Hackensack Redevelopment Challenge Permitted Over Objection to Hearing Notice
Redevelopment Notice Statute Upheld as Constitutional on Appeal
Despite categorizing certain notice provisions in New Jersey’s redevelopment statute as “spotty and incomplete” based upon the 2008 decision in Harrison Redevelopment Agency v. DeRose, 398 N.J. Super. 361 (App. Div. 2008), the New Jersey appellate court recently upheld the method by which planning boards must provide notice of their hearings in a matter involving a challenge by owners to a redevelopment project in downtown Hackensack. At issue in the Hackensack matter was the requirement that notices of redevelopment hearings before the City Planning Board be mailed by the planning board to the property owner’s address on file with the tax assessor. A third-party failed to receive a mailed notice from the planning board because the address had not been updated and a forwarding request had expired. The third-party eventually attended all but the first planning board meeting, and was removed from the investigation area as part of the planning board’s recommendation. Plaintiffs, other property owners in the area being investigated by the planning board, challenged the planning board’s recommendation based on the third party’s failure to receive actual notice.
The trial court found the notice was defective and the planning board’s actions were a nullity. The Appellate Division reversed, finding that due process only requires adequate notice, and not actual notice, of a planning board’s hearing under the statute. The court further clarified by stating that, “[f]rom 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.’” The court finally noted that it was unable to locate any case where a municipal action was deemed void because constitutionally sufficient notice failed to reach every party – “let alone a party who, ultimately, was not so affected.”
On appeal the plaintiffs alleged a violation of the Open Public Meetings Act by the Mayor and Council. The Appellate Division dismissed the matter without a lengthy discussion because the Mayor and Council had agreed before trial to hear the matter again de novo at a future Council meeting.
A copy of the Appellate Division’s opinion in 62-64 Main Street, LLC, v. Mayor and Council of the City of Hackensack, A-0342-09T3 (January 14, 2011) can be found here.
A copy of the New Jersey Appellate Division’s opinion in Harrison Redevelopment Agency v. DeRose, 398 N.J. Super. 361 (App. Div. 2008) can be found here.
For a discussion on notice provisions and tenants in the redevelopment context, please see the following blog posts:
Tenants not entitled to Notice of Blight Designation
New Jersey Supreme Court Considers Tenants’ Rights to Notice in Redevelopment Challenge
The property owners in DeRose were represented by McKirdy & Riskin’s Richard DeAngelis, Edward McKirdy and Anthony Della Pelle.
The author wishes to acknowledge the assistance of Cory K. Kestner, Esq., of McKirdy & Riskin, PA, in the preparation of this article.
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