CHAI LIFELINE, INC v. TOWNSHIP OF MAHWAH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CHAI LIFELINE, INC.,

Plaintiff-Appellant,

v.

TOWNSHIP OF MAHWAH,

MAHWAH ZONING BOARD OF

ADJUSTMENT, and MAHWAH

ZONING OFFICER, in her

official capacity,

Defendants-Respondents,

and

RESIDENT OBJECTORS,

Defendants/Intervenors-

Respondents.

______________________________

September 2, 2014

 

Argued May 29, 2014 Decided

 

Before Judges Sapp-Peterson, Lihotz and Maven.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7400-11.

 

Justin D. Santagata argued the cause for appellant (Kaufman, Semeraro & Leibman, LLP, attorneys; Marc E. Leibman, of counsel and on the brief; Mr. Santagata, on the brief).

 

Andrew T. Fede argued the cause for respondents Township of Mahwah and Mahwah Zoning Officer (Archer & Greiner, attorneys; Mr. Fede, on the brief).

 

Michael A. Augello, Jr., argued the cause for respondents Township of Mahwah and Mahwah Zoning Officer (Pfund McDonnell, P.C., attorneys; David T. Pfund, of counsel and on the brief; Mary C. McDonnell and Mr. Augello, on the brief).1

 

William T. Smith argued the cause for respondents Resident Objectors (Hook, Smith & Meyer, attorneys; Mr. Smith, on the brief).

 

Ben R. Cascio, attorney for respondent Mahwah Zoning Board of Adjustment, joins in the briefs of respondents Township of Mahwah, Mahwah Zoning Officer and Resident Objectors.

PER CURIAM

Plaintiff, Chai Lifeline, Inc. (Lifeline), is a corporation that owns a single-family residence (the property) in a residential zone in the Township of Mahwah (Mahwah). Lifeline uses that property as a retreat for clients whose lives have been affected by life threatening illness or recent loss, and for counseling for recently widowed women (retreat). Clients are permitted to stay at the retreat for a couple of days. Lifeline appeals from the trial court order upholding the Mahwah Township Zoning Board's (Board) determination that it did not meet the definition of family as used in its zoning ordinance and denying the application for a use variance. We affirm.

I.

Lifeline was formed in 1988. The property was gifted to it in 2007. The property consists of approximately 4.58 acres and overlooks the Ramapo River. It contains a single-family dwelling with a garage and an in-ground swimming pool. The dwelling contains five bedrooms, an office, family room, living room, dining room, kitchen, dinette, and laundry-utility room.

The property is located in Mahwah's R-80 zone, which permits: single-family detached dwellings; agricultural uses; churches, parishes, and other places of worship; non-profit public day schools; and public parks, playgrounds, libraries, firehouses, non-profit volunteer ambulance, or first aid facilities.

The Mahwah Zoning Ordinance defines "single-family dwelling" as:

A building occupied or intended for occupancy exclusively by one (1) family or one (1) household, with two (2) separate direct means of access to the outside and further provided with cooking, sleeping and sanitary facilities for the use of the occupants of the unit.

 

In 1986, Mahwah enacted Ordinance 919 redefining "family" in its zoning code. Ordinance 919 defines "family" as:

A group of persons functioning as a single housekeeping unit and whose relationship is of a permanent, stable and domestic character as distinguished from non-familial institutional uses, boarding homes, fraternities, sororities, clubs, associations, transient housing or other similar forms of housing.

 

Ordinance 919 was introduced by the Mahwah Governing Body for first reading on March 13, 1986, introduced for second reading on March 27, 1986, and adopted by the Township Council on April 10, 1986. Mahwah's then-attorney has since admitted Ordinance 919 was never referred to the planning board before its adoption.

In 2008, Mahwah's zoning officer informed Lifeline that its use of the property violated Ordinance 919. Lifeline appealed the determination to the Board. In conjunction with that appeal, Lifeline also sought an interpretation under N.J.S.A. 40:55D-70(b) that Lifeline's use of the property is permitted under Mahwah's Zoning Ordinance. Alternatively, Lifeline applied for a use variance in order to continue utilizing the property as a retreat.

The Board conducted more than one dozen hearings at which numerous witnesses testified. On August 18, 2010, the Board voted to uphold the zoning officer's determination that Lifeline's use of the property was not a use permitted in the R-80 zone. On May 18, 2011, the Board voted to deny Lifeline a use variance.

In concluding the property was not being utilized as a single-family dwelling, the Board determined that Lifeline's use was "transient housing," which Ordinance 919 specifically distinguishes and excepts from the definition of family. The Board agreed with the opinion of its professional planner, Joseph Burgis, that Lifeline's proposed use of the dwelling is of a transitional nature, which conflicts with Mahwah's definition of "family." The Board noted that even though the individuals may be utilizing the property as a "family unit," the property itself was not being utilized in the traditional sense as a single-family residence. The Board upheld the zoning officer's determination that Lifeline's use of the property violated Ordinance 919.

As to the use variance, the Board found Lifeline failed to demonstrate sufficient special reasons to satisfy the positive criteria for the grant of a use variance. It specifically found Lifeline's proposed use did not rise to the status of an "inherently beneficial use" as those uses traditionally deemed inherently beneficial, such as hospitals, schools, and child care centers. It construed the term "inherently beneficial use" as a use that is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. The Board noted Lifeline presented the property as a "retreat house." While accepting that a "retreat house" may serve some benefit, the Board did not believe it served the public good.

The Board further found Lifeline failed to demonstrate the use promotes the general welfare because the property is particularly suitable for that use. The property had been utilized as a traditional single-family residence until the time it was donated to Lifeline. There was no testimony offered by Lifeline demonstrating that the property could no longer be used as a single-family dwelling.

As to the negative criteria, the Board found the current residents of the neighborhood would be adversely affected by the introduction of this prohibited use into the neighborhood. The Board credited testimony from area residents in this regard and found that the residential character of the neighborhood had changed in a negative manner since Lifeline's use of the property and that Lifeline's continued use of the property as a retreat would negatively affect the neighborhood. The Board determined Lifeline failed to establish the existence of special reasons entitling it to the use variance. On July 20, 2011, the Board issued its resolution denying Lifeline's appeal of the zoning officer's ruling and denying Lifeline's use variance application.

On August 31, 2011, Lifeline filed a nine-count complaint in lieu of prerogative writs against Mahwah, the Board, and Mara Winokur, Mahwah's former zoning officer, in her official capacity. The complaint sought to overturn the Board's decision denying Lifeline's use of a single-family home as a retreat for clients. Lifeline also challenged Mahwah's definition of "family" in Ordinance 919, and the Board's decision to enforce Ordinance 919. The complaint included claims for damages and other relief for the alleged violation of Lifeline's state and federal civil rights, the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -136, and the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21.

The Board answered, denying the allegations. The court subsequently granted it leave to file an amended answer to include an omitted defense based upon the forty-five-day time limitations contained in Rule 4:69-6. Mahwah moved for partial summary judgment, dismissing count one of the complaint based on that defense. By order dated May 25, 2012, Judge Alexander H. Carver, III denied, without prejudice, Mahwah's summary judgment motion. On June 4, 2012, Mahwah filed its amended answer.

Thereafter, both parties filed summary judgment motions. The court conducted oral argument on January 18, 2013. By order dated March 11, 2013, Judge Carver dismissed Lifeline's complaint. He issued a written opinion in which he rejected Lifeline's challenge to Mahwah's land use ordinance's definition of "family," and upheld the Board's determination that Lifeline was using the property in violation of Ordinance 919. He also upheld the Board's decision denying Lifeline a use variance.

Judge Carver first dispensed with Lifeline's challenge to the validity of Ordinance 919 based upon the Board's failure to refer the proposed ordinance to the planning board prior to its adoption. Pursuant to Rule 4:69-6(a), "[n]o action in lieu of prerogative writs shall be commenced later than [forty-five] days after the accrual of the right to the review, hearing or relief claimed[.]" Because Ordinance 919 was adopted on April 10, 1986, Judge Carver determined Lifeline had until June 4, 1986 to challenge the ordinance and that there was no basis to relax the forty-five day period.

Next, Judge Carver found the Board correctly determined Lifeline's use of the property did not constitute a "single-family" use. He found Lifeline failed to demonstrate the Board's decision to uphold Ordinance 919 was arbitrary, capricious, or unreasonable. He additionally found the Board made its determination after "extensive hearings, a significant submission of proofs and a careful assessment of the effects the proposed use would have on the neighboring community." The judge was convinced the Board considered the totality of the evidence and comprehensively memorialized its decision in the resolution subsequently adopted.

The judge found Ordinance 919's definition of "family" was consistent with the New Jersey Supreme Court's decision that upheld Glassboro's 1986 ordinance amendment defining "family" as "one or more persons occupying a dwelling unit as a single non-profit housekeeping unit, who are living together as a stable and permanent living unit, being a traditional family unit or the functional equivalency thereof." Glassboro v. Vallorosi, 117 N.J. 421, 423 (1990). He noted Ordinance 919 permits groups of unrelated individuals to live together in a "single-family" zone if the residents bear the generic character of a relatively permanent functioning family unit. The judge specifically cited to Lifeline's website where the property is marketed under the heading of "Trips and Vacations" and pointed out that although the structure that holds the retreat is a single-family home, Lifeline uses the property for "vacations." The judge concluded the "[p]roperty is therefore more like a hotel, an establishment that provides temporary housing for transients." Judge Carver concluded the Board's refusal to grant a zoning variance was not arbitrary, capricious, or unreasonable.

As to whether Lifeline was entitled to a use variance as an "inherently beneficial use," Judge Carver found the use of the property as a retreat is not an "inherently beneficial use." Specifically, he found the record supported the conclusion the retreat does not serve the public good or promote the general welfare, as do schools and hospitals which benefit the community as a whole. He specifically noted that the property is only open to use by clients of Lifeline, whereas schools, hospitals, or child care centers are uses that are traditionally open to the public. Thus, the judge concluded the Board properly denied the use variance application. The present appeal followed.

On appeal, Lifeline raises the following points for our consideration:

Point i

 

The ordinance does not exist.

 

point ii

 

The ZBA hearings exemplify why the ZBA's interpretation of "family" is irrational, ultra vires, and unconstitutional.

 

A. Federal Protection of "Transients" and "Association" And Against Vague Laws, and State Protection of the "Right to Own and Alienate Property."

 

i. The United States Constitution.

 

ii. The Ordinance, and the ZBA's Interpretation of It, is Void For Vagueness.

 

iii. The State Constitution.

 

point iii

 

A use variance for a permitted use.

 

A. "So Benevolent a Use."

 

B. "How Could New Jersey Grant Rights and Privileges to Somebody Who Doesn't Live Here?" Because It Has to.

 

i. Neither the MLUL nor the United States Constitution Permits the ZBA to Deny a Variance Based on the Residency of Those Who Use the Property.

 

ii. The ZBA Denied a Straight Use Variance Because the Retreat is Used as Permitted Single-Family Dwelling.

 

iii. The Beneficence of the Retreat Dwarfs Any Detriment.

 

point iv

 

The ZBA Violated OPMA and the MLUL When It Discussed Lifeline's Denial Prior to Adopting the Resolution and Excised Reasons for the Denial from the Resolution, All Without Notice to Lifeline.

 

We have considered the points raised in light of the record, arguments advanced, and applicable legal principles. We reject the points, substantially for the reasons expressed by Judge Carver in his cogent and well-reasoned March 11, 2013 written opinion.

II.

We begin our analysis recognizing that the scope of our review of a municipal zoning action is limited. "A [zoning board's] exercise of its discretionary authority based on its factual determinations will not be overturned unless arbitrary, capricious or unreasonable[.]" Rocky Hill Citizens for Responsible Growth v. Planning Bd. of Borough of Rocky Hill, 406 N.J. Super. 384, 411 (App. Div. 2009) (citing Wilson v. Brick Twp. Zoning Bd., 405 N.J. Super. 189, 197 (App. Div. 2009). Thus, whether before the trial court or upon appellate review, the factual determinations of a municipal zoning board are presumed valid. Cell S. of N.J. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002). The rationale underlying our limited review is that local officials are generally more familiar with their municipality's interests and as "the proper representatives of its people are undoubtedly the best equipped to pass initially on such applications for variance." Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965) (citations and internal quotation marks omitted). Yet, "a court is not bound by an agency's determination on a question of law . . . and the court's construction of an ordinance under review is de novo." Fallone Prop., LLC v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004) (citations omitted). Thus, the burden of proof to show that a municipal action is arbitrary, capricious or unreasonable is imposed upon the party challenging the municipal action. Toll v. Bd. of Chosen Freeholders, 194 N.J. 223, 256 (2008).

Boards, by virtue of their quasi-judicial nature, are authorized to make certain determinations of law. Zoning boards, by virtue of N.J.S.A. 40:55D-70(b), are specifically authorized to interpret the municipal zoning ordinance. However, these purely legal determinations are not entitled to a presumption of validity. They are subject to de novo review. Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Judicial review of municipal action is intended to be a determination of the validity of the municipal agency's action, not a substitution of the court's judgment for that of the municipal agency. CBS Outdoor v. Lebanon Planning Bd., 414 N.J. Super. 563, 578 (App. Div. 2010). Thus, in this matter, our task in reviewing municipal action mirrors that of the trial court, namely, whether the municipal agency followed the statutory guidelines and properly exercised its discretion. Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990).

Thus, we will accord substantial deference to findings of fact and will overturn discretionary rulings only if arbitrary and capricious. See Friends of Peapack-Gladstone v. Borough of Peapack-Gladstone, 407 N.J. Super. 404, 424 (App. Div. 2009) (finding no reason to disturb the trial court's finding "particularly given the judiciary's limited standard of review of local land use decisions").

A.

Lifeline's argument that Ordinance 919 was not validly enacted because it was not referred to the planning board is time-barred as Judge Carver determined. We also agree the record does not support relaxation of the forty-five-day time limitations established under Rule 4:69-6(a). Reilly v. Brice, 109 N.J. 555, 558-59 (1988) (citing Brunetti v. Borough of New Milford, 68 N.J. 576, 585-87 (1975)).

Next, we reject Lifeline's argument that the Board's interpretation of "family" is irrational, ultra vires, and unconstitutional. We find no merit to its contention Ordinance 919's definition of "family" is unconstitutional because it is based on the length of a family's stay and their state of residency.

The authority to regulate land use is now encompassed within the powers granted to the legislative branch of government by Article III of the New Jersey Constitution of 1947. The Legislature, however, is authorized, by Article IV, section VI, paragraph 2, to delegate some of its power to the municipalities. N.J. Const. art. IV, VI, para. 2. In 1976, the Legislature effectuated such a delegation by enacting the MLUL, a comprehensive statute that allows municipalities to adopt ordinances to regulate land development "in a manner which will promote the public health, safety, morals and general welfare" using uniform and efficient procedures. Levin v. Twp. of Parsippany-Troy Hills, 82 N.J. 174, 178-79 (1980).

In determining whether a zoning ordinance is valid, a few basic principles are relevant. Most fundamental is that a zoning ordinance is "insulated from attack" by a presumption of validity. The party challenging the ordinance bears the burden of overcoming that presumption. Reviewing courts should not be concerned over the wisdom of an ordinance. If debatable, the ordinance should be upheld.

[Rumson Estates, Inc. v. Mayor & Council of Fair Haven, 177 N.J. 338, 350-51 (2003) (citations omitted).]

The controlling factor in considering whether a group of unrelated individuals living together as a single housekeeping unit constitutes a family for purposes of compliance with a single-family zoning restriction, is whether the residents bear the generic character of a relatively permanently functioning family unit. State v. Baker, 81 N.J. 99, 108-09 (1979). Thus, our Court invalidated ordinances in two shore communities that restrictively defined "family" and prohibited seasonal rentals by unrelated persons. Kirsch Holding Co. v. Manasquan, 59 N.J. 241, 245 (1971). The Court held that the challenged ordinances "preclude so many harmless dwelling uses . . . that they must be held to be so sweepingly excessive, and therefore legally unreasonable, that they must fall in their entirety." Id. at 251-52.

Relying upon its decision in Kirsh, the Court, in Glassboro, supra, interpreted the local ordinance, which limited residence "to stable and permanent 'single housekeeping units' that constitute either a 'traditional family unit' or its functional equivalent[,]" 117 N.J. at 422. The court found that ten college students who, based upon the credited testimony, planned "to live together for three years under conditions that correspond substantially to the ordinance's requirement of a 'stable and permanent living unit.'" Id. at 432.

Lifeline is a corporation, not a family, and does not resemble a family. Lifeline's use of the property does not demonstrate "stability" or "permanency" as required by the Court in Glassboro, supra, 117 N.J. at 422. The Board and the trial court's determinations are consistent with the case law in that they did not "disqualify" the visitors from the definition of "family," but rather, the Board's determinations found that Lifeline's use of the property, in itself, did not fit the definition of "family." Although the people who stay at the retreat may constitute a "family" as defined by Ordinance 919, Lifeline's use of the property is not consistent with the definition. Visitors stay for a short period of time, more or less similar to a hotel stay.

Substantial credible evidence in the record supports the Board's conclusion that the property was being used as "transient housing" similar to a group home, motel, or recreational facility. Unlike Glassboro, where ten unrelated college students planned to live together for an extended period of time, id. at 422, the visitors at the retreat stay for a very short period of time. The property in Glassboro was used as a home for those who occupied it. Here, the property is being used as a retreat and Lifeline's overarching use does not resemble a "family." In short, the Board's finding that Lifeline's use of the property did not meet the definition of "family" under Ordinance 919 was not constitutionally infirm. Its enactment was "reasonably related to the end of maintaining a peaceful family residential style of living -- an end we uphold as a legitimate goal of zoning -- and yet be neither excessive nor overreaching in its sweep." Berger v. State, 71 N.J. 206, 225 (1976).

B.

Lifeline contends it is entitled to a use variance, arguing the retreat is an inherently beneficial use and the property is particularly suitable to be used as a retreat. Lifeline argues the Board failed to reach those conclusions by "mangling the MLUL, discriminating against out-of-state interests and residents, and, hypothetically, describing the [r]etreat as a single-family dwelling when it suited the [Board's] denial." We disagree.

N.J.S.A. 40:55D-70(d) conferred upon zoning boards the followings powers:

In particular cases for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of this act to permit: (1) a use or principal structure in a district restricted against such use or principal structure . . . . A variance under this subsection shall be granted only by affirmative vote of at least five members, in the case of a municipal board, or two-thirds of the full authorized membership, in the case of a regional board[.]

 

N.J.S.A. 40:55D-4 defines inherently beneficial use:

 

"Inherently beneficial use" means a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. Such a use includes, but is not limited to, a hospital, school, child care center, group home, or a wind, solar or photovoltaic energy facility or structure.

 

If a use is held to be inherently beneficial, it presumptively satisfies the positive criteria for grant of a use variance. Smart SMR v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998). The Court in Medici has singled out "promotion of the general welfare," N.J.S.A. 40:55D-2(a), as a use that "most clearly amplifies the meaning of special reasons." Medici v. BPR Co., 107 N.J. 1, 18 (1987). The general welfare purpose is also most often relied upon to prove special reasons for issuance of a use variance. Burbridge, supra, 117 N.J. at 386-87. This purpose is frequently found to be promoted by uses deemed "inherently beneficial," such as hospitals and schools. A use not "inherently beneficial" may still, however, be found to promote the general welfare if it is peculiarly fitted to the particular location for which the variance is sought. Id. at 386. Note that an applicant must also show that there is a need for the use in the municipality or region. See Medici, supra, 107 N.J. at 4. In Kohl v. Mayor and Council of Fair Lawn, 50 N.J. 268 (1967), the Supreme Court laid down the rule that where the use involved in a use variance application is not of the type which provides special reasons inherently promoting the public good, such as a school or hospital, a general welfare finding must be premised on a showing that the use is peculiarly fitted to the particular location for which the variance is sought. Id. at 278.

As for the negative criteria, N.J.S.A. 40:55D-70 provides:

 

No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.

 

Thus, the negative criteria consist of two elements: No relief may ever be granted unless it can be done (1) without substantial detriment to the public good, and (2) without substantially impairing the intent and purpose of the zone plan and zoning ordinance. See Medici, supra, 107 N.J. at 4.

Greater deference is ordinarily given to a denial of a variance than to a grant. CBS Outdoor, 414 N.J. Super. at 578. This reflects the general concern voiced by the courts that only exceptional cases warrant use variances since there exists a strong legislative policy favoring land use planning by ordinance rather than by variance. Medici, supra, 107 N.J. at 21-23. Thus, variances should be granted sparingly and with great caution since they tend to impair sound zoning. Med. Ctr. v. Princeton Twp. Zoning, 343 N.J. Super. at 199.

If the board has denied a variance, then as stated in Medical Realty v. Bd. of Adjustment, 228 N.J. Super. 226, 233 (App. Div. 1988), "the plaintiff has the heavy burden of proving that the evidence presented to the board was so overwhelmingly in favor of the applicant that the board's action can be said to be arbitrary, capricious or unreasonable." See also N.Y. SMSA v. Bd. of Adjustment, 370 N.J. Super. 319, 331 (App. Div. 2004). Assuming an adequate basis in the record for a board's conclusions, deference to its judgment is ordinarily appropriate. Kramer, supra, 45 N.J. at 296-97.

Here, Lifeline relies on Bonsall v. Mendham, 116 N.J. Super. 337 (App. Div. 1971), to advance the argument that the property is an inherently beneficial use. In that case, the plaintiff challenged the granting of a variance authorizing the construction of a building enclosure over a dog run located on property of The Seeing Eye, Inc. Id. at 339. The trial court in that case found the proofs in the record supported the board's findings. Id. at 347. The Appellate Division affirmed the trial court's order. Ibid.

A substantial difference between Bonsall and the present case is that in Bonsall, the board granted the variance. Id. at 339. Here, the Board denied the variance. Greater deference is ordinarily given to a denial of a variance than to a grant. See CBS Outdoor, supra, 414 N.J. Super. at 578. Courts apply this deferential standard because local boards possess particular knowledge of local conditions and are better suited to decide local planning issues. Baghdikian v. Bd. of Adjustment, 247 N.J. Super. 45, 50 (App. Div. 1991).

It is not this court's job to determine whether Lifeline's use is, in fact, inherently beneficial. Rather, this court must only determine whether there was enough evidence in the record for the Board to make that finding. The Board found Lifeline failed to demonstrate sufficient special reasons to satisfy the positive criteria for the grant of a use variance, specifically finding the proposed use did not rise to the status of an "inherently beneficial use" such as the traditionally accepted hospitals, schools, child care centers, etc. Lifeline presented the property as a "retreat house." Although the Board found a "retreat house" may serve some benefit, the Board did not believe it served the public good. The retreat benefited clients of Lifeline.

Furthermore, the Board found Lifeline failed to demonstrate the use promotes the general welfare because the proposed site is particularly suitable for that use. The property had previously been utilized as a single-family residence until the time it was donated to Lifeline and there was no testimony offered to prove the property could not continue to be used as such in the zone. Thus, the property is not particularly suitable to be used as a retreat.

As for the negative criteria, the Board found the current residents of the neighborhood would be adversely affected by the introduction of this prohibited use into the neighborhood. Testimony was presented, and the Board found, the residential character of the neighborhood had changed in a negative manner, and would continue to be negatively affected. The Board determined Lifeline failed to establish the existence of special reasons entitling it to the use variance.

The Board's decision was not arbitrary, capricious, or unreasonable. The Board's finding the retreat is not inherently beneficial is supported by the record. The retreat benefits only those clients who are allowed access. Unlike a hospital or a school, there is no greater public benefit that supports the general welfare.

Furthermore, the property is not particularly suited to be used as a retreat. It had been used as a single-family home for years prior, and Lifeline made no showing that the property cannot be used as such. Finally, the Board found the property cannot be used as a retreat without substantial detriment to the public good or without substantially impairing the intent and purpose of the zoning ordinance. Lifeline failed to meets its burden, and the Board's determination is entitled to deference.

In count seven of the complaint, Lifeline argues the Board violated OPMA and the MLUL when it discussed Lifeline's application denial prior to adopting the resolution and excised reasons for the denial from the resolution, all without notice to Lifeline. This issue was not argued before the trial court and not specifically addressed in the trial court opinion. Respondents argue Lifeline's OPMA claim was not timely filed, and the Board's actions did not violate OPMA.

Although Lifeline did not have specific knowledge its application would be discussed at the July 6, 2011 Board meeting, there is no evidence in the record the Board violated OPMA by failing to comply with the statutory notice requirements. Therefore, we affirm the trial court order dismissing count seven of Lifeline's complaint.

The OPMA provides in pertinent part:

The Legislature finds and declares that the right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies, is vital to the enhancement and proper functioning of the democratic process; that secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society, and hereby declares it to be the public policy of this State to insure the right of its citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon in any way except only in those circumstances where otherwise the public interest would be clearly endangered or the personal privacy or guaranteed rights of individuals would be clearly in danger of unwarranted invasion.

 

[N.J.S.A. 10:4-7.]

N.J.S.A. 10:4-8(d) requires "adequate notice" must be provided

at least 48 hours, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting, which notice shall accurately state whether formal action may or may not be taken and which shall be (1) prominently posted in at least one public place reserved for such or similar announcements, (2) mailed, telephoned, telegrammed, or hand delivered to at least two newspapers which newspapers shall be designated by the public body to receive such notices because they have the greatest likelihood of informing the public within the area of jurisdiction of the public body of such meetings, one of which shall be the official newspaper, where any such has been designated by the public body or if the public body has failed to so designate, where any has been designated by the governing body of the political subdivision whose geographic boundaries are coextensive with that of the public body and (3) filed with the clerk of the municipality when the public body's geographic boundaries are coextensive with that of a single municipality, with the clerk of the county when the public body's geographic boundaries are coextensive with that of a single county, and with the Secretary of State if the public body has Statewide jurisdiction. For any other public body the filing shall be with the clerk or chief administrative officer of such other public body and each municipal or county clerk of each municipality or county encompassed within the jurisdiction of such public body. Where annual notice or revisions thereof in compliance with section 13 of this act set forth the location of any meeting, no further notice shall be required for such meeting.

N.J.S.A. 10:4-15(a) provides:

Any action taken by a public body at a meeting which does not conform with the provisions of this act shall be voidable in a proceeding in lieu of prerogative writ in the Superior Court, which proceeding may be brought by any person within 45 days after the action sought to be voided has been made public.

The OPMA issue was not specifically addressed in the trial court opinion. However, Rule 2:10-5 provides "[t]he appellate court may exercise such original jurisdiction as is necessary to the complete determination of any matter on review."

The Board voted to deny Lifeline's application on May 18, 2011. The Board then discussed Lifeline's application on July 6, 2011 without an appearance by Lifeline. The conversation at that meeting revolved around a draft of the resolution which was scheduled to be adopted on July 20, 2011.

Lifeline was not present at the July 6, 2011 Board meeting and alleges it was not specifically "noticed" that its application would be discussed that date. However, Lifeline does not make any allegation or argument the Board failed to comply with the notice requirements of the statute. The resolution was briefly discussed (the entire transcript from that date was less than twelve pages). The discussion consisted mostly of scheduling the adoption of the resolution, and the Board attorney posed a few questions regarding content of the resolution. This conversation was made at a public meeting. It is all on the record, in the transcript, and not in violation of N.J.S.A. 10:4-7. Lifeline makes no showing this meeting was not properly noticed in accordance with the statute. Lifeline only argues it did not have knowledge the application would be discussed.

As to the procedural deficiencies raised by respondents (that Lifeline is out of time to bring this claim), the action that allegedly violated OPMA occurred on July 6, 2011. The complaint was not filed until August 31, 2011, which was shortly after the forty-five-day time period expired and therefore procedurally deficient.

Affirmed.

 

 

1 Pfund McDonnell, P.C. submitted a brief as to compensatory damages only.