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Venusti v. Township of Mahwah Zoning Board of Adjustment

A-4258-03T1 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; NOTICES—A land use application requirement that is commonly and properly waived by a land use board, such as submission of an environmental impact statement, need not be listed as a requested variance in the public notice so long as the board considers the requirement at its meeting.

A couple sought a variance for a one-family house on a 9-acre vacant parcel in a conservation zoned district. The variance was for relief from the requirement that the property front on a thirty foot wide road because the road in front of the property in question was only twenty feet wide. “A separate zoning ordinance provided for an environmental impact statement to accompany applications for variances in the conservation zone and the Board waived that requirement as long as it was for the building of a single family residence. However, the Board reserved the right to require such a statement in the event of any future development.” The variance was granted and a neighbor appealed. One basis of the appeal was that the notice of public hearing was defective because it didn’t make reference to the applicant’s “intention to seek relief from an ordinance requirement that an environmental impact statement” be submitted. It was also based on the argument that the application was defective because it didn’t refer to the applicant’s intention to seek relief from the environmental impact statement requirement. The appeal was further based on an argument that the notice of public hearing had listed the incorrect address where the application could be inspected, but that objection was not raised in the lower court.

The Appellate Division rejected the neighbor’s appeal. It felt that the applicant’s notice “was sufficient to apprise members of the general public of the nature of the matters to be considered, i.e., the propose construction of a single-family residence on the property, and adequately advised anyone interested in the application to attend the hearing before the Board.” The notice also stated that the particular road variance was being sought together with “any and all other variances and/or waivers which may be required.” Thus, according to the Appellate Division, “there was no error with respect to the [lower court’s] ruling on the notice issue. As to the “incorrect” address, the municipality’s offices had been relocated between the time the notice was published and the date of the hearing. The Court assumed that everyone in the municipality would have known of the address change. In addition, the new address was posted on the old building. There was no need for the notice to refer to any request that an Environmental Impact Statement be waived because the board had a custom of waiving that requirement, and its resolution of approval only gave a “conditional waiver.” Lastly, the zoning board could grant relief from the environmental impact statement requirement by waiver instead of by way of a variance because the zoning ordinance suggested that “the Environmental Impact Statement [was] a submission requirement, not a statutory requirement.” According to the Court, “[i]n any event, the Board was within its authority to waive the requirement subject to the conditions set forth in its resolution. Beside, even if the environmental impact statement requirement was to be considered a variance, “local zoning boards have a duty to take cognizance of what variances are required in connection with an application, even if an applicant may have omitted making reference to a specific requirement for a variance.” If the board had determined that a variance was required for the environmental impact statement, no separate application or notice would have been required “as long as the Board considered the requirement at the meeting, as it clearly did.”

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