July 30, 2010
MELODY CURZI, DENNIS AND PATRICIA LOSCO, SOPHIE G. HENDERSHOT AND JAMES L. HENDERSHOT, WILLIAM F. WRIGHT, AND NICHOLAS TAURIELLO, PLAINTIFFS-APPELLANTS,
HARMONY TOWNSHIP LAND USE BOARD AND RAYMOND L. RAUB, III AND GAIL A. RAUB, DEFENDANTS-RESPONDENTS, AND MAYOR AND TOWN COUNCIL OF HARMONY TOWNSHIP (WARREN COUNTY), DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-182-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 9, 2009
Before Judges Lisa, Baxter and Alvarez.
Raymond L. Raub, III and Gail A. Raub, his wife, own a farm consisting of approximately thirty-four acres which straddles Harmony and Lopatcong Townships in Warren County. The Raubs obtained subdivision and other land use approvals from the Harmony Township Land Use Board (Board) carving out a three-acre lot from the Harmony Township portion of the farm. The new lot would have its only access to a public road by way of a private lane known as Slater Lane.
Plaintiffs are homeowners and residents within 200 feet of the Raub farm. They brought an action in lieu of prerogative writs challenging the Board's approval. They asserted that the Board lacked jurisdiction because of defective notice. They also challenged the substantive decision made by the Board. Finally, they raised conflicts of interest issues.
The trial court initially agreed that jurisdiction was lacking due to defective notice and vacated the Board's approvals. Upon the Raubs' reconsideration motion, the judge reversed course and remanded the matter to the Board with directions to give the notice that was lacking, after which it could reconsider its decision. This appeal followed.*fn1
We agree with plaintiffs that certain parties required to receive personal notice under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, did not receive such notice, as a result of which the Board lacked jurisdiction to act. We also agree that the curative measure ordered by the court on reconsideration was ineffective to provide jurisdiction for action the Board had already taken. Accordingly, we reverse the judge's order on reconsideration. The result of this disposition is that the Board's approval of the Raubs' application is void. We therefore do not address the substantive issues or the conflicts of interest issues.
Most of the Raubs' farm is in Harmony. As we stated, the proposed lot's only access to the nearest public road is by virtue of a private lane known as Slater Lane.*fn2
The Raubs filed their application with the Board in February 2004, and the hearings began on May 5, 2004. The Raubs caused public notices to be sent to newspapers, neighbors, and other interested parties, and their counsel filed a proof of service with the Board. With the Board's agreement, the matters were presented in a bifurcated fashion, so the Raubs would first present their request for variances arising from the lack of frontage on a public street, and thereafter would seek the major subdivision approval.
Slater Lane was described at the Board hearings as either ten feet or twelve feet wide. It is a paved roadway. It intersects with Belvidere Road about 1550 feet from the Raubs' property. Slater Lane has a grade of approximately fifteen percent along that length. Three existing residences access Slater Lane between the Raubs' proposed new lot and Belvidere Road, and four other residences access Slater Lane further northward of the Raub property. In the initial phase of the hearings, the Board heard testimony regarding access through Slater Lane by emergency vehicles and related information regarding lack of access to a public street. At the conclusion of the June 2004 hearing, the Board voted to approve the variance pursuant to N.J.S.A. 40:55D-36, for relief from the requirement under N.J.S.A. 40:55D-35 for frontage on a public street.
The Raubs' attorney then sent out a second set of public notices to newspapers, neighbors and other interested parties for the hearings to begin on October 6, 2004 on the application for major subdivision approval and related variances. At the hearings of October 6, November 3, and December 1, 2004, the Raubs presented their engineering plans and expert testimony pertaining to the proposed subdivision.
At the December 1, 2004 hearing, the Board Chairman noted that attorney Mark Rogers, who represented plaintiffs Curzi and the Loscos, had raised an issue about the need for notice to all residents along Slater Lane. On the advice of its attorney, the Board determined that notice to those residents was not required and the Board could properly proceed further with the matter before it. At that hearing, the Board received evidence from various witnesses regarding the history and characteristics of Slater Lane and its use by residents with access to it. The validity of the easement granting the Raubs access to their new lot from Slater Lane was also discussed.
Lopatcong had not received formal advance written notice of the Raubs' application prior to these hearings. At the January 5, 2005 Board hearing, that notice issue was raised in light of a December 21, 2004 letter to the Board from attorney Anthony J. Sposaro, counsel for Lopatcong's Planning Board and Zoning Board of Adjustment. Sposaro wrote that notice of the subdivision application should have been given to Lopatcong and, in the absence of proof of prior notice, the Raubs' application should not proceed further, and should "again commence" after proper notice was given. The Board's attorney asked the Raubs' attorney whether the notice required by N.J.S.A. 40:55D-12d had been given. He responded:
There wasn't a separate notice served by certified mail to the Court [sic] per se, I think Ms. Dilts serves as the Board Secretary, and I may have my names confused, but she may serve as the Clerk now as well for Lopatcong Township, so she was served with copies of the application as part of the Lopatcong application, but there was not a separate notice served upon her as you would an adjoining property owner within two hundred feet.
There was further colloquy about the Raubs' proposed subdivision for the part of their land in Lopatcong, which had not yet been placed on a calendar. Although the Raubs' attorney apparently believed that that application provided Lopatcong adequate notice of the Harmony subdivision, Rogers asserted that the Harmony subdivision proposal was not marked on the Lopatcong application documents.
The Board's attorney recommended that the Board decide the issue and then direct the Raubs to provide notice to Lopatcong officials, giving them an opportunity to appear at the next hearing if they had any interest in the application. He noted, however, that there "may be some risk to the Raubs in proceeding with this application to decision tonight." He observed that "jurisdiction is jurisdiction," and expressed his concern with the jurisdictional issue coming up at this late stage of the proceedings.
After hearing all of the evidence presented at that hearing, the Board members deliberated and voted to approve the requested variances and to grant the preliminary major subdivision approval with conditions.
At the Board's February 2, 2005 meeting, the Board's attorney described the history regarding the question about notice to Lopatcong and that the Raubs' attorney had now given notice to the Lopatcong Municipal Clerk, which the Board's attorney deemed satisfactory. The Board's attorney asked whether anyone was present from Lopatcong who wished to be heard. No one responded. In the absence of any objection from Lopatcong, the Board again voted to approve Raubs' application. A memorializing resolution was adopted on February 17, 2005, with revisions dated February 22, 2005.
In April 2005, plaintiffs filed this action. They alleged that the approval was unreasonable, arbitrary and capricious, and in any event was void due to lack of notice to Lopatcong and to all property owners along Slater Lane. The complaint alleged that the Raubs sought the Board approvals despite their knowledge of the legal infirmities in their application. And, as we have stated, the complaint also alleged various conflicts of interest.
After hearing argument on June 11, 2007 and then receiving supplemental information from the Board's attorney regarding notices, the court issued a written decision on June 29, 2007. The court found that notice to Lopatcong prior to the hearing was required under N.J.S.A. 40:55D-12d, that it was undisputed that such notice had not been provided, and that, therefore, the Board did not have jurisdiction and its decision to approve the subdivision must be vacated. For the sake of completeness, the court also found that the Board had otherwise received ample testimony to support the variances that were granted, as a result of which the Board's action in granting them was not arbitrary, capricious or unreasonable. The court entered an order on June 29, 2007 vacating the Board's decision on the Raubs' application.
The Raubs moved for reconsideration and to alter or amend the court's decision. The Raubs took the position that Lopatcong had actual notice of the Harmony Township hearings on the Raubs' applications. In support of this position, counsel produced an August 14, 2007 letter to him from Margaret B. Dilts, Lopatcong's Clerk/Administrator, which stated: "Pursuant to your request, this will confirm that Lopatcong Township had actual notice of the Harmony Township hearing held on April 7, 2004, and second hearing on October 6, 2004. As this was a Harmony Township matter, the Township did not choose to participate in same." Dilts did not refer to any official action of any officials, boards or the governing body of Lopatcong Township relating to her letter.
On August 17, 2007, the court heard argument on the motion and reserved decision. On that same date, the court issued another written decision and accompanying order. It granted the reconsideration motion and remanded the matter to the Board so that it might ratify its decision after giving notice to Lopatcong. Plaintiffs then filed their notice of appeal.
Plaintiffs argue that a new Board hearing is required because proper legal notice, deficient from the outset, was jurisdictional and not curable by the trial court's remand. Plaintiffs assert lack of notice to several parties, including Lopatcong and several property owners along Slater Lane.*fn3
Plaintiffs assert that notice was required for everyone with property within 200 feet of the entirety of Slater Lane, and not just those within 200 feet of the proposed new lot.
Under the MLUL, public hearings and an opportunity for the public to be heard are required with respect to most zoning and land use applications. Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adjustment, 154 N.J. 62, 70 (1998). "The MLUL ensures that the public has a chance to be heard, either in support of or in opposition to such applications, by imposing notice requirements." Ibid. (citing N.J.S.A. 40:55D-12). "Section 12 requires '[p]ublic notice of a hearing' to be given 'on an application for development.'" Ibid. (citing N.J.S.A. 40:55D-12a). As further defined in N.J.S.A. 40:55D-3, an "application for development" is "the application form and all accompanying documents required by ordinance for approval of a subdivision plat, site plan, planned development, conditional use, zoning variance or direction for the issuance of a permit pursuant to [N.J.S.A. 40:55D-34 or N.J.S.A. 40:55D-36]."
When notice is required for an application, it "shall be given at least 10 days prior to the date of the hearing." N.J.S.A. 40:55D-12. "Public notice of a hearing on an application for development shall be given," with exceptions that are not relevant here, by publication of the notice in a newspaper. N.J.S.A. 40:55D-12a. See also Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adjustment, 299 N.J. Super. 188, 193-94 (App. Div. 1997) (discussing the foregoing notice statutes), aff'd, 154 N.J. 62 (1998).
In addition to that notice to the general public, N.J.S.A. 40:55D-12 requires specific notice to other interested parties including as follows:
b. Except as provided in paragraph (2) of subsection h. of this section [which is not relevant here], notice of a hearing requiring public notice pursuant to subsection a. of this section shall be given to the owners of all real property as shown on the current tax duplicates, located in the State and within 200 feet in all directions of the property which is the subject of such hearing; provided that this requirement shall be deemed satisfied by notice to the (1) condominium association, in the case of any unit owner whose unit has a unit above or below it, or (2) horizontal property regime, in the case of any co-owner whose apartment has an apartment above or below it. Notice shall be given by:
(1) serving a copy thereof on the property owner as shown on the said current tax duplicate, or his agent in charge of the property, or (2) mailing a copy thereof by certified mail to the property owner at his address as shown on the said current tax duplicate.
d. Notice of hearings on applications for development involving property located within 200 feet of an adjoining municipality shall be given by personal service or certified mail to the clerk of such municipality.
i. The applicant shall file an affidavit of proof of service with the municipal agency holding the hearing on the application for development in the event that the applicant is required to give notice pursuant to this section.
In the Stafford case, the Court described the ramifications of failure to provide the statutorily prescribed notice:
Because petitioner was required to comply with the MLUL's Section 12 notice requirements, the Board exceeded its authority in certifying petitioner's use of Lot 13 as a pre-existing, nonconforming use. "[T]he giving of statutory notice of hearing is a jurisdictional requirement, and unless notice is given as required by statute the board lacks power to hear or consider an application even if the subject matter is within its statutory power." New Jersey Zoning, supra, § 4-2.1; see also Perlmart [of Lacey, Inc. v. Lacey Township Plan. Bd.], supra, 295 N.J. Super.  at 236, 684 A.2d 1005 [(App. Div. 1996)] (finding that "proper notice is a jurisdictional prerequisite, and a failure to so provide is fatal to the Planning Board's approval"). Petitioner was required to provide Section 12 notice to all landowners within 200 feet of Lot 13. N.J.S.A. 40:55D-12. His failure to do so removes the Zoning Board's jurisdiction to hear his application, even though the subject matter, i.e., nonconforming use certification, was within its statutory power. Therefore, the Board's action in hearing petitioner's application falls outside the ambit of its authority. [Stafford, supra, 154 N.J. at 78-79.]
There is no dispute that Lopatcong was not served with the notice required under N.J.S.A. 40:55D-12d prior to commencement of the public hearings. The question is whether the communications provided to Lopatcong during the hearings, or alternatively, the notice provided following the hearings pursuant to the court's remand, "cured" that defect.
In its reconsideration decision, the court noted the jurisdictional nature of the notice provisions, but then added:
However, although proper statutory notice was not provided in this case, weighting the nature, quality and effect of the defective notice against the time and expense of the applicant having to reapply for major subdivision approval, this Court finds, as the Court in Aronowitz [v. Planning Board of The Township of Lakewood, 257 N.J. Super. 347, 360 (Law Div. 1992)] found in the context of the Open Public Meetings Act, that the corrective measures taken by the Board satisfied the intent and purpose of the notice requirement.
The court found this approach especially persuasive because Lopatcong had never challenged the Board's actions. Accordingly, the court "in the interests of justice" determined to "use its equitable powers to remand the application back to the Board to ratify the Board's prior resolution granting the major subdivision."
This approach has no precedent in reported land use decisions. As we have discussed, the failure to give notice is long established as a jurisdictional defect, which requires vacating an action and commencing the matter anew after proper notice is given.
Lopatcong officials did not appear at hearings prior to January 2005, and also did not receive initial mailed notice. Lopatcong's non-appearance after a belated January 2005 notice arguably could be considered a waiver, but the decisions had by then already been made. We find no basis to find a waiver, especially with respect to a public entity.
The trial court allowed that after the completion of several months of hearings on various related issues and after the Board had issued a comprehensive resolution setting down its fact finding and its several decisions, Lopatcong could appear on a new date and make any objections known. This scenario would place a potential objector that had no initial notice at a strong disadvantage in making its case before a board. Although the trial court's approach has practical appeal, precedent does not support its decision.
Further, we agree with plaintiffs that the approvals must be vacated anyway, due to a second notice defect as to residents along Slater Lane. Plaintiffs correctly point out that the trial court never addressed the issue of defective notice as to the Slater Lane neighbors. Plaintiffs assert that notice was not given to three of those parties.
In their brief the Raubs note: "It is conceded that separate Notices may not have been issued to property owners within two-hundred-feet (200') of the entire length of Slater Lane." They add that plaintiffs did not prove that any of those residents lacked notice, and they contend that service to persons along Slater Lane who were not otherwise within the 200' service area was not required.
Plaintiffs' position on this issue is supported by the reasoning set forth in Brower Development Corp. v. Planning Board of Clinton, 255 N.J. Super. 262, 263, 267 (App. Div. 1992). In that case, the municipal ordinance required that notice of a site-plan hearing be given to all property owners whose property was "within two hundred (200) feet in all directions of the property which is the subject of such hearing," and the issue presented was whether the applicant was required to give notice to property owners within 200 feet of property that the applicant did not own, but that would be used as a secondary access road to the development. Id. at 267-68. The Planning Board's resolution recited various reasons for denying approval, and also noted that property owners within 200 feet of Lot 52, the lot through which the secondary access road to the proposed 231-unit condominium development would have passed, had not been given notice of the hearing. Id. at 263-65.
The plaintiffs challenged the Board's denial, and took the position that the roadway was an off-tract improvement, which was not included in the property subject to notice requirements. Id. at 266. The trial court disagreed, holding that "because construction of the proposed roadway would 'significantly impact neighboring property owners,' those property owners were entitled to notice of the proposed roadway construction." Ibid. Because property owners near the proposed access road were entitled to notice and an opportunity to be heard, which notice undisputedly was not given, the court held that the Board was entitled to summary judgment in its favor. Id. at 266-67.
We noted that the Clinton Township ordinance mirrored the language of N.J.S.A. 40:55D-12b, providing for notice within 200 feet of the "property which is the subject of such hearing," observing further that this term was not defined in either the statute or the Township Code. Id. at 267. The statute contained additional language that the notice requirement applied "to all property owners within 200 feet of the subject property, regardless of whether those property owners are located within the municipal boundary of the property slated for development." Id. at 269 (citing N.J.S.A. 40:55D-12b). For that reason, we rejected the view that subsequent planning board hearings regarding the roadway construction would provide sufficient notice to the property owners near the planned roadway. Ibid. Accordingly, we agreed with the trial court's decision that property owners within 200 feet of the secondary access roadway were entitled to notice of the Board's site plan hearing. Ibid. We added:
It is clear to us that property owners located near the secondary roadway would be significantly affected by its construction and should have been afforded notice of the Board's hearing. Common sense interpretation of the Code dictates that the lots traversed by the roadway became part of the property that was the subject of the Board's hearing. Because it is undisputed that these property owners were not notified of the hearing, the Board was without jurisdiction to review plaintiffs' proposal and its decision is rendered a nullity. See Cox, New Jersey Zoning and Land Use Administration § 27-1.5(g) at 342 (1991) (service of statutory notice is a jurisdictional requirement). [Id. at 270.]
We recognize that the facts in Brower were stronger than those in the case before us with respect to the rationale requiring notice to property owners along an access road. In Brower, the proposed 231 unit condominium development would have created a new secondary access that had never existed previously. In this case, Slater Lane is an existing roadway. Further, it currently provides access to only seven homes, and with the lot created by the Raubs' subdivision, that number would increase to eight. Therefore, the effect of the development application in this case on the existing Slater Lane neighbors would be much less than the impact on the individuals along the new access road in Brower.
Nevertheless, those differences do not compel a different result. The focus should be upon the importance of Slater Lane to the approval at issue. The presentation before the Board focused substantially on the nature of Slater Lane: its width, its capacity for handling regular traffic as well as emergency vehicles, its historical and ownership routes, the number of driveways coming off of it, the arrangements among the residents for maintaining it, whether both forks were considered "Slater Lane," and whether it was appropriate to allow another subdivided lot to use the lane as its sole access to a public roadway. We therefore conclude that the circumstances are such that Slater Lane was included as "the property which is the subject of such hearing," so that N.J.S.A. 40:55D-12b required that notice should have been given to all residents within 200 feet in all directions of Slater Lane.
This conclusion certainly applies to the Board's initial consideration, whether to allow a variance from the requirement of street frontage, because frontage on and use of Slater Lane was integral to the Board's discussion and decision. The same rationale applies to the second decision, whether to grant the subdivision approval, because among the critical considerations for that approval were whether to grant variances due to the limited 200 feet of frontage on Slater Lane instead of the 300 feet required for street frontage, and due to deviations from the requirements of the municipality's driveway ordinance.