October 21, 2009
MARY ELLEN PAVLOVSKY, PLAINTIFF-APPELLANT,
ROBIN GURIN, EMANUAL KALLINS AND THE PERTH AMBOY ZONING BOARD OF ADJUSTMENT, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4776-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 22, 2009
Judges Wefing, Grall and LeWinn.
On April 19, 2007, the Zoning Board of Adjustment of the City of Perth Amboy (Board) adopted a resolution approving the application of defendants, Robin Gurin and Emanual Kallins, for certain variances allowing them to add a second story with a roof deck to their residence. Plaintiff, Mary Ellen Pavlovsky, had objected to the application; her brother, William Pavlovsky, testified before the Board that plaintiff's residence is "immediately behind" defendants' property, and claimed that the proposed construction would "cause an obstruction not only from [the] patio level but from [the] first porch level [of plaintiff's residence]."
On May 25, 2007, plaintiff filed a complaint seeking to invalidate the Board's resolution and to enjoin construction on defendants' home, which had commenced shortly after the resolution was issued. The trial judge determined that the Board's resolution was "lacking in findings of fact supporting [its] conclusions"; therefore, on November 14, 2007, the judge remanded the matter to the Board for additional factfinding and the adoption of an amended resolution. The Board adopted its amended resolution on January 10, 2008, reaffirming its approval of defendants' application.
Plaintiff filed an amended complaint on February 20, 2008, alleging that defendants' construction had altered the existing structure to a degree that compromised its status as a nonconforming use. Plaintiff claimed that defendants had expanded the rear wall of their residence, which exacerbated a pre-existing rear yard setback violation.
Following a one-day trial, the judge issued an oral decision telephonically on October 24, 2008. The judge found that defendants' statutorily required notice of the Board hearing was defective for "fail[ing] to designate the appropriate administrative officer of the city, and misdesignat[ing] the city clerk."
The Municipal Land Use Law (MLUL) provides the following statutory framework governing proper notice of proceedings before zoning boards. N.J.S.A. 44:55D-12 provides that, with certain exceptions not pertinent here,
[p]ublic notice of a hearing on an application for development shall be given . . ., provided that the governing body may by ordinance require public notice for such categories of site plan review as may be specified by ordinance . . . . Public notice shall be given by publication in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality.
Notices required by N.J.S.A. 40:55D-12 "shall state the date, time and place of the hearing, the nature of the matters to be considered and . . . the location and times at which any maps and documents for which approval is sought are available pursuant to [N.J.S.A. 40:55D-10.]" N.J.S.A. 40:55D-11.
N.J.S.A. 40:55D-9(b) requires that notice of "all regular meetings and all special meetings" of a municipal agency "shall be given in accordance with municipal regulations." Moreover, N.J.S.A. 40:55D-10(b) provides that all "maps and documents for which approval is sought at a hearing shall be on file and available for public inspection . . . during normal business hours in the office of the administrative officer." The "administrative officer" is "the clerk of the municipality, unless a different municipal official . . . [is] designated by ordinance or statute." N.J.S.A. 40:55D-3.
The Perth Amboy zoning ordinance in effect at the time of defendants' application designated the "[z]oning [o]fficer" as the "administrative officer." Perth Amboy, N.J., Zoning and Land Dev. Code, c. 430 (2005). Therefore, the trial judge ruled, defendants' notice identifying the "Municipal Clerk" as the office where their application was available for inspection, was improper under the statute. This failure to comply with the statutory notice requirements deprived the Board of jurisdiction to hear defendants' application. The judge concluded that, "notice being defective, the action taken by the [B]oard is deemed invalid. . . . Defendant is [sic] hereby ordered to cease and desist with any further improvements until such time as the application can be reheard with proper notice being given."
On November 20, 2008, the trial judge issued a final judgment reflecting his decision, and adding:
Because the Resolution and approval are set aside based on the defective Notice, the [c]court declines to reach the merits of whether the approval and Resolution were arbitrary, capricious or unreasonable.
Defendants were "enjoined from taking any further action in reliance on the variance Resolution of April 19, 2007 and/or any permits issued by the City of Perth Amboy or any other governmental agency . . . ."
On appeal, plaintiff contends that: (1) the trial court erred in refusing to reach the merits of defendants' application; and (2) this court should exercise original jurisdiction and decide that issue on the merits or, alternatively, remand to the trial court with instructions to consider the merits of defendants' application based upon the record already made before the Board. We disagree and affirm.
The trial judge properly noted in his oral decision that "[a]ppropriate notice to the public . . . is jurisdictional. Defective notice does not vest the [B]oard with jurisdiction to hear the application." This determination is consistent with our recognition of "the importance of the public notice requirements of the Municipal Land Use Law (MLUL) and the fact that such notice is jurisdictional." Perlmart, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 237 (App. Div. 1996). "[T]he giving of statutory notice of hearing is a jurisdictional requirement and unless notice is given as required by statute the [B]oard lacks the power to hear or consider an application even if the subject matter is within its statutory power." Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adjustment, 154 N.J. 62, 79 (1998) (quoting William M. Cox, New Jersey Zoning and Land Use Administration, § 4-2.1 (1997)).
Plaintiff relies upon Perlmart, Inc., supra, to support her contention that the trial court should have addressed the merits of defendants' application. In that case, commercial developers had provided improper notice for "various site plan, variance and conditional use permit applications" respecting the development of a shopping center. Id. at 235. We concluded that "[b]ecause the notice was deficient, the . . . [b]oard lacked jurisdiction to consider the application[,]" and noted that the "developers may pursue their application with a new, presumably adequate, notice . . . ." Id. at 241. In anticipation of such a new application being filed, we expressed, in dicta, "concerns" over the trial court's grant of partial summary judgment to the developers on a jurisdictional claim in the complaint. Id. at 236, 241. We "express[ed] no view" on the issue, id. at 243, noting only that "the trial judge's grant of summary judgment on count three should not be considered dispositive on a subsequent application." Id. at 244.
Clearly, such comments did not constitute consideration of the merits of the application at issue. Therefore, plaintiff's reliance upon Perlmart, Inc. is misplaced.
We also ordered a remand of an application to the zoning board where notice was deficient in Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment, 397 N.J. Super. 335, 364-65 (App. Div. 2008). There, the notice had failed to adequately advise the public of the proposed development. Ibid. We declined to reach the merits of the application, stating that it would be unwise to rule now on plaintiffs' other arguments, i.e., that the project as a whole fails to satisfy the positive and negative requirements for a variance . . . . Those issues should abide the remand, and should not be preempted by a preliminary opinion of this court based upon the present record amassed before the Board in the absence of any objectors. [Id. at 365 (citations omitted).]
Plaintiff's reliance upon Cicchino v. Twp. of Berkeley Heights Planning Bd., 237 N.J. Super. 175 (App. Div. 1989), is similarly misplaced. There, the plaintiffs' application had been denied by the planning board. Id. at 177. The Law Division judge concluded that denial of the plaintiffs' application was proper as to all issues except one, namely whether the plaintiffs had satisfied certain statutory requirements, and remanded the matter to the zoning board for consideration of that issue. Ibid.
The board appealed, and we determined that the remand was inappropriate as it "gave plaintiffs a 'second bite of the apple' after they had been afforded a full opportunity to present their proposal to the [b]oard." Id. at 183. Because plaintiffs had "failed to carry their burden of proving . . . essential elements of their . . . application," we affirmed the board's denial of the application. Ibid.
By contrast, here the Board granted defendants' application; however, that action was declared void ab initio because of their defective notice. Therefore, a remand is necessary to afford defendants the opportunity to establish jurisdiction before the Board by giving proper notice, in order that their application may properly be considered.
For these reasons, we reject plaintiff's contentions that:
(1) the trial court improperly declined to address the merits of defendants' application; and (2) we should remand the matter to the trial court with instructions to decide the application on the merits.
Finally, we address plaintiff's contention that we should exercise original jurisdiction under Rule 2:10-5, which provides that the "appellate court may exercise such original jurisdiction as is necessary to the complete determination of any matter on review." Plaintiff requests that, pursuant to such jurisdiction, we deny defendants' application on the merits.
We decline to exercise original jurisdiction in this matter. Plaintiff's request would require us to engage in "original factfinding" which we have recognized is an "authority [that] must be exercised only 'with great frugality and in none but a clear case free of doubt.'" Tomaino v. Burman, 364 N.J. Super. 224, 234-35 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004) (quoting Boardwalk Regency Corp. Casino License Application, 180 N.J. Super. 324, 334 (App. Div. 1981), modified on other grounds, 90 N.J. 361 (1982)). We cannot state with any degree of certainty that this is "'a clear case free of doubt.'" Ibid.
As noted, in her amended complaint plaintiff added new objections to defendants' construction that had not been presented to the Board. Therefore, "the resolution of the present appeal will not conclude the litigation in this matter, as there are additional . . . [claims] against defendant[s] to be resolved. Accordingly, the necessary factual findings . . . are best made by" the Board. Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 302 (App. Div. 2009).
"We have exercised [original] jurisdiction to resolve a single issue to conclude litigation, or to end perpetual or lengthy litigation. . . . Appellate review, however, 'does not consist of weighing evidence anew and making independent factual findings; rather, our function is to determine whether there is adequate evidence to support the judgment rendered' by the trial court." Allstate Ins. Co., supra, 408 N.J. Super. at 301-02 (quoting Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div. 1999)). We are satisfied that an exercise of original jurisdiction is not warranted in this case.
Plaintiff contends that it is unfair to burden her with additional proceedings in opposition to an application she contends is unwarranted; we note, however, that defendants are similarly prejudiced in that they must renew their application before the Board, this time in compliance with proper notice requirements.
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