Northgate Condo. Ass'n, Inc. v. Borough of Hillsdale Planning Bd.

• Decision Date: 13 May 2013
• Citation: 214 N.J. 120,68 A.3d 292
• Court: New Jersey Supreme Court
• Parties: NORTHGATE CONDOMINIUM ASSOCIATION, INC., Plaintiff–Appellant, v. BOROUGH OF HILLSDALE PLANNING BOARD, Caliber Builders, Inc., Golden Orchards Associates, L.P. and Golden Oaks Homeowners Association, Defendants–Respondents.

214 N.J. 120

68 A.3d 292

NORTHGATE CONDOMINIUM ASSOCIATION, INC., Plaintiff–Appellant,

v.BOROUGH OF HILLSDALE PLANNING BOARD, Caliber Builders, Inc., Golden Orchards Associates, L.P. and Golden Oaks Homeowners Association, Defendants–Respondents.

Supreme Court of New Jersey.

Argued Oct. 10, 2012.

Decided May 13, 2013.

Ira E. Weiner argued the cause for appellant (Beattie Padovano, Montvale, attorneys; Mr. Weiner and John J. Lamb, Montvale, of counsel; Mr. Weiner, Mr. Lamb and Daniel L. Steinhagen, Montvale, on the briefs).

Russell R. Huntington, Westwood, argued the cause for respondents Caliber Builders, Inc., Golden Orchards Associates, L.P., and Golden Oaks Homeowners Association, Inc. (Huntington Bailey, attorneys; Mr. Huntington and Siobhan C. Spillane–Bailey, on the brief).

Harold Ritvo, Hackensack, argued the cause for respondent Hillsdale Planning Board.

Justice HOENS delivered the opinion of the Court.

Defendant Caliber Builders, Inc., sought to develop a parcel of land, most of which was situated in the Borough of Hillsdale, and which was owned by defendant Golden Orchards Association, L.P. Desirous of constructing an age-restricted housing development, which was a conditional use in the zone, Caliber submitted a preliminary site plan application to defendant Hillsdale Planning Board. Plaintiff Northgate Condominium Association, Inc., is a nonprofit corporation that manages and operates Northgate Condominiums, a previously-existing condominium community built on an adjacent parcel of land in Washington Township. Largely fueled by concerns relating to drainage, storm water run-off, and water quality, Northgate objected to the Caliber application on several grounds.

After conducting numerous hearings during which Northgate raised objections, and which also included testimony of lay and expert witnesses, exhibits, comments offered by interested members of the public and the oral presentations of counsel for both parties, the Planning Board voted to approve Caliber's application. The Board then memorialized its findings and conclusions when it adopted a resolution setting forth the reasoning that supported its decision.

Northgate thereafter filed its complaint in lieu of prerogative writs in which it challenged the Board's resolution on a variety of grounds. That effort failed before the trial and appellate courts, both of which upheld the decision of the Board to approve the conditional use application.

The appeal now before this Court raises two discrete issues that emerged in the context of the dispute between Northgate and Caliber over the Board's resolution approving the conditional use.

The first issue presented is whether the notice of the hearings on the application for the conditional use approval that Caliber published complied with the provisions of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D–1 to –163. More specifically stated, Northgate challenges Caliber's notice by arguing that it failed to comply with the section of the MLUL that sets forth the requirements governing the manner in which the property to be developed must be identified. See N.J.S.A. 40:55D–11.

The second issue before this Court is whether Caliber demonstrated that its proposed development satisfied one of the conditions that the Hillsdale Borough Code requires be met as a prerequisite for approving a conditional use. In particular, Northgate asserts that Caliber did not demonstrate that its project design complied with certain requirements fixed by the Residential Site Improvement Standards (RSIS) for internal roadway widths and improvements. See N.J.A.C. 5:21–4.1, –4.2, –4.5. The dispute is significant because if the proposal did not satisfy the conditions fixed by the Ordinance, Caliber would not have been permitted to proceed before the Planning Board, see N.J.S.A. 40:55D–25(a)(4) (conferring authority to approve conditional uses on Planning Board), but instead would have been required to secure a use variance through an application to the Zoning Board of Adjustment, see N.J.S.A. 40:55D–70(d) (defining powers of Zoning Board to grant use variances).¹

Because the appeal before this Court is narrowly focused, we will confine our recitation of the facts and our discussion of the governing law to that which is germane to our analysis.

I.

The parcel of land that Caliber seeks to develop comprises approximately 12.5 acres. At all times relevant to this dispute, Northgate was a previously existing condominium community that is immediately adjacent and to the south of the parcel that Caliber seeks to develop. A small portion of the parcel is in Washington Township, but the bulk of it is in the Borough of Hillsdale, where it is included in the R–2 zone. The land was previously the site of a fruit orchard and it is commonly referred to as “Golden Orchards.”

Beginning in 2002, Caliber engaged in a variety of efforts to develop the parcel. Those efforts included filing a site plan application with the Hillsdale Planning Board that sought approval to subdivide the property and build single-family homes; supporting a proposed amendment to the Hillsdale zoning ordinance that would have added age-restricted housing as a conditional use in the R–2 zone; and entering into a settlement agreement with Northgate pursuant to which Caliber would address Northgate's concerns about the impact of its 2002 development proposal on flooding by constructing drainage buffers, undertaking landscaping projects, and reducing the number of units to be constructed.

In 2006, there was a second proposal to amend the Hillsdale zoning ordinance to allow age-restricted housing in the R–2 zone. That effort succeeded when, over Northgate's strong objections, the Borough adopted Ordinance No. 06–12 which amended section 310–53 of the Code of the Borough of Hillsdale. As amended, the Code would “permit single-family detached age restricted housing development in the R–2 Residential Zone as a Conditional Use.” Among the numerous conditions that an applicant would need to satisfy in order to be granted permission to construct age-restricted housing in the R–2 zone was the requirement that the roadway widths and road improvements in any age-restricted development conform with the RSIS.

In light of the amended ordinance, Caliber abandoned its earlier plans to subdivide its property and build single-family homes. In place of that plan, on April 19, 2007, Caliber submitted a new application to the Hillsdale Planning Board seeking preliminary site plan and conditional use approval for an age-restricted housing development.

Caliber's proposal included thirty-seven age-restricted, single-family houses, thirty-one of which would be located in Hillsdale and six of which would be located in both Hillsdale and in Washington Township, the adjoining municipality. In addition, the proposal included one single-family home that would be located in Washington Township and would not be part of the age-restricted development. Caliber elected to pursue its application in Hillsdale prior to seeking the approvals that would be needed for the portions of the project located in neighboring Washington Township.

A.

The facts relevant to the first issue before this Court concern the adequacy of the notice of the hearings published by Caliber. Once Caliber's application was scheduled to be heard by the Hillsdale Planning Board, Caliber arranged for notice to be published in The Record of Hackensack, see N.J.S.A. 40:55D–12(a), and it mailed notice to all property owners within 200 feet of the parcel that was the subject of the application, see N.J.S.A. 40:55D–12(b).

In relevant part, the notice provided as follows:

PLEASE TAKE NOTICE that commencing on May 2, 2007 at 8:00 PM, the Planning Board of the Borough of Hillsdale will hold public hearings concerning the application of Caliber Builders, Inc., commonly known as Golden Orchards (south of Ell Road), for approvals pursuant to Section 310–53 of the Hillsdale Zoning Ordinance to construct a development of Single Family Detached Age Restricted Housing as a conditional use in the Zone. The project includes a total of forty (40) homes located in Hillsdale and adjacent Washington Township. The Applicant shall also request front yard setback variances, not to exceed five (5') feet, in order to stagger the setback of the homes. The property is known as Lot 3Q, Block 2101, Township of Washington and Lots 1.01 and 1.02, Block 506, Borough of Hillsdale, Bergen County, New Jersey on the current Tax Assessment Maps.

Because the application was not heard on the first scheduled date, Caliber again published the notice, which was altered only to set forth the new hearing date, and mailed copies to all property owners within 200 feet of the property.

In actuality, the tax lot numbers for the subject property given in the notice were not correct. In addition to errors in the lot number for the Washington Township portion of the site, which is not directly relevant to this appeal, the lot numbers utilized in the notice for the Hillsdale portion of the parcel were inaccurate. Identified in the notice as being Lots 1.01 and 1.02, the parcel instead should have been identified as Lot 1, in accordance with its designation on the official tax map.

The hearings on Caliber's application began on July 10, 2007. Northgate, which was the primary objector to the development, appeared at the hearing, as did otherinterested members of the public. At the start of the first hearing, Northgate raised numerous objections, including one that was directed to the adequacy of the notice and that challenged the jurisdiction of the Planning Board to proceed. Northgate's notice-based jurisdictional challenge related to whether Caliber had correctly identified the property owners within 200 feet of the project who were entitled to notice by mail.

Recognizing that adequate notice was a jurisdictional prerequisite, the Planning Board requested advice from the ...