Appellate Court Clarifies Notice Requirements For Zoning Ordinances Changing The Classification Of A Zoning District

April 23, 2013 | No Comments
Posted by Brian H. Harvey

In Mahwah Realty Associates, Inc. v. Township of Mahwah, the Appellate Division of the Superior Court of New Jersey recently determined that compliance with certain enhanced notice requirements were not required for zoning ordinances changing the classification of a zoning district.  N.J.S.A. 40:55D-62.1 sets forth the notice requirements that the governing body of a municipality must follow for a public hearing on an amendment to the zoning ordinance that proposes a change to the classification of a zoning district or the boundaries of a zoning district. The court in Mahwah Realty analyzed the content provisions of N.J.S.A. 40:55D-62.1, and determined that a notice involving a change to the classification of the zoning district need only identify the “affected zoning districts” and need not identify the affected zoning districts “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.”[1]

The Appellate Division in Mahwah Realty was deciding a challenge to a zoning ordinance based in part on the adequacy of the notice pursuant to N.J.S.A. 40:55D-62.1.  The zoning ordinance in question changed the permitted uses in certain industrial zones in the Township of Mahwah to permit “health and wellness center[s]” and “fitness and health club[s].”  The court determined that the addition of these types of uses, which are not consistent with typical industrial uses, resulted in a change of the classification of the industrial zoning districts in question.  This determination was based upon the holding in Robert James Picilli Homes, LLC v. Township of Woolwich, in which the Appellate Division held that an ordinance will be found to change the classification of the zoning district if it “has the capacity to fundamentally alter the character of a zoning district.”  The boundaries of the industrial zones in question were not being changed.

Having found that the zoning ordinance changed the classification of the zoning district, the Appellate Division examined the nature of the notice required pursuant to the notice provisions of the Municipal Land Use Law contained in N.J.S.A. 40:55D-62.1.  Specifically, N.J.S.A. 40:55D-62.1 provides, with respect to the contents of the notice, that a notice regarding the change in the classification or boundaries of a zoning district should provide the following information:

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.

The notice in Mahwah Realty provided an identification of the affected zoning districts, but did not provide identification of the zoning districts “…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.”  The plaintiffs in Mahwah Realty argued that the notice required an “identification of the affect zoning districts…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.”  The defendant Township countered that only in the case of a change to the boundaries of a zoning district was the notice required to contain this additional information.

The Appellate Division in analyzing the statute and relying on principles of statutory interpretation held that the more detailed content based notice requirements were only relevant to instances where the boundary of the zoning district was changed rather than just a change of the classification of the district.  The notice of public hearing for a change to the classification of a district need only identify the affected zoning districts in addition to the date, time and place of hearing and the nature of the matter to be considered.



[1] Mahwah Realty focuses on an analysis of a portion of the content provisions of the notices.  N.J.S.A. 40:55D-62.1 contains many other requirements that would still be applicable to the notice of public hearing for a change to the classification of a zoning district, including (1) the required recipients of the notice (includes owners of all real property as shown on the current tax duplicates, located, in the case of a classification change, within the district and within the State within 200 feet in all directions of the boundaries of the district); (2) the manner of service; (3) the timing of the notice (at least 10 days prior to the public hearing); and (4) other content provisions.

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