On appeal from Superior court, Law Division, Ocean County.
R. S. Cohen and Gruccio. The opinion of the court was delivered by: Gruccio, J.A.D.
Defendant Zoning Board of Adjustment of the Borough of Point Pleasant Beach appeals from a grant of summary judgment in favor of plaintiffs Edward and Agnes DeFelice invalidating a condition imposed on a variance permitting a second dwelling on premises purchased by plaintiffs.
On appeal Defendant contends that the conditions imposed on the variance by the Board of Adjustment are reasonable and proper; that the trial court having found the condition invalid was required to remand the matter to the Board of Adjustment for determination of the validity of the variance with or without conditions, and that a variance which imposes conditions solely for the benefit of the applicant is inseparable from the variance and based on the Board's ultra vires actions, therefore, the trial court was compelled to set aside the variance when it set aside the condition thereto.
We disagree and affirm the trial court for the reasons hereinafter set forth.
Plaintiffs acquired the property in question in August 1984, by deed from the Ocean County Sheriff as a result of their successful $410,250 bid at a foreclosure sale. The property is in a residential zone where lots are required to have a minimum of 15,000 square feet. Plaintiffs' lot contains 43,750 square feet and contains two residential homes and a garage. One home is located on the section of the property fronting Lincoln Avenue; the second home is at the rear of the property bounded by the Manasquan River. In preparation for closing on the property, plaintiffs ordered a title search which disclosed an agreement between the Zoning Board and the previous owner, W. Emlen Roosevelt, which provided:
In the event of the sale or upon the death of the owner of the premises, the Board shall have the right and the appellant hereby agrees that it may, should it deem advisable, to demolish any of the buildings erected upon the premises herein mentioned.
For many years prior to the grant of this variance, the property had two houses constructed on it; however, one of the houses was destroyed by fire and Roosevelt petitioned the Board to replace that house. The variance was granted on condition that Roosevelt execute an agreement continuing the above-granted restriction.
Plaintiffs contend that neither they nor their real estate agent had prior knowledge of the above agreement. Plaintiffs purchased the property because of the two houses on the property, one of which they intended to use as a residence by their unemancipated children.
After closing in early September 1984, plaintiffs were notified by the Building Inspector that this property was in violation of borough zoning ordinances and he refused to issue a certificate of occupancy.
Thereafter plaintiffs made application under N.J.S.A. 40:55D-70(a), (b), (c), and (d) for continuation of the variance granted to Roosevelt. At the hearing, the Board heard from witnesses, only one of whom objected to the variance; namely, a neighbor who was plaintiffs' competitive bidder at the sheriff's sale. The Board denied plaintiffs' request to continue the variance.
Plaintiffs appealed to the Superior Court, Law Division. The Law Division judge granted summary judgment finding the variance valid; however, he determined that the condition imposed upon the variance was ...