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Northgate Condominium Association, Inc. v. Borough of Hillsdale Planning Board

A-1042-09T3 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; NOTICES — An objector complaining that a public notice of a land use board hearing is insufficient is deemed to have waived its right to challenge the notice requirement if it actually appears and is represented before the land use board without raising any objection to the lack of notice of the content of a notice.

A property owner sought to construct age-restricted senior housing in a zone that only permitted such housing as a conditional use. It filed appropriate applications with the municipal planning board seeking no variances. Notice of the subsequent public meetings mistakenly identified one lot and excluded one lot that was part of the proposed construction. The notice, however, identified the property by its former place name and by its immediate location south of a prominent road. A neighboring residential community, located immediately south of the proposed site at a lower elevation, objected to the application. At the hearing, that community’s condominium association did not object to the description of the properties in the notice.

The neighboring association was most concerned with the owner’s proposed stormwater management plan. The applicant’s site engineer testified that the owner’s plan would cause less water discharge than under current conditions and would satisfy several requirements of the municipal stormwater management ordinance. He was confident that the application would be approved by the New Jersey Department of Environmental Protection. To the contrary, the association’s expert testified that the applicant’s proposal would actually cause an increase in ground water. The applicant’s expert rebutted this conclusion by showing that the association’s expert depicted a drainage area in a different location than what was planned in the storm water report and had disregarded a swale designed system that would ultimately drain stormwater to a wetlands stream. Additionally, in response to the association’s expert’s testimony that infiltrators would be impermissibly placed in lower grade C soil, the applicant’s expert noted that he performed six test pits throughout the property and independent tests had confirmed the soil was a B type better soil. The board also heard testimony from its own engineer, who described the stormwater plan as adequate.

After considering the evidence, the board approved the application for preliminary site plan approval and adopted a resolution that the applicant had satisfied all conditional use requirements. The board also determined that, while the association’s expert lacked credibility, the applicant’s expert had responded to every question with answers that were rational and reasonable, and the drainage plan was feasible and adequate. The association filed suit to challenge the approval, but the lower court dismissed the complaint.

The association appealed, but the Appellate Division affirmed, concluding that notice of the public meetings was sufficient, and also that the association had waived its right to appeal the notice requirement when it appeared and was represented before the board without raising any objection to the content of the notice. It held that a notice has to provide a reasonably adequate description of the land subject to the application such that objectors may appear and respond at hearing. In this instance, the Court found the notice adequately described the proposed development of age-restricted homes when it identified the property by its former place name and by a cross street.

The Court also agreed with the lower court that the board could reasonably have reached its decision to approve the application based on the testimony before it, specifically its decision to accept the applicant’s expert’s testimony in favor of an adequate drainage system, and his specific finding that the soil permeation testing was appropriate and that the soil could accommodate the proposed stormwater drainage plan. According to the Court, the board’s findings were neither arbitrary nor unreasonable.

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