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Dapurificacao v. Zoning Board of Adjustment of the Township of Union

May 11, 2005

MANUEL DAPURIFICACAO, PLAINTIFF-APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF UNION AND TOWNSHIP OF UNION, DEFENDANTS-RESPONDENTS.
TOWNSHIP OF UNION, PLAINTIFF-RESPONDENT,
v.
MANUEL DAPURIFICACAO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. UNN-L-2809-00.

The opinion of the court was delivered by: Fisher, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 2, 2005

Before Judges Wefing, Fall and C.S. Fisher.

This appeal requires that we consider whether the housing of racing pigeons on residential property constitutes an accessory use. Like the trial court, we answer this question in the negative and affirm.

In 1981, plaintiff Manuel DaPurificacao purchased a single-family home, on a 50 by 140 foot lot, located in a residential zone in Union Township. Soon thereafter, plaintiff applied for and was granted a permit to do work on his home. At that time, plaintiff also built a shed to house the sixty-five pigeons he then owned. He did not seek a permit to construct this shed nor was his intention to construct this shed included within the description of work for which plaintiff had been given a permit.

In 1984, plaintiff applied for a variance to convert his single-family home into a two-family home with a garage. The application was granted on the condition that the construction "strictly conform" to the specifications in his application and the plans that had been approved. Neither the application nor the approved plans made any mention of the construction of a pigeon coop or that a coop was present on the property.

In 1988, plaintiff added a structure to the top of his garage in order to house his pigeons. He took this action without obtaining either a permit or a variance.

In 1999, plaintiff was issued summonses that triggered the present disputes about his pigeon coop. The first summons cited plaintiff for maintaining a structure that exceeded the height requirements for accessory uses in a residential zone, contrary to Ordinance 170-5. Another summons cited plaintiff for maintaining an impermissible accessory structure on his residential property, contrary to Ordinance 170-51. By that time, the coop referred to in these summonses was housing eighty-five pigeons.

Before any proceedings occurred with regard to these summonses, plaintiff applied to the board of adjustment for a determination that his pigeon coop constituted a permitted accessory use. That application was denied by way of a March 22, 2000 resolution. On June 5, 2000, plaintiff filed a complaint in lieu of prerogative writs 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.

Plaintiff thereafter moved for a stay of any municipal proceedings regarding the summonses and for an amendment of his pleadings to join Union Township as a party. These motions were granted.

When the matter eventually came before the trial judge for a consideration of the merits, an oral decision was rendered on October 3, 2001. In that decision the trial judge presented his reasons for affirming the board's decision that the pigeon coop was not a permitted accessory use in a residential zone. The judge also lifted the stay so that the municipal proceedings could go forward.

In the proceedings that followed in municipal court on March 5, and April 2, 2002, plaintiff acknowledged his violation of Ordinance 170-5 (the height summons) and, after a trial, was found to have maintained a structure that constituted a non-conforming use in violation of Ordinance 170-51. Fines were ...


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