                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NOS. A-5088-17T1
                                                A-5147-17T1


MARIA I. TIRPAK,1

      Plaintiff-Respondent,

v.

BOROUGH OF POINT PLEASANT
BEACH BOARD OF ADJUSTMENT,                    APPROVED FOR PUBLICATION

                                                     February 11, 2019
      Defendant-Appellant,
                                                  APPELLATE DIVISION

and

BOROUGH OF POINT PLEASANT
BEACH,

     Defendant.
_______________________________

MARIA I. TIRPAK,

      Plaintiff-Respondent,

v.

BOROUGH OF POINT PLEASANT

1
   We have been advised that, while the appeal was pending, the property at
issue was sold to Jack and Linda Whalen, and that plaintiff has assigned to the
Whalens her interest in this case.
BEACH BOARD OF ADJUSTMENT,
and BOROUGH OF POINT PLEASANT
BEACH,

     Defendants-Appellants.
____________________________________

            Argued January 28, 2019 – Decided February 11, 2019

            Before Judges Sabatino, Haas and Sumners.

            On appeal from Superior Court of New Jersey, Law
            Division, Ocean County, Docket No. L-2918-17.

            Dennis M. Galvin argued the cause for appellant
            Borough of Point Pleasant Beach Board of Adjustment
            in A-5088-17 and A-5147-17 (Davison, Eastman,
            Muñoz, Lederman & Paone, PA, attorneys; Dennis M.
            Galvin, of counsel and on the briefs).

            Kevin B. Riordan argued the cause for appellant
            Borough of Point Pleasant Beach in A-5147-17 (Kevin
            B. Riordan, Esq., LLC, attorney; Kevin B. Riordan,
            Gary P. McLean and Dina R. Khajezadeh, on the
            briefs).

            John J. Jackson, III, argued the cause for respondent in
            A-5088-17 and A-5147-17 (King, Kitrick, Jackson &
            McWeeney, LLC, attorneys; John J. Jackson, III, of
            counsel and on the brief).

PER CURIAM

      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

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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 Lynch Ford's May 3,

2018 written decision, which is published in tandem with this opinion at ___

N.J. Super. ___ (Law Div. 2019).




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      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." 5 Edward H. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning,

§ 81.7 (4th ed. 2005). The present situation does not fit any exceptions to that

principle, which has been long recognized under New Jersey law. In fact, this

court made clear more than thirty years ago – in an opinion coincidentally

involving this same municipality – that "a zoning board is charged with the

regulation of land uses and not with the person who owns or occupies the

land." DeFelice v. Zoning Bd. of Adjustment of Borough of Point Pleasant

Beach, 216 N.J. Super. 377, 381 (App. Div. 1987) (emphasis added).

      In DeFelice, 216 N.J. Super. at 379, the owner of a residential lot had

two homes located on the property. After one of the homes burned down, the

owner applied for a variance to reconstruct the house. Ibid. As a condition of

variance approval, the owner agreed to grant the Zoning Board the right to

demolish any of the buildings on the lot in the event of the sale of the property

or owner's death. Id. at 380. This court ruled that the Zoning Board was

"powerless to attach [such] a condition restricting the future identity of the

owners" and deemed the condition invalid and ultra vires. Id. at 382-83. See

also Repair Master, Inc. v. Borough of Paulsboro, 352 N.J. Super. 1, 10 (App.



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Div. 2002) (upholding a finding of invalidity of a borough's moratorium on

rental licenses issued to single-family and non-owner-occupied duplex units,

because the moratorium was an improper "attempt to regulate the attributes of

ownership and the nature of the occupancy of property.").

         Other jurisdictions have followed similar reasoning. See, e.g., City of

Wilmington v. Hill, 657 S.E.2d 670, 673 (N.C. Ct. App. 2000) (striking down

a city code provision requiring the owner of a house and a garage apartment to

reside either in the main residence or the apartment, because the city was

entitled only to regulate the use of the property and not the identity of the

owner or occupant); Kulak v. Zoning Hearing Bd., 563 A.2d 978, 980 (Pa.

Commw. Ct. 1989) (invalidating a condition that required the owner of a three -

unit apartment building to occupy one of the units). As the Pennsylvania court

rightly observed in Kulak, "the personal identity of an apartment occupant

obviously has no relationship to public health, safety, or the general welfare."

Ibid.2


2
  None of the out-of-state authorities cited by defendants in their supplemental
letter-briefs filed after we called their attention to Hill and Kulak are
persuasive. Several of those cases involve "accessory" buildings, whereas the
duplex in this case consists of two identical top-and-bottom units, neither of
which is primary. Cf. Soucheim v. City of San Dimas, 55 Cal. Rptr. 2d 290,
292-93 (Ct. App. 1996); Kasper v. Town of Brookhaven, 535 N.Y.S.2d 621,
624 (App. Div. 1988); Anderson v. Provo City Corp., 108 P.3d 701,706-08
(Utah 2005).


                                                                        A-5088-17T1
                                        5
      Defendants argue that the trial court's decision fails to appreciate that

property owners who live on the premises are more likely than absentee

owners to assure that their tenants – particularly seasonal renters living in this

shore town during the summer – will obey noise, parking, and other local

ordinances. 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. See Kirsch Holding Co. v. Borough

of Manasquan, 59 N.J. 241, 253-54 (1971); see also Urban v. Planning Bd. of

Borough of Manasquan, 124 N.J. 651, 662 (1991) (citing Kirsch); State v.

Baker, 81 N.J. 99, 111 (1979) (citing Kirsch).       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.

      In sum, although 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



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condition.   See, e.g., DeFelice, 216 N.J. Super. at 383 (invalidating the

variance condition but upholding the underlying variance); Orloski v. Planning

Bd. of Borough of Ship Bottom, 234 N.J. Super. 1, 2 (App. Div. 1989) (citing

DeFelice and noting that "an unreasonable condition, under proper

circumstances, may be stricken or removed even if the variance benefit has

been accepted."); Aldrich v. Schwartz, 258 N.J. Super. 300, 311 (App. Div.

1992) (same).    The associated deed restriction tied to the illegal variance

condition must also be nullified. Am. Dream at Marlboro v. Planning Bd. of

the Twp. of Marlboro, 209 N.J. 161, 169 (2012).

      We reject defense counsel's suggestion 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. We perceive no inequity in the

trial court's remedy.

      Finally, because this lawsuit implicates important public values and

involves a perpetual restriction on the identity of the premises' occupants, we

endorse the trial court's election to adjudicate the merits of this case under the

"interests of justice" exception to the forty-five-day time bar in Rule 4:69-6(c).

See Hopewell Valley Citizens Grp., Inc. v. Berwind Prop. Grp. Dev. Co., 204

N.J. 569, 577-78 (2011).



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                                        7
      The trial court's decision is therefore affirmed. The stay pending appeal

previously issued by this court shall expire in thirty days, without further

extension.




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