accused by neighbors
of operating a business
Manalapan homeowner
accused by neighbors
of operating a business
By dave benjamin
Staff Writer
MANALAPAN — A township resident is due in court on Sept. 30 to answer a charge that she operated a business out of her home.
Aleta Heir has been embroiled in the matter with the municipality for several years. On July 11, 2002 she received a summons that charged her with operating a business in a residential zone in violation of the law. She said neighbors complained that she was operating a business in her home and took their complaints to township officials.
Unlike some municipalities that have legalized some business operations at private residences, Manalapan has no such law on the books and neither does the state.
Heir, a physical therapist, said she is not operating out of her home now. At present, she operates at the facilities of Professional Sports and Rehabilitation Associates (Planet Fitness), Manalapan. She claims other people on her street, Birmingham Drive, are operating businesses out of their homes and have not been charged with a violation.
Heir saw what may have been her final chance at municipal approval go by the boards when the zoning board recently decided not to reconsider her application for a use variance. A majority of board members said they found her latest application to be substantially the same as an application for a use variance that she filed in 1999. That application, which would have allowed her to operate a business from her home if it had been granted, was rejected by the board.
In arguing for the board to hear the case again, Heir represented herself at the latest hearing and read prepared testimony in which she said she had consulted a doctor.
"One of the differences between this application and the one in 1999 is that I didn’t have a significant back problem at that time, and it was ruled in your decision, especially the decision by three of your board members that voted against me, that this was a local business," Heir said. "That was a consideration of why I should be denied in 1999."
Heir said another difference between the 1999 application and the present one she was asking the board to hear is that she expects fewer clients. The applicant noted that her calendar from this past year had no more than 12 clients during any week.
"I’ve been averaging seven a week and have no intention to try to push the limits, if I am granted this variance," Heir said. "I’ve been doing an average of seven a week now, and that’s to pay the rent."
The applicant said she had retained a professional planner for the present application.
Heir claimed there are plenty of home occupations within two blocks of her home and said she had photos of activities on her block. The applicant said, "There is a niche for low-profile occupations in residential areas. Home occupations should be encouraged as a means of reducing traffic congestion and creating reasonable work places. My present facility [at] Professional Sports and Rehabilitation Associates is expanding, the rent is going to increase and my future there is going to be questionable."
Board member Rudy Schmid asked if the substantial changes applied to medical conditions or financial changes.
Zoning board attorney James Kinneally said that according to case law, the substantial change would be in the nature of the application or the circumstances surrounding the property.
"I don’t believe that the applicant’s economic status is ever a valid consideration for making a decision," Kinneally said. "Medical conditions, if the board finds them relevant, can be considered by the board. But the applicant is here for a use variance. Changed circumstances concerning the property and the neighborhood is the subject of the application."
In a poll of the board members, Schmid said, "I can honestly say that I don’t see any substantial difference in this application other than the fact that the applicant doesn’t feel that she can do the amount of work that she did before. I don’t think that is pertinent as far as the zoning board is concerned. One of the biggest problems you have with any kind of an application like that is policing it. It’s impossible. If we hear this again we will be hearing the same application."
Board member Diane Padlo said, "Every [meeting] agenda has an item that contains neighborhoods disputes. We’re dealing more with the psychology of neighborhoods, more than we’re dealing with municipal land use law. I don’t see anything different from the case you presented in 1999."
Padlo said Manalapan is not prepared for client-based, home-based businesses.
"I believe this is the same exact case that I sat here for in 1999," she said. "I’m not convinced that it’s any different."
Board member Henry Rose agreed and said a home-based business is not legal in that zone.
Board member Cynthia Maurino said, "I do not believe there is any substantial difference in the case that you presented today compared to the case I listened to from 1999. The municipal land use law is what we are here to uphold and based on that, I do not believe there is any difference in your application. Home-based businesses are not allowed and my answer is no."
Board member Maureen Castellani agreed, saying, "There is a town ordinance, and the ordinance [states that] this is an absolute prohibited use."
Board member Stephen Cohen said he was in 100 percent agreement with the other board members.
"A use variance is a difficult thing to obtain," Cohen told Heir. "Your current application is, in my opinion, identical [to the 1999 application]. I have to consider the land use law."
Fred Stone, the only board member to agree with Heir, said he considered changes in the township, possible changes in the licensing status of the profession, evidence about other home-based businesses that have popped up, the passage of four years and the hardship on the applicant in concluding that Heir should have been allowed to present her case to the zoning board once more.
Board Vice Chairman Salvatore Vitale said he would not vote to hear the application again.
"There are not enough changes," he said.
Schmid, Padlo, Castellani, Vitale, Cohen, Maurino and Rose voted not to rehear the case and the motion carried. Stone voted to let Heir present her case again. Zoning board Chairman Arthur Tortorelli recused himself from the application.
Heir said Tortorelli lives across the street from her.
Now the next step in the case will be Heir’s appearance before Municipal Court Judge James Newman on Sept. 30.