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Holualoa Whiting, LLC v. Manchester Township Planning Board

A-237-03T1 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; APPLICATIONS—Just because it was convenient to hear two related, but separate development applications in a single presentation before a land use board doesn’t convert them to a single application which might make the separate meeting notices invalid.

An owner of two separate parcels of land on opposite sides of a highway submitted two development applications to the local planning board for projects on each parcel of land. Each was accompanied by a separate application fee and separate escrow fees. Separate engineering studies were submitted, each with a cross-reference to the other project. The applicant proposed significant highway improvements to accommodate the two projects. One document submitted in support of the applications was an “Overall Development Plan.” This was an engineering overview depicting both developments. Notices of both applications were properly published. Notice of each development application was sent to property owners within 200 feet of that development. There was some overlap of surrounding property owners who were within 200 feet of both developments. They received both notices. One of the notices stated that the development would include a gas station.

The planning board allowed the applicant to present both projects as one unified application because they were so interrelated, especially as to the proposed improvements to the highway dividing the two parcels. This did not serve to combine the two applications into one. Instead, it only enabled the applicant to present its applications together for the purposes of the presentation. The planning board approved both applications.

Neighbors appealed the approvals, arguing that the notice for one site was defective because although it proposed a gasoline station on the site, it did not point out that the station required a conditional-use approval. Therefore, according to the objectors, the notice did not set forth the nature of the matters to be considered with sufficient specificity as required by N.J.S.A. 40:55D-11. They also argued that when the applicant presented the two matters together, the separate notices became deficient because, in effect, the two applications became one and the separate notices no longer gave an accurate identification of the property proposed for development, as required by N.J.S.A. 40:55D-11. Lastly, they argued that when the applicant stood before the board and combined the applications to present them one, the board no longer had jurisdiction because of the defective notices. According to that theory, had each application been considered separately as was implied by the two separate notices, the notices would have been proper.

First, the Court disagreed that the applicant’s failure to set forth that the gasoline station required conditional use approval made the notice defective. A notice need only advise the public about the nature of a proposed use. In doing so, it must provide the basic information that would inform lay persons whether they might wish to participate in the hearing or seek further information about the application. As long as this basic information is provided, there is nothing in the applicable statute requiring specific mention that conditional use approval is being sought.

With respect to notifying property owners within 200 feet of the property, the Court concluded that the two applications retained their separate identities despite their consolidation by the planning board for presentation purposes. The two applications were filed independently of each other, and each stood on its own. The applicant did not condition approval of one project on approval of the other. The two parcels were separated by an existing, high volume county highway. Each could have been approved separately. The board did not condition development of one project with development of the other. And, the approvals granted were independent of each other. The applicant could have developed one parcel and not the other.

According to the Court, since both projects affected traffic in the area, it was efficient for the board to consolidate the applications for presentation purposes. This avoided the duplication of evidence that would have been common to both applications without depriving the two applications of their independent character. The Court held that it was within the board’s discretion, as an administrative matter, to consolidate the applications for presentation purposes. For these reasons, it affirmed the planning board’s approval of the two applications.

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