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Curzi v. Harmony Township Land Use Board

July 30, 2010

MELODY CURZI, DENNIS AND PATRICIA LOSCO, SOPHIE G. HENDERSHOT AND JAMES L. HENDERSHOT, WILLIAM F. WRIGHT, AND NICHOLAS TAURIELLO, PLAINTIFFS-APPELLANTS,
v.
HARMONY TOWNSHIP LAND USE BOARD AND RAYMOND L. RAUB, III AND GAIL A. RAUB, DEFENDANTS-RESPONDENTS, AND MAYOR AND TOWN COUNCIL OF HARMONY TOWNSHIP (WARREN COUNTY), DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-182-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 9, 2009

Before Judges Lisa, Baxter and Alvarez.

Raymond L. Raub, III and Gail A. Raub, his wife, own a farm consisting of approximately thirty-four acres which straddles Harmony and Lopatcong Townships in Warren County. The Raubs obtained subdivision and other land use approvals from the Harmony Township Land Use Board (Board) carving out a three-acre lot from the Harmony Township portion of the farm. The new lot would have its only access to a public road by way of a private lane known as Slater Lane.

Plaintiffs are homeowners and residents within 200 feet of the Raub farm. They brought an action in lieu of prerogative writs challenging the Board's approval. They asserted that the Board lacked jurisdiction because of defective notice. They also challenged the substantive decision made by the Board. Finally, they raised conflicts of interest issues.

The trial court initially agreed that jurisdiction was lacking due to defective notice and vacated the Board's approvals. Upon the Raubs' reconsideration motion, the judge reversed course and remanded the matter to the Board with directions to give the notice that was lacking, after which it could reconsider its decision. This appeal followed.*fn1

We agree with plaintiffs that certain parties required to receive personal notice under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, did not receive such notice, as a result of which the Board lacked jurisdiction to act. We also agree that the curative measure ordered by the court on reconsideration was ineffective to provide jurisdiction for action the Board had already taken. Accordingly, we reverse the judge's order on reconsideration. The result of this disposition is that the Board's approval of the Raubs' application is void. We therefore do not address the substantive issues or the conflicts of interest issues.

Most of the Raubs' farm is in Harmony. As we stated, the proposed lot's only access to the nearest public road is by virtue of a private lane known as Slater Lane.*fn2

The Raubs filed their application with the Board in February 2004, and the hearings began on May 5, 2004. The Raubs caused public notices to be sent to newspapers, neighbors, and other interested parties, and their counsel filed a proof of service with the Board. With the Board's agreement, the matters were presented in a bifurcated fashion, so the Raubs would first present their request for variances arising from the lack of frontage on a public street, and thereafter would seek the major subdivision approval.

Slater Lane was described at the Board hearings as either ten feet or twelve feet wide. It is a paved roadway. It intersects with Belvidere Road about 1550 feet from the Raubs' property. Slater Lane has a grade of approximately fifteen percent along that length. Three existing residences access Slater Lane between the Raubs' proposed new lot and Belvidere Road, and four other residences access Slater Lane further northward of the Raub property. In the initial phase of the hearings, the Board heard testimony regarding access through Slater Lane by emergency vehicles and related information regarding lack of access to a public street. At the conclusion of the June 2004 hearing, the Board voted to approve the variance pursuant to N.J.S.A. 40:55D-36, for relief from the requirement under N.J.S.A. 40:55D-35 for frontage on a public street.

The Raubs' attorney then sent out a second set of public notices to newspapers, neighbors and other interested parties for the hearings to begin on October 6, 2004 on the application for major subdivision approval and related variances. At the hearings of October 6, November 3, and December 1, 2004, the Raubs presented their engineering plans and expert testimony pertaining to the proposed subdivision.

At the December 1, 2004 hearing, the Board Chairman noted that attorney Mark Rogers, who represented plaintiffs Curzi and the Loscos, had raised an issue about the need for notice to all residents along Slater Lane. On the advice of its attorney, the Board determined that notice to those residents was not required and the Board could properly proceed further with the matter before it. At that hearing, the Board received evidence from various witnesses regarding the history and characteristics of Slater Lane and its use by residents with access to it. The validity of the easement granting the Raubs access to their new lot from Slater Lane was also discussed.

Lopatcong had not received formal advance written notice of the Raubs' application prior to these hearings. At the January 5, 2005 Board hearing, that notice issue was raised in light of a December 21, 2004 letter to the Board from attorney Anthony J. Sposaro, counsel for Lopatcong's Planning Board and Zoning Board of Adjustment. Sposaro wrote that notice of the subdivision application should have been given to Lopatcong and, in the absence of proof of prior notice, the Raubs' application should not proceed further, and should "again commence" after proper notice was given. The Board's attorney asked the Raubs' attorney whether the notice required by N.J.S.A. 40:55D-12d had been given. He responded:

There wasn't a separate notice served by certified mail to the Court [sic] per se, I think Ms. Dilts serves as the Board Secretary, and I may have my names confused, but she may serve as the Clerk now as well for Lopatcong Township, so she was served with copies of the application as part of the Lopatcong application, but there was not a separate ...


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