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State of New Jersey v. Gohar

Municipal Appeal No. 4412 (N.J. Super. Law Div. 2004)

ZONING; CERTIFICATE OF OCCUPANCY—Where the right to occupy a property turns on whether it is occupied by a family, a sister-in-law is to be treated as a person related by marriage and even if that weren’t so, a municipality should not attempt to use its certificate of occupancy ordinance to regulate zoning.

A municipal court found a property owner guilty of a municipal code provision that required a certificate of occupancy. The complaint failed to specify what aspect of the code was violated or how it was violated. The owner purchased its house in 1996 and obtained a certificate of continued occupancy at that time. Initially, the owner, his wife, children, brothers, and sisters-in-law lived in the house. Several years later, the owner obtained a “Dwelling Certificate.” At that time, thirteen people lived in the house. At a late date, for no apparent reason, the municipal building inspector made a surprise inspection of the property. At the time of the inspection, there had been no modifications to the house since the date of the certificate of continued occupancy. The State argued that the owner’s household consisted of three nuclear family units and therefore the home was not being used as a single family house. The municipality’s ordinance defined a family as “one (1) or more persons related by blood, marriage, or adoption.” The State claimed that the owner’s wife was related by marriage. It acknowledged that the owner’s brothers and their children were related by blood; but asserted that the sisters-in-law were not related by either blood or marriage. The Court rejected the State’s contention, noting that the sisters-in-law were related to the owner through marriage. It also held that the complaint was impermissibly vague because it failed to specify the code section that had been violated and how it had been violated. It also noted that the municipality had no basis to conduct the reinspection in the first place. It thought that the municipality was improperly attempting to use its certificate of occupancy ordinance to regulate zoning.

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