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


January 22, 2013


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

Per curiam.


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.


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 occupation use at the subject property.

E. There are no exterior signs or other evidence of the business that are visible from the exterior of the site.

F. With the exception of the one "meditation weekend[,"] only Ms. Ammirata, who resides at the site participates in the conduct of the business activity, and there are no employees or deliveries made at the site.

G. The operation of the home occupation is confined at all times to the interior of the residential structure [at the 1028 house] and not to any accessory building.

H. All operations of the home occupation business are not apparent or visible from the exterior of the premises inasmuch as the instruction/activity takes place solely within the confines of the structure.

I. The home occupation use creates no excessive or unreasonable noise or other nuisance so as to interfere with the enjoyment of the neighboring properties, inasmuch as the instruction/activity is confined to the confines of the residential structure and cannot be heard or witnessed from any adjoining properties.

J. The home occupation does not generate excessive pedestrian or vehicular traffic, inasmuch as the testimony and video of the operation establishes that the ingress/egress of customers is sporadic; not inconsistent with the comings and goings related to single[-] family residential use (without a home occupation) and showed that over a two year period monitored by the applicant/appellant the busiest day evidenced approximately nine vehicles coming to this site over a 12 hour period.

K. There was no evidence that any equipment used or installed in connection with the home occupation interfered with the receipt of the proper transmission of any radio or television signals to the premises or adjoining properties.

L. There was no evidence that any flammable toxic or hazardous substances were used or stored in connection with the home occupation.

M. The person engaging in the home occupation is currently registered with the Code Enforcement Officer/Borough of Point Pleasant Beach and must continue to do so, on an annual basis.

The Ingenitos subsequently filed an action in lieu of prerogative writs with the trial court on February 2010, seeking to nullify the Board's determination that the Ammiratas' business qualified as a "home occupation," defined by Section 19-11.16 of the zoning ordinance. Under the ordinance, such use must be conducted within a property's "main building."

On October 4, 2010, the trial court issued its first opinion in this case. The court concluded that the Ammiratas' business was conducted in an "accessory" structure rather than in the property's "main building" and therefore could not qualify as a "home occupation."

The court issued a companion order on October 22, 2010, negating the Board's decision approving the home occupation use. The court ordered the Ammiratas to apply to the Board for a use variance if they wished to continue their business on the premises. Following that ruling, the Ammiratas applied to the Board for a use variance, seeking approval for the operation of the yoga/pilates business at the 1028 house.

The Board conducted a hearing on April 21, 2011. At that hearing, Mrs. Ammirata testified and described the Ammiratas' use of the two houses and the activities of her business.

The Ammiratas also presented to the Board expert testimony from a licensed professional planner, Christine Cofone, who addressed the "particular suitability" of the site for a yoga/pilates operation required for a so-called "d" variance. Cofone observed that a use variance for a home occupation is "specifically permitted at this location[.]" She further testified about the historical trend of treating home occupations as more socially desirable in New Jersey, noting that many municipalities have expanded upon their home occupation ordinances in residential zones. In addition, Cofone opined that the factors (a), (g), and (m) under N.J.S.A. 40:55D-2 apply here to satisfy the positive criteria in support of a "d" variance.*fn3 As for the negative criteria for a "d" variance, Cofone explained that constructing a walkway between the two houses would eliminate problems with the uses of the two structures. In addition, she expressed the view that the proposed use for yoga and pilates instruction is of such a low intensity that no negative impact can result.

Victor Furmanec, a licensed professional planner, testified on behalf of the Ingenitos as an expert. He concluded that the Ammiratas had not met the criteria for a use variance.

According to Furmanec's testimony, the Ammiratas are conducting, in essence, a commercial operation in an accessory building, as opposed to an accessory home occupation within a residential structure. He further testified that this operation is more particularly suited for the 1026 house, rather than in the 1028 house. In addition, Furmanec asserted that the intent of the zoning ordinance has been impaired by allowing a use that is contrary to the home occupation provision, which disallows such uses in an accessory structure, and because this is a commercial use, which should be separate from a residential use. Furmanec contended that the use is commercial because Mrs. Ammirata is conducting an occupation that allegedly changes the character of the use as residential. Furmanec conceded that there is adequate street parking on the premises. He also acknowledged that if the Ammiratas' property instead contained one large house, there would be no impediment to the yoga/pilates business being operated there and that the "activity level is compatible with the home occupation ordinance."

Mr. Ingenito also testified. He stated that he had the opportunity to observe the yoga/pilates operation at the 1028 house when Mrs. Ammirata invited him inside, and according to his testimony, "100 percent of that building was being used for the business[.]" He further testified that he had videotaped the premises over a period of several months. The videotape showed that customers were arriving as early as 6:00 am. and as late as 10:00 p.m. When asked about how the Ammiratas' home occupation use has affected him as a neighbor, Mr. Ingenito's primary complaint related to the parking in front of his house, as the yoga/pilates customers have made it difficult for him to get out of his driveway. Mr. Ingenito's other expressed concern pertained to the Ammiratas' operation of a home occupation in an accessory building, and that there are seemingly no restrictions in place to prevent it from "growing and growing." Mr. Ingenito conceded that if the Ammiratas "ran the exact same business out of one bigger house" he would have no objection. Mr. Ingenito acknowledged that Mrs. Ingenito had herself provided yoga instruction, but allegedly "not for the last two years."

After also hearing testimony from other residents, the Board adopted Resolution 2010-26 on May 19, 2011 approving the Ammiratas' application for use variance relief by a unanimous vote. The Board found the Ammiratas' property to be particularly suited for the home occupation use, mainly due to the business's low-impact nature and its compliance with the Borough's ordinance pertaining to home occupations. The Board also detailed its reasoning explaining why the positive criteria and the negative criteria were satisfied for a "d" variance.

The Board imposed a series of conditions upon its approval. Those conditions included, among other things: that the home occupation use is confined to the 1028 house, that no more than two clients are allowed per session, and that the hours of operation will be from 8:00 a.m. to 7:00 p.m., Monday through Saturday, and 11:00 a.m. to 1:00 p.m. on Sundays.

The Ingenitos then sought further review in the Law Division, contesting the Board's application of the variance standards under N.J.S.A. 40:55D-70(d)(1).

The trial court issued a written opinion on January 17, 2012 finding the Board's treatment of the application as a d(1) variance was proper. The court further found that the Board had "properly considered the matter as a variance to permit a home occupation in a building other than the Ammiratas' principal residence." The court issued a corresponding order on February 7, 2012, affirming the Board's approval of the use variance application as a proper exercise of its discretion, and dismissing the Ingenitos' complaint with prejudice.

The Ingenitos' appeal, and the Ammiratas' cross-appeal, followed.


We consider first the trial court's legal determination that the 1028 house should be classified under the Borough's zoning ordinance as an "accessory" building to the 1026 house, thereby disallowing a home occupation in the 1028 house without a use variance.

Section 19-7.1, the definitional section of the zoning ordinance, defines an accessory building, in pertinent part, as follows:

19-7.1 Definitions.

Accessory Building or Use. A subordinate building or use which is located on the same lot on which the main building or use is situated and which is reasonably necessary and incidental to the conduct of the primary use of such building or use. [Emphasis added.]

That section further defines a "principal building," as follows:

Principal Building. A building or buildings in which is conducted the main or principal use of the lot on which the building is situated. [Emphasis added.]

Section 19-7.1 also expresses the following pertinent limitations on the positioning and use of an accessory building:

No accessory building or use shall be used for a business use conducted for profit apart from the main building or use.

Detached accessory buildings shall be located to the rear of the front building line of the principal building, and if located in a side yard area shall conform to side yard requirements for accessory buildings. [Emphasis added.]

These concepts are repeated and amplified in Section 19-11.1, which reads in part: 19-11.1 Accessory Buildings.

a. General. Accessory buildings and uses, except as otherwise permitted in this chapter, shall be subject to the definition of section 19-7 and the provisions of the various subsections of the section. f. Location. An accessory building may be erected in side and rear yard areas only and shall be set back from side and rear lot lines as prescribed in section 19-9[.]

g. Residence Prohibited. No accessory building shall be used or occupied for residence purposes.

[Emphasis added.]

The critical provision within the ordinance governing home occupations, Section 19-11.16, refers to both an "accessory use" and an "accessory building." It likewise uses the term "main building." Section 19-11.16 does not, however, use the terms "principal building" or "principal structure," although it does refer to the building owner's "principal occupation":

19-11.16 Home Occupations.

a. An accessory use for gain or support may be conducted on the residential premises within the main building provided that no article or service is sold or offered for sale except as may be produced on the premises, or the principal occupation of the resident is there conducted and subject to the following limitations:

1. With the exception of the sign permitted under subsection 19-11.10, paragraph b. 1. (a), no exterior signs or other evidence of the business shall be visible from the exterior of the business.

2. Only persons residing in the premises may participate in the business activity.

3. All operations of the business shall be confined to the house and not to an accessory building.

4. All operations of the business shall not be apparent or visible from the exterior of the premises.

5. No noise or other nuisance shall be created to interfere with the enjoyment of neighboring properties.

6. The home occupation shall not generate excessive pedestrian or vehicular traffic.

7. No equipment shall be used or installed which will interfere with the receiving of proper transmission of radio or television signals to the premises or adjoining premises.

8. No flammable, toxic or hazardous substances shall be used or stored in connection with the home occupation.

9. The person(s) engaging in the home occupation shall register with the code enforcement officer on an annual basis on a form provided by such officer and shall be subject to inspection to insure compliance with the restrictions applicable to a home occupation use. [Emphasis added.]

Notably, the ordinance nowhere defines the term "main building."

In construing and applying these various provisions, the trial court concluded, on de novo review, that the 1028 house is an accessory structure rather than the "main building" for home occupation purposes. The court substantially hinged its analysis upon the definition in Section 19-7.1 that such an accessory structure is "[a] subordinate building or use which is located on the same lot on which the main building or use is situated and which is reasonably necessary and incidental to the conduct of the primary use of such building." The court offered the example of a garage serving as an accessory use, which is "reasonably necessary and incidental" to the use of a single-family structure. In such circumstances, the garage would not qualify as a "main building" where a home occupation can be performed. The court also found significant that the drafters of the ordinance did not include language specifically allowing home occupations in a "principal" structure, and that they instead used the term "main building." The court consequently treated the 1028 house as an accessory structure, and not a main building, under the ordinance.

"[T]he interpretation of an ordinance is primarily a question of law." Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). In that vein, "[t]he meaning of [what comprises a] 'home occupation' requires interpretation of the language of the municipal ordinance in a given case." Columbro v. Lebanon Twp. Zoning Bd. of Adj., 424 N.J. Super. 501, 510 (App. Div. 2102); see also Jantausch v. Borough of Verona, 24 N.J. 326, 334-35 (1957); Adams v. DelMonte, 309 N.J. Super. 572, 583 (App. Div. 1998). On appeal, we review a trial court's interpretation of such an ordinance de novo, and are not obligated to accord special deference to the trial court's ruling on that question of law. Columbro, supra, 424 N.J. Super. at 509; see also Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).

We are confronted here with an idiosyncratic situation in which the Ammiratas have spread their living arrangements between two single-family houses, which are essentially of the same size, both facing the street. The houses are equally residential. Although the Ammiratas apparently sleep in the 1026 house, they spend a considerable amount of time in the 1028 house as well. In fact, as the trial court noted, the living room in the 1028 house is larger than the one in the 1026 house, and it functions as the Ammiratas' "actual living room" and where the children spend most of their time.

The trial court correctly recognized that the two houses comprise pre-existing, non-conforming uses that were built before the adoption of the zoning ordinance prohibiting two primary residences on the same lot. We part company, however, with the trial court in its treatment of the 1028 house as subordinate to the 1026 house. Under these unusual*fn4

circumstances, neither dwelling is the "main" house, in the normal sense of that term. They are both primary structures, and neither is merely ancillary. Although we agree with the trial court that a garage, by comparison, would be such an ancillary building, we do not liken the 1028 house to a garage. The Ammiratas live in both houses, we do not agree that one is truly subordinate to the other.

The question then becomes how to apply fairly the ordinance's restriction of home occupations to a "main" building. One possibility is to treat neither the 1026 house nor the 1028 house as a "main" building. Such a conclusion, however, would deprive the Ammiratas of the ability to operate any home occupation out of either building. We discern no reason to construe the ordinance so restrictively.

Another possibility is to designate, as the trial court did, only one of the two houses as a "main" structure. We do not adopt that approach either, as we consider it rather arbitrary in this unusual situation for the court to declare one of the two residences primary over the other.*fn5 The impact upon the community resulting from the home occupation is the same, regardless of where it takes place in the two houses and regardless of which house is designated as "main" or "primary."

The last possibility, one that we adopt in the distinctive factual context of this case, is to treat the two houses interchangeably, so that either*fn6 house could qualify as a "main" residence for hosting a home occupation. This is the approach that the zoning officer and the Board endorsed, and we consider it a sensible one.

Given these considerations, we conclude that the trial court erred in rejecting the Board's and local zoning officer's interpretation of the ordinance and instead declaring the 1028 house an accessory building ineligible for a home occupation without a use variance. We therefore rule in favor of the Ammiratas on their cross-appeal and reverse the trial court's October 22, 2010 order requiring them to obtain a use variance.


Having set aside the perceived necessity for a use variance, we need say little about the other issues raised before us. In sum, we are satisfied that the Ammiratas' yoga and pilates instruction business qualifies as a home occupation under Section 19-11.16 of the ordinance. The multiple conditions imposed by the Board limiting the business's hours of operation, number of customers, and so on are reasonable, and warrant our deference.*fn7

Although we appreciate that the Ingenitos ideally would prefer not to have a home occupation conducted across the street from their residence, the ordinance permits such activities on reasonable conditions. It is not our place to second-guess the wisdom of the ordinance or the Borough's policy decisions. To the contrary, we must give substantial deference to local land use bodies' "special knowledge of local conditions," giving them "wide latitude in the exercise of their discretion." Sica v. Bd. of Adjustment, 127 N.J. 152, 167 (1992).

For the sake of completeness, we lastly express our agreement with the trial court's decision upholding the Board's issuance of a use variance to the Ammiratas. Having considered the sizeable record as a whole, we agree that their variance application met the positive and negative criteria required under N.J.S.A. 40:55D-70(d). See also Medici v. BPR Co., 107 N.J. 1 (1987). Although we are not required to reach the variance issue in light of our ruling to grant the cross-appeal, we simply note that we endorse the reasoning in the trial court's cogent January 17, 2012 letter opinion on the subject.

Affirmed in part and reversed in part. The trial court shall issue a conforming order within thirty days implementing our opinion.

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