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Zanias v Borough of Seaside Park Zoning Board of Adjustment

A-6242-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; NOTICES — Where an applicant’s hearing notice covers a request for any and all variances that would be necessary for the applicant’s project, a land use may grant a variance even if it wasn’t requested by the applicant, and the applicant cannot argue that neighboring property owners were not given notice that the particular, unrequested variance was to be heard by the land use board.

A homeowner sought a number of variances for extensive renovations to his house. They were denied by the municipality’s zoning board of adjustment and the homeowner was advised to bring the proposal for the renovations into compliance with zoning ordinances. After a modified application for the variances was submitted, a hearing before the board was held. The board approved a one-foot encroachment into the setback area for a deck rail but denied the homeowner’s request for the railing of another deck to extend out two feet into the setback area because it found that it would have blocked the light, air, and space of adjacent property owners and that it would have been visually displeasing. The homeowner sued to challenge the board’s decision, arguing that he never requested a variance for the one-foot encroachment and that the board should have stopped the hearing and given notice to nearby property owners that relief was being sought for that encroachment. The lower court affirmed the board’s decision and dismissed the homeowner’s complaint.

On appeal, the Appellate Division pointed out that the homeowner never requested an adjournment of the board hearing to amend his application to include the one-foot encroachment or to inform neighboring property owners of the request for the one-foot encroachment. It also pointed out that notice of the board’s hearing sent to the homeowner stated that the hearing was for any additional variances that were necessary. The Court found that even though a variance for the one-foot encroachment was not applied for, because notice was given that any additional necessary variances were to be considered, the matter was properly heard before the board and that additional notice was not necessary. The board’s denial of the homeowner’s variance request for the two-foot railing encroachment was affirmed.

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