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Pavlovsky v. Gurin

A-2169-08T3 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; NOTICES — Where a land use board fails to give proper notice of land use hearing has not been given, a board’s approvals are void ab initio and the applicant may be required to stop its work until its application can be reheard with proper notice, but the resulting hardship to the applicant may not be great enough to allow the court, at the same time, to use its “original jurisdiction.” and decide whether the variance should be issued, thereby allowing construction to proceed without interruption.

Homeowners applied for variances permitting them to add a second story with a roof deck. A neighbor objected to the application. Her brother testified before the board that, since his sister’s property was immediately behind the subject property, the proposed construction would “cause an obstruction” to her residence. In addition, the neighbor argued the notice of hearing: (a) failed to designate the appropriate administrative officer of the municipality where maps and documents could be inspected; and (b) mis-designated the municipal clerk as the office where the application was available for inspection, both as required by statute. Despite those irregularities, the zoning board adopted a resolution approving the application. The neighbor challenged the board’s decision and sought to enjoin construction on the applicants’ home.

The lower court held that the board’s action was void ab initio because the applicant’s statutorily required board hearing notice was defective. It ordered the homeowners to stop the work until the matter could be reheard with proper notice. The neighbor appealed, contending that the lower court should have considered the merits of the homeowner’s application and independently denied the application. She believed that the Appellate Division should exercise original jurisdiction and deny the application or order a remand with instructions to consider the merits of the homeowners’ application based on the record already made before the board.

The Appellate Division disagreed with the appellant and affirmed. It upheld the lower court’s holding that appropriate notice to the public was jurisdictional and that defective notice does not vest the board with jurisdiction to hear the application. It noted that unless notice had been given as required by statute, a board lacks the power to hear an application even if the subject matter was within its statutory power. The Court found that had the lower court previously made any determination on substantive issues, such determination should not be considered dispositive on a subsequent application.

As to the issue of whether it should exercise “original jurisdiction,” the Court held that it would only do so “with great frugality and in none but a clear case free of doubt.” It held that it could not state with any degree of certainty that this was such a case. First, the neighbor was asserting new objections that had not been presented to the board. It believed that necessary factual findings as to such matters should be made by the board. Second, it noted that appellate review does not consist of weighing evidence anew and making independent factual findings; rather, an appellate court’s function is to determine whether there was adequate evidence to support the judgment rendered by the lower court. Finally, the Court rejected the neighbor’s contention that it was unfair to burden her with additional proceedings in opposition to an application she believed was unwarranted. The Court declared that the applicants were similarly prejudiced in that they now had to renew their application before the board, this time in compliance with proper notice requirements.

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