Agenda - Planning Commission - 09/08/2011

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Zoning Bulletin July 25, 2011 1 Volume 5 1 No. 14 In furtherance of its proposal, pursuant to New Jersey statutory law, N.J.S.A. 40; 55D-12, GCI published newspaper notice of each of four public hearings on its proposed development. Each notice included a statement that there would be a hearing on GCI's application for pre- liminary and final approval of: "all buildings, structures, parking areas and other site improvements related to: (a) Construction of a main re- tail store of 150,000 s.f." Following the public hearings, the Board approved GCI's application. Shakoor Supermarkets, Inc. ("Shakoor"), a local supermarket, chal- lenged the approval. Among other things, Shakoor argued that the public notice of the hearings was legally insufficient. Shakoor said this was be- cause GCI's notice failed to "identify the uses proposed for the buildings." The superior court affirmed the Board's approval of GCI's applica- tion. The court found that public notice of the hearing was sufficient. DECISION: Affirmed. The Superior Court of New Jersey, Appellate Division, held that GCI's public notice of the hearings was legally sufficient. In so holding, the court explained that "[f]ailure to provide proper notice deprives a municipal planning board of jurisdiction and renders null any subsequent action." For a public notice of applications before a zoning board to be "proper" or "legally sufficient," it must state "the nature of the matters to be considered," said the court. In other words, such public notice had to provide a "common sense description of the nature of the application, such that the ordinary layperson could under- stand its potential impact upon him or her." However, noted the court, it "need not be `exhaustive' to satisfy the standard." Rather, to "ade- quately inform, the notice must give 'an accurate description of what the property will be used for under the application."' This, further ex- plained the court, "ensure[s] that members of the general public who may be affected by the nature and character of the proposed develop- ment are fairly apprised thereof so that they may make an informed de- termination as to whether to they should participate in the hearing ...." Here, GCI's public notice of the hearings "identified the pro- posed use as 'a main retail store of 150,000 s.f."' Shakoor had argued that the notice was insufficient because it failed to disclose that the 150,000-square-foot retail store was "a Wa1-Mart Supercenter/Shop- ping Center which would itself contain multiple retail uses." The court rejected this argument. It found the notice "adequately informed layper- sons that a major 'big box' store was proposed for the site 'and alerted them to the possible concerns such as traffic, commonly associated with those stores ...." Moreover, although the proposed store included mul- tiple retail uses, all were permitted uses, and none of the proposed uses provided "legitimate cause for `heightened concern' to the public, be- yond those associated with a 150,000 square foot retail store." © 2011 Thomson Reuters . 3