Requirement of Owner-Occupancy as Variance Condition Nullified

Almost two decades ago, a Point Pleasant property owner was granted approval to build a two-family residence in a single-family zone.  However, such approval was conditioned upon a provision that one unit was always owner-occupied, with such restriction enforced through a recorded deed restriction.  On February 11th, in a published decision, the Appellate Division upheld a trial court finding that such a restriction, "impermissibly discriminated against renters, and wrongfully predicated the allowable use of the property on the identities of its occupants."   In doing so, the court reiterated prior guidance that a zoning board can only regulate how the land is used, and not any particular person who owns or occupies the land.  While the court understood the zoning board's desire to maintain the environment of a single-family zone, the panel found that if it wished to do so, "it never should have approved a variance for this two-family dwelling in the first place."  Finally, although the action had taken place well outside the 45-day period to challenge certain government actions, the court applied the interests of justice exception from Hopewell Valley  Citizens Grp. v. Berwind Prop. Grp. Dev. Co.  (Tirpak v. Borough of Point Pleasant Board of Adjustment)