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DaPurificacao v. Zoning Board of Adjustment of The Township of Union

377 N.J. Super. 436, 873 A.2d 582 (App. Div. 2005)

ZONING; ACCESSORY USE —For the use of a structure to be considered an accessory use of a property, it must bear a close relationship to the main use of the property and must be a customary use within the zone where the property is located.

A man purchased a single-family home in an area zoned for residential use. Shortly thereafter, the man applied for and was granted a permit to perform certain work on his home. Although the permit did not grant him the authority to do so, he built a shed on the property where he housed sixty-five pigeons. Three years later, he applied for a variance to convert his house into a two-family home, which was granted. During construction, he built a pigeon coop on the top of his garage. He once again lacked a permit or variance to build this structure. As a result, he was issued two summonses for exceeding the height restrictions of the residential zone and for maintaining an impermissible accessory structure on the property. Before the proceedings began regarding these violations, the man applied to the municipal board of adjustment for a determination that his pigeon coop was a permitted accessory use, which was denied. The man then sued, challenging the board’s decision. The lower court affirmed the board’s decision, ruling that the pigeon coop was not a permitted accessory use in the residential zone. A hearing was then held in municipal court regarding the two summonses for ordinance violations. The municipal court ruled that the maintenance of the pigeon coop was a nonconforming use and imposed fines for the violations. The man appealed to the lower court, which reaffirmed its prior ruling that the housing of pigeons was not a legitimate accessory use. The man appealed again.

The Appellate Division affirmed the lower court’s ruling. In reaching its decision, it reviewed the local ordinances regarding accessory uses. Under the municipality’s ordinances, an accessory use is defined as a use that is “naturally and normally incident and subordinate to the principal use of the structure or lot.” The ordinances further provided that any use that is not expressly listed under the ordinance as an accessory use is prohibited. Hewing to the plain language of the ordinances, the Court held that the use of the pigeon coop was prohibited because it was not expressly listed as an accessory use in the ordinances. The Court then evaluated whether use of the pigeon coop could be implied as an accessory use under the ordinances. It found that in order for the structure to be an implied accessory use, its presence must “bear a close resemblance and obvious relation to the main use of the property,” which in this case was residential. In addition, use of the pigeon coop must be a customary one within the zone where the property is located. The Court found that the structure did not bear any relation to the main use of the property as a residence nor was a pigeon coop a customary use in the zone. As a result, it concluded that the presence of the pigeon coop was not an implied accessory use. Accordingly, it affirmed the lower court’s determination that the use of the pigeon coop was a nonconforming use.

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