Mahwah Realty Associates, Inc. v. Mahwah Tp., 430 N.J. Super. 247 (App. Div. 2013). This case, in which plaintiffs sought to block development of a health club, has been back and forth to the Appellate Division several times. This round of proceedings involved a challenge to a municipal ordinance whose purpose was to “include health and wellness centers and health clubs as principal permitted uses in the GI-80 zone and the IP-120 zone and not the B-40 zone.” The question was whether that ordinance’s authorization of those uses in industrial zones changes the “classification” of those zones, thereby requiring compliance with notice provisions contained in the Municipal Land Use Law, N.J.S.A. 40:55D-62.1 and, if so, how detailed that notice needed to be. The Law Division granted summary judgment to plaintiffs, finding that compliance with those notice requirements was required, and that the notice was insufficient. Writing for the Appellate Division, Judge Fisher agreed that the ordinance effected a change in “classification” but reversed the ruling that the notice issued was inadequate.
The panel agreed with a statement by Judge Harris, then a Law Division judge, in one of the earlier rounds of this case, that health clubs and wellness centers are not of an “industrial stripe.” As a result, the ordinance that introduced those uses into industrial zones “represents a fundamental alteration of– and therefore a change in the classification of uses permitted in” those zones. That then required Judge Fisher to reach the issue of whether the notice that was given satisfied N.J.S.A. 40:55D-62.1.
N.J.S.A. 40:55D-62.1 states: “A notice pursuant to this section shall state the date, time and place of the hearing, the nature of the matter to be considered and an identification of the affected zoning districts and proposed boundary changes, if any, by street names, common names or other identifiable landmarks, and by reference to lot and block numbers as shown on the current tax duplicate in the municipal tax assessor’s office.” This provision was ambiguous, since it was unclear whether the requirement of “street names … lot and block numbers” applied only where there are proposed boundary changes, as the Township argued, or to all changes in classification of zones, as plaintiffs contended. In other words, the issue was “whether the limiting or modifying language was intended to all the previously listed items or requirements or only the item or requirement closest in the sentence to the modifier.”
Judge Fisher concluded that the Township was correct. He relied strongly on the inclusion of “if any.” “That expression, by its very nature, was intended to distance those requirements that follow from one of the two applicable circumstances or it was intended to apply to only one of the two possible events, but not both. As a result, if ‘if any’ applies to only one of the two– as it must– then it must apply only to ‘boundary changes,’ which immediately precedes it. That result comports with the general rule of statutory construction that ‘a modifying phrase applies to the last antecedent phrase, absent contrary intent.'” There was no evidence of contrary legislative intent.
Moreover, plaintiffs’ view made no practical sense. “If the classification of a zoning district is what is being changed, then it suffices to identify the zoning districts affected– here, IP-120 and GI-80. On the other hand, a change in the boundaries of a zoning district is not revealed by a mere reference to the affected zoning districts. A boundary change inevitably requires further description as delineated by the language following ‘if any’ in N.J.S.A. 40:55D-62.1.” Plaintiffs’ insistence that the notice include “a list of all the properties– by block and lot number– within both zoning districts” would “generate absurd consequences and impose futile requirements.” The summary judgment on that part of the case dealing with the adequacy of the notice was reversed.
Great information!!