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Griffin Barnegat Township Committee

A-6221-07T3 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; NOTICES — The 2007 court decision requiring personal notice to persons whose property is within a defined vicinity when there is proposed substantial change of zoning standards will not be applied retroactively to land use board proceedings where such notice had not been given.

In August 2003, a municipality passed an ordinance that amended its municipal code so as to permit wireless communications towers and antennas within a certain area within the municipality, provided the cell provider obtained a conditional use permit from the planning board. Legal notice confirming the adoption of the ordinance was published in the local newspaper. Several months later, the municipality sought bid proposals to lease a parcel it owned for the purpose of locating a wireless communications tower. It ultimately awarded such a lease. Owners of neighboring property challenged the ordinance, the propriety of the bidding process, and the sufficiency of notice.

The lower court dismissed the complaint as being out of time. It rejected the neighbors’ argument that the municipality’s failure to personally serve them with notice of the ordinance’s adoption tolled the time for commencement of their action. The neighbors appealed.

The Appellate Division affirmed. In doing so, it rejected the neighbors’ claim that permitting the construction of a wireless tower on the property was the same as changing the property’s zoning classification, entitling them, as owners of neighboring properties, to personal notice as set forth in the applicable statute. It noted that the neighbors were relying on a case decided nearly four years after notice was given here. It found that the prior decision was the Court’s “first clear determination of the scope of [the applicable statute].” The Court ruled that this case did not apply because the notice requirements did not apply retroactively. Although the Court stated that, as a general approach, judicial decisions have retroactive effect, this principle does not apply when, as here, its application would run contrary to considerations of fairness and justice related to reasonable surprise and prejudice to those affected. In this case, the Court concluded that it would be manifestly unfair to retroactively apply the notice standard by holding the municipality to a more stringent notice requirement than that which it had every reason to believe was sufficient at the time. It also noted that to rule otherwise could have “an unduly expansive impact and potentially place vast numbers of [municipal] ordinances in jeopardy of invalidation and litigation.”

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