ANTHONY PIO COSTA, III v. ROBIN LAHUE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5379-08T1

ANTHONY PIO COSTA, III, and

PIO COSTA ENTERPRISES,

Plaintiffs-Appellants,

vs.

ROBIN LAHUE, MICHAEL LAHUE

and ANTON COMPANY,

Defendants-Respondents,

and

TOWNSHIP OF FAIRFIELD PLANNING

BOARD,

Defendant.

__________________________________

September 15, 2010

 

Argued: May 5, 2010 - Decided:

 

Before Judges Cuff and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4137-08.

 

Thomas P. Scrivo argued the cause for appellants (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Scrivo, of counsel and on the brief; Joshua A. Zielinski, on the brief).

 

Christopher John Stracco argued the cause for respondents (Day Pitney LLP, attorneys; Mr. Stracco and Jennifer Gorga Capone, on the brief).

PER CURIAM

Plaintiffs, Anthony Pio Costa, III, and Pio Costa Enterprises (collectively Pio Costa), and defendants, Robin Lahue, Michael Lahue and the Anton Company (collectively Anton), each own certain properties in a forty-two acre commercial/light industrial park known as the Junction in the Township of Fairfield. Anthony Pio Costa and Robin Lahue are brother and sister, who are not on amicable terms. Pio Costa filed a three-count complaint in which it challenged preliminary and final site plan approval granted by defendant Township of Fairfield Planning Board (Planning Board) for outdoor storage on a lot owned by Anton in the Junction (Count One). Pio Costa also claimed that Anton breached the terms of a 1991 settlement agreement entered between Pio Costa and Anton (Counts Two and Three). Pio Costa appeals from the dismissal of Count One as untimely.1 We affirm.

The Junction is located near the intersection of Route 46 and Bloomfield Avenue in the Township of Fairfield. Pio Costa and Anton own contiguous parcels of land in the Junction. Fourteen buildings are located on forty-two acres in which various industrial, commercial and retail uses are conducted. Pio Costa owns Lot 1.01 and 17.01; Anton owns Lots 1.02, 1.03 and 1.04. All are located on Block 401 of the Fairfield tax map.

On January 12, 2005, an amendment to the zoning ordinance became effective. Lots 1.01, 1.02, 1.03, 1.04, and 17.01 were rezoned from Light Industrial (L-1) to Commercial (C-3). Anthony Pio Costa attended the hearings on the rezoning. In addition to rezoning the Junction parcels, section 45-32.5(c) of Township Ordinance 2004-16 addresses access to the site; it provides:

There shall be one primary site access drive located on Bloomfield Avenue to serve the district. This access point shall separate ingress movements from egress movements by use of a landscaped median. The design of such drive is to follow generally recognized traffic engineering standards and utilize appropriate signage. A second ingress-only drive may also be permitted onto Bloomfield Avenue. No other vehicular access ways linking this site with the local or county road network are permitted.

On or about August 10, 2005, Anton filed an application with the Planning Board for conditional use and preliminary and final site plan approval for outdoor storage on Lot 1.03. In a letter dated November 18, 2005, the Township Engineer advised the chair and members of the Planning Board that "Section 45-32.5, C-3 'Other Requirements' requires modifications to the Bloomfield Avenue access. The applicant must address this with the Board."

Anton received a copy of this letter and retained an expert to prepare plans to address the Bloomfield Avenue access. The record also demonstrates that defendant Robin Lahue wrote Anthony Pio Costa on April 26, 2006. She informed him that the Planning Board requested they develop plans "for improved vehicular access from Bloomfield Avenue" and requested his cooperation. She also advised him that "any proper solution will require work to be done on both of our properties."

A Notice of Public Hearing for the application was published in The Star Ledger and sent to Pio Costa as required by the Municipal Land Use Law in October 2006. N.J.S.A. 40:55D-12. The notice stated that the matter would be presented to the Planning Board at its October 24, 2006 meeting. The scope of the application was described as follows:

an application by the Anton Company . . . relating to an existing outdoor storage yard for conditional use and preliminary and final site plan approval and, if required, variance approval, as more particularly described below relating to property designated as Block 401, Lot 1.03. . . .

The notice described the current use of the site. It also related that Anton would seek a variance from the buffer requirement of section 45-32.5 of the zoning ordinance and also stated that the applicant believed outdoor storage use was a pre-existing non-conforming use. The notice contained no mention of the work to be performed on Lot 1.04 to modify access to the site.

The application was presented over two meeting dates. The November 28, 2006 hearing addressed access improvements from Bloomfield Avenue into and from the site. At that second hearing, the Planning Board also voted to approve the application. On January 9, 2007, the Planning Board adopted a resolution approving the application. This approval included a provision that the applicant must comply with the recommendations of the Township Engineer, and narrowing the current access to Bloomfield Avenue and Oak Road to thirty feet. Public notice of the Planning Board action was published on February 1, 2007.

Anton proceeded to obtain all approvals and permits necessary to proceed with the access modifications required on Bloomfield Avenue. This work was performed primarily on Lot 1.04 and within the New Jersey Department of Transportation (DOT) right of way. Work commenced on April 29, 2008, and was completed in June 2008. Pio Costa filed its complaint in lieu of prerogative writs on May 22, 2008.

In Count One, Pio Costa alleged that the October 2006 notice was inadequate because it did not fully inform the recipient of the work to be performed on Lot 1.04. Pio Costa asserted that the access modifications required by the Planning Board and installed by Anton make it more difficult for traffic to enter and exit the Junction. It alleged that the defective notice deprived the Planning Board of jurisdiction, and it "acted ultra vires in approving any improvements affecting the State of New Jersey's right of way or Block 401, Lot 1.04, including the curbing recently installed by [Anton]."

All defendants filed a motion to dismiss Count One as untimely. They argued that Rule 4:69-6 required actions in lieu of prerogative writs to be filed within forty-five days of publication of the municipal action. Here, the Planning Board published notice of the approval on February 1, 2007, but Pio Costa filed its complaint over a year later on May 22, 2008. Anton argued that Pio Costa did not satisfy the limited exceptions identified by Rule 4:69-6(c) to enlarge the time in which to challenge the Planning Board action. Anton also argued that the notice provided in advance of the October 24, 2006 hearing was adequate.

The motion judge granted the motion. In doing so, the judge held that the notice was adequate. She reasoned in part that an applicant was not required to prepare and publish a new notice to alert neighboring property owners and the public of additional work that may be required by the applicant due to conditions discussed and agreed to during public hearings before the Planning Board. Furthermore, the judge held that Pio Costa was not entitled to an enlargement of time to contest the approval. The judge held that Pio Costa's involvement in the rezoning process, its knowledge of the concerns about access, actual notice of the Planning Board application, and the need to devise a suitable revision of access to the property as a whole, all counseled against an enlargement of time. On appeal, Pio Costa reiterates the arguments presented in the trial court.

Pio Costa argues that the notice served by Anton was deficient and the need to provide proper notice to property owners presents an important public question. The service of the statutory notice is jurisdictional; therefore, it should be able to challenge ultra vires action at any time. Anton insists the notice was proper, and it had no obligation to describe off-site work required as a condition of approval.

N.J.S.A. 40:55D-12(a) requires that public notice must "be given by publication in the official newspaper of the municipality, if there be one, or in newspaper of general circulation in the municipality" at least ten days prior to the date of the hearing. N.J.S.A. 40:55D-12(b) requires that an applicant must provide personal notice to all owners of property located "within 200 feet in all directions" of the property which is the subject of the hearing.

Service of statutory notice is a jurisdictional prerequisite. Failure to provide proper notice deprives a municipal planning board of jurisdiction and renders any subsequent action a nullity. Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adjustment, 154 N.J. 62, 79 (1998); Oliva v. City of Garfield, 1 N.J. 184, 190 (1948); Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 237 (App. Div 1996); Brower Dev. Corp. v. Planning Bd. of Clinton, 255 N.J. Super. 262, 270 (App. Div. 1992); Auciello v. Stauffer, 58 N.J. Super. 522, 527-28 (App. Div. 1959). See also Cox, New Jersey Zoning and Land Use Administration, 27-1.5(g) (Gann 2008).

The notice must be sufficient to apprise members of the public of the nature and character of the proposed development so that "they may make an informed determination as to whether they should participate in the hearing or, at the least, look more closely at the plans and other documents on file." Perlmart, supra, 295 N.J. Super. at 237-38. The critical element of public notice is "an accurate description of what the property will be used for under the application." Id. at 238. Furthermore, if an off-site improvement specific to the proposed project, such as a major access road, is an element of the project, the notice must include a description of that work. Brower, supra, 255 N.J. Super. at 266-70.

Pio Costa contends the notice served on them is fatally defective and deprived the Planning Board of jurisdiction because it omitted any mention of access modifications to the site. The motion judge dismissed this contention based on the premise that the need to modify access to the site along Bloomfield Avenue emerged only after notice had been prepared and served and held that an applicant need not re-notice the public and proximate property owners during the course of a multi-hearing approval process. Our review of the record clearly demonstrates that the applicant knew no later than November 28, 2005, that access modifications would be required. To that end, Anton retained an expert to design plans acceptable to the Township Engineer and defendant Robin Lahue sought her brother's cooperation. In short, at the time the notice was drafted, the applicant knew that any approval obtained by it for its activities on Lot 1.03 would require further work to be performed on Lot 1.04 and in the DOT right of way that would affect access to the site. The notice prepared, served and published by this applicant did not describe the full scope of its application.

Nevertheless, under the unique circumstances of this case, we hold that the equities do not allow Pio Costa's belated challenge to the Planning Board action. In the trial court, Anton argued that the doctrine of laches should bar Pio Costa's challenge to the January 9, 2007 resolution. We agree.

Laches may be invoked when three factors are present: knowledge of a right or claim, inexcusable and unexplainable delay, and prejudice to the other party. County of Morris v. Fauver, 153 N.J. 80, 105 (1998); Dorchester Manor v. Borough of New Milford, 287 N.J. Super. 163, 171 (App. Div. 1994). Laches is an equitable defense. Northwest Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 140 (2001). Several factors inform an analysis whether it should be applied in a given situation, including the length of the delay, the reasons for the delay, and change of positions by the parties. Borough of Princeton v. Bd. of Chosen Freeholders of Mercer County, 169 N.J. 135, 157-58 (2001). The central inquiry is whether it is inequitable to permit the claim to be enforced. Id. at 158.

Laches was not applied in Borough of Princeton because the Borough challenged a contract with a landfill operator on the basis that the contract had not been awarded in accordance with the Local Public Contract Law. Due to the unique public policy implicated in public contracts and the recognized policy requiring public bidding, the Court declined to apply the principle even though the contract had been in place for nine years. Id. at 152, 157-58. Similarly, the Court rebuffed the State's invocation of laches where the county's claim for overpayments to the State was neither known nor knowable at an earlier date. County of Morris, supra, 153 N.J. at 105. Neither of these situations exists in this case.

Anthony Pio Costa was actively involved in the process that led to the amendment of the zoning ordinance. The amendment provided a substantial benefit to him and his sister as it made most of the activities in the Junction conforming uses, thereby providing greater flexibility to both as to current and future uses of the property. One of the provisions of the amendment expressly addressed the need to improve ingress and egress from the property and Bloomfield Avenue. Anthony Pio Costa also had direct notice from his sister that her application to receive preliminary and final site plan approval for outdoor storage already conducted on site would require modifications to the Bloomfield Avenue access. She sought his cooperation, but he spurned her request. Finally, he received the October 2006 notice immediately before the public hearing. With his special knowledge of the provisions of the recent zoning amendment, he had every opportunity to inspect the plans submitted in conjunction with the application and to attend each hearing.

Ultimately, the dispute between these parties is a private dispute. Although the access modifications may alter the manner in which some vehicles enter and leave the site, the record demonstrates that municipal planning officials recognized for some time that the existing access created traffic circulation problems in the area of the Junction.

In short, the need to modify the access to the Junction from Bloomfield Avenue was known to Anthony Pio Costa well before the matter was heard before the Planning Board. In these unique circumstances, the adequacy of the notice provided by the applicant to neighboring property owners did not have the capacity to mislead Pio Costa or to obscure the full extent of the application. Acting on the resolution adopted by the Planning Board, Anton incurred expenses to install the required modifications. Any challenge to the January 2007 resolution at this time only furthers the private dispute between siblings and might negate a local traffic improvement. We, therefore, agree that the motion judge properly dismissed Count One as grossly out of time.

Affirmed.

1 In a later order, Counts Two and Three were dismissed when the court granted defendants' motion for summary judgment. No appeal has been taken from this order.