Rockaway Shoprite Associates, Inc. v. City of Linden

2011 WL 5515222 (N.J. Super. App. Div. 2011)
  • Opinion Date: November 14, 2011

ZONING; ORDINANCES — Notices of proposed amendments to zoning ordinances must, at a minimum, identify and summarize the new zones and uses, not just alert the public that some type of zoning amendment is being considered.

For many years, a large assembly plant occupied a 47.5 acre site. Eventually, it closed. The property then sat vacant for years. In December 2007, a developer purchased the site, intending to redevelop it with a mix of retail, commercial, industrial, warehouse, and multi-unit residential uses. It was acquired without the necessary zoning or development approvals in place. Accordingly, the developer requested, and the municipality adopted, zoning ordinance changes. Public notice of the amended ordinance was required by N.J.S.A. 40:49-2.1. That statute requires that the notice provide “a brief summary of the main objectives or provisions of the ordinance.” The actual published notices stated only that the purpose of the ordinance was for “Amending the Zoning Ordinance of the [municipality] to the site of the former [corporation’s] manufacturing facility,” and described the property by its lot and block.

At a public hearing on the ordinance, a neighboring supermarket operator was represented by an attorney. That attorney did not object to the ordinance, and it was passed without further amendment. Later, the municipality determined that additional amendments were needed. Public notice was again given. This time, however, the notice did not even identify the subject property, but it was sent to property owners within 200 feet of it. The amendatory ordinance pass

The supermarket operator subsequently sued to invalidate the ordinances, asserting improper notice as well as arguing the merits of the ordinances. The lower court disagreed, dismissing the complaint.

On appeal, the supermarket operator argued that the notice should have identified the new zones being created and given detailed standards about their use. The Appellate Division found the notices insufficient and voided the ordinances on that basis. After surveying prior cases under N.J.S.A. 40:49-2.1, cases under the somewhat analogous notice provision of the Municipal Land Use Law (MLUL) which is applicable to development applications rather than zoning ordinances, and after looking at cases from other jurisdictions, the Court held that the “generalized, standard language provide[d] no real notice apprising the public of exactly what [was] being proposed.”

According to the Court, the notices, “at a minimum, should have identified and summarized the new zones and uses. While the published notice at most alerted the public that some type of zoning amendment was being considered regarding the [subject] site, nothing therein informed interested persons of the nature or extent of the change or whether it was consequential enough to warrant their attendance at, and participation in, the ensuing public hearing.” It held that neither the mailed notice to nearby property owners nor the notice of the subsequent amendatory ordinance were sufficient, either on their own or as a cure for the deficient original notice.

The Court next addressed the issue of whether the supermarket operator had waived its notice objection because its counsel had attended the public hearing and had not then objected to the ordinance. The Court concluded that there was no waiver, because notice is jurisdictional and cannot be waived. In reaching that conclusion, the Court cited out-of-state cases that recognized that the general public’s interest in adequate notice goes beyond the interest of any individual property owner, and no person can waive that public interest. Also persuasive to the Court were decisions under the MLUL involving notice of development applications. Those decisions have consistently held that failure to provide proper notice deprives a municipal agency of jurisdiction to grant development approvals. For all these reasons, the Court reversed the lower court’s ruling.