Posted by: Patricia Salkin | February 14, 2019

NJ Appeals Court Upholds Reversal of Variance Restriction Regarding Owner-Occupied Condition

This post was authored by Touro Law student Thomas Brown ‘20
In 1999, plaintiff homeowners Maria Tirpak and her now-deceased husband applied for a variance to be able to raze their home and build a two-family home in an area zoned for single-family. As a condition of approving the variance, the Zoning Board required a variance provision and deed restriction that one of the two units be occupied by the owner rather than rented out to a third-party.

Mrs. Tirpak applied to the Borough of Point Pleasant Beach Board of Adjustment to remove the deed restriction and was denied. She sought an Order from the Superior Court of New Jersey to reverse the denial and was granted a reversal, and the Borough appealed.

The Superior Court of N.J., Appellate Division agreed with the lower court that municipalities may regulate “land use” but not the “identity or status” of the owners or persons who occupy the land. The Court cited its own decision in DeFelice v. Zoning Bd. of Adjustment of Borough of Point Pleasant Beach, 523 A.2d 1086 (App. Div. 1987), where it stated that the Zoning Board was “powerless to attach [such] a condition restricting the future identity of the owners”–a condition that would have allowed the Borough to demolish the owner’s residence upon sale of the property or the owner’s death.

The defendants argued that an owner living in one unit would be more inclined than an absentee owner to ensure that the tenants in the other units obeyed “noise, parking, and other local ordinances,” but the Court was not persuaded, stating that there was no guarantee that that would be the case.

The Court concluded that the defendants cannot try to maintain a “quiet and peaceful environment” by imposing zoning restrictions that “discriminate against renters” and that it was too late to try to rescind the two-family variance altogether. Instead, the best solution, as the trial court found, was to nullify the deed restriction and “illegal” variance condition.

Tirpak v. Borough of Point Pleasant Beach Bd. of Adjustment, 2019 WL 507717 (N.J. Super. Ct. App. Div. Feb. 11, 2019).


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