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WHAT MAKES A CONDITION LEGAL?

Posted by Brandon A. Granda | Mar 01, 2019 | 0 Comments

When land use boards grant approvals to develop property, they often include conditions.  To be valid, the condition must (1) not conflict with any other zoning ordinance; (2) not require illegal conduct; (3) serve the public interest; (4) be reasonably calculated to achieve a legitimate objective of the zoning; and (5) not be unnecessarily burdensome to the landowner.  In a recently unpublished Appellate Division decision, “Tirpak v. Borough of Point Pleasant Beach Board of Adjustment”, the Court examined these principles when considered the legality of a prior condition imposed on a landowner that limited her ability to lease her home.

Ms. Tirpak owned a two-family dwelling in an area zoned for single-family homes.  Previously, the Zoning Board granted her a variance permitting her to demolish her then existing two-family residence and replace it with a new two-family house.  However, the Board imposed a condition that forced her to record a deed restriction that required her to live in one of the two units and rent only the other unit.  Ms. Tirpak, did in fact, record the restriction.

She later sought to move and found that the deed restriction prevented her from renting the unit she was living in and from successfully marketing the property.  Ms. Tirpak therefore submitted an application to the Board asking to eliminate the prior condition.  At the public hearing, she was met with objections from neighbors who claimed that the rental of both units would have a negative impact upon the quality of life in the predominately single-family neighborhood.  The Board ultimately rejected her application and Ms. Tirpak appealed.

The Law Division reversed the Board's decision and allowed her to remove the deed restriction.  The trial judge held that the Board's refusal to eliminate the condition was arbitrary, capricious, and unreasonable.  The Board appealed that ruling to the Appellate Division which upheld the lower court's determination.  The Court ruled that the condition discriminated by basing occupancy on the status of the occupant as either an owner or tenant. Although the Board wanted to maintain peace and quiet in this area, the Court held that this objective cannot be achieved by imposing restrictions that discriminate against renters.  The Appellate Court noted that a condition cannot be used as a substitute for the municipality's police powers.  If future occupants of the property were loud and unruly, Point Pleasant Beach had other lawful ways to handle such problems.

The lawyers at Lavery, Selvaggi, Abromitis, & Cohen, P.C. are highly experienced in zoning, planning and land use matters.  They can competently protect you in any land use application from possible arbitrary conditions that local land use boards might want to consider.  It is strongly suggested that you speak to one of our lawyers before proceeding with any application to ensure that your legal interests are adequately protected.

About the Author

Brandon A. Granda

Associate

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