October 26, 2009
JAMIE A. GRIFFIN AND KENNETH WARFIELD, PLAINTIFFS-APPELLANTS,
BARNEGAT TOWNSHIP COMMITTEE AND NEW CINGULAR WIRELESS, PCS, LLC, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 SUMMARY JUDGMENT.
II. THE COURT BELOW ERRED IN FAILING TO CONSIDER THAT TIMELINESS SHOULD BE MEASURED FROM NOTICE OF THE ORDINANCE AND LEASE.
III. THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT, WHICH IS NOT APPROPRIATE IN AN ACTION IN LIEU OF PREROGATIVE WRITS.
IV. THE COURT BELOW ERRED IN DISALLOWING THE CHALLENGE TO THE BIDDING PROCEDURES AND LEASE AGREEMENT SINCE THE CHALLENGES RAISED IMPORTANT PUBLIC INTEREST CONCERNS, WHICH ARE RECOGNIZED EXCEPTIONS TO THE FORTY-FIVE-DAY RULE.
V. THE COURT BELOW ERRED IN RULING THAT ORDINANCE 2003-18 DID NOT REQUIRE PERSONAL NOTICE TO AFFECTED PROPERTY OWNERS.
VI. THE COURT BELOW ERRED IN HOLDING THAT THE PUBLISHED NOTICE WAS ADEQUATE.
VII. THE COURT BELOW ERRED IN FAILING TO ALLOW AN EXCEPTION TO THE FORTY-[F]IVE-DAY RULE TO CHALLENGE THE ORDINANCE AMENDMENT.
VIII. ORDINANCE 2003-18 DOES NOT COMPLY WITH IMPORTANT PLANNING PROVISIONS OF THE MLUL AND THE COURT BELOW SHOULD HAVE CONSIDERED THESE DEVIATIONS IN DETERMINING WHETHER TO ALLOW THIS CHALLENGE TO PROCEED.
IX. THE COURT BELOW ERRED IN REFUSING [TO] RECONSIDER THE QUESTION OF BID COLLUSION.
We find no merit in these arguments and affirm substantially for the reasons set forth by Judge Vincent J. Grasso in his written opinion. We add only the following comments.
Plaintiffs argued in the trial court that permitting the construction of a wireless tower on the property in question is equivalent to changing the property's zoning classification and, therefore, entitled them as owners of neighboring properties to personal notice pursuant to N.J.S.A. 40:55D-62.1. In support of this argument, plaintiffs relied on Pacilli. Notwithstanding that Pacilli was decided nearly four years after notice was given here, plaintiffs argued that Pacilli should apply, citing the general approach that judicial decisions have retroactive effect. See, e.g., Malinowski v. Jacobs, 189 N.J. 345, 352 (2007); Green v. Auerbach Chevrolet Corp., 127 N.J. 591, 600 (1992). This general principle does not apply, however, when its application runs contrary to "considerations of fairness and justice, related to reasonable surprise and prejudice to those affected." N.J. Election Law Enforcement Comm'n v. Citizens to Make Mayor-Council Gov't Work, 107 N.J. 380, 388 (1987). That is, prospective application becomes the proper approach when "(1) the decision establishes a new rule of law, by either overruling past precedent or deciding an issue of first impression, and (2) when retroactive application could produce substantial inequitable results." Velez v. City of Jersey City, 180 N.J. 284, 297 (2004).
In examining whether Pacilli announced a new rule, we look first to N.J.S.A. 40:55D-62.1, which Pacilli interpreted. In declaring when personal notice is required, N.J.S.A. 40:55D-62.1 states:
[n]notice of a hearing on an amendment to the zoning ordinance proposing a change to the classification or boundaries of a zoning district . . . shall be given at least 10 days prior to the hearing by the municipal clerk to the owners of all real property as shown on the current tax duplicates, located, in the case of a classification change, within the district and within the State within 200 feet in all directions of the boundaries of the district . . . .
The statute does not explain what is meant by a "change to the classification" of a zoning district and, by the time notice of the zoning ordinance in the instant case was given, our courts had not considered the meaning or scope of the word "classification" in this context.
Finally, in Pacilli, we considered the meaning of the word "classification" and concluded that the Legislature intended to refer to "the use permitted in a zoning district . . . under certain conditions within a generally designated category," such as "changes to the density, bulk and height standards and conditions applicable to designated uses." 394 N.J. Super. at 331. Accordingly, we held in Pacilli that N.J.S.A. 40:55D-62.1 required personal notice to those persons whose property was within the defined vicinity when there was proposed a substantial change of that type to the affected district.
In reaching that conclusion, we relied in part on what municipalities in other cases had apparently assumed to be the scope of the statute, citing Toll Brothers, Inc. v. W. Windsor Twp., 312 N.J. Super. 540, 551 (App. Div.), certif. denied, 157 N.J. 543 (1998), where the township gave personal notice to all property owners in a district affected by a proposed ordinance that would decrease the allowable density in that district, and Mountain Hill, L.L.C. v. Middletown Twp., 353 N.J. Super. 57, 60-62 (App. Div.), certif. denied, 175 N.J. 78 (2002), where personal notice was given to property owners when the township introduced an amendment seeking to "down zone" the existing planned development district. However, in Pacilli, we also noted that in Gallo v. Mayor and Twp. Council of Lawrence Twp., 328 N.J. Super. 117, 121, 126-27 (App. Div. 2000), we had not required personal notice for an amended ordinance, which would add sub-zones with different density requirements in a single-family residential zone, because the amendment was the product of a periodic master plan review. 394 N.J. Super. at 331. After finding "instructive" this brief and uncertain history, Pacilli made clear that the type of notice required turns on the existence of a substantive change in zoning rather than a change in the "appellation" given to a zone. Id. at 332. Finding that the amended ordinance in that case fundamentally altered the character of a district's zoning by "sweeping[ly]" changing density requirements, we held in Pacilli that personal notice was required. Ibid.
Although Toll Brothers and Mountain Hill may have foreshadowed our later holding, there is no doubt that Pacilli represents the first clear determination of the scope of N.J.S.A. 40:55D-62.1, and, thus, must be recognized as having announced a new rule. Moreover, we conclude that Pacilli should not govern here because its application to the adoption of an ordinance four years earlier would "produce substantial inequitable results." Velez, supra, 180 N.J. at 297. That is, until our decision in Pacilli, the township justifiably proceeded on the assumption that it was only required to provide public notice of the ordinance in question. Taxpayer dollars were spent and parties have acted on the legitimate belief that sufficient notice was given.*fn3 We, thus, agree it would be manifestly unfair to retroactively apply Pacilli to this case by holding the township to a more stringent notice requirement than that which it had every reason to believe at the time was sufficient. Judge Grasso found -- and we agree -- that to retroactively apply Pacilli would not only be inequitable in this case, but also could have an unduly expansive impact and "potentially place vast numbers of township ordinances in jeopardy of invalidation and litigation."
For these reasons, and substantially for the reasons set forth by Judge Grasso in his written opinion, we affirm.