On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9276-09.
The opinion of the court was delivered by: Fisher, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Waugh and Leone.
The opinion of the court was delivered by
In this appeal, we examine whether an ordinance that authorizes "health and wellness centers" and "fitness and health clubs" in two industrial zones changes the "classification" of those zones, thereby requiring compliance with the MLUL*fn1 notice provisions contained in N.J.S.A. 40:55D-62.1, and, if so, whether that statute requires notice that includes identification not only of the zoning districts, but also identification of all the properties within the zoning districts by "street names, common names or other identifiable landmarks, and by reference to lot and block numbers[.]" We conclude that the ordinance proposed a change in classification, but reverse the judgment invalidating the ordinance because N.J.S.A. 40:55D-62.1 requires only identification of the zoning districts affected by the classification change. The additional requirement for identification of the specific impacted properties only applies when a change in boundaries is proposed.
Plaintiffs Mahwah Realty Associates, Inc., and TSI Mahwah, LLC, filed this action in lieu of prerogative writs, seeking the invalidation of Ordinance 1653, which defined the terms "health and wellness center" and "fitness and health club," and added those uses to those permitted in Mahwah's two existing industrial zoning districts, IP-120 and GI-80. Defendants Township of Mahwah and its planning board (hereafter collectively referred to as "Mahwah") appeal a summary judgment that invalidated the ordinance based on the trial judge's determination that Mahwah gave insufficient notice to property owners in or within 200 feet of the affected zoning districts.
Mahwah's attempts to include health clubs as a permitted use in these zoning districts commenced over twelve years ago; this is the third lawsuit spawned by those efforts. The first suit concerned the July 27, 2000 adoption of Ordinance 1368, which added health and fitness centers to the uses permitted in the IP-120 zone. Plaintiffs filed a complaint seeking to invalidate that ordinance, and, after a non-jury trial, Judge Jonathan N. Harris rendered a written decision in which he described the suit as "a banal clash between competing land owners interested in establishing and maintaining health clubs, dressed up in the garb of a land use dispute," and described plaintiffs' intent in litigating as "a thinly veiled effort to protect its local monopoly."*fn2 Notwithstanding, the judge invalidated Ordinance 1368 because the ordinance changed the classification of the zoning district and because notice had not been sent to property owners in or within 200 feet of the impacted zoning district. Judge Harris also held that plaintiffs "failed to demonstrate that the substantive zoning provisions in Ordinance 1368 are arbitrary, capricious, or unreasonable" and concluded "[t]here is nothing irrational or whimsical about the governing body's decision to add health and fitness center facilities to Mahwah's industrial zones." No appeal was filed.
In 2007, Mahwah adopted Ordinance 1589, which was substantially similar to Ordinance 1653, prompting plaintiffs to file another action in lieu of prerogative writs. After a non-jury trial, Judge Harris found Ordinance 1589 was not arbitrary, capricious or unreasonable except "insofar as [he] lack[ed] confidence that the Mahwah governing body and its Planning Board appropriately considered the ordinance's effect upon the B-40 zone." He also determined that Mahwah did not give notice to property owners in and within 200 feet of the B-40 zone. As a result, judgment was entered invalidating Ordinance 1589. Again, no appeal was filed.
On July 23, 2009, Mahwah's council voted to adopt Ordinance 1653. Mahwah's clerk caused written notice to be published in The Record, a local newspaper. That notice included the date, time, and place of the public hearing, and reprinted the entire text of Ordinance 1653. The clerk also sent written notice of the public hearing to all property owners entitled to notice, including property owners in or within 200 feet of the B-40, GI-80 and IP-120 zoning districts. Separate cover letters advised recipients whether they owned property in or within 200 feet of the zoning districts in question. These letters also stated the date, time, and place of the public hearing. In addition, the clerk included a copy of the notice of the public hearing that had been published in The Record that also referred to the ordinance by its title, the date it was introduced, and the date, time, and place of the hearing. And the notice included a copy of the ordinance, which expressed that its purpose "is to include health and wellness centers and health clubs as principal permitted uses in the GI-80 zone and IP-120 zone and not the B-40 zone."
On July 24, 2009, Ordinance 1653 was referred to the planning board. The planning board noted that although Ordinance 1653 is "not substantially consistent" with the master plan, the omissions of the uses in question from the master plan was not intentional because these uses are "relatively new and unique" and not "normally expected to be found" in a master plan. The planning board also found, as memorialized in its resolution, that the proposed uses would be "appropriate uses in the GI-80 Zone and the IP-120 ...