## Facts

- Manuel DaPurificacao owned a home on a 50' x 140' lot in a residential zone in Union Township, New Jersey.
- After receiving a permit for work on the home, he also built a shed to house about sixty-five pigeons, but he did not seek a permit for the shed and did not disclose it in the permit application.
- In 1984, DaPurificacao obtained variance approval to convert the home to a two-family dwelling with a garage, conditioned on construction that would strictly conform to the approved plans; the application and plans did not mention a pigeon coop or pigeon-related structures.
- In 1988, he constructed a structure on top of the garage to house his pigeons.
- DaPurificacao kept and raced pigeons, and by the time of the zoning-board hearing he had approximately 85 pigeons.
- Union Township cited him for violating the zoning ordinance on the ground that the pigeon coop was not a permissible residential structure/use.
- The zoning ordinance defined an accessory use as one incident to and subordinate to the principal use of the property.
- At the time of the hearing, there were no other pigeon coops in the township (population roughly 52,000).
- DaPurificacao applied to the Zoning Board of Adjustment for a determination that his pigeon coop was a permitted accessory use; the Board denied the application.
- The Law Division affirmed the Board’s denial, and DaPurificacao was also found guilty in municipal court of violating the ordinance; he appealed both, and the appeals were consolidated in the Appellate Division.

## Issues

1. Whether housing racing pigeons in a coop on residential property qualified as a permitted accessory use under Union Township’s zoning ordinance.
2. Whether the Zoning Board’s denial of DaPurificacao’s application was arbitrary, capricious, or unreasonable.
3. Whether DaPurificacao’s municipal-court conviction for violating the zoning ordinance should be upheld in light of the zoning determination.

## Decision

- The Appellate Division affirmed the Law Division judgment upholding the Zoning Board’s denial. *DaPurificacao v. Zoning Bd. of Adjustment of Twp. of Union*, 377 N.J. Super. 436, 873 A.2d 582 (App. Div. 2005).
- The court held that the housing of racing pigeons on DaPurificacao’s residential property did not constitute a permitted accessory use under the ordinance.
- The court concluded the Board’s determination was supported by the record (including the number of birds, the lack of similar uses in the township, and neighbor impacts) and was not arbitrary, capricious, or unreasonable.
- The court affirmed DaPurificacao’s municipal-court conviction for violating the zoning ordinance.
- The court rejected any claim that prior permits, the 1984 variance approval, or the long-running presence of pigeons created a right to maintain the coop where the use and structures were not authorized in the approvals and were not shown to be a lawful accessory use.

## Legal Principles

- An accessory use must be incidental and subordinate to the principal permitted use and must be customary for residential property in the municipality or zone.
- Whether a particular activity qualifies as an accessory use is a fact-sensitive inquiry tied to local land-use conditions and the ordinance’s language.
- Zoning-board decisions carry a presumption of validity; a reviewing court will uphold the decision if it is supported by sufficient evidence and is not arbitrary, capricious, or unreasonable.
- Prior approvals conditioned on compliance with submitted plans do not authorize structures or uses that were omitted from the application and plans.
- A longstanding unauthorized use does not become lawful merely through the passage of time, and an ordinance-violation conviction may be sustained when the underlying use is not permitted.

## Conclusion

The Appellate Division held that keeping and housing dozens of racing pigeons in a dedicated coop on a small residential lot was not shown to be a customary, incidental, and subordinate residential use under Union Township’s ordinance, so the Zoning Board properly denied accessory-use treatment; the court therefore affirmed both the Law Division’s judgment and DaPurificacao’s municipal-court conviction for violating the zoning ordinance.


DaPurificacao v. Zoning Board of Adjustment of the Township of Union, 873 A.2d 582 (2005)