Northgate Condominium Association Inc. v. Borough of Hillsdale Planning Board, A-5 September Term 2011; Supreme Court; opinion by Hoens, J.; decided May 13, 2013. On certification to the Appellate Division. [Sat below: Judges Carchman, Messano and Waugh in the Appellate Division; Judge Toskos in the Law Division.] DDS No. 26-1-9937 [41 pp.]

In this appeal the court considers whether the lot designations contained in the notice of public hearings on an application for a conditional-use approval sufficiently complied with the provisions of the Municipal Land Use Law (MLUL) to confer jurisdiction on the planning board, and whether the project design of the internal roadway complied with requirements of the Residential Site Improvement Standards (RSIS).

Defendant Caliber Builders Inc. sought to develop a parcel of land commonly referred to as "Golden Orchards," located primarily in Hillsdale and owned by defendant Golden Orchards Association, L.P. Desirous of constructing an age-restricted housing development, which was a conditional use in the zone, Caliber submitted a preliminary site-plan application to defendant Hillsdale Planning Board.

Plaintiff Northgate Condominium Association Inc. is a nonprofit corporation that manages and operates Northgate Condominiums, a previously existing condominium community built on an adjacent parcel of land in Washington Township. Northgate objected to the Caliber application.

Caliber arranged for notice of the hearing on its application before the Hillsdale Planning Board to be published in The Record of Hackensack and mailed notice to all property owners within 200 feet of the subject parcel. The notice indicated that the portion of the property located in the borough of Hillsdale was known as Lots 1.01 and 1.02, Block 506, and that it was "commonly known as Golden Orchards (south of Ell Road)…." However, the tax lot numbers were not correct. The parcel instead should have been identified as Lot 1, in accordance with its designation on the official tax map.

After numerous hearings, the planning board voted to approve Caliber’s application and adopted a resolution. Northgate filed an action in lieu of prerogative writs, primarily arguing that the notice published by Caliber was defective and deprived the planning board of jurisdiction to act on the application. Northgate also argued that the design of a roadway did not comply with the Residential Site Improvement Standards. The trial and appellate courts upheld the decision of the board to approve the conditional-use application.

The Supreme Court granted Northgate’s petition for certification.

Held: The developer’s notice of public hearings, although using lot numbers that were not included on the official tax map, did not thereby misidentify the lot to be developed, complied with the provisions of the Municipal Land Use Law, and conferred jurisdiction on the planning board. Plaintiff fails to identify any evidence supporting its claim that the project design of the internal roadway did not comply with density requirements under the Residential Site Improvement Standards.

The first question before the court is whether the notice of the hearings on the application for the conditional-use approval published by Caliber complied with the notice requirements of the Municipal Land Use Law (MLUL) notwithstanding the erroneous tax lot designation. Failure to provide adequate notice, or proceeding on defective notice, deprives a land-use board of the power to take any official action and renders null and void any decisions it has made. The MLUL requires use of either the street address or the lot and block numbers as shown on the current tax map to identify the property that is the site of the proposed development.

The court finds that the applicant’s notice, although using lot numbers that were not included on the official tax map, did not misidentify the lot to be developed. The block number used in the notice was correct. Had Northgate, or any other interested party, looked at the tax map, it would have been obvious that Lot 1 was a single unified parcel, and not a parcel that had been subdivided formally into two lots called 1.01 and 1.02. Moreover, Caliber used the lot numbers in reliance on directions it had been given by the tax assessor. Also, the notice, by referring to Golden Orchards, identified the property in question by its commonly known name and further referred to the location as being South of Ell Road, making the identity of the property clear.

In the context of a parcel of land that had no street address, that had been the focus of earlier development proposals, and that previously had been the target of opposition, the minor misstatement in the lot numbers used in reliance on directions from the municipal tax assessor did not deprive the board of jurisdiction to act. Nor was any confusion about the location for the proposed development evident where many interested property owners appeared for the hearings and after the board published its notice using the accurate lot designation, no new objector stepped forward. The minor error in the notice did not fall short of the MLUL’s requirement to describe the property to be developed. The court declines to conclude that the board lacked jurisdiction to act.

The second issue before the court is whether Caliber demonstrated that its proposed development satisfied one of the conditions that the Hillsdale borough code required as a prerequisite for approving a conditional use. Northgate asserts that Caliber did not demonstrate that its project design complied with certain requirements fixed by the RSIS for internal roadway widths and improvements. Northgate first asserts that the board’s calculations were flawed because they were based on the size of the entire parcel rather than the size of the parcel after excluding environmentally sensitive land. Northgate’s inability to identify any evidence that identifies and quantifies the extent of the wetlands that it contends should have been excluded from the density calculation is fatal to its challenge of the board’s finding about the roadway’s intensity. Nonetheless, the court agrees with Northgate’s alternate argument that the Appellate Division erred by concluding that the board could round a number down to achieve a lower density that could support the designation of the roadway as being of low intensity. The RSIS regulation relating to intensity of roadways makes it plain that the drafters did not intend that "rounding" techniques could be used to alter its standards.

The judgment of the Appellate Division is affirmed as modified.

Chief Justice Rabner; Justices LaVecchia, Albin, and Patterson; and Judges Rodríguez and Cuff, both temporarily assigned, join in Justice Hoens‘s opinion.

For appellant — Ira E. Weiner (Beattie Padovano; Weiner, John J. Lamb and Daniel L. Steinhagen on the briefs). For respondents: Caliber Builders Inc. et al. — Russell R. Huntington (Huntington Bailey; Huntington and Siobhan C. Spillane-Bailey on the brief); Hillsdale Planning Board — Harold Ritvo.