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Robert Scott Ingenito and Alison Ingenito v. Point Pleasant Beach Zoning Board of Adjustment

January 22, 2013

ROBERT SCOTT INGENITO AND ALISON INGENITO, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
POINT PLEASANT BEACH ZONING BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT, AND WILLIAM AMMIRATA, CAROLAN AMMIRATA, AND ALL THE RIGHT MOVES WITH CAROLAN, LLC, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket Nos. L-580-10PW and L-2128-11PW.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 5, 2012 -

Before Judges Sabatino and Maven.

This appeal and cross-appeal concern land use decisions made with respect to the authority of defendants William and Carolan Ammirata ("the Ammiratas") to operate a yoga/pilates instruction business within one of the two residential structures located on their property in the Borough of Point Pleasant Beach ("the Borough"). After the trial court determined that the yoga/pilates business was being operated out of an accessory structure on the site and thereby was not authorized as a "home occupation" conditional use on a principal structure, the matter was remanded to the Borough's Zoning Board of Adjustment ("the Board"). Over the objection of plaintiffs, who live across the street from defendants, the Board granted the Ammiratas a use variance for the business on certain conditions. The trial court thereafter sustained the Board's decision.

Plaintiffs now appeal, arguing that the trial judge should have nullified the use variance because it allegedly does not satisfy the criteria for such relief prescribed by N.J.S.A. 40:55D-70(d). The Ammiratas have filed a cross-appeal, contending that the trial court erred in its threshold ruling that the house from which they operate the yoga/pilates business is an accessory building requiring a use variance. They argue that it was unnecessary for the trial court to have remanded the matter to the Board and that they can lawfully operate their business in the zone without a variance. The Board concurs with that legal argument.

For the reasons we explain in this opinion, we reverse the trial court's October 4, 2010 determination that the yoga/pilates business operated out of one of the two equivalentsized residential structures on the Ammiratas' property takes place in an accessory building requiring a use variance. Instead, we agree with the Ammiratas and the Board that the applicable ordinance provision should be construed to allow the yoga/pilates business to be deemed a "home occupation" operated out of a principal structure, thereby classifying it as a permissible conditional use. Moreover, even if that structure were considered an accessory building under the ordinance, we sustain the trial court's January 17, 2012 decision upholding the Board's issuance of a use variance, subject to the reasonable limitations that the Board imposed.

I.

The extensive record in this case presents the following circumstances and sequence of events. It depicts a long-running dispute between neighbors over the provision of yoga/pilates instruction within a residential neighborhood.

Plaintiffs, Robert and Alison Ingenito ("the Ingenitos"), own a single-family residence in the Borough of Point Pleasant.*fn1

The Ingenitos' home is across the street from the Ammiratas' property, less than two hundred feet away.

The Ammiratas' property is situated within the single-family residential ("SF-5") Zone within the Borough. The lot contains two side-by-side residences, one numbered 1026 and the other numbered 1028 on their street. Both houses are of comparable size. The two houses have been in existence since at least 1972. Initially, the Ammiratas owned three houses on two lots, but one house was eventually removed and the lots were consolidated. Because Section 19-11.9 of the Borough's zoning ordinance generally prohibits two principal structures on one lot, the two homes constitute pre-existing and non-conforming uses.

In 2003, Mrs. Ammirata applied for and received a permit from the Borough's zoning officer authorizing a home occupation use on their property. Thereafter, Mrs. Ammirata began operating a yoga and pilates instruction business on the premises, known as "All the Right Moves With Carolan, LLC." The LLC is a co-defendant with the Ammiratas in the present litigation.

The Ingenitos objected to the yoga/pilates business being operated across the street from their home. Among other things, they complained about the traffic, noise, and disruption caused by the fitness customers coming and going from the Ammiratas' property. They also objected to the customers taking parking spots on the street near their home.

According to Mrs. Ammirata's testimony, the two residences on the lot function, in essence, as "one home." As she characterized it, she uses the 1028 residence as her "woman's domain," where she stores clothes, cooks, showers, and conducts other activities. There are sleeping quarters in both residences.

As described by Mrs. Ammirata, the yoga/pilates business is operated solely out of the 1028 residence. Her customers park either on the street or in the Ammiratas' driveway. The customers' sessions are one hour long. There are no signs on the property advertising the business, and nothing pertaining to the business is apparently visible from the street.

On March 12, 2008, the Ingenitos filed an order to show cause with a verified complaint in the Chancery Division seeking relief including a permanent injunction barring the Ammiratas from operating a home business at their property. Several months later, the trial court entered an order on October 15, 2008 dismissing the case without prejudice, and instructing the Borough zoning officer to prepare a letter outlining in detail the reasons for the officer's approval of the Ammiratas' home occupation. The court's order made clear that the zoning officer's decision could be appealed to the Board, as provided by N.J.S.A. 40:55D-72.

Consistent with the trial court's instructions, the Borough's zoning officer issued a written decision on October 29, 2008, delineating her reasons for allowing the Ammiratas to conduct their yoga/pilates business as a permitted home occupation. Among other things, the zoning officer noted that "[t]he main use of [1028] is residential" and that the Borough regards "the existence of two residential structures in the SF-5 zone as two principal structures on one lot." The zoning officer further stated that, under Section 19-7 of the Borough Ordinances, each structure on the Ammiratas' property is "serving the principal residential use." According to the zoning officer neither house qualifies as an accessory structure since both are "capable of being used as a single family residence," and, therefore, they are not incidental to the primary use of the Ammiratas' property.

The Ingenitos then appealed the zoning officer's amplified decision to the Board. The parties appeared before the Board on April 16, 2009, October 15, 2009, and November 12, 2009*fn2 to determine whether the Ammiratas' use qualified as a home occupation under Section 19-11.16 of the Borough Ordinances, and whether any variances were required.

By a unanimous vote at the November 12, 2009 hearing, the Board denied the Ingenitos' appeal to overturn the zoning officer's decision and consequently approved the home occupation use at the Ammiratas' property pursuant to § 19-11.16.

On December 17, 2009, the Board adopted Resolution 2008-33, which set forth the Board's findings on these issues. The findings included the following:

A. There are two residential structures located on the subject property which are utilized for single[-]family residential purposes by the [Ammiratas].

B. In conjunction with their single [-]family residential use at the site, the owners/operators conduct a home occupation at the site, to wit, a yoga/pilates/massage/personal training home occupation at the site. The home occupation does not constitute an expansion of a nonconforming use.

C. The home occupation use commenced on or around 2003 and has continued without interruption through the time of decision by this Board.

D. During that period of time, the applicant/appellant (Ingenito) has been the only documented objector to the home ...


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