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Rockaway Shoprite Associates, Inc v. City of Linden and Council of the City of Linden

November 14, 2011

ROCKAWAY SHOPRITE ASSOCIATES, INC., PLAINTIFF-APPELLANT,
v.
CITY OF LINDEN AND COUNCIL OF THE CITY OF LINDEN, DEFENDANTS-RESPONDENTS, AND LINDEN DEVELOPMENT, LLC, DEFENDANT/INTERVENOR-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-01516-09.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 3, 2011

Before Judges Parrillo, Alvarez and Skillman.

The opinion of the court was delivered by PARRILLO, P.J.A.D.

At issue is the sufficiency of the published notice for a public hearing on the adoption of an ordinance and an amendatory ordinance that rezoned 47.5 acres of the former General Motors (GM) assembly plant property in Linden. Plaintiff, who operates a supermarket near the site where intervenor, Linden Development LLC, has proposed to build a Walmart and other stores, filed suit against the City of Linden and City Council seeking to void these ordinances, in part because the notices did not comply with N.J.S.A. 40:49-2.1. The Law Division disagreed and dismissed plaintiff's complaint. For the following reasons, we reverse.

The August 2002 City Master Plan listed the former GM site as H-I heavy industrial and L-I light industrial use in accordance with Linden's then zoning ordinance. The entire property is approximately 105 acres in size.

Linden Development, an affiliate of a commercial real estate developer that specializes in redeveloping industrial sites, purchased the GM site in December 2007 with the intention of creating a combination of retail and commercial uses, multi-family residential use, and industrial and warehouse uses. Specifically, the plan calls for a change in zoning for forty- five acres fronting Route 1 and 9 to allow retail and commercial uses, with Walmart and Lowe's as two of the prospective tenants, and 2.5 acres to allow multi-unit residential development. The remainder of the GM site, located in the rear westerly portion of the property, is intended to be developed with new industrial and warehouse buildings.

Having acquired the GM site without the necessary zoning ordinances or site plan approvals in place, Linden Development requested that the City effectuate zoning changes as needed for the planned development. This request for a change in zoning actually coincided with the time for the Planning Board (Board) to conduct its six year periodic re-examination of the City Master Plan, as required by N.J.S.A. 40:55D-89, due in January 2009.

To this end, a proposed zone delineation map and a sketch with proposed zone line changes were prepared. On June 13, 2008, Linden Development filed an application for major subdivision approval with the Board to consolidate certain lots and establish new lots within the GM site to correspond to the anticipated dividing line between commercial and industrial zones. On July 8, 2008, the Board approved the major subdivision application.

In November 2008, the Board's planning consultant, T&M Associates, prepared and delivered to the Board a Master Plan Reexamination Report (Report) and a separate Master Plan Land Use Element Amendment (Amendment), recommending reclassification of the land use for the GM site and creation of a new zoning district for the forty-five acres fronting Routes 1 and 9 called the "planned commercial district" to accommodate a mix of commercial and retail uses thereon. Following notice published in the Home News Tribune, the Board convened a special meeting on November 25, 2008, after which the Report and Amendment were approved by resolution of December 9, 2008, and referred to City Council (Council).

To implement the zoning proposed in the Report and Amendment, on December 9, 2008, Council introduced and passed on first reading Ordinance 52-71, which planning consultant Richard Cramer of T&M Associates explained: revise[s] the zoning of the GM site to permit the redevelopment of approximately 44 acres of the site for a mix of retail, commercial, and related uses based on an overall plan for development. The area to be zoned for the planned commercial development extends approximately 1,000 feet from Route 1 & 9. In addition, a section of the GM site south of Pleasant Street will be zoned for age-restricted residential development.

The zoning of the remainder of the GM site will continue unchanged as part of the HI Heavy Industrial Zone.

Council then scheduled the proposed ordinance for a hearing at its December 30, 2008 meeting and referred it to the Board for review pursuant to N.J.S.A. 40:55D-64. On December 16, 2008, the Board concluded that Ordinance 52-71 was consistent with the City's Master Plan, and proposed two minor technical changes.

On December 18, 2008, the City published notice of Ordinance 52-71 for public hearing and possible adoption in the local newspaper, the Union County LocalSource. The notice read in pertinent part:

#52-71 AN ORDINANCE TO AMEND AND SUPPLEMENT CHAPTER XXXI, ZONING, OF AN ORDINANCE ENTITLED "AN ORDINANCE ADOPTING AND ENACTING THE REVISED GENERAL ORDINANCES OF THE CITY OF LINDEN, 1999," PASSED NOVEMBER 23, 1999 AND APPROVED NOVEMBER 24, 1999 AND AS AMENDED AND SUPPLEMENTED AMEND CHAPTER XXXI, ZONING, BLOCK 469, LOT

38.1, BLOCK 470, LOTS 9.1, 9.2 AND 9.3 AND BLOCK 471, LOT 7.1, DEVELOPMENT REGULATIONS FOR THE USE OF THE SITE OF THE FORMER GENERAL MOTORS MANUFACTURING FACILITY.

The complete ordinance is on file in the City Clerk's Office, City Hall, 301 North Wood Avenue, Linden, NJ 07036.

The City also sent notice by certified mail to property owners within 200 feet of the property, including plaintiff. The mailed notice stated:

PLEASE TAKE NOTICE that on Tuesday, December 30, 2008 the City Council of the City of Linden will hold a Public Hearing at the Linden City Hall, 301 N. Wood Avenue, Linden, NJ at 7:00 p.m., or as soon thereafter that this matter can be reached, in the Council Chambers on a proposed Ordinance (Ordinance #52-71) Amending the Zoning Ordinance of the City of Linden relative to the site of the former General Motor[s] manufacturing ...


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