Superior Court of New Jersey, Law Division, Ocean
MARIA I. TIRPAK, Plaintiff,
BOROUGH OF POINT PLEASANT BEACH BOARD OF ADJUSTMENT and BOROUGH OF POINT PLEASANT BEACH, Defendants.
Decided: May 3, 2018
J. Jackson III for plaintiff (King, Kitrick, Jackson &
McWeeney, LLC, attorneys).
M. Galvin for defendant Borough of Point Pleasant Beach Board
of Adjustment (Davison, Eastman, Munoz, Lederman & Paone,
B. Riordan, attorney for defendant Borough of Point Pleasant
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
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.
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.
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.
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."
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 ...