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Pond Run Watershed Association v. Township of Hamilton Zoning Board of Adjustment

397 N.J. Super. 335, 937 A.2d 334 (App. Div. 2008)

ZONING; NOTICE — A variance application for a mixed-use development is legally deficient if it fails to sufficiently alert residents as to the nature of the uses, especially where an undisclosed use is a restaurant that might possibly serve liquor.

A developer received variances to build a mixed-use project on a 10.9 acre site in a zone designated for research and development only. The zone prohibited residential housing and disallowed retail businesses and restaurants except on lots of at least one hundred acres. The developer’s project entailed the construction of four buildings with a total of 119 age-restricted apartments, two retail office buildings, and another building with a 168-seat restaurant. The variances were conditioned by the zoning board upon an agreed-upon $4,000 per-unit contribution for off-site improvements. The variances were challenged in court by nearby residents and by a preservation advocacy group. The lower court rejected the challenges after excising the exaction that required the developer to pay for part of off-site construction of a proposed amphitheater. The challengers appealed.

The Appellate Division affirmed the decision in part, vacated it in part, and remanded the matter to the lower court for further proceedings. The Court found that public notice of the developer’s variance application for mixed-use development was legally deficient due to its failure to sufficiently alert recipients as to the nature of the restaurant on the premises, given that the restaurant would possibly serve liquor. The Court found that this information would have been of heightened concern to neighbors and other members of the public, particularly as to issues of traffic, parking, noise, and the possible consumption of alcoholic beverages on site. The Court also affirmed that the developer’s agreed-upon $4,000 per-unit contribution to the municipality for off-site improvements to a park, including an amphitheater, was an invalid condition imposed on the developer’s variance application, and found that there was no guarantee that the municipality would build an amphitheater or that the financial donation subsequently would be appropriated by its mayor and council for that purpose. The Court also concluded that there was no proof as to how many residents in the development would use that facility, and no proof as to the method used to calculate the contribution. It also held that the public deserved an opportunity to comment upon the plan without the pre-unit contribution feature because the requirement for the contribution was a major feature of the development plan.

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