Public Notice of Ordinance Rezoning Former General Motors Linden Plant is Held Insufficient

Rockaway Shoprite Associates, Inc. v. City of Linden, 424 N.J. Super. 337 (App. Div. 2011).  For many years, a large General Motors assembly plant occupied a 47.5 acre site in Linden.  Eventually, General Motors closed that plant.  The property sat vacant for some years.  In December 2007, a developer, Linden Development, LLC, purchased the site, intending to redevelop it with a mix of retail, commercial, industrial, warehouse, and multi-unit residential uses.

Linden Development acquired the property without the necessary zoning or development approvals in place.  Accordingly, Linden Development requested, and the City adopted, zoning ordinance changes.  Public notice of the ordinance that amended the zoning was required by N.J.S.A. 40:49-2.1.  That statute requires that the notice provide “a brief summary of the main objectives or provisions of the ordinance.”  The published notice here, however, stated only that the purpose of the ordinance was “Amending the Zoning Ordinance of the City of Linden relative to the site of the former General Motor[s] manufacturing facility,” and described the property by its lot and block numbers.

Plaintiff operates a supermarket near the subject property.  At a public hearing on the ordinance, plaintiff was represented by an attorney.  That attorney did not object to the ordinance, and it was passed without further amendment.  Later, the City determined that certain amendments were needed.  Public notice was again given.  This time, however, the notice did not even identify the affected property.  A notice that did identify the property was sent to property owners within 200 feet, though.  The amendatory ordinance passed.

Plaintiff then filed suit to invalidate both ordinances, asserting improper notice as well as arguing the merits of the ordinances.  The Appellate Division, speaking through Judge Parrillo, rejected plaintiff’s substantive arguments.  The bigger issue, however, was the question of notice.  The panel found the notices insufficient and voided the ordinances on that basis.  After surveying prior cases under N.J.S.A. 40:49-2.1, cases under the somewhat analogous notice provision of the Municipal Land Use Law, N.J.S.A. 40:55D-11 (“MLUL”), which is applicable to development applications rather than zoning ordinances, and cases from other jurisdictions, Judge Parrillo held that the “generalized, standard language provides no real notice apprising the public of exactly what is being proposed.”

Judge Parrillo stated that the notice, “at a minimum, should have identified and summarized the new zones and uses.  While the published notice at most alerted the public that some type of zoning amendment was being considered regarding the GM site, nothing therein informed interested persons of the nature or extent of the change or whether it was consequential enough to warrant their attendance at, and participation in, the ensuing public hearing.”  Neither the mailed notice to nearby property owners nor the notice of the subsequent amendatory ordinance were sufficient, either on their own or as a cure for the deficient original notice.

Judge Parrillo then turned to the issue of whether plaintiff had waived its notice objection because its counsel had attended the public hearing and had not then objected to the ordinance.  The panel concluded that there was no waiver, because notice is jurisdictional and cannot be waived.  In reaching that conclusion, Judge Parrillo cited out-of-state cases that recognized that the general public’s interest in adequate notice goes beyond the interest of any individual property owner, and no person can waive that public interest.  Also persuasive to the panel were decisions under the MLUL involving notice of development applications.  Those decisions have consistently held that failure to provide proper notice deprives a municipal agency of jurisdiction to grant development approvals.