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Elberon Voters and Property Owners Association v. City of Long Branch

A-4253-03T3 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; VARIANCES; NOTICE—When a variance amendment is amended by adding adjacent land to a project, notice of the hearing must be sent to the new neighboring landowners but there is no need to begin the hearings from the beginning if the amendment does not work a substantial change in the application.

A developer owned a tract of land on which it planned to build a residential development. It obtained the necessary variances and approvals. It then acquired an adjacent piece of land which obviated the need for some of the variances. It applied for final site plan approval and an issue arose as to whether the initial approvals could be relied upon even though neighboring property owners now within 200 feet of the newly acquired land did not receive notice of the initial proceedings. The planning board decided that notice should be given to the new neighboring property owners, but that the new neighboring property owners would only be able to review the transcripts of the prior hearings and that those hearings would not be revisited. None of the newly noticed neighbors appeared at the hearings for the amended application. Objecting neighbors argued to the Law Division that the planning board “lacked jurisdiction to consider the amended subdivision application” on that basis. The Law Division disagreed and the objecting neighbors appealed. The objecting neighbors asserted “that notice is jurisdictional and that the expansion of the area of the project required that the application be heard anew on notice to all of the affected owners.” They argued that the lower court “erred in concluding that [the newly noticed property owners] had no right to challenge the original application and that notice to them of the amended application was sufficient. The Appellate Division rejected those arguments. It pointed out that under the Municipal Land Use Law (MLUL) the appropriate agency to hear the application was the planning board. Under the MLUL, notice of hearings on a preliminary major subdivision application must be given to “the owners of all property ... within 200 feet in all directions of the property of which is the subject of the hearing.” Notice must also be given when a planning board decides that a “substantial change in the project requires submission of an amended subdivision application.” On the other hand, according to the Appellate Division “[i]n the absence of some demonstration that the amended application substantially altered the original application,” there was “no ground on which to conclude that an entirely new application and an entirely new series of hearings was required. ... The only changes in this amended application were the inclusion of the [new] tract and a minor reconfiguration of [a roadway]. These changes were insignificant, particularly in light of the fact that the addition of the [new] tract reduced, rather than added to, the need for variances, which had been previously approved.” Further, the Court was sure that had any of the additional thirteen property owners appeared, it could have presumed “that had they chosen to do so they would have been given relatively broad latitude to inquire” about the prior variances.


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