On appeal from Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5782.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Collester and Lyons.
Defendant, Rome Festival Orchestra, Ltd. ("RFO"), appeals from a judgment of conviction which found it violated Mountainside Land Use Ordinance, Article Ten, Section 1008(b). The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
RFO is a Maryland Section 501(c)(3) non-profit charitable corporation whose main purpose is to promote classical music education and training at a professional level. Its primary activity is to organize the Rome Festival and Summer Institute in Rome, Italy. RFO owns a one-family home located in Mountainside. It purchased the property in 1999. Fritz Maraffi ("Mr. Maraffi") and Jeannette Maraffi ("Mrs. Maraffi"), husband and wife, and both professional musicians, reside full-time in the home. Mr. Maraffi is the director of RFO, as well as an orchestra conductor and teacher. Mrs. Maraffi is secretary-treasurer of RFO, teaches in the home, and is also a local public school teacher.
The property is located in an R-1 zoning district which permits single-family residential use. It also permits accessory uses incident to a single-family residential use. Specifically, Article Ten, Section 1008(a)(1) permits an accessory use of the property, in relevant part, as follows:
. . . home office of a member of a recognized profession is permitted if said professional office is incidental to the residential occupation, is conducted by a member of the residential family entirely within a residential building and the office is that of a . . . musician . . . (A) [s]aid practitioner shall be the owner or lessee of such residence[;] (B) [s]aid practitioner shall reside in the subject residence[;] (C) [s]aid practitioner shall not have the services of more than one (1) other employee in his employ assisting in his practice (who need not be resident therein)[;] and (D) [s]uch office shall be limited to the first floor in such residence and shall not occupy an aggregate amount of space in excess of fifty per cent (50%) of the floor area of such first floor.
Following an inspection by the zoning officer of Mountainside, the Maraffis and RFO were issued eight summonses for violations of the zoning ordinance. The primary violation was that the residential home was being used as a school in an R-1 zone and that the Maraffis did not meet the accessory use exception, particularly because they were not the owners or the lessees of the property. The matter was initially heard in Summit Municipal Court.*fn1 After a trial, the Municipal Court found RFO and the Maraffis guilty of five of the eight summonses, dismissed a sixth charge, and merged two others. The municipal court fined defendants $1,000 on each of the five violations but suspended $850 on each of the five fines on the condition that defendants apply to the Zoning Board of Adjustment for a variance.
RFO and the Maraffis appealed their convictions to the Law Division for a trial de novo. The Law Division found Mr. and Mrs. Maraffi not guilty. As to RFO, the court merged all the charges, and found it guilty on one count of using the property in violation of the zoning ordinance. The Law Division imposed a $1,000 fine, $33 in court costs and ordered sixty days of community service to be served by teaching music to indigent children. This appeal ensued.
A review of the record indicates that Mr. Maraffi identified himself as the caretaker of the property and that he resided there as part of his employment with RFO. He stated that he stays on the property as a condition of his employment. Neither he nor Mrs. Maraffi were the record owners of the property, nor were they lessees. Further, Mr. Maraffi testified that he conducted his music business from the home and Mrs. Maraffi gave music lessons in the home. Various rooms in the home were used for lessons. RFO pays all of the utilities and repairs on the home. In May 2003, RFO had successfully petitioned the Tax Board seeking complete property tax exemption for the property as a charitable organization. During that hearing, Mr. Maraffi also advised that a drama teacher, Molly Barber ("Barber"), had been employed on-site to work with Mrs. Maraffi but that she did not stay on the property. A flyer advertising lessons during the week for local students to be given by Mrs. Maraffi and Barber was introduced into evidence.
The Law Division judge found that RFO violated the ordinance in that the property was being used for a school residence for its teachers but that the use of the home for teaching was not in conformity with section 1008(a) of the ordinance. Specifically, the court found that the practitioner, Mrs. Maraffi, was giving lessons in the house but was not the owner or lessee of the residence.
On appeal, RFO argues that the Law Division judge erred in finding RFO guilty of violating the zoning ordinance because the requirement that the resident practitioner also be the owner or lessee of the residence is an invalid zoning requirement. In addition, RFO argues that the trial judge erred in finding that the Maraffis were not lessees and that the sentence imposed by the Law Division judge was more severe than that imposed at the trial level.
N.J.S.A. 40:55D-62 permits municipalities to adopt zoning ordinances. A zoning ordinance drawn in conformity with the statute must be drawn with "reasonable consideration to the character of each district and its peculiar suitability for particular uses." N.J.S.A. 40:55D-62a. Zoning classifications must be "uniform and equal" and must rest "on real and not feigned differences." Kempner v. Edison Twp., 54 N.J. Super. 408, 415 (App. Div. 1959). Arbitrary discrimination in zoning is not permissible and similar situations must be classified alike with actions grounded in reason and judgment based upon the policy of the zoning statutes. Jones v. Zoning Bd. of Adj. of Long Beach Twp., 32 N.J. Super. 397, 403 (App. Div. 1954). In ...