On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County.
J.h. Coleman, Stern and Keefe. The opinion of the court was delivered by Keefe, J.A.D.
The issue to be decided is whether in municipalities which require that a notice of hearing concerning site plan approval be given to all property owners within 200 feet of the property which is "the subject of [the site plan] hearing," the applicant must give notice to property owners within 200 feet of property that is not owned by the applicant but will be used by the applicant as a secondary access road to the development. Judge Roger Mahon, the trial Judge, held that notice must be given in such instances and that the failure to do so deprives the Planning Board of jurisdiction. We agree and affirm the judgment under review substantially for the reasons stated by Judge Mahon.
In April 1987, plaintiffs, Brower Development Corporation and Joseph D. Brower, Jr., applied to the defendant Planning Board of the Township of Clinton ("Board") seeking preliminary site plan approval to construct 231 residential condominiums and townhouses on 41.633 acres located on Block 66, Lots 12, 13 and 14 of the Clinton Township tax map. The project also included a 9.617 acre parcel located on Block 70, Lot 54 in High Bridge Borough. The property is located in the municipality's CR-2 (commercial-residential) zone and, although no variances were required, plaintiffs requested several design
waivers. From April to November 1987, plaintiffs met with the Board and, as a result of these meetings, several revisions were made to the site plan.
Importantly, one of the revisions included a secondary access road to the site to permit a left-hand turn to be made at the intersection of County Route 513 and State Highway 31. Formerly, the only ingress and egress at the site was onto Highway 31, a heavily congested roadway. Evidently, the Board had suggested this revision because it would allow police and rescue vehicles to enter the development via Route 513, thus avoiding heavily traveled Highway 31.
The secondary roadway began at the south-east portion of Block 66, Lot 13 and crossed over it onto Lot 11. It continued in a north-east direction on Lot 11 and passed through Lot 12, continuing across the Clinton Township municipal boundary line into High Bridge Borough through Block 20, Lot 52*fn1 where it connected with Route 513.
On November 16, 1987, the Board held a hearing to review plaintiffs' revised plans. At that time, plaintiffs' attorney advised the Board that his clients had reached an agreement with the owners of Lots 11 and 12, in order to construct the proposed secondary access roadway. Plaintiffs had secured an easement over Lot 11. Although the record is not entirely clear, it appears that plaintiffs had entered into a contract with the record owner of Lot 12 and considered that lot to be part of their site plan application. In any event, plaintiffs' attorney stated that all property owners within 200 feet of Lots 12, 13 and 14 had been notified of the proposed development pursuant
to N.J.S.A. 40:55D-12. Plaintiffs' attorney also represented that all property owners within 200 feet of Lot 11 had been notified of the proposed development. (That representation would later prove to be incorrect).
As to the portion of the proposed roadway that traversed Lot 52 in High Bridge Borough, plaintiffs' attorney asserted that the High Bridge Borough tax map showed an existing right-of-way on Lot 52. Because the right-of-way had existed for many years, plaintiffs' attorney implied that notice to ...