MARIA I. TIRPAK VS. BOROUGH OF POINT PLEASANT BEACH BOARD OF ADJUSTMENT, ET AL. (L-2918-17, OCEAN COUNTY AND STATEWIDE) (CONSOLIDATED) (A-5088-17T1/A-5147-17T1)
Defendants, 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.
These 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.
The 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.
On 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.
This appellate court rejects defendants' arguments, substantially for the sound reasons expressed in Assignment Judge Marlene Ford's May 3, 2018 written decision, which is published in tandem with this opinion at ___ N.J. Super. ___ (App. Div. 2019).
