By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Zoning Attorney

In a recent zoning case the plaintiff’s complaint challenged the municipal Zoning Board’s granting of minor subdivision approval over plaintiff’s objection. Plaintiff argued that the trial court’s ruling was erroneous because the applicant’s notice to the public was deficient, depriving the Board of jurisdiction to consider their application, and because the Board incorrectly granted the application by failing to require the applicant to obtain certain variances. The applicant filed for a two-lot minor subdivision and related variances for their residential property.

At the time, plaintiff owned neighboring adjacent lots. The subdivision plan called for the creation of a new lot to face the public street, and no alteration to the existing home was proposed. There were no plans for improvements to the new lot.

Prior to the Board considering the application at a public hearing, counsel served a notice of the application and meeting on the surrounding property owners and published public notice in a local newspaper. “The crux of the application was the lot width variance,” as the 91.61-feet was proposed for the new lot which was short of the 100-foot requirement.

The applicant’s expert explained to the Board that the proposed lot’s undersized width would not be inconsistent with other properties in the immediate area, and provided the Board with specific examples. In addition, he identified the positive criteria in support of the lot width variance and, in addressing the negative criteria, explained that he did not discern any detriment to the public good, and certainly no “substantial” one, by approving the variance request. The Board voted to approve the minor subdivision application. It later issued a formal resolution reciting its findings.

The Plaintiff filed a complaint in lieu of prerogative writs in the Law Division of Superior Court challenging the Board’s determination. In it, plaintiff alleged the Board’s decision was “arbitrary, capricious and unreasonable given the fact that a conforming lot has been turned into two non-conforming lots,” and further alleged “the subdivision [was] deleterious to the area” because the area “sustained damage from Superstorm Sandy and the creation of an additional structure would cause a displacement of water in the event of another storm.”

The judge analyzed this argument under the standards of review applicable to the Board’s grant of a “C2” bulk variance and N.J.S.A. 40:55D-70(c)(2). The Board’s findings recited “the benefits to be derived from [the] project” and a conclusion that the “proposal will bring the site more into conformity with zone requirements, as well as surrounding properties.” The Appeal Judge found the grant of an approximately seven-and-one-half-foot reduction in the lot’s width was not “arbitrary, capricious, or unreasonable.”

The judge next addressed the plaintiff’s argument that the public notice was deficient. In discussing the Board’s response to plaintiff’s contention, the judge observed that no one, including the plaintiff, ever challenged the public notice at the meeting at which the Board considered the Subdivision application. The judge observed that the “’critical element’ of the notice requirement is to provide an accurate description of what the property will be used for under the application.” He also pointed out that a failure to give notice or a “materially defective notice” deprives the Board of jurisdiction to hear a matter and that “any action taken by the Board in such cases is a nullity.” The judge analyzed the applicant’s notice and concluded the notice in this case “sufficiently informed the public of the minor subdivision…as well as the width variance.” The judge concluded the applicant’s notice was “unlike the vague and generalized notices that were found insufficient” in prior court cases where the public notice was deemed defective.

The judge discussed the standard for a court’s consideration of the adequacy of public notice by the NJ Supreme Court. According to the judge, the Court has “held that ‘a minor, clerical deviation that has no potential to mislead any interested member of the public does not fall short of the statutory requirements for describing the property to be developed,” and concluded the notice was sufficient despite any alleged errors.

In affirming the Trial Court, the Appellate Division deferred to the factual findings of the local board and said it would not disturb those findings unless they are “arbitrary, capricious, or unreasonable.” The Court stated it reviews a local board’s legal determinations de novo. The burden to show that the board’s decision was arbitrary, capricious, or unreasonable is on the challenging party.

The appellate court addressed the public notice issues and commented “for a public notice to be sufficient, it must be clear and unambiguous and must be readily intelligible to the average citizen. It must not be overly general or misleading. Like the trial court, the appellate court discerned no basis to believe that any member of the public was deprived of meaningful information about the nature of the application based on the contents of their public notice.

To discuss your NJ Zoning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.