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Ackerman v. Howell Township Zoning Board of Adjustment

June 23, 2010

IZA ACKERMAN, PLAINTIFF-APPELLANT,
v.
HOWELL TOWNSHIP ZONING BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3329-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 20, 2010

Before Judges Carchman, Parrillo & Lihotz.

Plaintiff Iza Ackerman appeals from a Law Division order affirming defendant Howell Township Zoning Board of Adjustment's (the Board) interpretation of the Howell Township (the Township) zoning ordinance (the ordinance), which prohibited operation of plaintiff's dog breeding business on her residential property.

Plaintiff filed a complaint in lieu of prerogative writs asserting the characterization of her dog breeding hobby as a business was arbitrary and capricious. Following its review, the court concurred with the Board's conclusion finding plaintiff was operating a business and effectively dismissed her complaint. Plaintiff argues the court erred as the facts do not substantiate her activities constituted an impermissible use. We reject plaintiff's arguments and affirm.

I.

Plaintiff owns a four acre property, designated on the Township's Tax Map as Block 183, Lot 98.05. The property includes plaintiff's residence and a storage structure, which has been outfitted with electricity, water and drainage. Plaintiff secured necessary permits to erect the accessory structure by representing she intended to use the building for "personal storage" purposes.

The storage building had been converted and served as a dog kennel. Specifically, the interior is designed with several individual cages used to shelter plaintiff's show dogs. Adjacent to the building are fenced dog runs that comprise a significant portion of plaintiff's yard. Dogs on the inside access guillotine doors, exit the building to the fenced dog runs, then return through the doors to the shelter.*fn1

Plaintiff's property is located in the Agricultural Rural Estate zone (ARE-3), which permits as principal uses agriculture and horticulture, single-family residences, municipal and other public purpose buildings, and community residences for the developmentally disabled and domestic violence shelters with six or less occupants. Permitted accessory uses in the zone are those "customarily incidental and ancillary to a permitted use" as well as "home occupations." Conditional uses include houses of worship, school buildings, and community residences for the developmentally disabled and domestic violence shelters holding more than six but less than fifteen occupants. Township of Howell General Code § 188-69(B).

In late 2006, following a code enforcement inspection, plaintiff and her late husband were issued several municipal court summonses for operating a dog kennel on the property in contravention of the zoning ordinance. Plaintiff was told her operation required a use variance.*fn2 Plaintiff challenged the zoning officer's determination that her operation was a kennel business. She filed a request with the Board seeking an interpretation of the zoning ordinance and asserting "that the keeping and breeding of dogs as a non-business hobby activity" was a permitted use on her property. Alternatively, plaintiff suggested dog breeding was a permitted accessory use in the ARE-3 zone.

The Board concluded plaintiff's activities were consistent with a kennel. Plaintiff appealed the June 11, 2007 resolution rejecting her interpretation and upholding the code officer's determination by timely filing a complaint in lieu of prerogative writs. Following a preliminary case management conference, the Law Division remanded the matter to the Board to conduct "a full hearing without time limitations," affording plaintiff the opportunity to present expert testimony.

The Board's June 8, 2008 resolution, now under review, was adopted following proceedings held January 14, February 25, and April 28, 2008. During the Board hearings, plaintiff explained that she moved to the Township in 2000 and has ever since been breeding and raising German Shepherd show-dogs on her property as "a very expensive hobby" ever since. Currently, she owns eight female dogs, which are housed either in her home or in the storage building. In a typical year, the dogs produced one or two litters of puppies using artificial insemination, a procedure that costs approximately $2,700. If a puppy is not of "champion" show quality, plaintiff sells the animal, receiving approximately $1,000 per dog. On average, she has sold between ten and twelve puppies each year.

Describing herself as one of "the top German [Shepherd] breeders in the [c]ountry," plaintiff explained she feeds and cares for the animals herself, has no sign on the property, and does not advertise the sale of the dogs. Although she had a web site describing ...


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