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Shim v. Washington Township Planning Board

298 N.J. Super. 395, 689 A.2d 804 (App. Div. 1997)

MUNICIPALITIES; ZONING; ACCESSORY USES—An accessory use need not derive from the express terms of an ordinance since an accessory use is implied as a matter of law as a right which accompanies a principal use. Therefore, an otherwise prohibited day care center was allowable as accessory to church use.

A site plan for construction of a church was approved by the Washington Township Planning Board. The approval also authorized the church to operate a day care center on the grounds. Neighboring store owners argued that although a church was permitted in the relevant zone, the day care center constituted a variant use requiring separate variance approval. This argument was based on the fact that a day care center was neither a permitted nor a conditional use in that zone, and the relevant ordinance states that all uses not expressly permitted are prohibited. They also claimed that Board’s approval was arbitrary, capricious and unreasonable since the Board failed to consider traffic congestion on abutting streets. The trial court upheld the Board’s approval, citing the day care center as an ancillary use and therefore not requiring separate application. The trial court also stated that the record clearly showed that the Board considered all relevant traffic issues.

The Appellate Division thought that in order to accept the store owners’ arguments, it had to conclude that because the Township did not expressly include day care centers as a permitted accessory use, it intended to prohibit such a use. In construing legislative intent, the question was whether the interpretation urged by the store owners was consistent with “the letter and underlying philosophy of the ordinance.” Citing case law, the Appellate Court stated that the store owners’ interpretation runs counter to the rule that an accessory use need not derive from the express terms of an ordinance since an accessory use is implied as a matter of law as a right which accompanies a principal use. The Court noted that playgrounds and schools were expressly permitted in the zone, and analogized that lighting for the playground and athletic fields would probably be permitted even though not expressly listed as an accessory use. Once the Court concluded that not all accessory uses had to be explicitly enumerated, the next question was whether the day care center should be considered an “accessory use.” The Court cited the zoning ordinance’s definition of “accessory use” as one which is subordinate to, located on the same lot as, customarily incidental to, and related to the principal use. The dispositive issue was whether the day care center was customarily incidental to the principal use of a church. The Appellate Court cited cases holding that the constitutional right to exercise religion extends to a day care center because such a use falls within the ambit of religious activity. Other cases reached the same result based solely on zoning principles. The Appellate Division based its affirmance on zoning and concluded that use as a day care center was customarily incidental to the principal functions of a church. The Court also stated that the focus of inquiry should be on the impact of a particular accessory use and not on whether such uses are “customarily incidental” to the primary function of a religion, since this focuses on traditional religious functions and may discriminate against certain religious practices. The Appellate Court also found that Board approval was not arbitrary, capricious or unreasonable regarding potential traffic problems. Not only did the Board fairly consider the issue, but the Court added that denial of the church’s application when all standards were met would be “drastic.”


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