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Tirpak v. Borough of Point Pleasant Beach Board of Adjustment

Superior Court of New Jersey, Law Division, Ocean

February 11, 2019

MARIA I. TIRPAK, Plaintiff,
v.
BOROUGH OF POINT PLEASANT BEACH BOARD OF ADJUSTMENT and BOROUGH OF POINT PLEASANT BEACH, Defendants.

          Decided: May 3, 2018

          John J. Jackson III for plaintiff (King, Kitrick, Jackson & McWeeney, LLC, attorneys).

          Dennis M. Galvin for defendant Borough of Point Pleasant Beach Board of Adjustment (Davison, Eastman, Munoz, Lederman & Paone, P.A., attorneys).

          Kevin B. Riordan, attorney for defendant Borough of Point Pleasant Beach.

          FORD, A.J.S.C.

         The matter before the court is the plaintiff's Complaint in lieu of prerogative writs. Plaintiff, Maria I. Tirpak (hereinafter referred to as "plaintiff" or "Mrs. Tirpak") seeks an Order reversing the decision of the Borough of Point Pleasant Beach Board of Adjustment (hereinafter referred to as "defendant Board") to deny her application to remove a deed restriction on her residential property. Plaintiff is the owner of a two-family residence located at 401 Carter Avenue, Point Pleasant Beach, New Jersey (hereinafter referred to as "subject property").

         BACKGROUND

         In 1993, plaintiff and her husband, Leslie J. Tirpak, purchased the subject property upon which was a pre-existing two-family residence. The property is zoned for single-family use. The Tirpaks made application to the Zoning Board for a variance to permit them to demolish the existing two-family residence and to replace it with a newly constructed two-family residence. On or about October 21, 1999, the Borough of Point Pleasant Beach Zoning Board of Adjustment adopted a Resolution of Approval. Although the Board allowed continuation of the two-family use, the Board required the Tirpaks to file a deed which restricted the use of one unit as a personal owner-occupied residence and to limit rentals to the other unit. The Tirpaks complied with this condition and filed a deed dated March 21, 2000, which included this restriction on the use of their property.

         After their new residence was constructed, the Tirpaks lived in one of the units and they rented the other unit in the duplex to various seasonal tenants. In 2014, Leslie J. Tirpak passed away, leaving Mrs. Tirpak as the sole owner of the property. Mrs. Tirpak continued to live in one unit and she continued to rent out the other unit. As she advanced in age, it became increasingly burdensome for her to maintain and manage the two-family residence. Mrs. Tirpak eventually relocated to South Carolina full time, although she continues to own and occasionally use the property in Point Pleasant Beach.

         Since she had limited need for this additional residence, Mrs. Tirpak decided to list her property for sale. However, her real estate broker advised her the existing deed restriction was an impediment to successful marketing of the property. In addition, Mrs. Tirpak could not rent the unit she previously occupied without violating the deed restriction. Because she believes enforcement of the deed restriction is onerous, unfair, and illegal, Mrs. Tirpak applied to the Point Pleasant Beach Board of Adjustment for relief from that deed restriction. The Board conducted a public hearing on her application. Several neighbors of Mrs. Tirpak objected to her request for relief, citing concerns that the rental of both units, without adequate supervision, would have a negative impact upon the quality of life in this predominantly single-family home neighborhood.

         On September 7, 2017, the Point Pleasant Beach Board of Adjustment considered the proofs and evidence submitted by the applicant and the testimony of interested persons. The Board rejected the application to remove the deed restriction. Defendant Board found that the deed restriction prohibiting the rental of both units ". . . is a reasonable restraint on the use of the property because 2 family homes are not permitted in this zone; and this restriction brought this two-family into greater conformity with this single-family zone."

         FINDINGS

         Standard of Review

         This court's role in reviewing determinations of local planning boards or zoning boards is clearly defined by case law. Such boards are independent administrative bodies acting in a quasi-judicial manner. Dolan v. De Capua, 16 N.J. 599, 612 (1954). The board's powers are statutorily derived. See Duffcon Concrete Prods., Inc. v. Cresskill, 1 N.J. 509, 515-16 (1949). Accordingly, a trial court must view the actions of a board as presumptively correct. Rexon v. Bd. of Adj. of Haddonfield, 10 N.J. 1, 7 (1952). The boards, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion. Ward v. Scott, 16 N.J. 16, 23 (1954). The burden of proof rests with the challenging party and the standard of review is whether the decision can be found to be arbitrary, capricious, or unreasonable. Kramer v. Bd. of Adj. of Sea Girt, 45 N.J. 268 (1965). Judicial review is intended to be a determination of the validity of the board's actions, not a substitution of the court's judgment therefor. Peoples Trust Co. v. Hasbrouck Heights Bd. of Adj., 60 N.J.Super. 569, 573 (App. Div. 1959); Rowatti v. Gonchar, 101 N.J. 46, 51-52 (1985). "Courts give greater deference to variance denials than to grants of variances, since variances tend ...


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