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New York SMSA Limited Partnership v. Township Council of the Township of Edison

February 2, 2006

NEW YORK SMSA LIMITED PARTNERSHIP D/B/A VERIZON WIRELESS, PLAINTIFF-RESPONDENT,
v.
TOWNSHIP COUNCIL OF THE TOWNSHIP OF EDISON, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-3328-04.

The opinion of the court was delivered by: Grall, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued December 14, 2005

Before Judges Fall, Parker and Grall.

The Township Council of the Township of Edison (Edison) appeals from a final order invalidating amendments to its zoning ordinance that require certain applicants for development to give notice of the hearing on their applications that exceeds the notice specified in N.J.S.A. 40:55D-12. Because we conclude that the authority to enhance the scope and method of notice specified in N.J.S.A. 40:55D-12 is not expressly delegated, fairly implied or reasonably incident to the powers the Legislature conferred through the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, we affirm.

Edison adopted Ordinance No. 0.1407-4004, amending Edison, N.J., Code § 18.28.060(A), (C), on April 14, 2004. Where the MLUL requires an applicant to publish specified information, the ordinance also requires the applicant to post a sign that includes additional information; where the MLUL requires notice to property owners within 200 feet, the ordinance requires notice to owners within 300 feet. Compare id. with N.J.S.A. 40:44D-11, -12. On May 12, 2004, plaintiff New York SMSA Limited Partnership, doing business as Verizon Wireless (Verizon), initiated this action in lieu of prerogative writs seeking an order declaring the amendments void, enjoining enforcement and awarding costs. Edison filed its answer on June 14, 2004. After briefing and argument, the trial judge issued a written decision and order declaring the heightened notice requirement "invalid and unenforceable." Edison filed a timely appeal. Verizon did not file a cross appeal. The New Jersey Builders Association moved for leave to file a brief as amicus curiae, which we granted.

The relevant facts are the terms of Edison's ordinance and the MLUL. The notice provisions challenged on this appeal apply to those who seek variances pursuant to N.J.S.A. 40:55D-70(d), approvals of major subdivisions and approvals of major site plans. Edison, N.J., Code § 18.28.060(A), (C) (as amended).

The MLUL requires notice of hearings on applications for variances (including variances pursuant to N.J.S.A. 40:55D-70d) and major subdivision approvals, and it authorizes municipalities to adopt ordinances that require notice of hearings on conventional site plan review. N.J.S.A. 40:55D-12a.*fn1

Thus, the provisions that Verizon challenges cover both hearings for which notice is mandated by the MLUL and hearings for which a municipality may require notice pursuant to authority delegated by the MLUL.

Two forms of notice specified in N.J.S.A. 40:55D-12 are at issue. Subsection a. addresses "public notice," which "shall be given by publication in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality." Subsection b. addresses what we term "individual notice," which is notice that "shall be given to owners of all real property . . . within 200 feet" of the applicant's property. N.J.S.A. 40:55D-12b.*fn2 Both public and individual notice must include the information specified in N.J.S.A. 40:55D-11.

Edison's ordinance enhances the public notice requirements of subsection a. of N.J.S.A. 40:55D-12. An applicant subject to the enhanced notice provisions of Edison's ordinance must give additional public notice by posting a sign on the subject property. The "freestanding" sign must "be not less than thirty-two (32) square feet in area nor greater than sixty-four (64) square feet in area, shall face a public street abutting the premises, and shall be located not more that thirty (30) feet from such street." Edison, N.J., Code § 18.28.060(C) (as amended). The sign must contain information that is not required by N.J.S.A. 40:55D-11.*fn3 The information must be conveyed in "lettering . . . of such a type face and size as to be clearly visible to motorists and pedestrians in or on the abutting street." Edison, N.J., Code § 18.28.060(C) (as amended).

An applicant subject to the enhanced notice provisions of Edison's ordinance also must give individual notice beyond that required by N.J.S.A. 40:55D-12b. Edison's ordinance increases the scope of notice to neighboring property owners by 100 feet in all directions; it requires notice to owners of property within 300 feet of the property that is the subject of the hearing. Edison, N.J., Code § 18.28.060(A)(3) (as amended).

The legal principles that govern a municipality's authority under the MLUL are well-settled. The scope of a municipality's authority is essentially a question of statutory construction. Pizzo Mantin Group v. Twp. of Randolph, 137 N.J. 216, 222, 224 (1994). Municipal authority to regulate the use of land through zoning and evaluation of applications for variances and approval of site plans and subdivisions is limited to power delegated by the Legislature in the MLUL. See id. at 223-24. The delegated power includes "not only those [powers] granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by [the State] Constitution or by law." N.J. Const. art. IV, § 7, ¶ 11; D.L. Real Estate Holdings, ...


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