Concerned Citizens Livingston v. Twp. of Livingston

Decision Date11 June 2018
Docket NumberDOCKET NO. A-4171-15T3
PartiesCONCERNED CITIZENS OF LIVINGSTON, Plaintiff-Appellant, v. TOWNSHIP OF LIVINGSTON, LIVINGSTON TOWNSHIP COUNCIL, and PLANNING BOARD OF LIVINGSTON, Defendants-Respondents, and SUNRISE DEVELOPMENT, INC., Defendant/Intervenor-Respondent.
CourtNew Jersey Superior Court — Appellate Division

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Carroll and Leone.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2171-16.

Charles X. Gormally argued the cause for appellant (Brach Eichler, LLC, attorneys; Charles X. Gormally, of counsel and on the brief; Autumn M. McCourt, on the briefs).

James T. Bryce argued the cause for respondents (Murphy McKeon, PC, attorneys; James T. Bryce, on the brief).

Paul H. Schneider argued the cause for intervenor-respondent (Giordano, Halleran & Ciesla, PC, attorneys; Paul H. Schneider, of counsel and on the brief; Matthew N. Fiorovanti, on the brief).

PER CURIAM

Plaintiff Concerned Citizens of Livingston appeals from a May 10, 2016 order dismissing its complaint challenging the notice given concerning zoning ordinance 22-2015 (Ordinance) of defendant Township of Livingston (Township). The trial court dismissed the complaint as untimely under Rule 4:69-6(a). We agree with the court that notice was fatally deficient because the Ordinance changed the classification of the zone. We also agree that the complaint was filed beyond the rule's time period. However, we find the fatal notice deficiency justified an enlargement of time under Rule 4:69-6(c). Accordingly, we affirm in part, reverse in part, and remand.

I.

Plaintiff filed a verified complaint, stating plaintiff is a representational plaintiff comprised of residents of Livingston living within 200 feet of a particular lot (Lot) as well as residents living beyond 200 feet who are impacted by the Ordinance. Plaintiff claimed that, prior to the adoption of the Ordinance,the Township's zoning ordinances prohibited the development of an assisted living facility on the Lot. Plaintiff alleged the Ordinance was passed to enable intervenor Sunrise Development, Inc. (Sunrise) to build an assisted living facility on the Lot.

At its September 24, 2015 meeting, defendant Planning Board of the Township of Livingston (Board) recommended the proposed Ordinance to defendant Livingston Township Council (Council), the Township's governing body. The Council gave published notice of its October 26, 2015 meeting by faxing the agenda to the West Essex Tribune and the Star-Ledger. The agenda stated there was a proposed Ordinance about "Assisted Living - Conditional Use," and added: "Purpose: Amends Township Code to allow Assisted Living Facilities as a conditional use when certain criteria are met." No other notice was given to members of the public.

On October 26, the Council introduced the proposed Ordinance for first reading. The Council referred the proposed Ordinance to the Board to determine if the Ordinance was consistent with Livingston's master plan. As discussed below, the Council on October 29, 2015, gave notice only by publication that the Ordinance would be considered for final passage on November 9, 2015. The Council did not provide written notice to property owners within 200 feet of the affected zones.

At its November 3, 2015 meeting, the Board considered the Ordinance. Notice of the meeting was published in the West Essex Tribune and posted on a bulletin board. The Board's agenda simply stated that it was reviewing the Ordinance about "Assisted Living - Conditional Use." No members of the public appeared in connection with the Board's review of the Ordinance. The Board determined the Ordinance about "Assisted Living - Conditional Use" was consistent with the master plan.

On November 9, twelve days after the Ordinance's introduction in the Council, the Council adopted the Ordinance by title only, without reading it publicly. No members of the public appeared or spoke at the Council meeting regarding the Ordinance. On November 12, 2015, the Township clerk published in the West Essex Tribune a notice simply stating that the Ordinance had been passed on November 9.

On February 2, 2016, the Board held a hearing on Sunrise's application to build an assisted living facility on the Lot. Sunrise concedes its proposal was designed to be consistent with the Ordinance.

On March 31, 2016, plaintiff filed an action against the Township, the Council, and the Board (defendants). The complaint contained three counts, alleging violation of: (1) the notice requirements of N.J.S.A. 40:55D-62.1; (2) the prohibition on spotzoning; and (3) the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-2. The trial court granted plaintiff's request to temporarily restrain the Board from considering Sunrise's application.

The Township filed an answer, and a motion to dismiss count three for failure to state a claim upon which relief can be granted under Rule 4:6-2(e). On April 22, 2016, the trial court issued an order granting Sunrise's motion to intervene.

On May 10, 2016, the trial court sua sponte dismissed the entire complaint because it was not filed within forty-five days of the publication of the enacted Ordinance. The court denied plaintiff's oral motion for a stay. We denied plaintiff's emergent motion seeking a stay pending appeal.

II.

Whether the complaint challenging the Ordinance should have been dismissed as untimely depends in part on whether notice concerning the Ordinance was deficient. Thus, we begin by reviewing the trial court's decision that the notice was fatally deficient.

The notice generally required is set forth in N.J.S.A. 40:49-2(a), which provides that, after the first reading, a proposed ordinance

shall be published in its entirety or by title or by title and summary at least once in a newspaper published and circulated in themunicipality, if there be one, and if not in a newspaper printed in the county and circulating in the municipality, together with a notice of the introduction thereof, the time and place when and where it will be further considered for final passage, a clear and concise statement prepared by the clerk of the governing body setting forth the purpose of the ordinance, and the time and place when and where a copy of the ordinance can be obtained without cost by any member of the general public who wants a copy of the ordinance.

After the first reading of the Ordinance, the Council issued a public notice dated October 29, 2015, published in the West Essex Tribune, which stated the Ordinance had been "introduced and passed on first reading" on October 26, and would be considered for final passage on November 9, 2015, at 8:00 p.m. at the M&PB. The published notice printed the entire Ordinance, whose preamble stated its purpose, and also advised that copies were available at the clerk's office. This complied with N.J.S.A. 40:49-2(a).

However, the trial court found that under Robert James Pacilli Homes, LLC v. Twp. of Woolwich [Pacilli], 394 N.J. Super. 319 (App. Div. 2007), "the notice provisions of N.J.S.A. 40:55D-62.1 [we]re triggered, requiring certified mail notices to property owners within the affected zones as well as property owners within 200 feet of the affected zones." We agree.

The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, imposes additional notice requirements for certain ordinances.N.J.S.A. 40:55D-62.1 "directs that all property owners within a zoning district shall receive personal notice if the municipal body seeks to change the classification or boundaries of a zoning district." Pacilli, 394 N.J. Super. at 329; see Grabowsky v. Twp. of Montclair, 221 N.J. 536, 558-59 (2015). The statute provides:

Notice of a hearing on an amendment to the zoning ordinance proposing a change to the classification or boundaries of a zoning district . . . shall be given at least 10 days prior to the hearing by the municipal clerk to the owners of all real property as shown on the current tax duplicates, located, in the case of a classification change, within the district and within the State within 200 feetin all directions of the boundaries of the district, and located, in the case of a boundary change, in the State within 200 feet in all directions of the proposed new boundaries of the district which is the subject of the hearing.
. . . .
Notice shall be given to a property owner by: (1) serving a copy thereof on the property owner as shown on the said current tax duplicate, or his agent in charge of the property, or (2) mailing a copy thereof by certified mail and regular mail to the property owner at his address as shown on the said current tax duplicate.
[N.J.S.A. 40:55D-62.1 (emphasis added).]

It is undisputed the Council did not serve or mail a copy of the Ordinance to all property owners within the district and within 200 feet of the district. Thus, whether notice was adequatedepends on whether the Ordinance "propos[ed] a change to the classification . . . of a zoning district." Ibid.

"We examined what the MLUL intended by a 'classification' change in [Pacilli], recognizing that '[u]nlike many terms found in the MLUL, "classification" is not defined.'" Mahwah Realty Assocs., Inc. v. Twp. of Mahwah, 430 N.J. Super. 247, 253 (App. Div. 2013) (quoting Pacilli, 394 N.J. Super. at 329). "Until the Legislature adopts some different meaning, we will continue to apply, as we apply here, Pacilli's general understanding of the term[.]" Id. at 254 (footnote omitted).

In Pacilli, we ruled that "in its most general sense, classification refers to the use permitted in a zoning district, such as residential, commercial or industrial, as well as sub-categories within the broader uses, such as...

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