01-10-08 A-1022-06T1
A published and mailed notice of use variance applications
sought for a proposed development that included a 5,000 square
foot, 168-seat restaurant with a potential liquor license was
inadequate under N.J.S.A. 40:55D-11 and Perlmart of Lacey v.
Lacey Twp. Planning Bd., 295 N.J. Super. 234, 241 (App. Div.
1996) because the notice referred only to age-restricted housing
and "retail/office units" and made no mention of the anticipated
restaurant. Consequently, the application must be reheard by
the local Zoning Board of Adjustment after a proper notice
including the proposed restaurant is circulated.
The variances issued by the Zoning Board in this case also
must be presented again for public hearing because the variance
conditions had included a $476,000 negotiated payment by the
developer towards the costs of a proposed off-site municipal
amphitheatre. Although the trial court correctly declared the
developer's payment an illegal exaction, the court should have
remanded the matter to the Board rather than only excising that
major feature from the overall project.
