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Pavlovsky v. Gurin

October 21, 2009

MARY ELLEN PAVLOVSKY, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. . . . ...


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