June 27, 2013
HENRY J. BONNABEL, Plaintiff-Appellant,
TOWNSHIP OF RIVER VALE, a Municipal Corporation of the State of New Jersey, County of Bergen, and the MAYOR AND COUNCIL OF THE TOWNSHIP OF RIVER VALE, Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 18, 2013.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-10406-10.
Antimo A. Del Vecchio argued the cause for appellant (Beattie Padovano, L.L.C., attorneys; Mr. Del Vecchio, of counsel; Daniel L. Steinhagen, on the brief).
Silvana D. Raso argued the cause for respondents (Schepisi & McLaughlin, P.A., attorneys; Ms. Raso and Michael T. Caulfield, on the brief).
Before Judges Graves and Ashrafi.
In this appeal, plaintiff Henry Bonnabel challenges the validity of the 2010 fair share ordinance adopted by the Township of River Vale to meet its Mount Laurel housing obligations.
Plaintiff is the owner of a tract of land that was not included in the Township's "Third Round Housing Element and Fair Share Plan." He filed a complaint in lieu of prerogative writs to invalidate the Township's fair share ordinance adopted in two parts in April and May 2010. At the prerogative writs trial held on March 2, 2012, the parties entered stipulations of fact. By written decision dated April 2, 2012, and an order dated April 19, 2012, the trial court dismissed plaintiff's complaint with prejudice. Plaintiff now appeals that decision.
Having reviewed the record, we affirm essentially for the reasons stated in the written decision of Judge Joseph Conte. We provide here a summary of the relevant facts and a brief discussion to highlight the issues and the basis of our decision.
On April 12, 2010, defendant Township introduced Ordinance 231-2010 ("the first ordinance"), a fair share ordinance required by the Council on Affordable Housing (COAH) when it granted substantive certification of the Township's Mount Laurel plan on March 10, 2010. COAH's conditional certification required that the Township enact the fair share ordinance COAH had previously approved in draft form within forty-five days and that the Township also enter into developers' agreements for the two properties included in its housing plan. The Township's planner, Michael Kauker, had drafted the first ordinance and submitted it for review by Township and COAH officials in August 2009. The mayor and members of the Township Council had reviewed Kauker's 2009 draft and were aware of its contents.
On April 16, 2010, the Township published a legal notice in the Ridgewood News stating the date, time, and place of the public hearing for consideration of the fair share ordinance. However, the notice only quoted the title and section 1 of the ordinance. Additionally, the notice did not inform the public that a copy of the complete ordinance could be obtained, without cost, before the time of the hearing.
The Township held a public hearing on April 26, 2010. Plaintiff did not speak at the hearing, and apparently did not attend. The Township Council passed the ordinance. But the copy of the first ordinance as presented at the public hearing was incomplete because of a printing error. It comprised only sections 1 through 7 and the first paragraph of section 8. It did not contain the remainder of section 8 or any part of sections 9 through 20 of the draft ordinance. The mayor and council members did not have a full copy of the ordinance in the agenda packets prepared for them before the meeting. At the hearing, no one pointed out the printing error, and the mayor signed the incomplete version of the ordinance on April 27, 2010. The next day, a revised agenda was placed on the Township's website with a complete version of the ordinance.
On April 30, 2010, plaintiff filed a builder's remedy lawsuit against the Township, see Bonnabel v. Twp. of River Vale, No. A-3643-10 (App. Div. Dec. 21, 2011), one of three actions he pursued in an effort to have his property included in the Township's Mount Laurel housing plan.
After Township officials discovered the printing error at the time the first ordinance was adopted, they introduced Ordinance 235-2010 ("the second ordinance") on May 10, 2010. The second ordinance added the missing sections of the original draft as approved by COAH. On May 14, 2010, the Township published a notice in the Ridgewood News advertising the public hearing to be held for the second ordinance. The preamble of the public notice recited the error that had occurred at the April 26 meeting and explained the need for the second ordinance and another public hearing. The second ordinance was adopted at a public hearing held on May 24, 2010. Again, plaintiff was not a participant at the hearing.
After COAH rejected plaintiff's administrative challenge to the fair share ordinance, plaintiff filed his complaint in lieu of prerogative writs in the Law Division on October 28, 2010. Before the trial court, plaintiff argued that: (1) the public notice advertising the fair share ordinance was defective because it did not include the time and place where residents could obtain a free copy of the proposed ordinance; and (2) adoption of the ordinance was arbitrary, capricious, and unreasonable because the council members did not review and adopt the ordinance in its entirety. The trial court concluded that the Township's publication "error was a technical violation of N.J.S.A. 40:49-2 that fails to establish a deviation from the substantial compliance required to set aside" the fair share ordinance. It also concluded that the fair share ordinance "was not arbitrary, capricious or unreasonable" because the Township had quickly rectified the printing error by adopting the second ordinance. This appeal followed.
We apply a plenary standard of review to questions of adequacy of public notice. Rockaway Shoprite Assocs., Inc. v. City of Linden, 424 N.J.Super. 337, 344 (App. Div. 2011), certif. denied, 209 N.J. 233 (2012). Also, we review de novo questions of law as determined by the trial court. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). However, the wisdom of the ordinance is otherwise subject to the highly-deferential arbitrary, capricious, and unreasonable standard of review. See N.J. Shore Builders Ass'n v. Twp. of Jackson, 199 N.J. 38, 54 (2009); Bow & Arrow Manor, Inc. v. Town of W. Orange, 63 N.J. 335, 343 (1973).
N.J.S.A. 40:49-2(a) requires that, at least one week before final adoption of a municipal ordinance:
Every ordinance after being introduced and having passed a first reading, which first reading may be by title, shall be published in its entirety or by title or by title and summary at least once in a newspaper published and circulated in the municipality, if there be one, and if not, in a newspaper printed in the county and circulating in the municipality, together with a notice of the introduction thereof, the time and place when and where it will be further considered for final passage, a clear and concise statement prepared by the clerk of the governing body setting forth the purpose of the ordinance, and the time and place when and where a copy of the ordinance can be obtained without cost by any member of the general public who wants a copy of the ordinance. . . .
Here, the Township published notice of the first ordinance in The Ridgewood News, stating:
NOTICE IS HEREBY GIVEN that the following ordinance was introduced and passed at first reading at the Regular Meeting of the Township Council of the Township of River Vale, County of Bergen, State of New Jersey, held on the 12th day of April, 2010 and that said Ordinance will be taken up for further consideration for final passage at a meeting of the Township Council to be held in its meeting room in the Town Hall located at 406 Rivervale Road, River Vale, New Jersey 07675 on April 26, 2010 at 8:00 PM or as soon thereafter as the matter can be reached, at which time and place all persons who may be interested therein will be given an opportunity to be heard concerning same.
The public notice then quoted as follows the title and section 1 of the ordinance as a means of providing a concise summary of the ordinance:
AN ORDINANCE OF THE TOWNSHIP OF RIVER VALE TO ADDRESS THE REQUIREMENTS OF THE COUNCIL ON AFFORDABLE HOUSING (COAH) REGARDING COMPLIANCE WITH THE MUNICIPALITY'S PRIORROUND AND THIRD ROUND AFFORDABLE HOUSING OBLIGATIONS
(a) This Ordinance is intended to assure that low- and moderate-income households shall occupy these units. This Ordinance shall apply except where inconsistent with applicable law.
(b) The Township of River Vale Planning Board has adopted a Housing Element and Fair Share Plan pursuant to the Municipal Land Use Law at N.J.S.A. 40:55D-1, et seq. The Fair Share Plan has been endorsed by the governing body. The Fair Share Plan describes the ways River Vale shall address its fair share for low- and moderate-income housing as determined by the Council on Affordable Housing (COAH) and documented in the Housing Element.
(c) This Ordinance implements and incorporates the Fair Share Plan and addresses the requirements of N.J.A.C. 5:97, as may be amended and supplemented.
(d) The Township of River Vale shall file monitoring reports with COAH in accordance with N.J.A.C. 5:96, tracking the status of the implementation of the Housing Element and Fair Share Plan. Any plan evaluation report of the Housing Element and Fair Share Plan and monitoring prepared by COAH in accordance with N.J.A.C. 5:96 shall be available to the public at the River Vale Municipal Building, Municipal Clerks Office . . . and on COAH's website, www.nj.gov/ dca/affiliates/coah.
The publication did not include notice of "the time and place when and where a copy of the ordinance can be obtained without cost by any member of the general public who wants a copy of the ordinance." N.J.S.A. 40:49-2(a).
Plaintiff contends that failure to comply precisely with the statute, either by publishing the entire sixteen-page ordinance or providing notice of where and when the public could obtain a free copy, renders the notice defective and the ordinance invalid. See Wolf v. Shrewsbury, 182 N.J.Super. 289, 295 (App. Div. 1981), certif. denied, 89 N.J. 440 (1982). Moreover, plaintiff contends that "proper notice is a jurisdictional prerequisite, and a failure to so provide is fatal." See Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J.Super. 234, 237 (App. Div. 1996) (describing as jurisdictional proper notice pursuant to N.J.S.A. 40:55D-11). The trial court found the publication defect to be a "technical violation" of the statute, and the notice substantially in compliance with N.J.S.A. 40:49-2. We agree.
According to the Sponsors' Statement at the time the bill was introduced in the Legislature that included N.J.S.A. 40:49-2(a), the statutory option of publishing "a clear and concise statement . . . setting forth the purpose of the ordinance, and the time and place when and where a copy of the ordinance can be obtained" was intended "to reduce the costs associated with the publication of municipal ordinances." Statement of Sponsors to S.7 at 36 (enacted as L. 1995, c. 259). As Judge Conte stated in his written decision, "the Township's error did not inhibit an opportunity for the public to voice its opinions and/or objections" to the proposed ordinance. The public notice explained the nature and purpose of the ordinance, accurately provided the time and place of the public hearing, and pronounced that all interested persons would be given an opportunity to be heard. Plaintiff did not appear and indicate an interest in the ordinance or a desire to be heard.
We agree with the trial judge's conclusion that the "technical" violation of the statute "did not frustrate the core purpose of the publication requirement" to inform the public of the nature and purpose of the ordinance and the proceedings by which it might be adopted. The notice fairly conveyed sufficient information to allow plaintiff and other members of the public to make "an informed determination as to whether they should participate in the hearing or, at the least, look more closely at the plans and other documents on file." Perlmart of Lacey, supra, 295 N.J.Super. at 237-38. The deficiency of the public notice is not a sufficient basis to invalidate the fair share ordinance.
Nor does the Township's failure to include a printed copy of the entire ordinance at the time the first ordinance was adopted render the completed fair share ordinance invalid When alerted to the printing error the Township followed required procedural steps in correcting the error It immediately introduced and adopted the second ordinance with proper notice and a public hearing As of the adoption of the second ordinance on May 24 2010 the entire fair share ordinance had been publicly considered by the council and mayor with an opportunity for any objections and comments to be voiced and discussed
Any failure of the Township to comply strictly with the forty-five day time limit imposed by COAH in adopting the corrected ordinance was for COAH to adjudicate Under the arbitrary capricious and unreasonable standard of review that applies in a prerogative writs action to the zoning decision of a municipal agency we have no basis to set aside the two ordinances