Perlmart of Lacey, Inc. v. Lacey Tp. Planning Bd.

• Decision Date: 25 November 1996
• Citation: 684 A.2d 1005,295 N.J.Super. 234
• Parties: PERLMART OF LACEY, INC., A New Jersey Corporation and Piedmont Associates, A New Jersey Partnership, Plaintiffs-Appellants, v. LACEY TOWNSHIP PLANNING BOARD, Lacey Development Limited, A Partnership, and Sunrise Point Associates, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 234

295 N.J.Super. 234

684 A.2d 1005

PERLMART OF LACEY, INC., A New Jersey Corporation and Piedmont Associates, A New Jersey Partnership Plaintiffs-Appellants, v. LACEY TOWNSHIP PLANNING BOARD, Lacey Development Limited, A Partnership, and Sunrise Point Associates Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued Oct. 30, 1996.

Decided Nov. 25, 1996.

William J. O'Hagan, Jr., Neptune, for appellants (Stout & O'Hagan, attorneys; Mr. O'Hagan, of counsel; Barbara L. Birdsall, on the brief).

Gregory P. McGuckin, Forked River, for respondent Lacey Township Planning Board (Dasti, Murphy & Wellerson, attorneys; Jerry J. Dasti, of counsel; Mr. McGuckin, on the brief).

Harvey L. York, Toms River, for respondent Sunrise Point Associates (Novins, York & Pentony, attorneys; Mr. York, of counsel; Robert M. McKeon, on the brief).

Before Judges KING, KEEFE and CONLEY.

The opinion of the court was delivered by

CONLEY, J.A.D.

This appeal arises from a Lacey Township Planning Board grant of various site plan, variance and conditional use permit applications for a K-Mart shopping center. It is undisputed that the required public notice did not specify that the various applications were for a K-Mart shopping center or that the shopping center was a conditional use. It is also undisputed that the application did not comply with all of the conditions required to be met by conditional uses under Lacey Township Zoning Ordinance § 108.53(c). These facts provided the basis for counts two and three of plaintiffs' ¹ complaint in lieu of prerogative writs challenging the grant of the various applications. Count two contends the Planning Board lacked jurisdiction because of the defective notice. Count three contends that the Planning Board lacked jurisdiction because waivers or variances from the Lacey Township conditional use standards were required which only the Board of Adjustment could grant pursuant to N.J.S.A. 40:55D-70(d)(3). Partial summary judgments in favor of defendants ² were entered on these counts.

The complaint, and thus this appeal, encompassed other contentions which were also disposed of in favor of defendants; but we concern ourselves with the summary judgments granted on counts two and three. We are convinced that the summary judgment granted defendants as to count two is erroneous. Since proper notice is a jurisdictional prerequisite, and a failure to so provide is fatal to the Planning Board's approval, it is not necessary for us to consider whether summary judgment on count three was incorrectly granted. However, the issue of whether the Planning Board or the Board of Adjustment has jurisdiction over the development application here may recur in the event defendant developer chooses to proceed with a new public notice and reapplication. We, thus, express some views as to that issue.

Public notice of the hearing on the applications was required pursuant to N.J.S.A. 40:55D-12(a). The contents of such notice is governed by N.J.S.A. 40:55D-11 which states that the notice:

shall state the date, time and place of the hearing, the nature of the matters to be considered and, ... an identification of the property proposed for development by street address, ... and the location and times at which any maps and documents for which approval is sought are available....

[Emphasis added.]

The public notice here set forth the date, time and place of the hearing, identified the street address of the property, and where and when members of the public might have access to the application documents. But whether it also adequately noticed the public of the "nature of the matters to be considered" is the question. In this respect, the notice informed the public that the application sought the following approvals:

Minor subdivision approval with variance from [lot area, front yard setback and rear-yard setback requirements]. The minor subdivision will result in the creation of 3 commercial lots with a total of 42.53 acres. Applicant also seeks major site plan approval with variances [from buffer zone, landscaping and sign requirements] ... possible variance from the building height requirement ... together with such other variances and design waivers as may be requested.

Plaintiff's primary contention is that while the notice informed the public that certain variances and minor and major site plan approvals were being sought "for the creation of commercial lots" in a commercial zone, it does not tell the public of the nature of that use, i.e. a conditional use K-Mart shopping center. ³

We have recognized the importance of the public notice requirements of the Municipal Land Use Law (MLUL) and the fact that such notice is jurisdictional. Brower Dev. Corp. v. Planning Bd., 255 N.J.Super. 262, 269, 604 A.2d 994 (App.Div.1992) (such notice requirements evidence " 'legislative solicitude for the public interest' " (citation omitted)). It is, to us, plain that the purpose for notifying the public of the "nature of the matters to be considered" is to ensure that members of the general public who may be affected by the nature and character of the proposed development are fairly apprised thereof so that they may make an informed determination as to whether they should participate in the hearing or, at the least, look more closely at the plans and other documents on file. Scerbo v. Orange Bd. of Adj., 121 N.J.Super. 378, 389, 297 A.2d 207 (Law Div.1972). E.g. Drum v. Fresno County Dep't of Public Works, 144 Cal.App.3d 777, 782-83, 192 Cal.Rptr. 782, 786 (Ct.App.1983); Shrobar v. Jensen, 158 Conn. 202, 207, 257 A.2d 806, 809 (Sup.Ct.1969); Lunt v. Zoning Board of Appeals, 150 Conn. 532, 537, 191 A.2d 553, 556 (1963); Appeal of Booz, 111 Pa.Commw. 330, 335, 336, 533 A.2d 1096, 1098 (1987).

Thus, " '[w]hen a statute requires a notice to be given to the public, such a notice should fairly be given the meaning it would reflect upon the mind of the ordinary layman, and not as it would be construed by one familiar with the technicalities solely applicable to the laws and rules of the zoning commission.' " Holly Development, Inc. v. Board of County Comm'rs, 140 Colo. 95, 101, 342 P.2d 1032, 1036 (1959) (citations omitted); United Citizens of Mount Vernon v. Zoning Bd. of Appeals, 109 Misc.2d 1080, 1086, 441 N.Y.S.2d 626, 630 (Sup.Ct.1981), appeal dismissed by 60 N.Y.2d 551, 467 N.Y.S.2d 1025, 454 N.E.2d 126 (1983). Consequently, the critical element of such notice has consistently been found to be an accurate description of what the property will be used for under the application. See Scerbo v. Orange Bd. of Adj., supra, 121 N.J.Super. at 388, 297 A.2d 207 (notice of an application to construct a residential treatment center was sufficient even though it did not state that a special exception or variance was sought). And see Chitwood v. County of Adams, 495 P.2d 562, 564 (Colo.Ct.App.1972) (notice of an application for approval of a dog kennel was sufficient even though the precise type of zoning relief (a "special exemption") was not identified); Shrobar v. Jensen, supra, 158 Conn. at 207, 257 A.2d at 809 (notice of an application to reconstruct and improve a filling station was adequate); Moore v. Cataldo, 356 Mass. 325, 327, 249 N.E.2d 578, 580 (Sup.Ct.1969) (notice of an application for the construction of a nursing home was sufficient); United Citizens of Mount Vernon v. Zoning Bd. of Appeals, supra, 109 Misc.2d at 1086-87, 441 N.Y.S.2d at 631 (notice of an application to construct elderly housing of thirty units was sufficient even though the type of zoning action was not mentioned: "[s]tating whether the application involves an extension of a non-conforming or a use variance or an area variance or any combination thereof is confusing enough even to lawyers and judges let alone the ordinary laymen."); Appeal of Booz, supra, 111 Pa. Commw. at 335, 533 A.2d at 1098 (notice of an application to expand repair services use of the property to include sale and lease of tractors and trailers was adequate even though it did not characterize the type of zone relief (a variance) that was sought).

In explaining the need for a common sense description of the nature of the application, such that the ordinary layperson could understand its potential impact upon him or her, the court in Booz observed:

As pertinently noted by a leading expert on zoning in Pennsylvania:

People turn out at a zoning hearing to oppose "a gasoline station," or a given sign or structure. Few laymen have any idea of the difference between a variance and a special exception, and certainly no lawyer would advise his client to "stay away" on the basis of that distinction....

The notice requirements should be read as requiring a reasonably accurate description of the activity or structure which the application wishes to institute or erect; e.g., "gasoline station," or an "accessory building located within the required rear yard." ... Where the notice fails to give a reasonably accurate description of this, adjacent landowners may well be misled.

We believe that placing emphasis on the importance of accurately identifying the type of use or activity proposed by the applicant in laymen's terms, rather than the technical zoning term for that use, serves the dual purpose of adequately apprising the public of the general subject of the zoning hearing while at the same time avoiding unnecessary delays which could result from the need to readvertise the hearing in those cases where the applicant mischaracterizes the technical zoning relief which is sought.

[111 Pa. Commw. at 335, 533 A.2d at 1098 (quoting R. Ryan, Pennsylvania Zoning Law and Practice § 9.4.13 (1986 Supp.)) (emphasis added).]

The notice here did not advise the public that the nature of the proposed use was a K-Mart shopping center. It is that information, however, that would inform the public of the nature of the application in a common sense manner such that the ordinary...