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Stewart v. The Planning Board of the Township of Manalapan

334 N.J. Super. 123, 756 A.2d 1082 (App. Div. 1999)

ZONING; NOTICE—Substantive review of an application after a planning board concept review and waiver request is not authorized by statute, and public notice of such a meeting is required.

In connection with an application to subdivide an existing shopping center property to create a separate lot for a pharmacy, a planning board held an informal concept review with the developer. Subsequently, a formal application was submitted to the board. Then, a waiver request was sought by the applicant and granted, the board deeming the application complete. A third informal review was conducted and that review was the subject of a complaint by neighboring property owners. After the informal review, public hearings were held on four separate occasions and final site plan approval with variances and minor subdivision approval was adopted by the planning board at yet another meeting. The Court did not take issue with the board’s final ruling, holding that the board used its sound discretion in reaching its land use decision. New Jersey law provides for informal review of a concept plan for development. The initial informal meeting was held with proper notice. The subsequent review of the waiver request was also held with proper notice. However, the third, informal review was held prior to the public hearing and prior to the notice required to be given for such a hearing. Consequently, the Court was concerned “that such an informal review hearing or meeting may cause Board members to decide matters before them without interested parties being noticed.” In addition, the Court found that substantive review of an application after a concept review and waiver request was not authorized by statute. Even if a record is kept of such a meeting, the Court believed that the “loss of an opportunity for interested persons to present views to a neutral, unbiased and uninformed Board serves to taint action taken by the Board due to the shadow of impropriety that such action casts.” In its view, “[w]hether or not a record is kept of such a meeting is of little concern to this Court. It is well known that recording procedures of such meetings are not immune from manipulation and ‘off the record discussions’ of pending applications often take place.” Although working sessions are permitted subject to the requirements of the Open Public Meetings Act, more comprehensive notice requirements must be followed in order to proceed with a hearing. In this case of first impression, the Court held that informal review meetings without public notice are not permitted by statute. Consequently, the Court vacated the decision of the planning board, but ordered that the applicant be permitted to re-file its application to have a hearing with testimony presented anew, this time with proper notice given to all parties.

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