Superior Court of New Jersey, Law Division, Monmouth County.
June 29, 1998
COLTS 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,
COLTS NECK TOWNSHIP ZONING BOARD OF ADJUSTMENT AND JOHN LUCCHESE, DEFENDANTS.
The opinion of the court was delivered by: 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. *fn1
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. *fn2
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.
THE SCOPE OF THIS COURT'S REVIEW
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). *fn3
 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. *fn4
 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.
THE INTERPRETATION OF THE ORDINANCE
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." *fn5
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 uses are impliedly permitted, even where they are not expressly described or allowed in the zoning ordinance, and the use of one's land cannot be a nuisance per se. Boublis et al v. Garden State Farms, Inc., et al, 122 N.J.Super. 208, 216-17, 299 A.2d 763 (Law Div.1972) (heliport is incidental to corporate property use.) The usual rule, however, has been that a use that is not expressly provided for is prohibited. Sun Company, Inc. v. Zoning Bd. of Adjustment of Bor. of Avalon, 286 N.J.Super. 440, 669 A.2d 833 (App.Div.1996). For an accessory use to be customarily associated with a primary use, it must be closely examined to determine whether it has commonly, habitually and by long practice been established as reasonably associated with the primary use. Shim v. Washington Tp. Planning Bd., 298 N.J.Super. 395, 404, 689 A.2d 804 (App.Div.1997), citing Charlie Brown of Chatham, Inc., v. Bd. of Adjustment, 202 N.J.Super. 312, 324, 495 A.2d 119 (App.Div.1985).
Finally, we have Tanis v. Tp. of Hampton, supra. As in the present matter, the Tanis court was faced with a zoning ordinance that neither expressly permitted nor expressly prohibited the specific proposed accessory use and included a restrictive clause generally prohibiting all uses not expressly permitted. However, as the court noted, the inquiry does not end at that point, because "of the implied nature of accessory uses and the impracticality of defining in advance every permissible accessory use." Id. at 601, 704 A.2d 62. (emphasis added). Simply stated, "accessory use" is an evolving concept.
In Borough of Chatham v. Donaldson, supra, the court concluded that the parking of four automobiles in a driveway, not for commercial purposes or for profit, was accessory to a residential use in an area when "[t]wo- and three- car families are commonplace." Id. at 282, 174 A.2d 213. The court would also note that this was in 1961. In Township of Livingston v. Marchev, 85 N.J.Super. 428, 205 A.2d 65 (App.Div.1964), the parking of a "small unoccupied [vacation] trailer outdoors alongside their home" was held not an accessory use in a residential district. However, today, the prevalence of recreational vehicles, minivans, and "SUV" 's as family use vehicles would likely change the outcome of that case.
In Shim v. Washington Township Planning Board, supra, the issue was whether a day care center was an accessory use to the primary use of a church. In concluding that the daycare center was "customarily incidental" to the church's principal use, the Appellate Division stated that "[w]hat is clear from this modern trend is that a church's ministry is not confined to prayer or dissemination of its religion's beliefs." Id. at 408, 689 A.2d 804. Moreover, the Shim court suggested that the emphasis should be "on the actual problems posed by a particular activity, rather than categorically prohibiting uses because they are not 'normal.' " Id. at 410, 689 A.2d 804.
Indeed, the court in Tanis made significant comment on this issue, citing Jantausch v. Borough of Verona, 41 N.J.Super. 89, 100, 124 A.2d 14, aff'd 24 N.J. 326, 131 A.2d 881 (1957):
... The practice [as to the accessory use] should be sufficient to justify the observation that is not unique or rare. It should be appreciable or perhaps substantial. It should be sufficient to constitute a recognized mode of activity ... but it need not be the most prevalent one. [Id. at 604, 704 A.2d 62. *fn6]
 The issue before the Tanis court, as well as this court, is how to address this ever-evolving concept of accessory uses, while maintaining, for the neighborhood's residential use, "the preservation of family-style living, the blessing of quiet seclusion, and the refreshment of repose and tranquility of solitude [as] legitimate zoning goals." State v. Miller, 83 N.J. 402, 410, 416 A.2d 821 (1980). Indeed, "[t]he law is not difficult to recite but difficult to apply." Charlie Brown of Chatham, Inc. v. Bd. of Adjustment, supra, 202 N.J.Super. at 323, 495 A.2d 119. Tanis presents a two-pronged test to resolve the issue as to appropriate incidental, customary uses: commonality and impact. It balances the dynamics of change against the avoidance of detriment in a zoning context.
 As to the first prong, commonality, a court must "determine whether [the proposed use] has commonly, habitually and by long practice been established as reasonably associated with the primary use." Charlie Brown, supra, at 324, 495 A.2d 119. This is to say that a proposed accessory use must not be "peculiar to the applicant," but rather one "prevailing generally." *fn7
To apply the "prevailing generally" standard, the court must first identify some point of reference. Clearly, as perhaps the only "domestic animal shelter" proposed or existing in Colts Neck Township, that geographical measurement would require the obvious conclusion that the proposed use is not one "prevailing generally."
 Yet, as the Supreme Court concluded in State v. P.T. & L. Const. Co., Inc., 77 N.J. 20, 27, 389 A.2d 448 (1978), "even if the use in question is found in a small percentage of similar main uses, the use may still be found to be 'customary.' " This suggests, if not mandates, as earlier discussed, a broader point of geographical reference. It also recognizes the evolving nature of implicit incidental uses of property, where the reality of modern living may outstrip the literal language of the zoning ordinance.
 As the Tanis court inferentially concluded, "the operative fact is not how often the primary use requires or involves the alleged accessory use, but whether incidents of the accessory uses are often found in conjunction with this particular primary use." Id. at 604, 704 A.2d 62. Is the proposed use "unique or rare" or "sufficient to constitute a recognized mode of activity"? Jantausch v. Bor. of Verona, supra, 41 N.J.Super. at 100, 124 A.2d 14.
With regard to the instant matter, it was established by the credible testimony presented before the defendant Zoning Board of Adjustment that there is, indeed, a long-time hobby of raising racing pigeons, or homing pigeons, that it is a wide-ranging hobby with special interest clubs scattered across New Jersey, the country and the world, and that enthusiasts often pursue their hobby by keeping coops on their residential property. Indeed, in Middletown Township, a municipality adjacent to Colts Neck, there exists such a club.
The Central Jersey Homing Pigeon Combine, with more than 1,000 members, is even allowed, apparently, to use public facilities for club activities.
Nothing has been presented to the court to refute the conclusion that the proposed use is a "recognized mode of activity" incidental, as a recreational use or hobby, to a primary residential use. It may not be common in Colts Neck, but is irrefutably a recognized activity, which has apparently been pursued popularly and widely for some time. *fn8
Therefore, the court has concluded that in the context of the relevant case law and facts demonstrated, the proposed use is a hobby long established as reasonably associated with a residential use. It may be unique or singular in the Township of Colts Neck, New Jersey, but is not so unusual in a state where there has developed a variety of animal-related hobbies. Moreover, this is not a hobby that has evolved from the maintenance of a single pigeon. Yet, it may be as unusual for these plaintiffs as the construction of an amateur radio tower was in a residential neighborhood in 1963 for the plaintiffs in Skinner v. Zoning Board of Adjustment of Cherry Hill, 80 N.J.Super. 380, 193 A.2d 861 (App.Div.1963).
It is the second prong outlined by the Tanis court--i.e., impact-- that has been most extensively argued by the plaintiffs, even if the issue was specifically ignored by the defendant Board in its decision. It "focuses on the impact of the [proposed] use on the surrounding neighborhood and the zoning plan." Id. at 606, 704 A.2d 62.
Plaintiffs center their argument on possible health concerns, and incidentally aesthetic and property value impact concerns. As to such a matter, such concerns are not uncommon and, in human terms at least, are understandable. However, the determinative question is whether these concerns constitute a legal impact. *fn9
 As to the issue of aesthetics, such a concern can be a relevant consideration in making a zoning decision. United Advertising Corp. v. Bor. of Metuchen, 42 N.J. 1, 198 A.2d 447 (1964). However, aesthetic concerns cannot be addressed in an arbitrary, imprecise, or ad hoc manner. Aesthetics must be regulated by proper standards "with reasonable precision and without blanket delegation." Damurjian v. Bd. of Adjustment of Tp. of Colts Neck, 299 N.J.Super. 84, 97, 690 A.2d 655 (App.Div.1997). Where reasonable standards are provided, the promotion of aesthetic considerations through such regulations will be sustained. Zilinsky v. Zoning Bd. of Adj. of Verona, 105 N.J. 363, 368-69, 521 A.2d 841 (1987). No aesthetic regulations of the Township of Colts Neck have been presented for consideration which specifically involve the issue before the court.
 Moreover, neighborhood aesthetics can be significantly related to property values, and are relevant considerations to zoning when they bear in a substantial way upon land utilization. Vickers v. Tp. Committee of Gloucester Tp., 37 N.J. 232, 247-48, 181 A.2d 129 (1962). However, again, no specific evidence has been presented to objectively demonstrate an actual impact upon neighborhood property values resulting from the proposed use.
Aesthetic considerations clearly contemplate the degree to which a proposed use of land creates a nuisance. However, as already stated, no use of land creates a nuisance per se. Boublis v. Garden State Farms, Inc., supra. *fn10
Plaintiffs focus most of their argument on their alleged concern for possible health hazards arising from the keeping of the racing pigeons. Their concerns for the health of their families and themselves is understandable, and, the court concludes, sincere. These concerns largely reflect the unknown nature of the consequences in the keeping of racing pigeons, and the plaintiffs' lack of certainty about it. However, as Justice Oliver Wendell Holmes stated, "[c]ertainty, generally, is illusion, and repose is not the destiny of man." Holmes, The Path of the Law (1897).
 What we can only expect are reasonable possibilities predicated not upon speculation, but rather upon objective data and standards. Nothing has been presented to the court, or for that matter the defendant Board in the earlier proceedings, which would move the issue beyond speculation. No credible medical or health testimony gave objective proof to even these sincere concerns. *fn11
 In conclusion, the court finds that under the two-pronged standard of Tanis v. Township of Hampton, supra, and under the then-existing zoning ordinance, defendant Lucchese may maintain a "domestic animal shelter" as a hobby and accessory use on his residential property, subject to all his representations to the defendant Zoning Board of Adjustment. The Board's interpretation permitting this use is affirmed for the reasons stated herein. *fn12