DaPurificacao v. Zoning Bd. of Adjustment of Tp. of Union - 377 N.J. Super. 436, 873 A.2d 582 (Super. Ct. App. Div. 2005)

Rule:

Union Township, N.J., Ordinance § 170-5 defines accessory uses as those naturally and normally incident and subordinate to the principal use. Incidental in this context incorporates two concepts -- the use must be subordinate or minor in significance when compared to the primary use of the property and the use in question must bear a reasonable relationship to the primary use.

Facts:

Appellant owner bought a residential property located in a residential zone in the township. Appellant obtained permits to work on his home. However, appellant, without seeking a permit, also built a shed to house racing pigeons on his property. Eventually, appellant built a pigeon coop on the top of a garage on his property. The appellant was issued two summonses for building the pigeon coop in violation of township ordinances, Ordinance 170-5 and Ordinance 170-51. Before any proceedings occurred with regard to these summonses, appellant applied to the board of adjustment for a determination that his pigeon coop constituted a permitted accessory use. The board denied appellant’s application. Subsequently, appellant filed a complaint seeking, among other things, a reversal of the board's denial of his application, permission to file an application for a height variance, and a determination that the ordinances were unconstitutional. The trial court ruled in favor of the board and the township. 

Issue:

1. Did the housing of racing pigeons on residential property constitute an accessory use? 
2. Were the ordinances in question unconstitutional? 

Answer:

1) No. 2) No.

Conclusion:

On appeal, the court found that the subject ordinances did not on their face permit a pigeon coop to be considered an expressly permitted accessory use nor was a pigeon coop to be deemed an implied accessory use. Additionally, the ordinances in question utilized traditional terms in defining what constituted an accessory use in a residential zone and further amplified upon their underlying intentions by providing specific examples of what was and was not permitted. The ordinances also indicated, in clear language, that all uses not enumerated were prohibited. Thus, there was no vagueness in the ordinances.