Opinion
DOCKET NO. A-0378-13T4
07-01-2015
TONNELLE USA, INC., Plaintiff-Respondent, v. TOWNSHIP OF NORTH BERGEN ZONING BOARD OF ADJUSTMENT, Defendant-Respondent, and NHB ENTERPRISES, LLC, Defendant-Appellant.
J. Alvaro Alonso argued the cause for appellant (Alonso & Navarrete, LLC, attorneys; Mr. Alonso, on the brief). Ira E. Weiner argued the cause for respondent Tonnelle USA, Inc. (Beattie Padovano, LLC, attorneys; Mr. Weiner, of counsel and on the brief). John R. Dineen argued the cause for respondent Township of North Bergen Zoning Board of Adjustment (Netchert, Dineen & Hillmann, attorneys; Haley H. Jung, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Leone, and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5324-12. J. Alvaro Alonso argued the cause for appellant (Alonso & Navarrete, LLC, attorneys; Mr. Alonso, on the brief). Ira E. Weiner argued the cause for respondent Tonnelle USA, Inc. (Beattie Padovano, LLC, attorneys; Mr. Weiner, of counsel and on the brief). John R. Dineen argued the cause for respondent Township of North Bergen Zoning Board of Adjustment (Netchert, Dineen & Hillmann, attorneys; Haley H. Jung, on the brief). PER CURIAM
The primary issue on this appeal is whether a property owner's notice of an application to a municipal zoning board for use variances is adequate if the notice to the public does not disclose that certain conditions related to the application were not met and that part of the property involves a public right-of-way. After conducting a trial in a prerogative writ action, the Law Division ruled that the notice was legally insufficient and, thus, the zoning board did not have jurisdiction. The Law Division then remanded to the zoning board the issue of the property owner's right, if any, concerning the public right-of-way. We affirm the Law Division's ruling on the insufficiency of the notice. We reverse and vacate, however, the remand. Given the facts and circumstances of this case, the property owner must file a new application, with adequate notice, and any issue concerning the use of the public right-of-way can then be addressed in the first instance by the zoning board on that new application.
I.
The dispute on this appeal arises out of a series of applications made to two different municipal boards concerning modifications and construction of retail space in a building located in the Township of North Bergen ("North Bergen"). The record establishes the following facts and procedural history.
Defendant NHB Enterprises, LLC, ("NHB") owns a property located on Tonnelle Avenue in North Bergen, consisting of a building and parking areas. The property slopes from front to back. The existing building is one story in the front, which is along Tonnelle Avenue, and two stories in the back. The back of the property adjoins a large retail shopping center, which is anchored by a Walmart store.
The property is situated on a "split-zone," meaning the front portion of the property is zoned for commercial use and the back portion is zoned for industrial use. The zoning boundary splits the property itself, dividing not only the property, but the building on the property. Although neither commercial nor industrial zoning designations permits retail use, prior to 2010, the building was occupied and used by IPEX, a wholesale and retail home improvement company.
In 2010, NHB applied to the North Bergen Planning Board ("Planning Board") for approval to renovate the building to add four retail units on the first floor in the back of the building and to remove and then reconstruct a loading dock. One of the proposed new units was a liquor store.
In April 2010, the Planning Board approved NHB's application with conditions. The construction of the new loading dock would encroach on a right-of-way owned by North Bergen. Therefore, one of the Planning Board's conditions for approval required that NHB enter into a license agreement with North Bergen for use of a portion of the public right-of-way. There were no objections made and no prerogative writ actions filed concerning the conditional approval by the Planning Board.
After the Planning Board issued its conditional approval, North Bergen issued building permits. NHB then renovated the building and constructed the loading dock. NHB, however, took that action without satisfying any of the conditions required by the Planning Board.
In October 2011, NHB filed an application for site plan approval and for the necessary use variances with the North Bergen Zoning Board of Adjustment ("Zoning Board"). Plaintiff Tonnelle, USA Inc. ("Tonnelle USA"), a neighboring property owner that operates a liquor store, objected to NHB's Zoning Board application. One of Tonnelle USA's objections concerned the notice to the public. NHB modified and revised its notice several times, but Tonnelle USA continued to contend that the modified notice was legally insufficient.
The final notice issued by NHB stated that NHB was applying to the Zoning Board for "site plan approval and a use variance to construct retail stores located at property located at 8825 Tonnelle Avenue." Among other things, the notice also stated that "[t]he applicant [NHB] does not intend to construct additional retail space [other than] those that were previously approved by the North Bergen Planning Board and constructed at the site." The notice said nothing about the public right-of-way.
Public hearings before the Zoning Board were conducted on five days between February 1, 2012 and July 19, 2012. Following the hearing, the Zoning Board approved NHB's application.
On November 14, 2012, Tonnelle USA filed a complaint in lieu of a prerogative writ challenging the Zoning Board's approval. Tonnelle USA made two primary arguments. First, it contended that the public notice was inadequate. Second, it argued that the Zoning Board's approval was arbitrary and capricious. A one-day trial was held on June 21, 2013, in the Law Division. On July 19, 2013, the trial court issued a written opinion finding that the notice was inadequate and held that the Zoning Board had no jurisdiction to approve NHB's application. On August 15, 2013, the court entered a final judgment vacating the Zoning Board's approval.
The court found that the notice was defective for two reasons. First, the notice was misleading because the notice stated that the applicant, NHB, "does not intend to construct additional retail space [other than] those that were previously approved by the North Bergen Planning Board and constructed at the site." The court reasoned that the notice would mislead an ordinary person to believe that the Planning Board had already approved the use, thus "negating the need for a citizen to contest the authorized use."
Second, the notice was defective because NHB failed to disclose in its notice that its proposed development involved use of a public right-of-way. As a result of the deficient notice, the court ruled that the Zoning Board lacked jurisdiction. Accordingly, the court did not address Tonnelle USA's other arguments about the substantive findings in the Zoning Board's resolution approving NHB's application.
In addition, the court remanded to the Zoning Board the question concerning NHB's standing to apply for a use variance in a public right-of-way. The court noted that an applicant has to own or have an enforceable "proprietary interest" in the land in a proposed development. To use the public right-of-way, NHB was relying on a revocable license agreement with North Bergen. The court, therefore, remanded that issue, directing the Zoning Board to consider "whether the revocable license agreement is sufficient to give the [Zoning] Board proper jurisdiction over the municipal right-of-way," and to "make specific findings of facts regarding how the revocation or lack of renewal of the license agreement would impact on the application."
II.
NHB appeals, arguing that the public notice was not defective and the action of the Zoning Board was valid. The Zoning Board, which did not appeal, maintains that the notice was not defective, it had jurisdiction, and it acted properly in approving NHB's application. Tonnelle USA responds that the court correctly invalidated the Zoning Board's approval because the public notice was defective. Tonnelle USA also urges us to consider the license agreement issue and rule that such a revocable license does not confer sufficient property rights in NHB to permit it to apply for zoning approval to use the public right-of-way.
III.
A.
Initially, it is important to identify the standard of review. An appellate court uses "the same standard used by the trial court" in evaluating actions by a public body, such as a zoning board. Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 433 (App. Div. 2009) (citing Cohen v. Bd. Of Adjustment of Rumson, 396 N.J. Super. 608, 614-15 (App. Div. 2007)). A court's standard of review of a decision by a zoning board varies depending on the issue being challenged. Courts accord wide latitude to the discretion of such public bodies to make fact-findings and decisions on land use applications. Kane Props., LLC v. City of Hoboken, 214 N.J. 199, 229 (2013) (citing Burbridge v. Governing Body of Mine Hill, 117 N.J. 376, 385 (1990)); Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296-97 (1965). On questions concerning the interpretation or determination of law, however, a court's review is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (stating that the "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference"); Fallone Props., LLC v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004). A board of adjustment's "decision regarding a question of law, such as whether it has jurisdiction over a matter, is subject to de novo review by the courts and thus is afforded no deference." Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment, 397 N.J. Super. 335, 350 (App. Div. 2008) (citing TWC Realty P'ship v. Zoning Bd. Of Adjustment of Edison, 315 N.J. Super. 205, 211 (Law Div.), aff'd, 321 N.J. Super. 216 (App. Div. 1999)).
B.
The requirements for public notice are set forth in the Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-1 to -99. Specifically, N.J.S.A. 40:55D-11 provides:
Notices . . . shall state [1] the date, time and place of the hearing, [2] the nature of the matters to be considered and, in the case of notices pursuant to subsection 7.1 of this [A]ct, [3] 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, and [4] the location and times at which any maps and documents for which approval is sought are available pursuant to subsection 6b.
The focus on appeal is whether NHB complied with the second and third requirements; that is, whether the notice adequately explained the nature of the matter to be considered, and identified all the property proposed for development.
When a statute requires public notice, such notice should be capable of being understood by an ordinary person "in a common sense manner." Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 239 (App. Div. 1996). Consequently, the notice must give "'an accurate description of what the property will be used for under the application.'" Northgate Condo. Ass'n v. Borough of Hillsdale Planning Bd., 214 N.J. 120, 139-40 (2013) (quoting Perlmart, supra, 295 N.J. Super. at 238). "'The notice [] must be clear and unambiguous and must be readily intelligible to the average citizen. It must not be overly general or misleading.'" Rockaway Shoprite Assocs., Inc. v. City of Linden, 424 N.J. Super. 337, 347 (App. Div. 2011) (quoting 101A C.J.S. Zoning & Land Planning § 6 (1979)), certif. denied, 209 N.J. 233 (2012).
We have previously explained that the purpose of public notice is to ensure that members of the public are apprised of the proposed development so they can participate in the hearing if they choose. Perlmart, supra, 295 N.J. Super. at 237-38. In that regard, we have stated:
[T]he purpose for notifying the public of the "nature of the matter to be considered" is to ensure that members of the general public who may be affected by the nature and character of the proposed development are fairly apprised thereof so that they may make an informed determination as to whether they should participate in the hearing or, at the least, look more closely at the plans and other documents on file.See also Northgate, supra, 214 N.J. at 139 (quoting Perlmart, supra, 295 N.J. Super. at 237-38).
[Ibid.]
In this case, the court found that the notice issued by NHB was legally insufficient for two reasons. We agree. First, the notice stated that NHB had already constructed the additional retail space based on a prior approval by the Planning Board. That statement was misleading to an ordinary member of the public because it suggested that the use was already approved. Moreover, it omitted the material fact that the Planning Board's approval was conditional and NHB failed to satisfy those conditions.
NHB argues that the notice was modified three times to satisfy objections raised by Tonnelle USA. While that is true, the final notice still contained the misleading language. Thus, we agree with the court that the final notice was legally insufficient.
NHB also argues that "an applicant will never be able to prepare a notice that will be free from scrutiny and satisfy an objector, when the objector's sole purpose is to raise issues with its contents." That argument misses the point. The standard is not to satisfy an objector. The standard is to "'be clear and unambiguous'" so that the notice can be "'readily intelligible to the average citizen.'" Rockaway, supra, 424 N.J. Super. at 347 (quoting 101A C.J.S. Zoning & Land Planning § 6 (1979)).
The court also found that NHB failed to disclose its proposed development involved use of the public right-of-way. To be legally sufficient, the notice must identify the "property proposed for development." N.J.S.A. 40:55D-11. NHB's application included a request to approve the use of a portion of a public right-of-way. We agree with the court, that it was material for the notice to identify the involvement of the public right-of-way and that the failure to do so rendered the notice legally insufficient.
If a public body takes action on legally insufficient public notice, then the board acted without jurisdiction. See Northgate, supra, 214 N.J. at 138; Pond Run, supra, 397 N.J. Super. at 350; Perlmart, supra, 295 N.J. Super. at 241. Consequently, here the Zoning Board's approval of NHB's application was without jurisdiction, and we affirm the court's final judgment to the extent that it reversed the approval and declared the approval "null and void."
C.
We vacate, however, the court's remand of the right-of-way issue to the Zoning Board. Following the vacation of action by a zoning board, it may or may not be appropriate to remand the matter. If the application is still pending and appropriate for further action, a remand may be appropriate. See Pond Run, supra, 397 N.J. Super. at 364, 366-67 (remanding for further proceedings after vacating the zoning board's action for lack of jurisdiction because of legally insufficient notice). If, however, a new application must be filed, the matter may not be appropriate for remand. See Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adjustment, 154 N.J. 62, 67-68 (1998) (affirming the vacation of a zoning board action taken because of defective notice and affirming the directive that the applicant must "reapply to the zoning board on proper notice").
In this matter, when NHB filed its application in 2011 to the Zoning Board, it did not have a contract or agreement authorizing it to use any portion of the public right-of-way. It was only after the Zoning Board took action that NHB produced a revocable license agreement with North Bergen authorizing NHB to use a portion of the public right-of-way. Indeed, that license agreement is dated January 9, 2013, and the resolution authorizing North Bergen to issue the revocable license agreement is also dated January 9, 2013.
Given those facts, NHB must file a new application to address its right to use a portion of the public right-of-way. At oral argument of this appeal, the attorney for the zoning board acknowledged that NHB must file a new application if we affirmed the ruling that the Zoning Board acted without jurisdiction because of insufficient legal notice. Moreover, North Bergen should participate, or at least be given the opportunity to participate, in any new application filed by NHB, if that application seeks to address the use of a portion of the public right-of-way.
D.
Finally, we decline to address whether the Planning Board acted properly or with complete jurisdiction in approving NHB's site plan in 2010. In this appeal, the Zoning Board has contended that "the prior approvals by the North Bergen Planning Board were neither challenged nor overturned," and that the Zoning Board did not have authority to overturn the Planning Board. Thus, the Zoning Board argues that it could proceed only by assuming that the Planning Board had properly approved NHB's site plan. In contrast, Tonnelle USA contends that "[t]he Planning Board [had] no jurisdiction to hear the applications where use variance relief [was] needed." Finally, NHB acknowledges that as of 2011, it had to go before the Zoning Board for use variance approval and that the Planning Board could not provide that variance approval. Moreover, NHB emphasized that its application to the Zoning Board was not an amendment to the site plan and it made a completely new application to the Zoning Board, which was not dependent on the approval from the Planning Board.
The issue of whether the Planning Board acted properly or with jurisdiction is not before us on appeal. That issue was neither addressed in the final judgment issued by the Law Division, nor was it within the scope of the final judgment. Accordingly, nothing in this decision should be construed as expressing an opinion on that issue one way or the other.
IV.
In summary, the final judgment of the Law Division is affirmed, in part, on the ruling that the public notice was legally insufficient and, thus, the Zoning Board had no jurisdiction to act on NHB's application. The final judgment is reversed and vacated to the extent it sought to remand any issue to the Zoning Board. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION