Tanis v. Township of Hampton

A-1009-96T3, 1997 WL 800146 (N.J. Super. App. Div. 1997)
  • Opinion Date: December 29, 1997

MUNICIPALITIES; ZONING; ACCESSORY USES—An accessory use is one that is “customarily incidental” to the main activity. A landing strip is not an accessory use to land primarily used as a farm.

The Township of Hampton and its Zoning Board of Adjustment determined that a landowner was not permitted to use a portion of its 168-acre property as a private landing strip for small aircraft. The landowner did not seek a use variance for the landing strip, but claimed that the use was a permitted accessory use under the Municipal Land Use Law (“MLUL”). The landowner also claimed the use was a principal permitted use under the local zoning ordinance. The trial judge found that the landing strip was not a permitted use and that because the Township ordinance prohibited all but expressly permitted uses, of which private landing strips was not one, the strip was not a permitted accessory use either.

The Appellate Division began by stating that the Township ordinance does not actually prohibit all accessory uses not expressly permitted. Courts have found that clearly permitted incidental uses are often left out of municipal ordinances, so a court must determine whether the accessory use is “customarily incidental” to the main activity. The test set forth by the Supreme Court of New Jersey asks two questions: (1) whether the use is incidental to the main use (does it bear an obvious relation), and (2) if such a use is incidental to the permitted use, is it a customary use. State v. P.T. & L. Construction Co., Inc., 77 N.J. 20 (1978). The Court concluded that the proposed landing strip was not customary since it was not usual to maintain a landing strip in connection with the primary use of land as a farm. Even though courts have permitted accessory uses without the use being customary, the Court found that this particular use was exceptionally unusual. The Court also considered the impact of the use on both the zoning plan and the surrounding neighborhood. The Court stated that landing strips pose special problems concerning aircraft. After considering both the unusual nature of the proposed use and the potential negative impact on the area, the Court found that a landing strip was neither customary nor incidental to the principal use of the property. The Court refused to find that use of the property as a landing strip constituted a permitted accessory use, but did not prohibit the landowner from applying for a variance.