shelters. In addition, a neighborhood association filed a complaint in lieu of prerogative writs and for injunctive relief, seeking to set aside the interpretation of the zoning board.

In ruling for the homeowner, the Court concluded that raising pigeons qualified as an accessory use. The Court relied on N.J. Supreme Court case law which developed a two-prong test to determine whether a use was an accessory use. In the first prong, the court must “determine whether [the proposed use] has commonly, habitually and by long practice been established as reasonably associated with the primary use.” The Court said that a proposed use must not be “peculiar to the applicant” but rather “prevailing generally.” The Court found the first part of this test satisfied because raising pigeons in this fashion is a “recognized mode of activity.” While not common in the particular municipality, it was, in general, a recognized activity. The second prong “focuses on the impact of the [proposed] use on the surrounding neighborhood and the zoning plan.” The Court found that the neighborhood association had failed to produce any evidence to demonstrate that the proposed use would constitute a nuisance. While the health hazards raised were legitimate concerns, those concerns were too speculative to grant the relief sought.


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