November 20, 2009
New Jersey Supreme Court to Review New Notice Requirements for Land Use Applications Imposed by Appellate Division
The New Jersey Supreme Court has agreed to consider arguments that the Appellate Division improperly imposed new, subjective notice requirements on developers applying for local land use approvals. On November 13, 2009, the Court granted the petitions for certification filed by a developer, American Properties, and the Ewing Township Planning Board, seeking to challenge the Appellate Division's decision in GF Properties v. Ewing Township Planning Board.
The case arose out of American Properties' application to the Planning Board for subdivision and site plan approval to build a hotel on land it was under contract to purchase from the Herring Land Group. In strict compliance with the Municipal Land Use Law (MLUL), American Properties and Herring Land Group provided notice of the application to all landowners within 200 feet of the site prior to the commencement of Planning Board hearings on the application.
After the Planning Board granted subdivision and site plan approval, GF Princeton, a tenant of Herring Land Group that held a 75-year lease on a portion of the property, filed suit seeking to overturn the approval on the ground that it should have been provided notice of the application. GF Princeton argued that the proposed hotel posed a detriment to its business operations and that it would have participated as an objector in the Planning Board hearings had it known of the application.
The trial court dismissed GF Princeton's lawsuit, finding that under the clear, unambiguous language of the MLUL, only property owners - not tenants - are entitled to receive notice of nearby land use applications. However, in a shocking decision, the Appellate Division reversed the trial court, holding that a new, subjective standard should be used in determining whether parties not referenced in the MLUL should receive notice of land use applications. Under the new standard, applicants would have to provide notice whenever the principles of "administrative due process and fairness" so dictate.
Not surprisingly, developers and municipalities across the state were outraged by the Appellate Division's decision because it created a slippery slope whereby any approval could be challenged at anytime by anyone claiming to have been subjectively deprived of "administrative due process and fairness."
Rarely are the interests of developers and municipalities aligned, but in this case, all involved were encouraged by the Supreme Court's decision to hear the matter, as it provides hope that the notice requirements will be restored to the predictable parameters of the MLUL.
Hill Wallack LLP has filed a "friend of the court" brief with the New Jersey Supreme Court on behalf of the New Jersey Builders Association and NAIOP NJ Chapter, Inc.
Henry T. Chou is a partner of Hill Wallack LLP where he is a member of the Land Use Division which encompasses the Land Use Litigation and Land Use Applications Practice Groups. He concentrates his practice in the land development application and permitting process and the litigation of land use matters.