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Pio Costa v. Lahue

2010 WL 4108284 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; NOTICES; LACHES — Even though a land use hearing notice to a neighbor may be technically deficient because it does not mention any access modifications to the applicant’s site, that defect will be overlooked if the neighbor had actual notice that the applicant intended to apply for access modifications and if the neighbor waits too long to protest, its challenge, under certain circumstances, may be rejected under the doctrine of laches.

Two neighbors owned contiguous properties in a common industrial park. The municipality amended its zoning ordinance to rezone some parts of both parties’ properties from light industrial to commercial. Additionally, the municipality passed an ordinance affecting access to the industrial park, allowing one primary site access drive and a second ingress-only drive. One neighbor then filed an application with the planning board for a conditional use and preliminary and final site plan approval for outdoor storage. The municipal engineer advised the chair and members of the board that the zoning ordinance required modifications to the road access. The applicant retained an expert to address those modifications. It also wrote to its neighbor, requesting cooperation on the necessary improvements. The applicant then applied for, and was granted, permission for its existing outdoor storage yard as a conditional use, and a variance from a buffer requirement. Its neighbor then filed a complaint in lieu of prerogative writs.

First, the objecting neighbor asserted that prior notice was inadequate because it did not fully inform it of the proposed work. The lower court noted that failure to provide proper notice deprives a planning board of jurisdiction and renders any subsequent action a nullity. Proper notice must be sufficient to apprise members of the public of the nature and character of the proposed development. Also, if an off-site improvement specific to a proposed project, such as a major access road, is an element of the project, the notice must include a description of that work.

The objector argued that notice was deficient because it did not mention any access modifications to the site. The lower court found that, at the time notice was drafted, the applicant knew that any approval obtained by it for its activities would require further work to be performed in the Department of Transportation’s right of way that would affect access to the site.

However, the court rejected the objector’s challenge under the doctrine of laches. Laches is an appropriate defense when there is knowledge of a right or claim, inexcusable and unexplainable delay, and prejudice to the other party. The central inquiry is whether it is inequitable to permit the claim to be enforced. The objector was actively involved in the process that led to the amendment of the zoning ordinance. It had been notified of the planned construction by the applicant-neighbor when the applicant requested its cooperation. Calling these circumstances unique, the lower court found that the notice’s inadequacy did not mislead the objector nor obscure the full extent of the application. It dismissed the action as grossly out of time and, on appeal, the Appellate Division agreed.


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