Daily Development for Friday, October 19, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders
Kansas City, Missouri

The Reporter here was Ira Meislik of New Jersey

ZONING; PROCEDURE; NOTICE:    Where  notice of a proposed change to a zoning ordinance must be sent to affected property owners if the amendment proposes to change the "classification" or boundaries of a zoning district, the term  "classification," unless otherwise defined,  includes changes that could fundamentally alter the character of a zoning district, including the creation of subzones with differing bulk and density requirements. 

Robert James Pacilli Homes, L.L.C. v. Township of Woolwich, 394 N.J. Super. 319, 928 A.2d 412 (App. Div. 2007)

A developer sued a municipality for failing to give it proper personal statutory notice when it amended an ordinance to alter the density and bulk standards for residential zones.

The amendment listed development preferences for new subdivisions in designated residential zones, but did not alter the uses in those zones.  The municipality did not send out notices by certified mail, as would be the statutory process if notice was required, prior to the first reading of the amendment.  A public hearing was held for the second reading.  The amendment was then referred to the planning board, and then passed by the municipality.

The developer had two subdivision applications pending at the time of the amendment's adoption.   In response to the developer's claim that the municipality failed to give proper notice of the amendment, the  municipality answered that notice was not required because the amendment did not change the permissible uses under the ordinance.

The lower court carefully analyzed the amendment to determine if it changed the classification of the ordinance.  It found that the amendment created subzones within the residential districts.  Each of these subzones had differing bulk and density requirements.  The lower court found that the scope of the changes was significant, and therefore the notice actually given was inconsistent with due process requirements.  As a result, it ruled the ordinance invalid.

On appeal, the municipality argued that its notice complied with all statutory requirements.  The statute required notice to be given for any amendment proposing to change the "classification" or boundaries of a zoning district.  The Appellate Division noted that the term: "classification" was not defined within the statute and thus required construction.  It found that "classification" was usually synonymous with the broad general uses permitted in an area, as well as with sub-categories.  The Court held that a change in a broad category, as well as in any sub-category, could fundamentally alter the character of a zoning district.  It cited prior cases where notice had been needed after a similar amendment to bulk and density requirements within a zone because those could result in a substantive change to future development in the zoning area.  This necessitated notice to those who could be affected.

The municipality argued that a notice requirement dependent on the substantiality of the change introduces an element of uncertainty into the municipal planning and zoning process.  The Court disagreed, noting that the test was not based on the number of changes, but was based on the substance of the changes.  Because, in this case, the Court found that the municipality was required to provide notice under the statute and did not, it invalidated the ordinance.       

Comment: Obviously this could be a very useful case to buy time, which often is an extremely useful commodity in a land use process.  Put it somewhere where you'll find it when you need it. 

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