62-64 MAIN STREET, LLC. v. MAYOR and COUNCIL OF THE CITY OF HACKENSACK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0342-09T3

62-64 MAIN STREET, LLC and

59-61 MOORE STREET, LLC,

Plaintiffs-Respondents/

Cross-Appellants,

v.

MAYOR and COUNCIL OF THE CITY

OF HACKENSACK,

Defendants/Cross-

Respondents,

and

PLANNING BOARD OF THE CITY OF

HACKENSACK,

Defendant-Appellant,

and

THOMAS P. KAVANAGH,

Defendant.

_________________________________________________

January 14, 2011

Argued October 5, 2010 - Decided

Before Judges Wefing, Payne and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Docket No.

L-6854-08.

Joseph P. Kreoll argued the cause for

appellant (Law Offices of Richard Malagiere, attorney; Richard Malagiere, of counsel; Mr. Kreoll, on the brief).

Richard S. Cedzidlo argued the cause for

respondents/cross-appellants.

Robert J. Hitscherich argued the cause for

cross-respondents (Zisa & Hitscherich, attorneys; Mr. Hitscherich, on the brief).

PER CURIAM

On July 11, 2006, the Mayor and Council of the City of Hackensack adopted a resolution requesting that the City's Planning Board conduct a preliminary investigation as to whether the properties located within two adjacent blocks between Main Street and Church/Moore Streets and between East Atlantic Street and Washington Place should be delineated as in need of redevelopment. Public hearings on the matter took place on December 13, 2006, August 22, 2007, September 27, 2007, October 11, 2007, November 8, 2007, December 4, 2007, January 10, 2008, and January 24, 2008. Notices of the hearings were provided pursuant to N.J.S.A. 40A:12A-6b(3) to the last owner of each parcel of property within the area. However, notices to Calo Agostino Real Estate LLC, a property owner in the affected area, were misdirected to 17 Warren Street, Fourth Floor, Hackensack, New Jersey and were not received. Nonetheless, Beverly M. Wurth, an attorney with the law firm of Calo Agostino, P.C., the occupant of the property owned by Calo Agostino Real Estate, attended and participated on behalf of the property owner in all hearings except that conducted on December 4, 2007, as to which she received no actual notice.

At the conclusion of the hearings, by resolution adopted on February 13, 2008, the Planning Board recommended that five lots be designated as in need of redevelopment, including three lots owned by plaintiffs but excluding the lot owned by Calo Agostino Real Estate. The resolution further recommended that the Mayor and Council of the City of Hackensack adopt a resolution delineating the designated portions of the study area as in need of redevelopment, and that a redevelopment plan be prepared.

By resolution dated August 5, 2008, the City Council adopted the Planning Board's recommendations. Plaintiffs charge that the Mayor and Counsel failed to comply with the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, when passing the resolution.

On September 8, 2008, plaintiffs filed an action in lieu of prerogative writs challenging the Planning Board's recommendation and the Mayor and Council's declaration that plaintiffs' properties were located in an area in need of redevelopment. In the third count of that complaint, plaintiffs alleged that the notice provided by the Planning Board had been defective, and in the fourth count plaintiffs alleged that the Mayor and Council's action was procedurally irregular because no verbatim transcript was made of proceedings in which the action occurred.

At a case management conference held in the matter, the trial judge determined to bifurcate trial of the prerogative writs matter and to proceed first on the issue of notice. Following briefing, the matter was orally argued before the judge. In a written opinion, the judge enumerated the plaintiffs' arguments as follows:

1) that the Mayor and Council failed to provide Plaintiffs with proper notice as required by State and Federal Due Process; 2) that the acts of the Mayor and Council violated the Open Public Meetings Act; and 3) that the notice by the Planning Board was defective and its actions are thus a nullity.

Because the Mayor and Council had voluntarily withdrawn the August 5, 2008 resolution, the judge determined that the issues before him were limited to the notice provided by the Planning Board. Addressing that issue, the judge found that plaintiffs had standing to claim improper notice because of the significant impact of the Planning Board's resolution on them.

Additionally, relying on our decision in Harrison Redevelopment Agency v. DeRose, 398 N.J. Super. 361 (App. Div. 2008), the judge found without substantial analysis that notice by the Planning Board was defective and that "therefore the Planning Board's actions are a nullity." An order to that effect was entered. A portion of the order, submitted by plaintiffs, that would have declared the action of the Mayor and Council in adopting and memorializing the August 5, 2008 resolution similarly null and void was crossed off by the judge, who wrote that his changes were "based upon Mayor and Council's voluntary withdrawal of the Resolution dated August 5, 2008."

The Planning Board has appealed from that portion of the order declaring its resolution null and void. Plaintiffs have cross-appealed from the judge's failure to find that the actions of the Mayor and Council violated the OPMA.

I.

We address first the issue of whether the provision of defective notice by the Planning Board to a third-party property owner whose interests were not adversely affected by the Planning Board's subsequent action renders that action void as to property owners who were properly noticed.

The Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -73, governs the notice procedures in this matter. N.J.S.A. 40A:12A-6a provides that: "No area of a municipality shall be determined a redevelopment area unless the governing body of the municipality shall, by resolution, authorize the planning board to undertake a preliminary investigation to determine whether the proposed area is a redevelopment area according to the criteria set forth in [N.J.S.A. 40A:12A-5]." This paragraph also requires public notice and a public hearing prior to the planning board's determination. Paragraph b(1) provides that: "Before proceeding with a public hearing on the matter, the planning board shall prepare a map showing the boundaries of the proposed redevelopment area and the location of the various parcels of property included therein" and shall append to the map a "statement setting forth the basis for the investigation." Paragraphs b(2) and (3) require that the planning board provide notice of its hearing. In relevant part, the statute states:

A copy of the notice shall be published in a newspaper of general circulation in the municipality once each week for two consecutive weeks, and the last publication shall be not less than ten days prior to the date set for the hearing. A copy of the notice shall be mailed at least ten days prior to the date set for the hearing to the last owner, if any, of each parcel of property within the area according to the assessment records of the municipality.

[N.J.S.A. 40A:12A-6b(3).]

In accordance with the statute, in this case a list of the property owners, compiled from records maintained by the tax assessor, formed the basis for the Planning Board's notification efforts. However, it appears that the address for Calo Agostino Real Estate was outdated and that a forwarding request previously provided to the Post Office by that entity had expired. As a consequence, notices to it were returned undelivered.

Plaintiffs argue on appeal that the provision of notice is jurisdictional, citing in support of that proposition a series of cases concerning applications for development pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129 and its predecessor statutes that were made without any notice whatsoever. See Virginia Constr. Corp. v. Fairman, 39 N.J. 61, 70 (1962); Stafford v. Stafford Zoning Bd. 299 N.J. Super. 188, 196 (App. Div. 1997), aff'd, 154 N.J. 62 (1998); Auciello v. Stauffer, 58 N.J. Super. 522, 527-28 (App. Div. 1959); and Donovan v. New Brunswick, 50 N.J. Super. 102, 108 (Law Div. 1958). Plaintiffs cite no decisions factually analogous to the present matter in which statutory notice was properly provided, but that statutory notice did not reach one interested party.

When considering the constitutional adequacy of notice in a redevelopment context, we have held:

At its core, due process requires adequate notice and an opportunity to be heard, whether analyzed under the Federal Constitution or under the New Jersey Constitution. See Rivera v. Bd. of Review, 127 N.J. 578, 583 (1992); see also Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 656-57, 94 L. Ed. 865-873 (1950). "Put simply, the citizen facing a loss at the hands of the State must be given a real chance to present his or her side of the case before a government decision becomes final. Rivera, supra, 127 N.J. at 583.

As a precondition of such a "real chance" to object, there must be adequate notice of what the government intends to do. Hence, "'[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" N.J. Higher Educ. Assistance Auth. v. Pennell, 377 N.J. Super. 13, 24-25 (App. Div. 2005) (quoting Mullane, supra, 339 U.S. at 314, 70 S. Ct. at 657, 94 L. Ed. at 873).

[Harrison Redevelopment, supra, 398 N.J. Super. at 403.]

Although in Harrison Redevelopment we held many of the notice provisions of the LRHL to be deficient, id. at 397-401, terming the statutory notice scheme "spotty and incomplete," id. at 400, we did not find to be deficient the statutory notice provisions set forth in N.J.S.A. 40A:12A-6b(3) requiring individual notice of a planning board's preliminary investigation be sent to the last owners of potentially affected properties.1 Indeed, in our view, that provision passes constitutional muster. See Rivera v. Bd. of Review, 127 N.J. 578, 583 (1992) (holding that "[t]he touchstone of adequate process is not abstract principle but the needs of the particular situation."); New Brunswick Sav. Bank v. Markouski, 123 N.J. 402, 415-27 (1991) (holding a judgment lien is a property interest subject to due process protections and that a levying creditor must provide actual notice of execution sale to other judgment creditors whose names and addresses are reasonably ascertainable); Township of Montville v. Block 69, Lot 10, 74 N.J. 1, 19-20 (1977) (holding in a tax sale certificate case that when the owner's name and address appear on the municipality's tax rolls, both state and federal constitutional guarantees require that notice of foreclosure be sent by mail to the taxpayer before his right to redeem may be foreclosed). None of these cited cases requires a more particularized notice than that provided in this case.

From a constitutional perspective, an analysis of "the adequacy of notice focuses on the reasonableness of the chosen means, not whether the affected persons actually received notice." Brody v. Vill. of Port Chester, 434 F.3d 121, 127 (2d Cir. 2005); Weigner v. City of New York, 852 F.2d 646, 649 (2d Cir. 1988), cert. denied, 488 U.S. 1005, 109 S. Ct. 785, 102 L. Ed. 2d 777 (1989); Stuerze v. State of N.J., Div. of Pensions, 120 N.J. Super. 31, 34 (App. Div. 1972).

We have been offered no reported decision, and our research has revealed none, in which municipal action was deemed void because constitutionally sufficient notice, properly designed to reach all interested parties, in fact did not reach a party affected by the municipal action let alone a party who, ultimately, was not so affected.2 Indeed, in Harrison Redevelopment, we did not suggest such a draconian result, but instead, permitted the affected property owner to challenge the municipality's blight designation in the ensuing condemnation action. 398 N.J. Super. at 421. The order of the trial judge declaring to be void the actions of the defendant, Hackensack Planning Board, set forth in its Resolution of February 13, 2008, is therefore reversed.

II.

In their cross-appeal, plaintiffs argue that the trial judge erred in permitting the Mayor and Council, when confronted with evidence of their violation of the OPMA, to voluntarily withdraw the resolution dated August 5, 2008. They claim instead that the Council's action should have been declared null and void. In essence, plaintiffs argue without citation to any authority that because the Mayor and Council violated OPMA, they should not be afforded the opportunity to correct their errors.

We do not accept plaintiffs' position. N.J.S.A. 10:4-15 provides that an action taken by a public body at a meeting that does not conform to the OPMA's strictures is voidable in an action in lieu of prerogative writs instituted within forty-five days after the action sought to be voided has been made public. However, the statute further provides:

[A] public body may take corrective or remedial action by acting de novo at a public meeting held in conformity with this act and other applicable law regarding any action which may otherwise be voidable pursuant to this section.

Thus, the action that plaintiffs seek to preclude is specifically authorized by statute.3 Accordingly, we find no error in the judge's determination to permit withdrawal of the August 5, 2008 resolution.

1 We did, however, find that the significance of the detailed requirements of N.J.S.A. 40A:12A-6b(3) was diluted by an added proviso that "[f]ailure to mail any such notice shall not invalidate the investigation or determination thereon." Harrison Redevelopment, supra, 398 N.J. Super. at 398. We do not rely on this provision in our decision in the present case.

2 Additionally, we fail to discern any basis for plaintiffs' assertion that they possessed standing to raise the claim of lack of notice to an unaffected third party. See Spinnaker Condo. Corp. v. Zoning Bd. of Sea Isle City, 357 N.J. Super. 105, 110-11 (App. Div.) (holding that a condominium association lacked standing to challenge the Zoning Board's denial of a conditional-use variance to a telecommunications company to permit the installation of antennae on the condominium's roof when the company declined to appeal and the condominium association lacked the right to install the antennae), certif. denied, 176 N.J. 280 (2003). In the present case, plaintiffs can demonstrate no harm to them resulting from the failure of notice to Calo Agostino Real Estate. Their alleged injuries resulted from actions of the Planning Board following hearings of which plaintiffs had notice and in which they participated.

3 We note that the OPMA does not contain a fee-shifting provision that could be invoked if plaintiffs were deemed the prevailing party in a OPMA action.