Opinion
DOCKET NO. A-2399-14T3
08-01-2016
HENSFOOT DEVELOPMENT CORPORATION, A New Jersey Corporation, Plaintiff-Appellant, v. CLINTON TOWNSHIP BOARD OF ADJUSTMENT and ZINN REALTY, L.L.C., Defendants-Respondents.
Benbrook & Benbrook, L.L.C., attorneys for appellant (Kevin P. Benbrook, on the brief). Stickel, Koenig, Sullivan & Drill, L.L.C., attorneys for respondent Clinton Township Board of Adjustment; Gebhardt & Kiefer, P.C., attorneys for respondent Zinn Realty, L.L.C. (Jonathan E. Drill and James H. Knox, of counsel and on the joint brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-32-14. Benbrook & Benbrook, L.L.C., attorneys for appellant (Kevin P. Benbrook, on the brief). Stickel, Koenig, Sullivan & Drill, L.L.C., attorneys for respondent Clinton Township Board of Adjustment; Gebhardt & Kiefer, P.C., attorneys for respondent Zinn Realty, L.L.C. (Jonathan E. Drill and James H. Knox, of counsel and on the joint brief). PER CURIAM
Plaintiff Hensfoot Development Corporation appeals from a December 11, 2014 order denying its motion to set aside defendant Clinton Township's Board of Adjustment's (Board) approval of defendant Zinn Realty, L.L.C.'s (Zinn) preliminary and final site plan, as well as Zinn's request for certain variances and for the minor subdivision of its property. Plaintiff argues the Board lacked jurisdiction to grant the relief sought because the notices of the hearings on the application were deficient. For the reasons that follow, we affirm.
I
In 2010, the Board granted Zinn's application for a use variance pursuant to N.J.S.A. 40:55D-70(d)(1), in furtherance of its plan to construct a two-story, 9,000 to 12,500 square foot office building in the township's office business zoning district. Zinn intended to have medical offices in the building, which were not a permitted use in that zone.
The resolution granting the use variance was subject to Zinn obtaining preliminary and final site plan and subdivision approval. In addition, the resolution required, among other things, that the site plan provide sufficient landscaping and other buffering so as to "separate the negative impacts of the use of the property" from the residential neighbors to the west.
Plaintiff did not file an action in the Law Division at that time seeking to set aside the use variance. Zinn thereafter submitted to the Board the necessary application for approval of its preliminary and final site plan, certain variances pursuant to N.J.S.A. 40:55D-70(c), waivers, and for minor subdivision of its property. The public notice issued for the date the hearing commenced on the second application provided as follows:
In compliance with the applicable provisions of the Municipal Land Use Law and the Ordinances of the Township of Clinton, notice is hereby given that the undersigned applicant has applied to the Board of Adjustment of the Township of Clinton for preliminary and final site plan approval; minor subdivision; variances relating to the number and location of signs; the existing insufficient setback for the garage on Lot 16, placement of an underground detention system, lights and retaining walls within yard areas; and for all other necessary variances or waivers required by the plans on file, with respect to the premises described below.
The name of the applicant is Zinn Realty, LLC.
The location of the property is on the westerly side of Grayrock Road, where Grayrock Road intersects Center Street. The property is known as Block 74, Lots 16, 18 and 19 on the Clinton Township Tax Map.
All documents relating to this application may be examined by the public between the hours of 8:30 AM and 4:30 PM Monday through Friday at the Board of Adjustment Office, Clinton Township Municipal Building, 1225 Route 31 South, Suite 411, Lebanon, New Jersey 08833.
Any person or persons interested in this application may have an opportunity to be heard at a hearing to be held on November 26, 2012, at 7:30 PM at the Public Safety Building, 1370 Route 31 North, Annandale, NJ 08801.
The board took testimony from various witnesses during the hearing held at the first meeting on November 26, 2012, at which Chuck Urban, plaintiff's principal, was present. Plaintiff planned to build a residence on a lot immediately adjacent to Zinn's property to the west. Urban provided testimony, but none of his testimony included any comment about the quality of the public notice.
As the presentation of evidence had not concluded by the end of the November 2012 meeting, the matter was eventually adjourned to June 24, 2013. A public notice was published in connection with the second meeting. That notice was the same as the first notice, but for the date and time of the meeting and, further, added that Zinn was also seeking a variance for "the disturbance of steep slopes." Urban was also present during the second meeting.
Because the testimony of one of the witnesses was not completed at the second meeting, the hearing was adjourned again to August 26, 2013, at which time the matter was concluded. At no time during the hearing did anyone voice any objection to the content or quality of the two public notices.
In a resolution dated October 28, 2013, the Board granted, subject to certain conditions, Zinn's application for preliminary and final site plan and minor subdivision approval. The Board also approved certain variances under N.J.S.A. 40:55D-70(c), design waivers, and an exception to the landscape buffer ordinance. As to that exception, the Board permitted the rear yard buffer on Zinn's property to be as narrow as 18.8 feet when the minimum required buffer width is thirty feet. Finally, in the resolution the Board noted the estimated square footage of the office building was 13,376 square feet, of which 6,000 square feet would be for medical offices.
The October 28, 2013 resolution actually stated the minimum required buffer width was twenty-five feet, but the resolution was corrected on December 9, 2013 to state the minimum required buffer width was thirty feet.
In January 2014, plaintiff filed a complaint in lieu of prerogative writs, challenging various aspects of the Board's 2010 and 2013 approvals. By the time of trial, all but one of the issues raised in the complaint had been either dismissed or abandoned. The remaining issue was whether the Board erred when it granted Zinn's application for a design waiver, which reduced the size of the width of the buffering Zinn was required to provide in one portion of its lot from thirty to approximately nineteen feet.
The trial court found the Board's decision was not arbitrary, capricious, or unreasonable, and entered a judgment dismissing the complaint. Neither in its complaint nor at trial did plaintiff raise any question about the validity of the public notices issued in connection with Zinn's second application.
Plaintiff filed a motion for reconsideration of the judgment and, for the first time, asserted the notices of the hearing on the second application were insufficient. Plaintiff claimed the deficiencies in the notices warranted the reversal of the Board's approval of and a new hearing on the second application, after the publication of a proper notice.
Plaintiff also sought relief pertaining to the issue of buffering, which was also denied. --------
The trial court denied the motion for reconsideration on the ground plaintiff failed to show it was entitled to relief under Rule 4:49-2 or Rule 4:50-1. The court also found "[l]ack of adequate notice is a waiveable jurisdictional issue" and, because plaintiff's principal appeared at and did not object to the quality of the notices at the hearings, that plaintiff had waived its right to assert the notices were defective.
II
On appeal, plaintiff's primary contention is that, because the public notices were defective, the Board lacked subject matter jurisdiction when it considered and approved the second application. Plaintiff contends that as this form of jurisdiction cannot be waived, it is irrelevant whether its principal appeared at the hearing or failed to object to the notices. It further contends the issue of whether the Board had jurisdiction can be raised at any time. Plaintiff did not appeal the judgment dismissing his complaint, but only appealed the denial of his motion for reconsideration. Understanding that, we chose to address the merits of his arguments, which implicate the judgment itself.
Plaintiff argues the notices were defective because they failed to alert the public to the fact Zinn was seeking the approval of a two story, 13,376 square foot medical office building, and did not indicate Zinn was seeking variances under N.J.S.A. 40:55D-70(c) for front and side yard setback deviations, steep slope deviations, "sign regulations," and landscape design waivers.
In Northgate Condo. Ass'n, Inc. v. Borough of Hillsdale Planning Bd., 214 N.J. 120, 138 (2013), our Supreme Court confirmed that proper notice is a jurisdictional requirement for a municipal agency to take zoning action, and that a defective notice can render municipal action null and void. In Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 237 (App. Div. 1996), we also noted "the importance of the public notice requirements of the Municipal Land Use Law [] and the fact that such notice is jurisdictional."
N.J.S.A. 40:55D-11 requires that notices of hearings on development applications state the date, time, and place of the hearing and the nature of the matters to be considered; identify the property proposed for development by street address or tax lot and block numbers; and provide the location and times at which any maps and documents for which approval is sought are available for public inspection.
Here, plaintiff does not complain about the quality of the notices insofar as Zinn's request for preliminary and final site plan or minor subdivision approval. Plaintiff does complain Zinn failed to indicate in the notices that it was seeking variances for front and side yard setback deviations, steep slope deviations, "sign regulations," and landscape design waivers.
In Perlmart, we concluded the Legislature did not intend to require that a public notice always specifically itemize all necessary variances. Perlmart, supra, 295 N.J. Super. at 237 n.3; see also Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment, 397 N.J. Super. 335, 355 (App. Div. 2008). We stated in Perlmart that:
the purpose for notifying the public of the "nature of the matters to be considered" is to ensure that members of the general public who may be affected by the nature and character of the proposed development are fairly apprised thereof so that they may make an informed determination as to whether they should participate in the hearing or, at the least, look more closely at the plans and other documents on file.
[Perlmart, supra, 295 N.J. Super. at 237-38 (citations omitted) (emphasis added).]
We conclude Zinn's notices were sufficient. Zinn listed certain specific variances it wanted, but also stated it was seeking "all other necessary variances or waivers required by the plans on file." Anyone who read the notices knew Zinn was seeking the variances listed in the notices, but were also informed there were additional variances and waivers Zinn might seek as may be necessary, consistent with the plans on file.
Further, plaintiff's contention the notices were defective because they failed to advise that Zinn was seeking the approval to construct a two-story, 13,376 square foot medical office building is without merit. The Board had already approved Zinn's application to grant a use variance to construct a two-story office building, which was to include medical offices, by the time of the second application. Plaintiff does not complain the notice issued for the first application, which he did not challenge in a timely prerogative writ action, was defective.
In addition, the resolution granting that use variance indicated the anticipated size of the building was going to be between 9,000 and 12,500 square feet and would include medical offices. Although by the time of the second application the estimated size of the building had increased by 876 square feet, in context, the additional square footage is unremarkable, not to mention only 6,000 square feet of the building is to be used as medical offices.
We are mindful that the trial court did not reach the discrete issue of whether the notices were defective, although that issue had been raised and briefed by plaintiff when before that court. Nevertheless, we must bear in mind that our role on appeal is to review judgments and orders, not trial court opinions. Bandler v. Melillo, 443 N.J. Super. 203, 210 (App. Div. 2015). "[A] party may challenge only the propriety of the judgment entered by the trial court, not the reasoning underlying the court's decision." Ibid. (citing Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001)). "It is a commonplace of appellate review that if the order of the lower tribunal is valid, the fact that it is predicated upon an incorrect basis will not stand in the way of its affirmance." Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968), abrogated on other grounds by, Commercial Realty & Res. Corp. v. First Atl. Props. Co., 122 N.J. 546 (1991).
Hence, although we do not adopt the court's finding of waiver, we affirm its decision on other grounds. After carefully considering the record and the briefs, we conclude plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION