On appeal from Superior Court of New Jersey, Law Division, Mercer County, L-1530-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2008
Before Judges Stern and Collester.
The Township of Princeton (Township) appeals the March 22, 2007 Law Division order of Judge Linda R. Feinberg which invalidated an ordinance removing nursing homes and assisted-living residences as a conditional use within its R.A. residential zoning district based on the Township's failure to give personal notice to the property owners as required by N.J.S.A. 40:55D-62.1. We affirm.
On June 13, 2006 plaintiffs Timothy Sheehan and Eight Bulls, a New Jersey partnership, filed a complaint in lieu of prerogative writs challenging the validity of an ordinance enacted by the Township on April 24, 2006 on both substantive and procedural grounds. Sheehan is the only surviving partner of Eight Bulls, which owns real property within the R.A. zoning district of the Township.
The Township introduced the ordinance on March 27, 2006 which placed fourteen properties in the R-5 zoning district and removed nursing homes and assisted-living residences as conditional uses from other zones including the R.A. zone. The ordinance was forwarded to the regional planning board of Princeton for review pursuant to N.J.S.A. 40:55D-26, and a copy was published in the Princeton Packet, a local newspaper. The Township governing body adopted the ordinance on April 24, 2006.
Plaintiff challenged the ordinance on procedural grounds for the Township's failure to comply with N.J.S.A. 40:55D-62.1, which requires the municipal clerk to provide notice by mail or personal service of any hearing on an amendment to a zoning ordinance "proposing a change to the classification . . . of a zoning district" at least ten days prior to the hearing to the owners of all real property located within 200 feet of the affected zoning boundaries. The Township concedes that personal notice was not given in accordance with N.J.S.A. 40:55-62.1 but contends that the statute was inapplicable since the ordinance was introduced to correct a mistake in its conditional use table and to accurately reflect that the 1996 senior housing ordinance adding nursing homes and assisted-living residences as conditional uses was not intended to apply to the R.A. zone.
On March 9, 2007, Judge Feinberg issued an oral opinion invalidating the ordinance on grounds of improper notice and issued a supplemental written opinion on the same date in which she concluded:
Therefore, while there is not one scintilla of evidence to support bad faith or ill-will on the part of the Township, given the facts before the court, a presumption of notice, pursuant to the MLUL, weighs heavily in favor of the affected residents. N.J.S.A. 40:55D-62.1. Simply put, plaintiffs as owners of property in the R.A. zoning district, were entitled to notice.
On appeal the Township reiterates its argument that there was compliance with the applicable notice requirements of N.J.S.A. 40:49-2(d) by publication in the Princeton Packet because the ordinance simply corrected a mistake in the conditional use table and did not alter the "classification of boundaries in a zoning district" which required personal notice pursuant to N.J.S.A. 40:55D-62.1.
After consideration of the record and the Township's arguments on appeal, we affirm substantially for the reasons set forth in Judge Feinberg's oral and written opinions of March 9, 2007.