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Berninger v. Board of Adjustment of Midland Park

Decided: February 27, 1991.

MARK BERNINGER AND CAROL BERNINGER, HIS WIFE, PLAINTIFFS-RESPONDENTS,
v.
BOARD OF ADJUSTMENT OF MIDLAND PARK, MAYOR AND COUNCIL OF MIDLAND PARK, AND JOHANNA VOGEL, DEFENDANTS, AND ELIAS NOURY AND MARIE NOURY, HIS WIFE, DEFENDANTS-APPELLANTS



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Gaulkin, Shebell and Skillman. Gaulkin, P.J.A.D., concurring in part and dissenting in part.

Per Curiam

PER CURIAM.

Defendants, Elias Noury and Marie Noury, appeal from a judgment which invalidates an exception or variance granted in 1939 to a predecessor-in-title to use the property as a two-family house. The grant was with the express condition that the premises would revert back to a single-family house when the applicants sold the property.

This litigation arose after the Nourys contracted to purchase the house from Johanna Vogel. Mark Berninger and Carol Berninger, nearby neighbors, protested to the zoning officer

that the premises must only be used as a single-family house. The zoning officer issued his written opinion that use of the property must be so limited. On March 18, 1988, Vogel filed an application with the Midland Park Board of Adjustment (Board of Adjustment) for an interpretation of the status of the house, thereby appealing from the decision of the zoning officer. Following a hearing, the Board of Adjustment reversed the zoning officer's decision on the basis that the Board lacked jurisdiction to question the merits of the 1939 variance or exception grant.

The Berningers, on August 19, 1988, filed a complaint in lieu of prerogative writs in the Law Division. Vogel and the Nourys filed a joint answer. The Board of Adjustment and the municipality notified the Law Division that they did not intend to participate in the litigation. The Law Division judge, following oral argument, held in a written opinion that while the condition was illegal, so was the exception granted to the predecessor-in-title since there was no proof in the record that the governing body acted properly in 1939. The judge, therefore, reversed the decision of the Board of Adjustment; he held that the 1939 grant was void and subject to attack at anytime. We reverse.

The property in question presently consists of a two-family dwelling located at 148 Vreeland Avenue, Midland Park. The neighborhood is zoned for single-family dwellings. The Berningers reside next door to the subject premises. The property has been utilized as a two-family dwelling since 1939 when the owner of the property, Minerd DeJong, obtained from the governing body an exception to convert the property from a single-family residence to a two-family residence. The record of the "exception" consists only of the minutes of a single meeting of the governing body.

According to the 1939 minutes, "the Board of Adjustment recommended that an exception be granted to Minerd DeJong, to allow his premises at 148 Vreeland Avenue to be used as a two-family dwelling." The mayor remarked that he had seen

several applications granted to convert single-family houses to two-family houses and felt that "unless something was done, there would no longer be a one-family residence zone and the zoning ordinance would be worthless." He suggested that any further approvals should be subject to the condition that "should the premises in question be sold, then the property would revert back to its original one-family status." The governing body adopted a resolution stating:

That the recommendation of the Board of Adjustment be and is hereby ordered approved, with the provisions that if the said MINERD DE JONG should sell the above-mentioned premises, then the said premises shall revert back to its ...


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