THE IMPORTANCE OF PROVIDING PROPER PUBLIC NOTICE IN APPLICATIONS FOR DEVELOPMENT

In Lakewood Realty Assocs. v. Twp. of Lakewood Planning Bd. & Rd Lakewood, 2023 N.J. Super. Unpub. LEXIS 1634, an unpublished Appellate decision decided last week, a developer submitted an application to build a hotel. In the developer’s public notice, the project was described as a hotel and a bank. What the notice did not say, however, was that the plan for the hotel included a restaurant and banquet facility with a liquor license. The Planning Board approved the project. Following a challenge from a property owner, the Appellate Division reversed, reasoning that the public notice’s failure to mention the restaurant, banquet facility, and anticipated liquor license rendered the application materially deficient. The applicant removed the bank from its plans and submitted an amended application, along with a new notice. However, the new notice again neglected to mention that the hotel would include a banquet facility. Once again, the project was approved, and the applicant appealed. Once again, the Appellate Division reversed the trial court and vacated the board’s approval.

The Municipal Land Use Law (“MLUL”) requires that applicants provide public notice of an application for development at least ten days before the public hearing on that application. N.J.S.A. 40:55D-12. Among other information, the public notice must include “the nature of the matters to be considered.” N.J.S.A. 40:55D-11. While the public notice does not have to be exhaustive, it must include enough information to enable the public to make an informed decision about whether to participate in the applicant’s land use hearing. An applicant may not publish an “uninformative and vague notice” on the assumption that residents will then inspect the plans on their own to determine the critical features of the proposed project.

In reversing the planning board’s decision, the Appellate Division reasoned that the inclusion of a banquet facility in the hotel plan was significant enough to warrant inclusion on the applicant’s public notice. That the definition of hotel in the township ordinance included “banquet facilities” did not change the analysis because the applicant still had a statutory obligation to convey to the public the impactful activities that would be permitted on the site. In other words, the banquet facility was a material aspect of the application that needed to be mentioned in the notice and its exclusion made the application materially defective.

In reversing the approval a second time, the court reiterated the important gatekeeping function of public notice in land use matters.