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Tirpak v. Borough of Point Pleasant Beach Board of Adjustment

Superior Court of New Jersey, Appellate Division

February 11, 2019

MARIA I. TIRPAK, [1] Plaintiff-Respondent,
v.
BOROUGH OF POINT PLEASANT BEACH BOARD OF ADJUSTMENT, Defendant-Appellant, and BOROUGH OF POINT PLEASANT BEACH, Defendant. MARIA I. TIRPAK, Plaintiff-Respondent,
v.
BOROUGH OF POINT PLEASANT BEACH BOARD OF ADJUSTMENT, and BOROUGH OF POINT PLEASANT BEACH, Defendants-Appellants.

          Argued January 28, 2019

          On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2918-17.

          Dennis M. Galvin argued the cause for appellant Borough of Point Pleasant Beach Board of Adjustment in A-5088-17 and A-5147-17 (Davison, Eastman, Muñoz, Lederman & Paone, PA, attorneys; Dennis M. Galvin, of counsel and on the briefs).

          Kevin B. Riordan argued the cause for appellant Borough of Point Pleasant Beach in A-5147-17 (Kevin B. Riordan, Esq., LLC, attorney; Kevin B. Riordan, Gary P. McLean and Dina R. Khajezadeh, on the briefs).

          John J. Jackson, III, argued the cause for respondent in A-5088-17 and A-5147-17 (King, Kitrick, Jackson & McWeeney, LLC, attorneys; John J. Jackson, III, of counsel and on the brief).

          Before Judges Sabatino, Haas and Sumners.

          PER CURIAM.

         Defendants, the Borough of Point Pleasant Beach and the Borough's Zoning Board of Adjustment, appeal the trial court's May 3, 2018 decision in this land use case. The court declared invalid and unenforceable a variance provision and associated deed restriction that requires one unit of the subject two-family dwelling to be occupied by the owner and not rented to a third-party tenant.

         These owner-occupancy limitations were imposed by the Board in 1999 as a condition of approving a variance allowing plaintiff Maria I. Tirpak and her now-deceased husband to raze their then-existing dwelling and construct a new two-family dwelling in a zone limited to single-family residences. The Board also required the Tirpaks to memorialize the condition as a recorded deed restriction.

         The trial court concluded the variance condition and deed restriction impermissibly discriminated against renters, and wrongfully predicated the allowable use of the property upon the identities of its occupants.

         On appeal, defendants argue the trial court should have dismissed plaintiff's challenge to the restrictions as untimely. They further contend the trial court misapplied the law and principles of equity in nullifying the variance condition and deed restriction.

         This appellate court rejects defendants' arguments, substantially for the sound reasons expressed in Assignment Judge Marlene Lynch Ford's May 3, 2018 written decision, which is published in tandem with this opinion at N.J.Super.__(App. Div. 2019).

         The trial court correctly enforced the fundamental, if not immutable, principle that "zoning enabling acts authorize local regulation of 'land use' and not regulation of the 'identity or status' of owners or persons who occupy the land." 5 Edward H. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning, § 81.7 (4th ed. 2005). The present situation does not fit any exceptions to that principle, which has been long recognized under New Jersey law. In fact, this court made clear more than thirty years ago - in an opinion coincidentally involving this same municipality - that "a zoning board is charged with the regulation of land uses and not with the person who owns or occupies the land." DeFelice v. Zoning Bd. of Adjustment of Borough of Point Pleasant Beach, 216 N.J.Super. 377, 381 (App. Div. 1987) (emphasis added).

         In DeFelice, 216 N.J.Super. at 379, the owner of a residential lot had two homes located on the property. After one of the homes burned down, the owner applied for a variance to reconstruct the house. Ibid. As a condition of variance approval, the owner agreed to grant the Zoning Board the right to demolish any of the buildings on the lot in the event of the sale of the property or owner's death. Id. at 380. This court ruled that the Zoning Board was "powerless to attach [such] a condition restricting the future identity of the owners" and deemed the condition invalid and ultra vires. Id. at 382-83. See also Repair Master, Inc. v. Borough of Paulsboro, 352 N.J.Super. 1, 10 (App. Div. 2002) (upholding a finding of invalidity of a borough's moratorium on rental licenses issued ...


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