Feb 2019

Developer’s Public Notice Must Adequately Describe the Land Use Sought

When an application seeking a variance or other land use approval from a planning or zoning board requires public notice, the failure to properly deliver the notice or the failure of the notice to sufficiently describe the application will usually render an approval of the application void because without proper notice, the board does not have jurisdiction to decide the application. The New Jersey Municipal Land Use Law (MLUL) says that the public notice must include “the nature of the matters to be considered” (among other information). The non-specificity of this statutory language may sometimes tempt developers and their counsel to avoid referring to aspects of their application that may be controversial or lead to potential objectors deciding to take an interest in the application. A recent decision by the New Jersey Superior Court Appellate Division in an unpublished opinion illustrates how succumbing to that temptation is perilous.

In Lakewood Realty Associates v. Lakewood Township Planning Board (2019 WL 437956), decided on February 5, 2019, a developer, RD Lakewood, sought to build a hotel and bank on property zoned for those uses. The developer also requested variances to allow a 5-foot, rather than a 20-foot, setback in the parking area, and to provide only 162 parking spaces rather than the 164 required for the planned use. The notice mailed to nearby property owners simply indicated that a “bank” and a “hotel” would be built and a description of the variances. The notice did not mention the hotel was to include a restaurant and banquet facilities with a newly obtained liquor license to serve alcohol on the premises.

Following a public hearing during which counsel for an objector participated, the Planning Board unanimously approved RD Lakewood’s application. The Board added a few conditions, including adding two additional parking spaces, landscaping, one-way traffic behind the hotel, vacating an easement, and requiring RD Lakewood to provide an agreement regarding proposed construction and maintenance. Lakewood Realty, the objector, filed suit seeking a reversal of the Board’s decision.

At trial, the objector argued that RD Lakewood’s public notice was deficient because it failed to inform the public of the proposed uses of the property beyond a hotel and bank; specifically a restaurant, bar, or banquet facility. The trial court upheld the Board’s decision, noting that RD Lakewood included architectural plans in its application available for public review. The plans disclosed that the proposed hotel would be a Courtyard by Marriott and depicted meeting rooms, food prep area, lounge, bar area, and dining room. The trial court also noted that these are “common amenities in a hotel of this size associated with a national brand,” and that nothing in the record indicated the Board’s review of the plan was arbitrary, capricious, or unreasonable. Rather, the trial court held that the Board’s approval was reasonable and consistent with the recommendations of its professional staff.

On appeal, the Appellate Division reversed the trial court and invalidated the decision of the Lakewood Township Planning Board. The main issue on appeal was the legal sufficiency of the public notice. Although a land use Board’s decision to grant or deny an application for development will generally be overturned by a court only if the court rules that the decision was arbitrary, capricious or unreasonable, the Appellate Division said, whether the public notice was sufficient to give the Board jurisdiction under the MLUL is a question of law to which the Planning’s Board’s decision is given no deference.

The Lakewood court pointed to an earlier decision in which the Appellate Division explained the importance of the public notice requirement to adequately inform the community of the nature of the proposed use of the property. See Perlmart of Lacey, Inc. v. Lacey Tp. Planning Bd., 295 N.J. Super. 234 (1996). The 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.” Id. at 239. A properly crafted notice should inform members of the community so they can make an informed decision about whether to further investigate an application or attend the hearing.

The Appellate Division held that RD Lakewood’s public notice failed to meet this standard because it mentioned only a “bank” and a “hotel” and not the restaurant, bar, or banquet functions within the hotel. RD Lakewood argued that the notice was sufficient because restaurant, bar and banquet uses were permissible accessory uses of a hotel. The court rejected that argument by noting that the Lakewood Township ordinance defined “hotel” and “restaurant” separately, with completely different functions. Moreover, the court said, the failure to mention the bar, or the necessary liquor license, could greatly impact the concerns of community members with respect to traffic and safety in and around the property.

Likewise, the Appellate Division rejected RD Lakewood’s contention that the notice was sufficient because the restaurant, bar and banquet facilities were clearly shown on the plans that were made available to the public for inspection prior to the hearing, reasoning that the notice must sufficiently identify the intended uses of the property to allow the public to make a decision as whether it is interested in reviewing the application and the plans on file in the first place. While some hotels do include these amenities, many do not. The mere mention of “hotel” on the public notice was therefore inadequate to inform the community of the intended use of the property.

The Planning Board’s approval of the form of the public notice and the development application were voided by the Appellate Division’s decision that the notice did not adequately describe the intended use of the property. Whether the notice was drafted with the intention of avoiding the interest of potential objectors was not important.

The court’s opinion in Lakewood certainly teaches that if there is a temptation not to include an intended use or feature of the proposed development in the notice to evade scrutiny by potential objections, the use or feature probably must be included in the notice.