It is not quite Ali-Frazier or even Gatti-Ward, but the New Jersey Supreme Court just delivered its third opinion in the past seven years regarding the free speech rights of residents in common interest communities (condos and co-ops). In Dublirer v. 2000 Linwood Avenue, Owners, Inc., the Court ruled that a resident who was a regular critic of the co-op's board of directors had the right to distribute leaflets under apartment doors throughout the building. (We previously wrote about the Appellate Division decision that the Supreme Court reviewed on appeal – look here.) The Court held that the co-op's "House Rule" purportedly banning all soliciting and distributing of written materials, including the resident's leaflets, was an unconstitutional abridgment of his free speech rights. In doing so, the Court clarified the standard that should generally be applied when evaluating similar issues — which arise frequently in common-interest communities — and described the types of restrictions that could be adopted without infringing on the free speech rights of residents.
Although I am a week late to be eulogizing Steve Jobs, it seemed worthwhile to post about his last pulic appearance, which came in front of his local Cupertino City Council to testify in support of Apple's new planned headquarters. The Atlantic first posted the story ("Steve Jobs as Land Use Advocate"), including a link to a video of Jobs's testimony, which is, as you might expect, compelling (h/t PropertyProfBlog.) A few things jumped out at me while watching the testimony:
The round of applause he received when he was introduced (I would venture to say this is rare at zoning board hearings).
The black turtle neck that was apparently not just reserved for launching new products.
The genius who brought us Macs and I-Pads hoping that his computer/projection equipment will work when he starts the presentation (wonder if it was PowerPoint).
The man in the background taking a picture of Jobs during the presentation (again, surely a rarity for these types of hearings).
Although like all other things Apple, the new headquarters seem new and cool, not everyone likes the building that Jobs was promoting during his appearnce before the City Council. The New Yorker recently criticized the structure in an article entitled, "Apple's New Headquarters," noting in a particularly stinging final sentence, which was written prior to his passing: "It’s said that Steve Jobs considers this building to be a key part of his legacy, which would be unfortunate, because it would mean that his last contribution to his company might well be his least meaningful."
In Shakoor Supermarkets, Inc. v. Old Bridge Township Planning Board, the Appellate Division concluded that an applicant proposing to construct a 150,000 square foot Wal-Mart Superstore need not specify that the occupant of the retail space would be a Wal-Mart. Rather, the Appellate Division deemed that the published public notice gave an accurate description of the property’s proposed use under the application and that technical details need not be provided.
The objector challenged the Planning Board approval citing Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 234 (App. Div. 1996), in which the Appellate Division deemed a public notice for a proposed K-Mart insufficient. The Appellate Division in Perlmart stated that “while the notice informed 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.” The Appellate Division disagreed with the objector in Shakoor, stating that Perlmart did not hold that it was necessary for the applicant to actually identify K-Mart as the retailer in its application, but rather, that a notice should provide 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 notice need not be “exhaustive” to support this standard.
The notice at issue in Shakoor identified the proposed use as “a main retail store of 150,000 s.f.” The Appellate Division concluded that the description adequately informed laypersons that a major “big box” store was proposed for the site and alerted them to possible concerns, such as traffic, commonly associated with those stores, and that such concerns were expressed at the hearings by members of the public. Further, the Appellate Division concluded that the multiple proposed retail uses did not constitute a legitimate cause for “heightened concern” to the public that would require a more in depth description beyond those associated with a 150,000 square foot retail store.
Therefore, so long as a proposed use is described in terms that permit ordinary laypersons to understand how the property will be used and sufficiently alerted as to its potential impact upon him or her, it will likely be deemed sufficient.
by: Steven P. Gouin
A recent ruling from the New Jersey Appellate Division highlights how diligent a homeowners' association ("HOA") must be in enforcing restrictions in its governing documents. After a lengthy court battle, the court found that a South Jersey HOA had not engaged in selective enforcement of architectural restrictions or constitutional violations. However, notwithstanding this positive result, the Court’s decision in Nisch v. Ocean Beach & Yacht Club provides a cautionary tale for HOAs throughout the State, one they would be wise to heed if they want to avoid protracted and costly litigation.
In a recent decision, the Appellate Division applied the idea of “speaking with one voice” to condominium unit owners in a way that might not sit so well with those owners. In Jennings v. Borough of Highlands, the Appellate Division ruled that individual condominium unit owners cannot sign protest petitions objecting to proposed zoning ordinances. Rather, because the Condominium Act defines the land upon which the condominium owners have their units as “common elements,” and permits the condominium association to oversee and administer those interests, only the condominium association has the right to protest a proposed zoning ordinance. The ruling clarifies whose “protests” are to be counted when reviewing a protest petition. This is important because an ordinance against which a proper protest petition has been lodged can only be passed if two-thirds of the governing body of the municipality vote to approve it. This super-majority is a significant increase over the normal majority required for approval.
As a result of the Jennings decision, condominium associations that receive notice of a proposed zoning change should evaluate whether a protest should be lodged or if a sufficient number of unit owners would desire such a protest to be lodged. From the standpoint of a municipality or developer urging the adoption of the ordinance, care should be taken to address the interests of any association whose property would be included within the proposed change.