A Municipal Zoning Ordinance Cannot Regulate Who Can Live in a Home

HNWReal Estate, Landlord/Tenant, and Zoning

  • A local zoning ordinance can lawfully regulate uses and buildings in a municipality
  • An ordinance cannot regulate the persons eligible to live in the building
  • Recent NJ case struck down an Ocean County Municipal Zoning Board who tried to exclude renters

Municipal Zoning Regulations That Attempt to Restrict Residency

A recent Ocean County Superior Court declared invalid and unenforceable a variance provision and deed restriction that requires one unit of a two-family dwelling to be occupied by the owner and not rented to a third-party tenant.

These owner-occupancy limitations were imposed by a Board of Adjustment in 1999 as a condition of approving a variance allowing plaintiff, the owner, to demolish their then existing dwelling to construct a new two-family dwelling in a zone limited to single-family residences. The Board also required the owners to memorialize the condition as a recorded deed restriction.

The trial court concluded that the variance condition and deed restriction impermissibly discriminated against renters, and wrongfully limited the use of the property because of the identities of its occupants.

A Zoning Board Can Only Regulate Land Uses

The trial court Judge stated the fundamental zoning principles of N.J. Law that “zoning laws authorize local regulations of ‘land use’ and not the regulation of the ‘identify or status’ of owners or persons who occupy the land”.

The Municipality argued that the trial court’s decision failed 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 a 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.

In this case the Zoning Board wanted to preserve the single-family character of the zone. The court said that if this was the Board’s goal it never should have approved a variance for this two-family dwelling in the first place. As a consequence of this decision the property owners will be able to rent out both apartments to non-family members.

To discuss your NJ Zoning ordinance matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Zoning and Land Use Attorney

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