Northgate Condominium Ass’n, Inc. v. Hillsdale Planning Bd., 214 N.J. 120 (2013). Opponents of land use development applications sometimes contest the adequacy of the notice given by development applicants, as occurred in a recent Appellate Division case. There, the Appellate Division upheld the notice against a claim that it needed to be more specific about the proposed use. In today’s case, the Supreme Court, speaking through Justice Hoens, rejected a challenge to the adequacy of notice of an application for a conditional use. That challenge was based on the fact that the lot and block number of the property to be developed was misstated in the notice. The proper designation was Lot 1, but the notice labeled it as Lot 1.01 and 1.02. However, the block number was correct, and the notice contained additional language that described the property and its location, stating that the property, which had no street address, was known as “Golden Orchards,” its commonly used name, and that it was located south of a particular road.
Both courts below held that the lot misdesignation was a mere clerical error that did not invalidate the notice. The Supreme Court agreed.
Proper notice of development applications is made a jurisdictional requirement by N.J.S.A. 40:55D-11, which expressly calls for the notice to include “an identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the municipal tax assessor’s office.” Justice Hoens observed that the Supreme Court had never construed that section, but the Appellate Division had done so in two cases, Perlmart of Lacey, Inc. v. Lacey Tp. Planning Bd., 295 N.J. Super. 234 (App. Div. 1996), and Pond Run Watershed Ass’n v. Hamilton Tp. Bd. of Adj., 397 N.J. Super. 335 (App. Div. 2008). After discussing those decisions at length, Justice Hoens concluded that the notice did not misidentify the lot, since the block number was correct, and “[h]ad Northgate, or any other interested party, looked at the tax map, it would have been obvious that Lot 1 was a single unified parcel, and not a parcel that had been subdivided formally into two lots called 1.01 and 1.02.”
Moreover, the fact that the notice identified the property by its commonly known name, “Golden Orchards,” and stated that it lay south of Ell Street, afforded enough specificity. Indeed, as Justice Hoens observed, Northgate and others were sufficiently informed about the application to appear before the Planning Board and make their positions known. Finally, the applicant had gotten the lot numbers from the tax assessor. Though the applicant should have verified that information, the Court did not penalize the applicant for not doing so. “In the context of a parcel of land that had no street address, that had been the focus of several earlier development proposals, and that previously had been the target of opposition by Northgate and others, the minor misstatement of lot numbers used in reliance on directions from the municipal tax assessor did not deprive the board of jurisdiction.”
Justice Hoens cautioned, however, that there is not a “great deal of flexibility” in the description of elements specifically required by N.J.S.A. 40:55D-11, such as lot and block numbers. This was unlike the circumstances in Perlmart, which involved “generally described requirements, such as ‘notice of the matters to be considered,’ N.J.S.A. 40:55D-11.” This is an important distinction that land use practitioners must keep in mind going forward.
The opinion also addresses an issue of the application of the Residential Site Improvement Standards (“RSIS”) to the intensity of roads in the proposed development. Under the applicable standard of review, Northgate was obligated to show that the Board’s decision on that issue was arbitrary, capricious, and unreasonable. The Court found that Northgate had not done so. The Appellate Division did, however, err in one aspect of its analysis that was not necessary to its ruling on the RSIS issue, which the Supreme Court was compelled to note.