The Devil is in the Details: Appellate Division Rules of the Sufficiency of Public Notices

by:  Gregory S. Ricciardi

The Appellate Division on November 14, 2011 decided the case of  Rockaway Shoprite Associates, Inc. v. City of Linden.  This case deals  with the adequacy of public notices in the context of the adoption of an ordinance and an amendatory ordinance for the rezoning of a large parcel of property in Linden, New Jersey.  The property was a 105 acre, former General Motors assembly plant, of which 47.5 acres was proposed for redevelopment by the Defendant (and the City of Linden).  The proposed ordinance would substantially change the zoning to allow for a “planned commercial district” with a mix of commercial and retail uses.  The proposed ordinance and amendment to the ordinance were properly published and sent to adjacent landowners. 

However, problems with the notices in this case deal with deficiencies  in the actual substance of the notice.  The notices only advised the public that the zoning was being amended as to properties identified by common name and lot and block number.  Pursuant to N.J.S.A. 40:49-2.1, the notice must give “a brief summary of the main objectives or provisions of the ordinance…” While a summary may be substituted for the publication of the full text  of the ordinance, where the proposed ordinance exceeds six pages, the summary must “sufficiently alert the reader to the nature and importance of the proposed changes to the zone.”  The Court held that a notice must inform the reader that the ordinance would result in substantive changes to the municipality’s zoning and identify and briefly describe the new zones and uses. 

It is important to note that the Court did not limit its holding to the municipality’s legislative power to enact ordinances.  The Court held that “we discern no meaningful difference between the municipality’s exercise of its quasi-judicial power over proposed development applications and its legislative power to enact zoning.. .” Therefore, notices published pursuant to N.J.S.A. 40:55D-11, should also include sufficient detail of “what is projected to inform the interested public whether to participate or object in public hearings.”  Namely, the Court is looking for an accurate description of what the property will be used for under the application.

Finally, the Court weighed in on whether a Plaintiff’s representation and appearance at the public hearing approving the ordinance resulted in a “waiver” of Plaintiff’s right to challenge the ordinance on the basis of deficiencies in the notice.  The Appellate Division held that the Plaintiff’s appearance did not waive the right to challenge the validity of the notice because strict compliance with statutory notice is mandatory and jurisdictional.  Accordingly, non-conformity renders the governing body’s resultant action null. 

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