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Seaport Aquarium v. City of Wildwood

A-828-01T1 (N.J. Super. App. Div. 2002) (Unpublished)

ZONING; PETS— Iguanas and hermit crabs are pets, the sale of which makes a business a pet shop.

Retail store owners and an aquarium store owner, with their stores on a municipality’s boardwalk, sought to enjoin the municipality “from enforcing the ban on sale of iguanas and hermit crabs in their stores.” They were unsuccessful before the lower court and appealed asserting that the lower court “erred in concluding that these creatures were pets under” state law and the Administrative Code, and therefore the municipality should have been estopped “from prohibiting their sale on the boardwalk.” Before the lower court, the municipality presented a veterinarian from the New Jersey Department of Health who was involved in licensing pet stores. She testified that iguanas and hermit crabs were pets because the definition of a “Pet Shop” included “any place of business which is not part of a kennel, wherein animals, including but not limited to, dogs, cats, etc. are kept or displayed… for personal appreciation and companionship rather than for business or research purposes.” The Court felt that it wasn’t necessary to determine whether it was appropriate for a state veterinarian to testify as to the broad legislative intent because it thought that a court could “take judicial notice of the commonsense import of its language ‘including, but not limited to, as encompassing unnamed subspecies of animals but not all-inclusive.’” Other testimony was that hermit crabs “have to be kept warm, they have to washed every day, fed, and given water.” Further, a supplier of hermit crabs to the retailers had testified that hermit crabs made “perfect pets” for young children. Consequently, the Court had no difficulty in determining that hermit crabs were pets and not “novelty items.” Lastly, even the shop owners conceded that “the municipality’s zoning ordinance prohibiting pet shops on the boardwalk [was] a reasonable exercise of [the municipality’s] broad police power to regulate the use of land within its borders.”


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