Bulletin Board Magazine 2019 Volume 1

Legal/Legislative

based on the first element, holding that the condition at issue was not reasonably calculated to achieve some legitimate objective of the zoning ordinance. “Distinctions between renters or property owners in the application of zoning and land use laws has no place in the application of legitimate objectives of zoning.” Moreover, the court held the condition violated the general public policy in New Jersey against governmental restrictions that discriminate against people based on their economic status as renters. The court ultimately lifted the deed restriction on the property, finding it to be “arbitrary, capricious, unreasonable, and ultimately invalid and unenforceable.” The Appellate Division recently agreed finding that Point Pleasant wrongly predicated allowable use of the property upon the identity of its occupants. The Appellate Court doubleddown on the lower court’s reliance on the DeFelice precedent for the fundamental principle that “a zoning board is charged with the regulation of land uses and not with the person who owns or occupies the land.” It emphasized 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.” Finding that it was too late to rescind the variance itself, the court concluded that the appropriate solution was to remove the illegal condition, in effect lifting the deed restriction. One important takeaway from this case is that New Jersey courts take a stern approach to examining conditions that either attempt to or have the effect of regulating the owner or occupier of the land. Tirpak expands that premise to a deed restriction (which is typically interpreted as running with the land) even under circumstances where the owners had been adhering to the condition for three decades. The court was determined to set a clear precedent notwithstanding the lapse of

the statute of limitations, or the past three decades of conduct by the property owners. The decision is a clear signal to other zoning boards to stick to land use regulation, rather than occupant-regulation, and may act to facilitate auxiliary housing. BOARD APPROVAL INVALIDATED

expecting to serve alcohol presents traffic and public safety concerns requiring explicit notice of that planned use. While the court noted that the absence of the brand name of the hotel was not improperly omitted, the notice was otherwise insufficient to make the public aware of the true nature of the project. While this case does not fundamentally change the notice standard, it does have important implications for any projects involving multiple uses, such as hotels, casinos, and beach clubs, etc. While the applicant argued that a restaurant, bar, and banquet hall are common characteristics for a national hotel chain, the court nonetheless found that each aspect of the hotel should be explicitly referenced in the notice. Accordingly, applicants should be sure to notice for each individual use within an overall project, even where those uses seem like obvious components of the overall use, and especially where a liquor license is involved. CONFLICT OF INTEREST: BOARD ENGINEER SERVING DUAL ROLE Sternas v. DMH2 and Verona Planning Bd. The Appellate Division remanded to the trial court to determine whether the Township’s Engineer had a conflict of interest when he voted in favor of DMH2’s application for site plan approval for a retail and residential project. The Engineer served the dual role of township professional and voting planning board member. Plaintiff, who objected at the municipal hearing, appealed the Planning Board’s approval based on an alleged conflict of interest in the Township Engineer’s ex parte communications with the applicant. According to the Board Engineer, the ex parte communications were limited to advice regarding which forms to use and which maps to present to which Board. Nonetheless, the court found that “[d]ispensing more than ministerial information may have occurred if there were several contacts.” The court Continued ›

Legal/ Legislative by Michael J. Gross, Esq. , Steven M. Dalton, Esq. and Kyle J. Campanile, Esq. Mr. Gross is a Partner & Chair, Mr. Dalton is a Partner

FOR DEFECTIVE NOTICE Lakewood Realty Associates v. Lakewood Planning Bd. and RD Lakewood, LLC

COURT REMOVES DEED RESTRICTION ON RENTALS Tirpak v. Point Pleasant Beach The Superior Court of New Jersey, Ocean County ruled last year that a deed restriction attached to a 1999 variance approval limiting rentals to one half of a two-family residence was invalid and unenforceable because it had the effect of disfavoring tenants based on their economic circumstances, and placed unreasonable restrictions on the property owner’s use of the residence without advancing a legitimate interest of the zoning ordinance. The decision was recently upheld in a published opinion of the Appellate Division. In 1993, the Tirpak’s purchased a property with a pre-existing two-family residence. They proposed to demolish and reconstruct a new two-family dwelling. Since the property was zoned for single-family use, the Tirpak’s applied to the Point Pleasant Zoning Board for a variance to allow the reconstruction of the twofamily residence. The Zoning Board approved the application in 1999, but conditioned the approval on a requirement to file a deed restriction limiting use of one unit as an owneroccupied residence, and limiting rentals to the second unit. The Tirpak’s adhered to the limitations of the deed restriction for approximately three decades. After Mr. Tirpak’s death in 2014, Mrs. Tirpak sought to lift the deed restriction to facilitate sale of the property. Mrs. Tirpak applied to the

Point Pleasant Zoning Board for relief from the deed restriction, arguing that it was onerous, unfair and illegal. The Zoning Board rejected her application, finding that the deed restriction was a reasonable restraint on the use of the property where two-family homes are not permitted and the deed restriction brought the property into greater conformity with the code. Mrs. Tirpik appealed to the Superior Court. The court relied on DeFelice v. Point Pleasant Beach Bd. Of Adj., 216 N.J. Super. 377 (App. Div. 1987) for the proposition that a zoning board is responsible for the regulation of land use, rather than regulation of the person owning or occupying the land. The DeFelice court held that a land use approval conditioned on the status of the owner or occupier is arbitrary and capricious because it does not further a legitimate governmental objective. In order to reach this conclusion, the DeFelice court set forth four elements to consider when determining the validity of conditions on variance approvals, specifically whether same is: reasonably calculated to achieve some legitimate objective of the zoning ordinance; sufficiently definite for restrictions imposed upon use of the property; tied to the land and not to one particular owner, and remain effective after a sale of the property; and necessary and reasonable and does not require illegal conduct by the variance applicant.

Michael J. Gross

In the unpublished Lakewood case, the Appellate Division provides a refresher course on public notices. The court sent the applicant back to square one, holding that its notice failed to inform the public of the material characteristics of the proposed hotel to include a restaurant, bar, or banquet hall. This decision reversed the April 3, 2017 trial court ruling in favor of the Defendant, which had upheld the Board’s approval and dismissed Plaintiff ’s complaint. Regarding the adequacy of notice, the court found that the applicant’s “[n]otice did not disclose to the public and neighboring property owners that the proposed uses, which were tersely described as a ‘hotel’ and a ‘bank,’ would include such components within the hotel as a restaurant with a liquor license and banquet facilities.” The court relied on the foundational cases of Perlmart and Pond Run in holding that the notice was defective, finding “[i]t is not sufficient for an applicant to circulate and publish an uninformative and vague notice and expect local residents to go down to the municipal offices to inspect the plans in order to ascertain the critical features of the proposal.” The court looked to the Ordinance’s definition of “hotel” as further evidence of the defective notice, finding that inconsistencies with the definition of “restaurant” required the two uses to be noticed separately. The court then relied on Pond Run concluding that a facility

Steve Dalton

Applying these elements to the facts of the Tirpak case, the court invalidated the condition

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