Opinion
DOCKET NO. A-3744-11T3
2013-09-30
JOHN M. CARBONE and SUSAN B. CARBONE, Plaintiffs-Appellants, v. BOROUGH OF NORTH HALEDON, Defendant-Respondent.
John M. Carbone, attorney for appellants. De Marco & De Marco, attorneys for respondent (Michael P. De Marco, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Messano.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2653-09.
John M. Carbone, attorney for appellants.
De Marco & De Marco, attorneys for respondent (Michael P. De Marco, on the brief). PER CURIAM
Plaintiffs, John M. and Susan B. Carbone, appeal from the Law Division's order of February 23, 2012, dismissing the first count of their complaint in lieu of prerogative writs challenging the passage of ordinance No. 12-2009 (the ordinance), by the Borough of North Haledon (the Borough). The facts are undisputed.
In the second count of the complaint, plaintiffs sought to set aside the passage of a second ordinance, No. 17-2009. The Law Division's order provided that ordinance No. 17-2009 was declared "invalid" "with the consent of the parties." No issue is raised on appeal with respect to that portion of the order.
The ordinance sought to amend the Borough's existing zoning plan by creating a new zoning district, the "Senior Citizen Residential (SCR) District," comprised of four lots within Block 65 on the municipal tax map. Plaintiffs' property is within 200 feet of the proposed zoning change, and some of the property subject to the change was owned by the Holland Christian Home Association (HCHA).
By order of June 8, 2012, we denied HCHA's motion to intervene in this appeal. Ordinance 17-2009 contemplated the sale of one of the affected lots, purportedly then-owned by the Borough, to HCHA. We gather from colloquy at oral argument that significant questions arose as to the Borough's ownership of the particular lot in question.
As stated in the ordinance, the purpose of the zoning change was "to meet the diverse housing and health care needs of an aging population while allowing zoning flexibility to accommodate the ever changing residential and medical needs for this specific population." It is apparently undisputed that the Borough's most recent comprehensive master plan, adopted in May 2004, recognized the need for senior housing, and its prior master plan re-examination report, in 1996, recognized HCHA's property was a "long[-]standing non-conforming use [that] should be rezoned" to conform.
The ordinance was referred by the Borough to its Planning Board (the Board), which conducted a hearing on April 23, 2009. The public notice of the meeting was promulgated and published by counsel for the HCHA. Plaintiffs received individual notice of the hearing based upon their property's proximity to the proposed subject zoning change. The Board adopted the proposed change, and, thereafter, the ordinance was scheduled for a hearing before the Borough's mayor and council on May 20, 2009.
Counsel for the HCHA again prepared notice of the May 20 meeting and served same on plaintiffs and other affected property owners. The notice described the involved properties by lot and block numbers, and provided that notice was being "sent . . . by an owner by order of Mayor and Council of North Haledon." The HCHA's name appeared at the bottom of the notice as "Owner." Counsel for the HCHA executed affidavits of service upon all affected property owners.
The Borough caused notice of the May 20 meeting to be published in a local newspaper, although it is not entirely clear from the record who submitted the legal notice to the paper. That notice included the ordinance in its entirety. Although the ordinance itself only identified the affected properties by lot and block number, the notice set forth in full detail the permitted uses in the proposed SCR zone, as well as the various land use requirements and restrictions. The municipal clerk's name and title appeared at the end of the legal notice.
The mayor and council approved the ordinance. On May 28, 2009, a notice of its approval was published in a local newspaper, with the municipal clerk's name and title appearing at the bottom of the notice.
The published notice indicates the Mayor and Council adopted the ordinance at a meeting on May 21. There is no explanation in the record for the discrepancy in the dates.
Plaintiffs filed a timely complaint in lieu of prerogative writs alleging the Borough's actions failed to comply with the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, and the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. Before the Law Division, however, plaintiffs' challenge rested solely upon alleged violations of the MLUL and N.J.S.A. 40:49-2.
On appeal, plaintiffs advance no argument that the procedure violated the OPMA.
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In particular, plaintiffs contended that, in violation of N.J.S.A. 40:55D-62.1, which requires that public notice of certain amendments to a zoning ordinance must be given by the municipal clerk, the notices in this case were provided by counsel for the HCHA. They also argued the notices were deficient. Additionally, plaintiffs contended that the ordinance was enacted in violation of N.J.S.A. 40:49-2, because the municipal clerk did not publish the notice, the notice was deficient, and it was published in newspapers other than those designated by the Borough.
After considering oral argument, the judge observed that the purpose of any "notice provision" was "[t]o alert individuals who may very well be affected by governmental action that is about to take place in proximity to property that they live upon or that they own." He further noted that, in this case, the published notice of the public meeting included a copy of the proposed ordinance in its entirety. Regarding the particular newspaper in which publication occurred, the judge observed that "[n]o one has argued that the [newspaper] did not qualify as a newspaper of general circulation within the area, which made it legally sufficient to publish the[] ordinance[]."
The judge determined the "failure of the Borough . . . to have a municipal clerk . . . generat[e] the subject notices is not fatal to the adoption of the ordinance." He further determined that there was "more than sufficient information" furnished to "affected property owners" regarding the nature of the amendment to the zoning ordinance "to comport with the intent of [N.J.S.A.] 40:55D-62.1." In short, the judge determined that adoption of the ordinance "substantially complied with . . . the MLUL, as well as the provisions of [N.J.S.A. 40:49-2]." He entered the order under review and this appeal followed.
Before us, plaintiffs reiterate some of the arguments raised in the Law Division. They contend there must be strict, not substantial, compliance with the statutory mandates, and it was error for the judge to conclude this function could be "outsourced" to the attorney for the HCHA, the "beneficiary of the zoning change." Plaintiffs also argue the notice itself did not comply with N.J.S.A. 40:55D-62.1, because it did not sufficiently describe the affected properties.
We have considered these arguments in light of the record and applicable legal standards. We reverse and remand for further proceedings consistent with this opinion.
We first examine the statutory provisions at issue. The MLUL requires that certain property owners be provided individual notice of specific types of proposed amendments to a zoning ordinance.
Notice of a hearing on an amendment to the zoning ordinance proposing a change to the classification or boundaries of a zoning district, exclusive of classification or
boundary changes recommended in a periodic general reexamination of the master plan by the planning board pursuant to [N.J.S.A. 40:55D-89], shall be given at least 10 days prior to the hearing by the municipal clerk to the owners of all real property . . . within the district and within the State within 200 feet in all directions of the boundaries of the district . . . .
. . . .
A notice pursuant to this section shall state the date, time and place of the hearing, the nature of the matter to be considered and an identification of the affected zoning districts and proposed boundary changes, if any, by street names, common names or other identifiable landmarks, and by reference to lot and block numbers as shown on the current tax duplicate in the municipal tax assessor's office.
. . . .
The municipal clerk shall execute affidavits of proof of service of the notices required by this section, and shall keep the affidavits on file along with the proof of publication of the notice of the required public hearing on the proposed zoning ordinance change. Costs of the notice provision shall be the responsibility of the proponent of the amendment.
[N.J.S.A. 40:55D-62.1 (Emphasis added).]
N.J.S.A. 40:49-2(a) requires that, prior to final passage of any ordinance, there must be newspaper publication of "notice of the introduction thereof, . . . the time and place when and where it will be further considered for final passage, a clear and concise statement prepared by the clerk of the governing body setting forth the purpose of the ordinance, and the time and place when and where a copy of the ordinance can be obtained . . . ." (Emphasis added). N.J.S.A. 40:49-2.1, however, provides in pertinent part:
In the case of any ordinance adopted pursuant to the [MLUL], . . . the governing body of any municipality may, notwithstanding the provisions of [N.J.S.A.] 40:49-2, satisfy the newspaper publication requirements for the introduction and passage of such ordinance in the following manner:
a. The publication of a notice citing such proposed ordinance by title, giving a brief summary of the main objectives or provisions of the ordinance, stating that copies are on file for public examination and acquisition at the office of the municipal clerk, and setting forth the time and place for the further consideration of the proposed ordinance . . . .
[(Emphasis added).]
We "review de novo questions regarding the adequacy of the notice[s.]" Rockaway Shoprite Assocs., Inc. v. City of Linden, 424 N.J. Super. 337, 344 (App. Div. 2011) (citing Pond Run Watershed Assoc. v. Twp. of Hamilton Zoning Bd. of Adj., 397 N.J. Super. 335, 350 (App. Div. 2008)).
Initially, we agree with the Law Division judge that the promulgation and service of the notices of the May 20 hearing to affected property owners by the HCHA's attorney was not fatal to the process. We acknowledge our obligation to view planning and zoning determinations with an understanding that municipalities "must act 'in strict conformity' with the MLUL[.]" Mahwah Realty Assocs. v. Twp. of Mahwah, 430 N.J. Super. 247, 259 (App. Div.) (quoting Nuckel v. Little Ferry Planning Bd., 208 N.J. 95, 101 (2011)), certif. denied, 208 N.J. 599 (2013). And, we in no way condone what occurred.
However, plaintiffs can point to no adverse consequence as a result, nor do they contend that the process employed prejudiced their ability to object to, or otherwise voice their opinions regarding, the ordinance. The purpose of the individualized notice requirements contained in N.J.S.A. 40:55D-62.1 is to give affected property owners notice of "discrete and specific zoning changes" impacting their properties. Cotler v. Twp. of Pilesgrove, 393 N.J. Super. 377, 384 (App. Div. 2007) (quoting Gallo v. Mayor & Twp. Council of Lawrence Twp., 328 N.J. Super. 117, 126 (App. Div. 2000)). That purpose was accomplished in this case.
To the extent made, we also disagree with plaintiffs' contention that the public notice was deficient. We have explained the legislative purpose behind the enactment of N.J.S.A. 40:49-2.1:
Before enactment of the MLUL, a municipality was required to publish a proposed zoningAs we also noted, the Legislature subsequently amended N.J.S.A. 40:49-2 "to authorize municipalities to publish only a 'summary' of other proposed ordinances." Id. at 385 n.1.
ordinance in its entirety. . . . Shortly after the MLUL became effective in 1976, . . . the Legislature enacted N.J.S.A. 40:49-2.1, . . . "to reduce the costs to municipalities of having to publish, in accordance with [N.J.S.A.] 40:49-2, the full text of lengthy land use ordinances." Statement to Assembly Committee Substitute for Senate Bill No. 3008, at 2 (July 11, 1977); see also Sponsor's Statement to Senate Bill No. 3008, at 2 (Jan. 11, 1977) (noting that enactment of N.J.S.A. 40:49-2.1 "will potentially save the municipalities of New Jersey hundreds of thousands of dollars annually").
[Cotler, supra, 393 N.J. Super. at 385-86 (internal citations omitted).]
In this case, the public was provided with more than "a brief summary of the main objectives or provisions of the ordinance." N.J.S.A. 40:49-2.1(a). It was provided with a copy of the ordinance in its entirety. This was clearly adequate. See Rockaway Shoprite Assocs., supra, 424 N.J. Super. at 346 ("New Jersey requires at a minimum that published notice of a zoning ordinance creating new zones and uses applicable to an area identify and briefly describe those new zones and uses.").
What remains is plaintiffs' argument that the notice served on individual property owners was deficient because it failed to adequately identify the properties included in the proposed SCR zone, in violation of N.J.S.A. 40:55D-62.1. Plaintiffs contend that "dual descriptive methods . . . are required and mandated," i.e., the property must be described by both "street names, common names or other identifiable landmarks, and by reference to lot and block numbers." Ibid. (emphasis added).
The Borough counters by arguing the notice was sufficient, or, alternatively, that "personal notice was not required." In this latter regard, the Borough contends that pursuant to N.J.S.A. 40:55D-62.1, personal notice is not required when the "classification or boundary changes [are] recommended in a periodic general reexamination of the master plan" by the planning board. Although the Borough advanced this argument in the Law Division, the judge only referenced it obliquely, accepting plaintiffs' observation that nothing in the record demonstrated "that the . . . Board specifically indicated as part of the process that these properties should be included."
Initially, on the record presented, we reject the Borough's contention that the personal notice served in this case was sufficient, both as to property identification and substance. As to the latter, the notice stated only that the ordinance dealt with an amendment to the zoning code involving a "Senior Citizen Residential (SCR) District" that affected four particular tax lots. It did not say the amendment involved the creation of a new zoning district, nor did it state, in even the briefest terms, what was permitted in the new zoning district. In Rockaway Shoprite Assocs., supra, 424 N.J. Super. at 350-351 we specifically rejected the adequacy of a notice under the MLUL that provided significantly more information than what was provided in this case.
We do not necessarily accept plaintiffs argument that N.J.S.A. 40:55D-62.1 requires that the property description in personal notices to affected property owners must always include both "street names, common names or other identifiable landmarks, and . . . lot and block numbers." In Mahwah Realty Assocs., supra, 430 N.J. Super. at 257, decided after the briefs were filed in this case, we held "that the additional identification requirements apply only to boundary changes, not classification changes." Here, we do not deal with modification of classifications in an existing zone, as was the case in Mahwah Realty Assocs. Instead, the ordinance in this case created an entirely new zone with newly-described uses. We think the property description that included only lot and block numbers was inadequate.
However, while this compels our reversal of the order under review, we believe it appropriate to remand the matter to the trial court for further consideration of the Borough's alternative argument, i.e., that personal notice was unnecessary. In Cotler, supra, 393 N.J. Super. at 384, we noted that, although the municipality's periodic general reexamination recommended updates to the boundaries of the zone where the plaintiffs' properties were located, it did not recommend specific zoning changes. We also noted that thereafter, amendments were made to the township's master plan, that recommended "numerous changes in the . . . zoning," "including a reduction in the size of the . . . district" where the plaintiffs' properties were located, "and the creation of" an entirely new district that now included the plaintiffs' properties. Ibid.
Despite the direct impact the change had on the plaintiffs' properties, we held that personal notice pursuant to N.J.S.A. 40:55D-61.2 was unnecessary:
[T]he rezoning of plaintiffs' properties was the product of an ongoing planning process that started with the preparation of the periodic reexamination report and concluded with the adoption of the amended zoning ordinance plaintiffs challenge in this litigation. Therefore, this rezoning was not an "isolated zoning change" affecting only a discrete number of properties, but instead the result of "a broad-based review of a municipality's entire zoning scheme," which could be adopted without the personal notice to affected property owners required by N.J.S.A. 40:55D-62.1 and 63.
[Id. at 385 (quoting Gallo, supra, 328 N.J. Super. at 126).]
The record before the Law Division was abbreviated, apparently by stipulation of the parties. The appellate appendices include only a copy of the Borough's stipulated facts that indicated, in a very limited fashion, the contents of the 1996 reexamination report and 2004 master plan regarding the need for senior citizen housing and the desire to rezone the subject properties to bring them into conformance. We have no other information, and, thus, we cannot determine with any certitude whether the amendment reflected "classification or boundary changes recommended in a periodic general reexamination of the master plan by the planning board." N.J.S.A. 40:55D-61.2. In this regard, we do not necessarily agree that the failure to refer specifically to these four lots in either the reexamination report or the master plan is determinative.
Therefore, we are compelled to remand the matter to the Law Division for the development of a more complete record and, thereafter, for consideration of the Borough's argument that it was unnecessary to provide plaintiffs with personal notice of the May 20, 2009 meeting of the mayor and council. Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION