Lakewood's Township Committee is currently scheduled to adopt their proposed banquet hall ordinance in just 7 days.

The proposed ordinance, in accordance with the Planning Board's recommendations, would Amend the Township's zoning ordinances to permit catering facilities and banquet halls as accessory uses in school buildings in all non-residential zones where schools are permitted, provided certain parking requirements are met, as listed here.

However, it appears that the Township Committee lacks jurisdiction to vote on the ordinance as they failed to send notices to all affected property owners of this proposed ordinance amendment.

Over the past number of years, the Township has had numerous zoning ordinances tossed out in Court for failing to mail notices to all affected property owners prior to adoption of the zone change.

Will they make the same mistake yet again and adopt the banquet halls in schools ordinance despite not having sent notices to property owners??

The New Jersey Municipal Land Use Law (40:55D-62.1) states:

Notice of a hearing on an amendment to the zoning ordinance proposing a change to the classification or boundaries of a zoning district, exclusive of classification or boundary changes recommended in a periodic general reexamination of the master plan by the planning board, shall be given at least 10 days prior to the hearing by the municipal clerk to the 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...

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.

Notice shall be given by:  (1) serving a copy thereof on the property owner as shown on the said current tax duplicate, or his agent in charge of the property, or (2) mailing a copy thereof by certified mail and regular mail to the property owner at his address as shown on the said current tax duplicate.

Note that such notice is not required for "classification or boundary changes recommended in a periodic general reexamination of the master plan by the planning board". More on that point soon.

In 2013, the Township enacted an Ordinance that prohibited schools in a certain area near the airport.

Subsequently, in 2016, Bais Reuven Kaminetz (BRK), who was a contract purchaser of a parcel in that area submitted an application to the Planning Board for Site Plan approval for a school in that area.

The Planning Board informed BRK that due to the 2013 ordinance change, schools were no longer a permitted use on that site.

BRK looked into the matter and discovered that the Township failed to mail notice to all affected property owners prior to adoption of the Ordinance change, therefore their property owner had no notice that schools were now prohibited on that site.

The Ordinance includes a clause that "the Township's latest Master Plan supports such a concept". Upon request for clarification, the Township Clerk explained to BRK that this refers to a line in the Master Plan which "encourages further growth and development of the airport". Hmm.. That doesn't exactly indicate that schools should become a prohibited use in the zone.

BRK, represented by Attorney Paul Schneider, filed a lawsuit against the Township seeking to overturn the Ordinance change on the basis that the Township failed to provide proper notice.

Township attorneys did not have much to assert for themselves other than to argue Case Law (Zilinsky vs. Zoning Bd. of Adjustment) that "First and foremost, a municipal ordinance enjoys a strong presumption of validity", and that BRK would anyways not have received legal notice as they were not the owners of the property, they were only contract purchasers and therefore they "lacked standing" to now bring a claim challenging the Ordinance.

BRK responded that based on case law from the New Jersey Appellate Division in Rockaway ShopRite vs. City of Linden whether or not they deserved individual mailed notice is anyways of no import, as the fact of the matter is that notice to the public is important and required, and the Township's failure to provide proper notice is sufficient to invalidate the Ordinance.

In that case, the City adopted an ordinance without complying with the public notice requirements. Rockaway ShopRite found out about the proposed ordinance vote anyways and attended the public hearing, represented by Engineer Gordon Gemma. Rockaway ShopRite did not voice any objection at the public hearing. They subsequently sued, represented by Attorney Ron Gasiorowski, on the basis of the lack of notice. The City contended that by appearing at the public hearing and voicing no objection, the plaintiff had waived the right to challenge the Ordinance on that basis. The Appellate Division disagreed, stating that: the entire public is entitled to notice in full compliance with the Statutory requirements, and the public's entitlement to such notice may not be waived by those individual members of the public who actually attend the improperly noticed hearing. We find this rationale compelling. On the issue of public notice of adopting or amending a zoning ordinance, a jurisdictional defect is not personal to a single objector but rather the right of the public, and therefore can not be waived by one individual."

Ocean County Superior Court Judge Marlene Ford agreed that there was no legal reason why BRK could not challenge the Ordinance, and that the Township's deficiency to comply with the Statutory notice requirement is cause to invalidate the Ordinance.

Judge Ford also noted that regardless that 3 years had passed since the adoption of the ordinance, "I don't think they can argue estoppel which would preclude this challenge."

So... Sending out those notices to the public is important. Like super duper important!

As noted earlier, notice is not required, however, for "classification or boundary changes recommended in a periodic general reexamination of the master plan by the planning board".

(Fun fact: Interesting case law of Gallo vs. Mayor and Twp. Council of Lawrence Twp. states that "the exception for changes recommended by the Master Plan recognizes that the Master Plan review envisioned by the Municipal Land Use Law involves extensive public review and analysis by consultants and experts, hearings, general public notice, and in most cases, extensive publicity and notoriety... The very nature of periodic review of a Master Plan precludes it from remaining a secretive process and outside of public oversight and scrutiny." 

This case law clarifies that because a Master Plan process is very much publicized and the public has knowledge of what is in the Master Plan, when there is a future ordinance change that was recommended in the Master Plan, there was no need to send out new notices to property owners as this would be burdensome and extraneous.

Rest assured that Lakewood Township's Master Plan process falls very far from what this case law says the Municipal Land Use Law "envisioned"!)

The question then is, is the proposed banquet hall in schools ordinance in accordance with the Master Plan?

As previously reported here, industrial park property owners submitted to the Planning Board a comprehensive, expert report which asserts that the proposed banquet halls in schools ordinance is in fact, very much not in accordance with the Master Plan.

Additionally, as noted here on FAA News, despite being by reminded by Attorney Rob Shea and Engineer Gordon Gemma representing an industrial park business owner that their Statutory task is to determine consistency with the Master Plan, the Planning Board chose not to dwell whether or not the proposed ordinance is or is not consistent with the Master Plan, and instead voted to endorse the Ordinance with specific changes.

It would therefore stand to reason that the Planning Board did not specifically conclude that the proposed ordinance is in accordance with the Master Plan and therefore the Township can not use this clause as an excuse not to mail notices to all affected property owners.

One more note here.

The Township may attempt to reason that the Statue only requires notice when there is "an amendment to the zoning ordinance proposing a change to the classification or boundaries of a zoning district", and in this case there is no "change to the classification".

Unlike many terms found in the MLUL, "classification" is not defined. In Levin v. Twp. of Parsippany-Troy Hills, the Court found that "in the absence of any explicit indication of special meaning, words of a statute are to be given their ordinary and well understood meaning." 

The Appellate Division discussed the meaning of the term in Robert James Pacilli Homes vs. Township of Woolwich.

"In the context of land use and regulation, classification is typically synonymous with the broad general uses permitted in a designated area, such as residential, commercial, retail and industrial, and extends to sub-categories within those general categories, such as single-family residential, highway commercial, and neighborhood retail. Generally, the sub-categories of uses are distinguished by the intensity of the permitted use. 

The Court went on to state that "a change in any of these broad categories and sub-categories has the capacity to fundamentally alter the character of a zoning district." In particular, changes which "dramatically alter... the intensity of the residential use within a zone and promise... to affect the character of the future development" in a zone are changes in classification requiring notice and failure to provide such notice of an Ordinance adopting such a change requires that the Ordinance be declared invalid."

Does a change from no banquet halls to yes banquet halls sound like "not a change in classification"?

Hopefully the Township will not say it is not a change, or not a significant change in classification, as they have already lost in court on that matter as well (regarding their voided ordinance to permit retail use on County Line Road).

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Simcha Steinberg said...

I'm gunning the boys will adopt the Ordinance and then the taxpayers will spend years in Court defending the Ordinance.

Who thinks my marksmanship is perfect?

Anonymous said...

The Township can put out notice and make a special meeting to address the point. Also, with a super majority vote, the Township can override the concerns of it being in conformance with the Master Plan or not.

Yoel Levy said...

@Anon 5:17
Both of your points are true. They can override the Master Plan thing with a super majority. However, they would still need to provide notice.
They can certainly schedule a special meeting and provide notice.
They are, instead, hoping to ignore both of these "issues" and simply adopt the Ordinance with no notices.

As this article explains, the Township has already been caught pulling that game before and they have lost in Court.

The Township Committee ought to clean up their act now and do things right this time (if they do want to continue on to adopt the Ordinance).