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Dalessio v. Township of Upper Deerfield

A-3128-10T3 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; REDEVELOPMENT; NOTICES — Where a property owner receives timely notice of a hearing at which a zoning ordinance will be adopted, absent its ability to demonstrate true surprise, it is not entitled to an adjournment of the hearing just because it needs more time to address the impact of a zone change.

Property owners owned property within the municipality’s redevelopment plan. The municipality drafted two new ordinances to amend its redevelopment plan and zoning code. Its planning board found the ordinances consistent with the municipality’s master plan. The municipality held a first reading of the ordinances at a regular meeting. Then, it scheduled a second reading and a public hearing. It mailed notice of the scheduled second reading to affected property owners and published the notice in local newspapers.

At the second hearing, the municipality passed the two ordinances. The first ordinance amended the municipality’s redevelopment plan and the second ordinance restricted where solar energy facilities could be built and imposed related construction requirements. At the hearing, a particular property owners’ attorney wrote for an extension of the hearing date in order to address the impact of the zone change. The municipality voted to proceed without adjournment. After the ordinances passed, the property owners sued, arguing there were procedural defects because the municipality did not grant the requested adjournment, the ordinances were contrary to state and federal law public policy, and the amendments lacked a rational, substantial basis and proper enabling authority.

The lower court disposed of all claims and defenses and entered an order, granting in part, and denying in part, the requested relief,. The property owners appealed the dismissal of a portion of their complaint wherein they were alleging that: (1) the municipality wrongly denied their request for an adjournment; and (2) the ordinances contravened the designation of solar energy facilities as an inherently beneficial use under the Municipal Land Use Law.

The owners appealed, but the Appellate Division affirmed the lower court’s decision, holding that the property owners had received proper statutory notice and had sufficient time to consult with counsel and prepare their case. The applicable statute provides that an affected property owner must receive ten days’ notice. Also, they did. They also did not allege any surprises, and therefore their argument that they did not have enough time to prepare was unpersuasive. For these reasons, the denial of the request for an adjournment was not arbitrary, capricious or unreasonable. Furthermore, according to the Court, the lower court properly took into account the legislature’s recent designation of solar facilities as inherently beneficial uses, but justifiably concluded that the restrictions in the ordinance did not conflict with the new statutory provisions. Thus, the Court found no reason to disturb the lower court’s finding.

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