Colts Run Civic Ass'n v. Colts Neck Tp. Zoning Bd. of Adjustment

Citation315 N.J.Super. 240,717 A.2d 456
PartiesCOLTS RUN CIVIC ASSOCIATION, an Association Including Nate and Patrice Falanga, Rocco and Angela Debenedetto, Christopher and Jill Whalen, Mark and Reem Pashan, Thomas and Betsy Dellisola, Glenn and Patricia Moschella, Robert and Patricia Durski, Nicholas and Darlene Bosco, Richard and Roseanne Prito, Richards and Laurie Emanuele, and Kenneth and Kathleen Lewandowski, Plaintiffs, v. COLTS NECK TOWNSHIP ZONING BOARD OF ADJUSTMENT and John Lucchese, Defendants. Monmouth County
Decision Date29 June 1998
CourtSuperior Court of New Jersey

Bernard M. Reilly, Red Bank, for Plaintiffs (Dowd & Reilly, attorneys; Mr. Reilly, on the brief).

Michael B. Steib, Middletown, for Defendant Zoning Board of Adjustment (Mr. Steib, on the brief).

Jeffrey J. Rea, Westfield, for Defendant John Lucchese (Mr. Rea, of counsel; Peter M. Jacques, Short Hills, on the brief).

HAYSER, J.T.C., temporarily assigned.

Is the maintenance of a "domestic animal shelter," in this case a pigeon coop, as a hobby activity a permitted accessory use to a residential use in a zoning district providing for a mixture of residential and agricultural uses? That is the principal question presented in this appeal of an affirmative interpretation made by the defendant Zoning Board of Adjustment herein.

Most essential operative facts are not in dispute. Defendant John Lucchese is the owner of a certain single-family residence located in a certain development in the Township of Colts Neck and denoted as the "Colts Run Development." This development is further located in the Township's "AG" or Agricultural District, and was further developed under a residential cluster plan. Moreover, while permitted uses include residential uses, the stated purpose of the zoning plan for this district includes the "continuation of farming." See, Section 707.2A of the Township's Development Regulation Ordinances.

On or about August 23, 1996, defendant Lucchese contracted to purchase the above-described residential property. He apparently intended to maintain "racing pigeons" in a coop structure on the property. 1

Thereafter, on or about October 30, 1996, the defendant was advised that his proposed activity on the property was not a permitted accessory use and that he would have to make application to the defendant Zoning Board of Adjustment for relief.

Subsequently, defendant Lucchese filed an application with the defendant Board, requesting an interpretation pursuant to N.J.S.A. 40:55D-70b, or, in the alternative, a use variance pursuant to N.J.S.A. 40:55D-70d, to permit the construction of a "domestic animal shelter" on the residential property. Hearings were conducted as to the application on February 20 and March 20, 1997.

On April 9, 1997, the governing body of the Township introduced Township Ordinance 1997-10, which essentially would prohibit the proposed accessory use. On April 17, 1997, the defendant Zoning Board of Adjustment adopted a resolution finding that the existing Ordinance permitted the construction of the contemplated "domestic animal shelter" as an accessory use, and that no variance was required. On April 22, 1997, defendant Lucchese filed for a construction permit, and while that application was pending, Township Ordinance 1997-10 was enacted, on May 14, 1997. Defendant's construction permit application was denied on or about May 16, 1997, Township officials now indicating that a use variance would be required due to the adoption of the Ordinance. 2

On May 5, 1997, the plaintiffs filed a complaint in lieu of prerogative writs and for injunctive relief, seeking to set aside the interpretation. On August 29, 1997, a third-party complaint was filed. An amended third-party complaint was filed on December 19, 1997. A pretrial order was entered on March 31, 1998.


As indicated above, defendant Lucchese applied to the defendant Board for an interpretation under N.J.S.A. 40:55D-70b, which provides, in relevant part, that the Board is permitted to "[h]ear and decide requests for interpretation of the zoning ... ordinance ..."

The exercise of the statutory interpretive power is not dependent upon any implementing provision of a local ordinance. Cherney v. Matawan Zoning Bd. of Adj., 221 N.J.Super. 141, 145 note 1, 534 A.2d 41, (App.Div.1987). Once made, the board's decision is final and binding as to all interested parties, including enforcement officials, unless successfully appealed. Inherent in the exercise of this power is the realization that the board is not merely an administrative agency, but is also empowered to determine, in the first instance, certain questions of law. Centennial Land & Dev. Co. v. Tp. of Medford, 165 N.J.Super. 220, 397 A.2d 1136 (Law Div.1979). 3

While a reviewing court should give certain deference to a municipal agency's informed interpretation of its ordinances, such determinations are subject to de novo review by the court. Wyzykowski v. Rizas, 254 N.J.Super. 28, 38, 603 A.2d 53 (App.Div.1992), rev'd on other grounds 132 N.J. 509, 518-20, 626 A.2d 406 1993). See also, Grancagnola v. Planning Bd., 221 N.J.Super. 71, 533 A.2d 982 (App.Div.1987); Cherney, supra, 221 N.J.Super. at 144-45, 534 A.2d 41; Pagano v. Zoning Bd. of Adjustment, 257 N.J.Super. 382, 395-98, 608 A.2d 469 (Law Div.1992). This is the proper standard for review despite the statutory power granted to the Board to interpret its zoning ordinance. Cherney, supra, 221 N.J.Super. at 145, 534 A.2d 41. 4

A number of rules apply to the interpretation of a zoning ordinance. Such ordinances are to be given a reasonable construction and are to be liberally construed in favor of the municipality. Terner v. Spyco, Inc., 226 N.J.Super. 532, 539, 545 A.2d 192 (App.Div.1988). The legislative intent is to be derived from the language used. Id. These and similar rules governing construction will come into play as the court determines the central issue presented in this appeal.


Defendant Lucchese proposed to construct a "domestic animal shelter" with approximate dimensions of twelve feet by forty feet (12' X 40'), or an area of 480 square feet. The structure would be located in the rear yard of property with a lot area of approximately 88,000 square feet, or two (2) acres, similar to other residential lots in the subdivision.

The structure would comply with the setback requirements of the AG (Agricultural) District, wherein the property is located, and would house forty to fifty racing pigeons. The structure would be subject to cleansing twice a day, and would be climate controlled. The pigeons themselves would be released from the structure twice a day for a period not to exceed two (2) hours during only the warmer months in all seasons except winter.

The defendant represented that he raises, trains and breeds racing pigeons only as a hobby. The pigeons would not be used for business or commercial purposes, and would not be sold, bred, shown or raced for profit. Furthermore, the proposed structure would not be used to house pigeons from third parties for boarding or breeding purposes. Thus, defendant Zoning Board of Adjustment concluded in its interpretation resolution that "the proposed use is exclusively that of a self-contained hobby for the property owner."

Ultimately, defendant Board concluded that while the raising of racing pigeons does not serve agricultural purposes in this agriculturally sensitive zoning district, the proposed use is "subordinate" and "incidental" as an accessory use to the permitted primary residential use. The defendant Board reasoned that the raising of racing pigeons "while perhaps not a widely popular hobby, is nevertheless a hobby which is incidental to the residential use of the property in question and is the type of hobby which would customarily be associated with a residential use." 5

As indicated, the subject property is located in the AG (Agricultural) District. Under Section 707.2B of the Township's Land Use Ordinance, the permitted principal uses include agricultural purposes buildings, including farm laborer shelters, farms and residences. The Ordinance does not specifically list "domestic animal shelters" as a permitted accessory use.

Moreover, Section 301 of the Ordinance defines "accessory building[s], structure or use" as one "which is customarily associated with, and is subordinate and incidental to, the principal building, structure, or use and which is located on the same lot therewith, whether the same be attached or detached." Finally, Section 418 provides that "[a]ll uses not expressly permitted in this ordinance are prohibited."

The allowance of a primary use generally authorizes all uses normally accessory, auxiliary, or incidental thereto, but while uses accessory to a dwelling function should not be unduly restricted, such uses are not without limitation, which is reached when the use impairs the residential character of the neighborhood. Borough of Northvale v. Blundo, 81 N.J.Super. 201, 195 A.2d 221 (Law Div.1963) (parking of commercial vehicles outside garage was not an accessory use to dwelling function of property).

However, as the Appellate Division concluded in Borough of Chatham v. Donaldson, 69 N.J.Super. 277 at 282, 174 A.2d 213 (App.Div.1961):

Use by a family of a home under our customs includes more than simple use of a house and grounds for food and shelter. It also includes its use for private religious, educational, cultural and recreational advantages of the family. [citation omitted]. Pursuit of a hobby is clearly customarily a part of recreational activities. As long as the pursuit thereof is not of such a nature, or to such an extent, as to impair the residential character of the neighborhood, it cannot be supposed a zoning ordinance was intended to prevent it.

[Id. at 282, 174 A.2d 213]

Various judicial rules have been developed as to accessory uses. Accessory...

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4 cases
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