Tirpak v. Borough of Point Pleasant Beach, 457 N.J. Super. 441 (App. Div. 2019). This per curiam opinion, issued today by a panel consisting of Judges Sabatino, Haas, and Sumners, affirms a decision of Judge Marlene Lynch Ford of the Law Division, Ocean County, substantially for the reasons that Judge Ford gave. The issue was whether Judge Ford correctly invalidated a provision of a variance that had allowed a two-family residence in a single-family zone, and an associated deed restriction, that forbade plaintiff from renting to tenants both units of a two-family home that she owned. Instead, there was a requirement that one of the units be occupied by the property’s owner.
The panel found that Judge Ford “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” (citation and internal quotation marks omitted). The panel relied heavily on a prior case involving Point Pleasant Beach, DeFelice v. Borough of Point Pleasant Beach Bd. of Adj., 216 N.J. Super. 377 (App. Div. 1987), a treatise, and cases from other jurisdictions, for that principle.
Defendants (the Borough and its Board of Adjustment) argued that requiring the property owner to live at the premises would ensure that tenants would obey noise, parking, and other local ordinances. The panel was not impressed with that position. “Whether or not that premise is true, 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. [Citations]. Moreover, the status of a house’s occupant as a property-owner rather than as a tenant is no guarantee that he or she will be a law-abiding and considerate neighbor.”
The panel said that if the Zoning Board had wanted to preserve the single-family characteristics of the zone, it should not have granted the variance that allowed the two-family home. Since it was too late to revoke the variance, Judge Ford properly invalidated and excised the unlawful condition about owner occupancy.
Two other arguments by the Borough also failed. First, the Borough claimed that plaintiff had been unjustly enriched. But plaintiff had abided by the unlawful restriction “[f]or nearly three decades,” forgoing income that could have been realized from renting both units. There was no unjust enrichment.
The other defense contention was that the suit was untimely under Rule 4:69-6, which provides a general 45-day limitations period. The panel rejected that argument because Rule 4:69-6(c) contains an exception to that limitation period “where it is manifest that the interest of justice so requires.” “[B]ecause this lawsuit implicates important public values and involves a perpetual restriction on the identity of the premises’ occupants,” the exception applied here.
Judge Ford’s opinion was published today as well and is reported at ___ N.J. Super. ___ (Law Div. 2019).