On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2496-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 16, 2009
Before Judges Axelrad, Fisher and Espinosa.
This appeal questions the sufficiency of the notice given by the township in adopting an ordinance permitting wireless cellphone towers. Finding our explanation of the statutory notice requirement in Robert James Pacilli Homes, L.L.C. v. Twp. of Woolwich, 394 N.J. Super. 319 (App. Div. 2007) to constitute a new rule of law, we reject its retroactive application to the notice here, which was given four years before Pacilli was decided, and affirm the dismissal of plaintiffs' action.
The record reveals that Ordinance No. 2003-18 (hereafter "the ordinance") was introduced and passed on first reading at a meeting of the Township Committee of Barnegat Township (the township committee) on June 16, 2003. The ordinance amended the township code so as to permit wireless telecommunication towers and antennas within block 263, lot 2, which is publicly-owned. The ordinance also specified that "[a]lthough allowed as permitted uses, antennas and towers as described [in the ordinance], shall require the issuance of a conditional use permit" by the planning board.
Two days later, the township clerk advised the Ocean County Planning Board, the Pinelands Commission, and the Barnegat Township Planning Board that the ordinance would be considered at a public hearing on July 21, 2003. The following day, June 19, 2003, a legal notice was published in the Tuckerton Beacon that fully reprinted the ordinance's preamble:
An ordinance amending the township code of the Township of Barnegat, Chapter 55, Land Use, by adding new Section No. 55030 entitled "Wireless Telecommunications Towers and Antennas"; providing definitions; providing for permitted locations; providing conditions for permitted uses, accessory uses, and special uses; providing for permits and lease agreements; proving [sic] for severability; providing for repealer; and providing for an effective date.
The published notice then stated that "the above ordinance will implement substantial amendments and changes to the Land Use Ordinance of the code of the Township of Barnegat as it [a]ffects permitted locations for wireless telecommunications towers and antennas."
The ordinance was considered and approved at the township committee's public meeting of July 21, 2003. Following the planning board's consideration, the ordinance was unanimously adopted by the township committee on August 18, 2003, with modifications suggested by the planning board. Legal notice confirming the final adoption of the ordinance was published in the Tuckerton Beacon on August 21, 2003.
In December 2003, the township sought bid proposals to lease the property for construction and maintenance of a wireless communications tower. AT&T Wireless was the successful bidder, and on December 15, 2003, the township committee adopted a resolution awarding the lease to AT&T Wireless for $24,000 per year. Defendant Cingular Wireless later acquired AT&T Wireless and obtained a CAFRA*fn1 permit in December 2006. The township and Cingular executed a lease agreement on June 21, 2006.
On July 26, 2007, plaintiffs filed their complaint in lieu of prerogative writs,*fn2 challenging the ordinance and the sufficiency of notice, as well as the propriety of the bidding process. Both defendants moved for summary judgment, arguing in part that the complaint was time-barred by Rule 4:69-6(a). Even though the complaint was not filed until nearly four years after the ordinance was adopted, plaintiffs argued that the township's failure to personally serve them with notice of the ordinance's adoption tolled the time for commencement of their action in lieu of prerogative writs. The judge rejected this and all plaintiff's other arguments and dismissed the complaint.
In appealing, plaintiffs argue:
I. THE COURT BELOW ERRED IN GRANTING ...