MARIA I. TIRPAK,  Plaintiff-Respondent,
BOROUGH OF POINT PLEASANT BEACH BOARD OF ADJUSTMENT, Defendant-Appellant, and BOROUGH OF POINT PLEASANT BEACH, Defendant. MARIA I. TIRPAK, Plaintiff-Respondent,
BOROUGH OF POINT PLEASANT BEACH BOARD OF ADJUSTMENT, and BOROUGH OF POINT PLEASANT BEACH, Defendants-Appellants.
January 28, 2019
appeal from Superior Court of New Jersey, Law Division, Ocean
County, Docket No. L-2918-17.
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).
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).
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
Judges Sabatino, Haas and Sumners.
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.
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.
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.
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.
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).
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).
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 ...