January 1, 1900

by Anne L. H. Studholme

The practice of meeting informally with board members at "workshop" sessions has long been a constructive way to resolve potential difficulties with an application before a full-blown public hearing takes place. A Law Division judge has now held that such meetings are subject to the public notice provisions of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-12 et seq. The court reversed an approval which had been the subject of three meetings and a four-day hearing on the application, all of which he held to have been properly noticed, except one - a workshop session.

That session, while scheduled in accordance with the "Sunshine Law" (Open Public Meetings Act, N.J.S.A. 10:4-6), was not noticed separately pursuant to the public notice provisions of the MLUL. Providing such public notice includes placing detailed advertisements in local papers, mailing descriptions of the application to all property owners within 200 feet of the affected property, and notifying various governmental entities and utilities. The public notice requirements are jurisdictional. That is, without this notice a board has no jurisdiction over the application and anything it does is without legal effect.

The applicant had sought to build a free-standing pharmacy within a pre-existing shopping mall in Manalapan. Minor subdivision approval, site plan approval and several relatively insignificant variances were needed. After an informal concept review with the planning board and submission of a formal application, the board granted a waiver request and deemed the application complete. The board also held an informal review at a workshop. Finally, after four days of hearings noticed in accordance with the MLUL's public notice provisions, the Board passed a resolution granting preliminary and final site plan approval with variances and minor subdivision approval. The objectors challenged the jurisdiction of the board based on the lack of public notice of the workshop session.

The judge vacated the approval, holding that any planning board session which is "not held for the purpose of concept or waiver review and includes issues of consequence to a pending application before the same board" requires formal public notice. Central to the ruling was that the "workshop" in question, rather than just helping the board catch up with new legislation or perform other general tasks, involved consideration of aspects of a particular application. This, said the court, meant that, absent public notice, interested parties would not know that the board was "discussing issues of consequence to the application as part of its agenda." This "individualized subject matter" turned the meeting into a "quasi-hearing." Lack of formal, public notice, said the court, deprived the objector of due process and resulted in the appearance of impropriety.

The court explicitly warned boards (and implicitly warned builders) that such non-noticed meetings were not legal and that they should contact the Legislature if they wished to be able to have such meetings in the future without first giving public notice. This decision might be vulnerable on appeal, but until it is overruled all builders should consult with counsel as to whether they should publicly notice workshop sessions, however informal, if they anticipate discussing a pending application.

Anne L. H. Studholme is an associate of Hill Wallack and a member of the Land Use Division. She concentrates hew practice in diverse land use matters.