When the interests of homeowners and developers come into conflict, do New Jersey courts typically favor one over the other? While the New Jersey Legislature has passed laws restraining developers, the courts continue to find ways to loosen restrictions. One recent decision from the NJ Appellate Division provides an example.
Appellate Division Example: Mrowko v. Belleville Zoning Board
In Mrowko v. Belleville Zoning Board, the Appellate Division once again approved loose compliance for developers, including a loosening of the notice requirements otherwise placed on developers to inform neighboring landowners of upcoming development work.
As background, in Mrowko, a developer sought to convert a two-family home to a four-family home. For such a development request to be approved by the Zoning Board, the law requires a developer to make an application to the Zoning Board and to give notice of the hearing date set by the Board to all neighbors within 200 feet of the property by certified mail and to publish notice of the hearing in the local newspaper.
These notices are supposedly designed to give objectors an opportunity to voice their opposition to a proposed plan.
In this case, the developer and the neighbor shared a common driveway and parking area, which included an easement so that the neighbor could use the driveway for ingress and egress to the public street.
Notice Burden
To put the neighbor on notice, the court found that the developer met its notice burden by putting notice in the local newspaper and by sending notice via certified mail, despite notice-via-local-newspaper being somewhat outdated and the court only requiring that the developer prove that it mailed the certified (proof of delivery was not deemed necessary).
Incredibly, the court even ignored the admitted fact that the letter to the objecting neighbor had the wrong address — it was similar enough that the postal service would deliver the notice to the correct address, the Court reasoned.
Time to Appeal; ‘Intensification’
Unsurprisingly, this resulted in the neighbor not learning of the development plan until the construction began — more than a year after the Zoning Board approved the plan. The neighbor was therefore out of time to appeal.
Similarly, the court found for the developer that a doubling of the homes on the property did not amount to an “intensification” of the use of the eased driveway. Since the easement limited the developer to seven parking spaces on the property, the neighbor argued that doubling the homes on the developer’s property amounted to an “intensification” of the use of the eased driveway.
Such an “intensification” would require the neighbor’s express agreement to the development. Since no such agreement was sought or granted, the neighbor argued the expansion should be stopped.
The court rejected this argument. Specifically, the court reasoned that there was no intensification because the footprint of the developer’s existing building was not being enlarged and the developer’s use of parking spaces was still limited to seven. In light of Mrowko, how can an average homeowner protect his investment in his home from aggressive developers?
Requirements By Law
Zoning Boards are required to publicly announce their meeting dates and sometimes post their agendas. While the law does not require a Zoning Board to maintain a website or to post their agenda there are many requiring that.
It is therefore worth a homeowner’s time to check the local Zoning Board website and keep an eye on local newspapers for notices of Zoning meetings that involve your neighborhood — this will help ensure that you always have time to object if your property is impacted by new development.
On the other hand, if you are a developer, be smart — alert the neighbors of your plans so your project does not get delayed by angry homeowners.
