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State of New Jersey v. Bayard

A-2839-02T1 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; HOME BUSINESSES—A property owner may argue that a home profession zoning ordinance unconstitutionally excludes certain professionals and not others.

A homeowner was found guilty of operating a prohibited holistic healing and counseling business out of her home in violation of a local ordinance. The municipal construction official determined that the owner’s “pastoral counseling” business was not entitled to the protection of the Home Profession Zoning Ordinance. The owner claimed she was working under an umbrella of the municipality’s Home Profession Zoning Ordinance and that she was actively giving group sessions as a minister/teacher to her clients. However, the municipality’s definition of “teacher” was someone who gave individual instruction in academic or scientific subjects to a single pupil at a time. That is why the construction official concluded that the woman was operating a business from her home illegally.

In her appeal, the zoning board of adjustment concluded that the woman’s “pastoral counseling” business did not fall within the definition of either a Home Occupation or a Home Profession, the two categories permitted in the single-family zone. “Home Occupation” included things such as dressmaking and tutoring, limited to a single pupil at a time. “Home Profession” included the office or studio of a resident physician, artist, writer, dentist or lawyer. That is why the board concluded that the definition of “teacher” was restricted to a person giving individual instruction to a single pupil at a time.

The homeowner then filed an unsuccessful action “In Lieu of Prerogative Writs” in the Law Division. However, in its rejection of the homeowner’s claim, the lower court noted that there might have been a serious constitutional question regarding the ordinance’s exclusion of professions like the one in question but since the owner challenged only the interpretation of the ordinance and not its validity, the Court felt compelled to hold that the board was correct in its interpretation.

On further appeal to the Appellate Division, the woman raised issues as to the interpretation, as well as to the constitutional validity, of the ordinance. Because there was no evidence that these issues had ever been appropriately presented to the lower court, and due to the strange procedural course taken by the Law Division (because there was no evidence that a trial ever took place), the Court vacated the owner’s conviction and remanded the case to determine on a de novo review as to whether the elements of the offense with which the owner had been charged had in fact been established.


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