Posted by: Patricia Salkin | March 26, 2012

NJ Appellate Court Holds Public Notice for Rezoning Insufficient For Failure to Identify New Zones Being Created

Linden Development, LLC purchased a 105-acre parcel of property in the city of Linden (the “City”). The parcel was the site of a former General Motors (“GM”) assembly plant. The parcel was zoned heavy industrial and light industrial. Linden sought to create a combination of retail and commercial uses, multifamily residential use, and industrial and warehouse uses. Accordingly, Linden sought a change in zoning for 45 acres to allow retail and commercial uses. Linden applied to the City for the zone changes.

Eventually, the city drafted an ordinance, Ordinance 52-71, to implement the proposed zoning changes. The City published in the local newspaper notice of Ordinance 52-71 for public hearing and possible adoption. The notice read in pertinent part: “AN ORDINANCE TO AMEND AND SUPPLEMENT CHAPTER XXXI, ZONING, OF AN ORDINANCE ENTITLED “AN ORDINANCE ADOPTING AND ENACTING THE REVISED GENERAL ORDINANCES OF THE CITY OF LINDEN, 1999 … .” The notice further stated the block and lot numbers of the site of the proposed zoning. It also noted that the ordinance would amend regulation for the use of the site of the former GM facility.

Ordinance 52-71 was eventually adopted. After its adoption, the City determined that certain limited revisions were necessary as to the newly created Planned Commercial Development (“PCD”) zoning district. The City introduced a new Ordinance 53-10 to enact those revisions. The notice for the public hearing for Ordinance 53-10 did not identify the property affected by the proposed ordinance, but simply read: “AN ORDINANCE TO AMEND ORDINANCE NO. 52-71, ENTITLED ‘AN ORDINANCE TO AMEND AND SUPPLEMENT CHAPTER XXXI, ZONING’, OF AN ORDINANCE ENTITELD ‘AN ORDINANCE ADOPTING AND ENACTING REVISED GENERAL OFDINANCE FO THE CITY OF LINDEN, 1999’ … .” Ordinance 53-10 was eventually adopted.

Rockaway Shoprite Associates, Inc. (“RSA”) operated a supermarket near Linden’s property. After adoption of Ordinance 53-10, RSA filed a lawsuit against the City and the City Council, seeking reversal of the adoption of the ordinances. Among other things, RSA challenged the ordinances on procedural grounds. RSA maintained that, in accordance with New Jersey statutory law–N.J.S.A. 40:49-2.1–, the notices should have identified more information, including the new zones being created.

Section 40:49-2.1 requires the publication of a notice citing a municipal land use ordinance to contain a “brief summary of the main objectives or provisions of the ordinance.” The statute also requires that amendments to ordinances include “a summary of the objectives or provisions of the amendment or amendments.”

The City, City Council, and Linden as intervenor, maintained that is was sufficient if the notice, as here, identified the property by common name and by block and lot number, and informed the public that the permitted use of the property would change.

The Superior Court of New Jersey, Appellate Division, held that the public notices for the ordinances were legally deficient in apprising the public of the substantive changes to the municipality’s zoning effected by the proposed ordinances.

The court stated that the “summary” required by N.J.S.A. 40:49-2.1 must apprise interested readers throughout the municipality of the zoning changes contemplated as well as their nature and import. In other words, notice of proposed changes in the zoning laws “must be reasonably sufficient and adequate to inform the public of the essence and scope of the proposed change.” A mere reference to the objective of the ordinance does not satisfy the statute, said the court. Rather, the notice must alert property owners of the possibility that the proposed amendment may affect the zoning of their properties or nearby properties. The notice must identify the subject property and inform the reader that the ordinance would result in substantive changes to the municipality’s zoning. Thus, at a minimum, New Jersey law requires that published notice of a zoning ordinance creating new zones and uses applicable to an area identify and briefly describe those new zones and uses. It must provide sufficient detail of what is projected to inform the interested public whether to participate or object. It must provide “an accurate description of what the property will be used for … .” It should “focus on the substantive effect of the amendment … .”

Here, the court found that the public notice of Ordinance 52-71 “merely advised that the zoning [was] being amended as to the properties identified… .” This general, standardized language “provide[d] no real notice apprising the public of what exactly [was] being proposed.” Indeed, the changes to be effectuated by Ordinance 52-71–including the changing of previous zone boundary lines, changes in allowable uses and densities in the area rezoned, and the creation of new zones that previously did not exist–were totally absent from the public notice in this case. While the published notice alerted the public that some type of zoning amendment was being considered regarding the GM site, the court found that “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.”

The court found that the notice of amendatory zoning ordinance, Ordinance 53-10, fared no better. It did not alert the public that the amendment involved the former GM site, much less the nature of the zoning changes it was proposing.

The court noted that the notices did not need to be exhaustive or detailed; they only need to reasonably inform of the substance of the proposed changes. At a minimum, the published notices should have identified and summarized the new zones and new uses, concluded the court.

Because the notices were insufficient, the court concluded that the ordinances were invalid. 

Rockaway Shoprite Associates, Inc. v. City of Linden, 2011 WL 5515222 (N.J. Super. Ct. App. Div. 2011)                                    

This abstract, slightly edited,  appeared in the Quinlan, Zoning Bulletin, December 25, 2011.

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