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April 21, 2011

Minutes

The April 21, 2011 Regular meeting of the Point Pleasant Beach Board of Adjustment opened at 7:30 pm. The clerk read the notice of compliance with the "Open Public Meetings Act.
Present were regular members: Mr. Wolfersberger, Chairman Struncius, Mr. Reilly, Mr. Spader, Mr. Kelly and Mr. Reynolds Alternates - Mr. Ardito and Mr. Loder

Absent – Mr. Palisi and Mr. Renner


Motion by Mr. Reilly, second by Mr. Reynolds to memorialize the minutes of the March 17, 2011 meeting.

In favor: Kelly, Spader, Wolfersberger, Reilly, Reynolds and Ardito.
Opposed: None


Motion by Mr. Reynolds, second by Mr. Reilly to memorialize the action and vote approving Resolution #2011-01 of Bertha Hudak and Patricia Stumpp with conditions

In favor: Spader, Kelly, Reilly, Reynolds and Ardito
Opposed: None

Application #2010-26 – Carolan and William Ammirata – Block 36; Lot 1: - Applicant wishes to continue existing home occupation. (Pilates/Personal training).

John Jackson, attorney for the applicant. John Jackson explained how the application landed back in front of the Board as a “use” variance application. John Jackson stated that testimony will show how the home occupation use is actually less intense then if the home was occupied by a family. He stated that home occupation is important for the fabric of society; it is not much different than if someone gives piano lessons at home.

Carolan Ammirata, applicant, sworn; gave a brief history of the property. Family utilizes both structures for personal and professional reasons. Carolan keeps her clothes and showers in second residence; she does everything accept sleep in the second residence. Pictures entered into evidence – A-3, A-4 and A-5. Carolan stated that she first applied for the home occupation license over seven (7) years ago. She previously had worked for other people and it was nice to have her own business. Hours of operation have been from 8am until 1pm. Once in a while she might have one or two later in the afternoon. Clients park either on the street or in her driveway. Instruction consists of body awareness (moving yoga). The property has never had any drainage problems. The lighting is normal home lighting. Google Earth photo marked into evidence – A-6

Michael Wenning, attorney for objector cross examined Carolan Ammirata. Carolan stated that she also utilizes the home for personal time such as reading and watching videos. Nutritional counseling is done in the living room where they just sit and talk.

Audience Questions

Lee Jani – Why would expect your neighbors to put up with traffic and noise? (Carolan said she does not believe there is any traffic or noise created)Why would you expect a retail business permit? (Carolan – I am not retail)

Mr. Wolfersberger – I believe there is one person at a time, with an overlap which might have 2 there at a time. Within a given time there would be 5 people through the course of the day.

Mr. Wenning inquired if Carol Ammirata would be open to restrictions, (CA – said she would prefer not to).

Lee Jani – Inquired about if any of her visitors ever parked in front of his home on the street. (Yes)

Christine Cofone – Professional Planner, credentials accepted. Applicant based on Judge Grasso’s office was directed to apply for a “use” variance. Home Occupation’s are permitted in this zone. No one is asking to do something in this zone that is not permitted. Home occupations are permitted at this location, just not in the assessory structure. Business is only operated for a couple of hours a day to a small number of clients. The subject property is 13,315 square feet where only 5,000 square feet is required.

Positive Criteria promotes the general welfare and is completely compliant with the home occupation requirements. This is an appropriate use with an appropriate amount of space. Utilizing this property for a home occupation is an efficient use of this land. This would not have a detriment to the area’s zone plan. Allowable building coverage is 30% and we are at 9.6%; allowable impervious is 50%, where we have 19%. These are not massive structures; this is a low intensity and use. Nothing that will be done here will have any detriment.

Michael Wenning questioned Christine Cofone – Inquired if she had a copy of the home occupation ordinance? (Yes) He questioned her in regards to the ordinance and Judge Grasso’s decision.

Mr. Kelly inquired if it is legal for the Ammirata‘s to park their cars on the street (Yes)

Christine Cofone stated that if the home was rented to roommate’s that many more cars would be parked on the street.


Victor Furmanec – Licensed Professional Planner – Oppositions’ Planner – Stated that a home occupation is to be operated from the main residence and that an additional use creates a need for more parking. He said a parking lot could be built in the rear of the buildings and alleviate the need for parking on the street. Victor Furmanec reviewed Michael Cole’s Engineering letter. He said this building is no different than a garage; He does not believe that the applicant meets the criteria for home occupation but stated that it is suited to operate in 1026 Gowdy Avenue. Chairman Struncius inquired if he believes that two cars an hour will change the residential character? (Victor is not sure) He has not visited the property in the morning to know. Mr. Ardito inquired if the parking requirement he was stating was for commercial or home occupation. Victor Furmanec said that a home occupation was a commercial use within a home. Mr. Ardito stated that he is not clear; these are two single-family residences which require one parking space each and then you have one client coming per hour which is three parking spaces. Michael Cole, Board Engineer interjected that the home occupation is a less intense use then the home being occupied by a family.

Mr. Wenning stated that this is a new application and he said he needs it clarified if these are two pre-existing non conforming structures. Ben Montenegro read from Judge Grasso’s ruling which states they are two pre-existing non-conforming structures. Judge Grasso ruled the one is considered an accessory structure for the purpose of the home occupation because it is not where the applicant’s sleep. Chairman Struncius agrees that the use is less intense than a family occupying the structure and feels that putting a parking lot in the rear of the home would make the use more intense. Victor Furmanec stated that if they feel there is no need for a parking lot that testimony should be given why the applicant should receive a parking variance.

John Jackson cross examined Victor Furmanec. John Jackson asked him that if the home occupation was in the main residence that none of this would be needed and Carolan Ammirata could just apply and get her permit. (yes) Victor Furmanec stated that if they have the home occupation in 1026 there will be no problem.


Richard Standt – 103 Elizabeth inquired what the frontage of the property is? The frontage is 79.93. Richard Standt asked how many cars you can park in front of the home on the street. Victor Furmanec did not know the answer.

Robert Ingenito – Objector, sworn. – Lives at 1101 Gowdy Avenue diagonally across the street from the applicant. Exhibit O -2 entered – public notice Robert Ingenito read the notice into the record. Robert Ingenito said he noticed the home occupation in 2007 because of the cars coming and going. He said he inquired with the Zoning Officer about the business and was told it was OK and not to worry about it. Then Carolan Ammirata came to his home and offered to show him her home and the business to alleviate any worries he had and when he got home he drew a diagram of the interior of 1028. He said he was most surprised that 100% of the home was being used for her business. At this time he started videotaping the applicant’s property and customers. Robert Ingenito said he has provided hours of video to show how untruthful the applicants have been about the traffic. He complained that people park on the public street.

John Jackson inquired if Robert Ingenito would have a problem if the applicant ran the business out of one big home on the lot and he replied that he would not.

Audience questions/Comments

Allodio Cafferty – lives at 1100 Gowdy and has never had a problem with parking. Inquired of Robert Ingenito why he videotaped her home and if it was legal?

Lee Jani – 1023 Gowdy Avenue – Is there not ample commercial space for rent in our town? I think there is a precedent being set. If you take the hours of operation of say Ocean County Music they are not open for 12 hours. The issue at hand is this is a retail service in a residential location. You are allowing them to put a tattoo parlor on a residential street, there is no difference.

Bret Gordon – 1020 Gowdy Avenue – I live right next door to the Ammirata’s and it was well past a year before I knew there was a business next door to me and that it is because of this application. I live on Gowdy Avenue and I do not hear doors slamming and noise. I live next door and there is no noise and everyone would be grateful to have neighbor’s like the Ammirata‘s.

Alodia Cafferty – I have been living next door to the Ammirata‘s for 17 years and I never knew there was a business. I have not seen any traffic the only problem is when my company parked in front of Robert Ingenito’s home and he came over and asked me to have the car moved. It is a public street and anyone can park there.



Marie Ellwell – Winding River Road in Brick. Robert Ingenito took a picture of me. Carolan has asked us not to park near Ingenito’s home even though it is a public street.

Frank Carey – Briarcliff Road – I live around the corner and have never seen excessive cars parked on the street. We are social and we have always considered the two homes one home.


Michael Wenning summation – The court has already determined that this home is an assessory structure so this is not a home occupation. This is a clear attempt to put a commercial use in an accessory structure. He repeated his concerns on the parking situation and the fact that the applicant does not want any restrictions. He believes they should move the home occupation into 1026 Gowdy.

John Jackson summation – In 2003 the applicant did all the right things. The Zoning officer believed she met the criteria. Robert Ingenito filed and injunction many years later. The Ingenito’s and Lee Jani do not like what is going on. The question is “Is it reasonable”. The applicant’s use both tiny houses as their residence. The common sense of this is that it is no difference than someone gives piano lessons. They meet the ordinance in every way except that there are two homes.







Deliberations


Mr. Spader – If this was a perfect world we would have equal sized lots and we wouldn’t be dealing with old homes. We wouldn’t be dealing with two small homes. I can see them utilizing both homes; they are small. I parked there and watched what kind of activity was going on and I didn’t see a problem. The time of operation should be 8am till 7pm. That could be considered a restriction. Does not have a problem with application.

Mr. Kelly – The gentlemen in back stated that we are setting a precedent which is inaccurate. Each case is handled individually. We have all been here at 7am in the summer and we all hear doors close and I understand that Gowdy is quieter than most streets. In favor of this application.

Mr. Reilly – As I understand it Judge Grasso has asked to provide or not provide a variance for the accessory structure. I think it is all a technicality. Whoever put the definition of accessory structure together did not have this home in mind. The applicant could sub-divide and this issue would go away. When you look at the alternatives: you could have a breeze way or build a new home and this would all go away, this is all very technical. He does have several conditions to suggest –

1. This variance will be just for this business.
2. Business can be in either home just not both at the same time.
3. Hours of operation to be 8am till 7pm
4. Sunday to be the day off.



Mr. Reynolds – Agrees with the conditions with the exception of Sunday. Inherently benefits the public good. 1. Provides a greener environment 2. Can help people in wheelchairs. 3. Provides nutritional counseling. Believes the site is suited to this zone. Also believes this fits the definition of home occupation. Cannot find anything wrong with this application: In favor

Mr. Ardito – Came to hearing after reviewing Judge Grasso’s ruling which entitled the Ammirata’s to come before us for a use variance. This home occupation could occur on any street. Never knew there was a business there. The question is a technicality. Two principal structures are on the property; our ordinance said one of the structures had to be considered an accessory structure. Believes the burden of proof has been met. I will be in favor with conditions. Positives outweigh the negatives. In favor

Mr. Wolfersberger – Tends to agree with his colleagues. If this property was subdivided there would be no problem. This is a unique situation. Prefers a home occupation instead of a summer rental. Inclined to vote in favor.

Paul Struncius – Whenever there are neighbor objectors that is something that you have to weigh heavily, but at the same time you have many close neighbors that have the complete opposite view and support it. There is no precedent set by anything the board does here tonight; every case is decided individually. On the positive criteria side I believe the general welfare was met and the negative side it could be the intensity but there is where we place controls. We have one person coming at a time with a max of two at the changeover. That is where we have control and that limits the intensity. So I do believe that there is no substantial detriment and we are meeting the standards.



Conditions


A. The Ammirata home occupation use must be confined to 1028 Gowdy Avenue only.
B. This approval is confined to the Ammirata yoga/pilates/message therapy home occupation use as specifically testified to by applicant Ammirata.
C. There shall be no group class sessions with a maximum of two clients per scheduled session.
D. Hours of operation shall be limited to 8AM – 7Pm from Monday through Saturday and 11AM – 1PM on Sundays.
E. Applicant shall file and record a Deed subject to the review and approval of the Board Attorney and Board Engineer, for the purposes of providing notice to any future purchasers of the property, said deed identifying and attaching this Resolution of Approval and the specific conditions listed herein.


Motion by Mr. Reilly, second by Mr. Reynolds to approve application #2010-26 Of Carolan and William Ammirata with conditions.

In favor: Wolfersberger, Spader, Kelly, Struncius, Reilly, Reynolds and Ardito
Opposed: None




Meeting adjourned at 11:20pm

Attest: Karen L. Mills, Clerk of the Board


Published June17, 2011 | Board of Adjustment Minutes | 1217


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