NJ Court Rules Variance Condition Discriminated Against Renters

In Tirpak v. Borough of Point Pleasant Beach Bd. of Adjustment, the Appellate Division of the New Jersey Superior Court invalidated a variance provision and associated deed restriction that required one unit of a two-family dwelling to be occupied by the owner and not rented to a third-party tenant. The decision highlights that New Jersey municipalities must be mindful not to use land use regulations as a pretext for regulating the identity of occupants. 

Facts of the Case

In 1999,the Borough of Point Pleasant Beach and its Zoning Board of Adjustment (collectively, the “defendants”) authorized 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. However, the approval was conditioned on a variance provision and associated deed restriction that required one unit of the subject two-family dwelling to be occupied by the owner and not rented to a third- party tenant. 

Following the death of her husband, Tirpak sought to have the deed restriction removed, so she could sell the property without the encumbrance. When the Borough refused, Tirpak filed suit. The trial court ruled 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, the defendants argued that the trial court should have dismissed plaintiff’s challenge to the restrictions as untimely. They further contended that the trial court misapplied the law and principles of equity in nullifying the variance condition and deed restriction.

Appellate Division’s Decision

The Appellate Division affirmed. Like the trial court, it found that  the deed restriction was invalid and unenforceable.

In reaching its decision, the appeals court concluded that 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. In support, the Appellate Division cited several cases in which courts invalidated variances with similar provisions, includingDeFelice v. Zoning Bd. of Adjustment of Borough of Point Pleasant Beach, 216 N.J. Super. 377, 381 (App. Div. 1987), in which the court held that “a zoning board is charged with the regulation of land uses and not with the person who owns or occupies the land.” 

With regard to the defendants’ concern that seasonal renters would fail to abide by local noise and parking ordinances, the Appellate Division noted that “a deed restriction or variance condition cannot, in effect, functionally delegate to a private landlord a portion of the municipality’s police powers and its own exclusive responsibility to enforce the local laws and keep the peace.” The court further explained:

[A]lthough we understand defendants’ desire to maintain a quiet and peaceful environment in this single-family zone, they cannot accomplish that objective by imposing land use restrictions that discriminate against renters. If the Board wanted to preserve the single-family character of the zone, it never should have approved a variance for this two-family dwelling in the first place. It is now too late to rescind the variance itself; instead we agree with Judge Ford the appropriate solution is to excise the illegal condition.

The Appellate Division also rejected the Borough’s argument that the Tirpaks have been unjustly enriched. “For nearly three decades they abided by the restrictions mandated by the local government when they could otherwise have obtained rental income from both units of the duplex,” the court wrote. “We perceive no inequity in the trial court’s remedy.”

Finally, because the lawsuit implicated important public values and involved a perpetual restriction on the identity of the premises’ occupants, the Appellate Division endorsed the trial court’s election to adjudicate the merits of the case under the “interests of justice” exception to the applicable time bar.  

For more information about the court’s decision in Tirpak v. Borough of Point Pleasant Beach Bd. of Adjustmentor the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

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