Owner-Occupation Cannot be a Condition of Variance

In a recent unpublished decision from the Appellate Division, the court reversed the granting of a zoning variance and remanded the matter back to the local zoning board.  A Morristown homeowner sought, and received, approval from the zoning board to convert a two-family residence into a three-family residence.  However, the township's approval was conditioned on the property being occupied by the owner.  On appeal, this residence condition was overturned with the court stating that, "a fundamental principle of zoning that a zoning board is charged with the regulation of land use and not with the person who owns or occupies the land," and, "conditions which make a variance personal to the property owner are invalid."  Since the record reflected that many of the members of the board based their approval votes on the fact that the property would remain owner-occupied, the Appellate Division remanded the matter back to the local zoning board for a rehearing and new vote now that the residence requirement was determined to be impermissible.  (Kiehn v. Mongey, et. al.)