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Carbone v. Borough of North Haledon

Superior Court of New Jersey, Appellate Division

September 30, 2013

JOHN M. CARBONE and SUSAN B. CARBONE, Plaintiffs-Appellants,
v.
BOROUGH OF NORTH HALEDON, Defendant-Respondent

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 18, 2013

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2653-09.

John M. Carbone, attorney for appellants.

De Marco & De Marco, attorneys for respondent (Michael P. De Marco, on the brief).

Before Judges Parrillo and Messano.

PER CURIAM

Plaintiffs, John M. and Susan B. Carbone, appeal from the Law Division's order of February 23, 2012, dismissing the first count of their complaint in lieu of prerogative writs challenging the passage of ordinance No. 12-2009 (the ordinance), by the Borough of North Haledon (the Borough).[1] The facts are undisputed.

The ordinance sought to amend the Borough's existing zoning plan by creating a new zoning district, the "Senior Citizen Residential (SCR) District, " comprised of four lots within Block 65 on the municipal tax map. Plaintiffs' property is within 200 feet of the proposed zoning change, and some of the property subject to the change was owned by the Holland Christian Home Association (HCHA).[2]

As stated in the ordinance, the purpose of the zoning change was "to meet the diverse housing and health care needs of an aging population while allowing zoning flexibility to accommodate the ever changing residential and medical needs for this specific population." It is apparently undisputed that the Borough's most recent comprehensive master plan, adopted in May 2004, recognized the need for senior housing, and its prior master plan re-examination report, in 1996, recognized HCHA's property was a "long[-]standing non-conforming use [that] should be rezoned" to conform.

The ordinance was referred by the Borough to its Planning Board (the Board), which conducted a hearing on April 23, 2009. The public notice of the meeting was promulgated and published by counsel for the HCHA. Plaintiffs received individual notice of the hearing based upon their property's proximity to the proposed subject zoning change. The Board adopted the proposed change, and, thereafter, the ordinance was scheduled for a hearing before the Borough's mayor and council on May 20, 2009.

Counsel for the HCHA again prepared notice of the May 20 meeting and served same on plaintiffs and other affected property owners. The notice described the involved properties by lot and block numbers, and provided that notice was being "sent . . . by an owner by order of Mayor and Council of North Haledon." The HCHA's name appeared at the bottom of the notice as "Owner." Counsel for the HCHA executed affidavits of service upon all affected property owners.

The Borough caused notice of the May 20 meeting to be published in a local newspaper, although it is not entirely clear from the record who submitted the legal notice to the paper. That notice included the ordinance in its entirety. Although the ordinance itself only identified the affected properties by lot and block number, the notice set forth in full detail the permitted uses in the proposed SCR zone, as well as the various land use requirements and restrictions. The municipal clerk's name and title appeared at the end of the legal notice.

The mayor and council approved the ordinance. On May 28, 2009, a notice of its approval was published in a local newspaper, with the municipal clerk's name and ...


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