Agenda - Planning Commission - 04/03/2008

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'. March 10, 20081 Volume 21 No.5 , I " DECISION: Affirmed in part, vacated in part, and remanded. \ .i The court found the public notice was legally deficient because it failed to alert the public as to the nature of the proposed restaurant. The court also concluded that the Condition was an invalid condition, which was major and could not be excised. The court rejected the Residents' argument that the public notice was deficient because of the typographical error in reference to the Project's location. The Residents asserted this typographical error po- tentially misinformed the neighbors that the Project was more 'than a mile from their homes. The court rejected this argument. The court noted that the law required notices for a proposed variance to include an identification of the property by street address or by reference to lot and block numbers as shown on the current tax duplicate: The court found that the notice's cross-reference to the tax map sufficed to alert readers to the site's correct location. The court also added that, given that the notices had to be sent to property owners within 200 feet, a reasonable person receiving the notice would not expect the property would be situated over a mile away. The court also rejected the Residents' argument that the public no- tice was deficient because Crestwood did not mail new notices advis- ing of the adjournment to May 24. The court said that the law only required initial notice. Moreover, it was common practice for variance applications to be considered over multiple meetings, and it was the obligation of the public to stay abreast of the status of the application, the court said. The court did agree with the Residents' argument that the public notice was substantively deficient. The court noted that State law re- quired such public notices provide, among other things, "the nature of the matters to be considered." The court stressed that the public notice should provide a common sense description of the nature of the application so that the ordinary layperson could understand its poten- tial impact on him or her. The court concluded that Crestwood's no- tice was deficient in that the notice's generic reference to "retail/office" uses did not reasonably put the public on notice that a, substantial res- taurant was contemplated. The court further found it apparent that the restaurant would be of heightened concern to the public, particu- larly as to issues of traffic, parking, noise, and the possible consump- tion of alcoholic beverages on site. Finally, the court concluded that the Condition was an illegal ex- action and was a major factor in the approved plan. The court de- termined that the Condition apparently was intended to respond to the Project's lack of on-site recreational facilities for the seruor citizens who would be living in the uilits there. State law (N.]. Stat. Ann. ~ 40:55D-42) limited off-tract monetary contributions by developers to 9 133