In Pond Run Watershed Association v. Township of Hamilton Zoning Bd. of Adj., (A-1022-06T1) (App. Div. Jan. 10, 2008) (approved for publication), a notice involving multiple use variances sought for a proposed development, which included a 5,000-square-foot, 168-seat restaurant with a potential liquor license – but which notice failed to specifically reference the restaurant – was inadequate under N.J.S.A. 40:55D-11 and Perlmart of Lacey v. Lacey Twp. Planning Bd.

The court found that since the notice only mentioned age-restricted housing and “retail/office units” but did not mention the anticipated restaurant, it failed to adequately advise interested parties of the extent of the development, particularly where restaurants were only permitted as of right in the particular zone on developments of 100 acres or more.

Furthermore, the court enjoined further construction of the restaurant and held that variances needed to be considered again at a public hearing because the variance conditions had included an “illegal exaction” — a $476,000 negotiated payment by the developer toward the cost of a proposed off-site municipal amphitheater. 

Although the trial court correctly held that the payment was improper, the Appellate Division found that the court should have remanded the matter to the Zoning Board, rather than only eliminating that significant contribution as it may have had a major impact on the Board’s consideration of the overall project since the residential component failed to include any significant recreational space.  Rather than send the case directly to the Zoning Board, however, the Appellate Division remanded the case back to the Law Division for further clarification of the issues below, particularly in light of the fact that construction had commenced on several aspects of the project.

For a copy of the official opinion from the NJ Judiciary website, click here.