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Sheehan v. Township of Princeton

A-4442-06T3 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; ORDINANCES; NOTICES — Owners of property in a zoning district are entitled to notice by mail or personal service of any hearing on an amendment to a zoning ordinance proposing a change to the classification of the zoning district as are all owners of real property located within 200 feet of the affected zoning boundaries.

A municipality amended its zoning requirements for its R.A. Residential Zone and a property owner within the zone sued to have the ordinance invalidated. The municipality introduced the ordinance “which placed fourteen properties in the R-5 zoning district and removed nursing homes and assisted-living residences as conditional uses from other zones including the R.A. zone. The ordinance was forwarded to the regional planning board of [the municipality] for review pursuant to N.J.S.A. 40:55D-26, and a copy was published” in a local newspaper. The municipality’s governing body then adopted the ordinance.

The challenge was made on procedural grounds claiming that the municipality had failed to comply with the law “which requires the municipal clerk to provide notice by mail or personal service of any hearing on an amendment to a zoning ordinance ‘proposing a change to the classification ... of a zoning district’ at least ten days prior to the hearing to the owners of all real property located within 200 feet of the affected zoning boundaries.” The municipality conceded that personal notice had not been given, but “contend[ed] that the statute was inapplicable since the ordinance was introduced to correct a mistake in its conditional use table and to accurately reflect that [its] 1996 senior housing ordinance adding nursing homes and assisted-living residences as conditional uses was not intended to apply to the R.A. zone.”

The lower court invalidated the ordinance “on grounds of improper notice and issued a supplemental written opinion on the same date in which [it] concluded: Therefore, while there is not one scintilla of evidence to support bad faith or ill-will on the part of the [municipality], given the facts before the court, a presumption of notice, pursuant to MLUL, weighs heavily in favor of the affected residents. ... Simply put, plaintiffs as owners of property in the R.A. zoning district, were entitled to notice.” On appeal, the municipality “reiterate[d] its argument that there was compliance with the applicable notice requirements of [the statute] by publication in the [local newspaper] because the ordinance simply corrected a mistake.” The Appellate Division, after considering the record and the municipality’s arguments, sustained the lower court’s decision.


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