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Curzi v. Harmony Township Land Use Board

2010 WL 2990704 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; NOTICES — Where a property lies in two municipalities, failure to give one municipality notice of a land use application made to the other municipality is a jurisdictional defect and the land use board where the application was filed cannot hear the matter.

The owner of approximately 34 acres of farmland straddling two municipalities sought subdivision and other land use approvals from the municipality that administered the portion of land to be developed. The proposed lot’s only access to the nearest public road was by way of a private lane. Three existing residences accessed the private lane between the proposed new lot and the public road, and four other residences accessed the private lane northward of the lot. The applicant caused public notice of hearings on the applications to be sent to newspapers, neighbors, and other interested parties.

In the initial phase of hearings, the municipal land use board heard testimony regarding proposed access through the private lane by emergency vehicles and related information regarding the lack of other access to the public street. The board approved a variance for relief from the requirement that the lot front a public street. A subsequent hearing addressed the application for major subdivision approval and related variances and included further discussion of the private lane access. An attorney for two objectors raised an issue about whether notice of the hearing had to be sent to all residents along the private lane. The board decided that notice to the northward residents was not required and that it could proceed further with the matter before it.

The second municipality, which administered some of the farmland, also did not receive formal advance written notice of the owner’s application prior to these hearings. The board proceeded at the second hearing, and directed the owner to provide notice to the second municipality so that it could appear at the next hearing if it had any interest in the application. The board then voted to approve the requested variances and grant preliminary major subdivision approval with conditions. At the next meeting, the board was advised that the second municipality had received notice of that meeting but had not responded. The board again voted to approve the application and memorialized it by resolution.

The objectors filed suit, alleging the approval was unreasonable, arbitrary, and capricious, and was void due to lack of notice to the second municipality and to the northbound property owners on the private lane. The lower court found the decision on the merits was not arbitrary, capricious or unreasonable, but also found that notice to the municipality prior to the first hearing was required under law, and therefore the board did not have jurisdiction. Thus, it vacated the board’s decision to approve the subdivision. On a reconsideration motion, the lower court, in the interest of justice, used its equitable powers to remand the application back to the board to ratify the board’s prior resolution granting the major subdivision, as the second municipality never challenged the board’s actions.

On appeal, the Appellate Division reversed, finding that the failure to give notice was a jurisdictional defect. Such a defect requires vacating a board’s action and commencing the matter again after proper notice is given. Further, the Court stated that the approvals had to be vacated due to a second notice defect as to the northbound residents of the private lane, as they were within 200 feet of the subject property and those owners should have received personal notice as required under the Municipal Land Use Law.

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