On May 19, 2010, the New Jersey Supreme Court affirmed the Appellate Division’s ruling in Iron Mountain Information Management v. City of Newark, reported at 405 N.J.Super. 599 (2009), that a commercial tenant, who had an option to purchase the building it leased was not entitled to receive individual notice of a local planning board’s public hearing on a proposed blight declaration under the Local Redevelopment and Housing Law. __ N.J. __, __ (2010) (slip op. at 6). In so ruling, the high Court rejected the plaintiff’s argument that the lack of personal notice in this context violated due process. As such, the Supreme Court’s ruling in Iron Mountain makes all the more interesting its decision to let stand the holding in GF Princeton v. Ewing Township Planning Board after it had initially granted certification. No. A-1522-07T3 (App. Div.) certif. granted 200 N.J. 503 (2009) appeal dismissed as improvidently granted 201 N.J. 270 (2010).
In GF Princeton, the Appellate Division vacated land use approvals granted under the Municipal Land Use Law on account of the joint applicants’ failure to provide a non-applicant with personal notice of the public hearing "as a matter of administrative due process and basic fairness" in light of the non-applicant’s long-term ground tenancy (which included recorded easement rights) and its recorded ownership interest in buildings and improvements located on the property that was the subject of the application. However, the Appellate Division was careful to limit its recognition of a right to notice outside of MLUL requirements to those having the kind of interest the said non-applicant had. Id. at 10-14. In short, the GF Princeton case makes clear that a commercial tenant, who also has easement rights and an ownership interest in buildings and improvements is not a mere tenant and where such rights and interests lie in the very property that is the subject of an application for development, administrative due process and basic fairness require that the holder of such rights and interests be accorded notice and an opportunity to be heard.
In addition to the greater substantiality of plaintiff’s interest in GF Princeton, another difference between the two cases, which may have led the Supreme Court to rule against the plaintiff in Iron Mountain (and stay its hand in GF Princeton), was the extent of the proceedings at issue. The hearing before the planning board on the application for land use approvals in GF Princeton was the only opportunity the plaintiff had to present opposition, whereas in Iron Mountain the plaintiff’s right to be heard was not limited to proceedings under the LRHL but, rather, extended to proceedings under the Eminent Domain Act of 1971, which in the event of condemnation would provide the plaintiff with the legal wherewithal to challenge the municipality’s right to acquire the property. Id. at 12.
The rulings in Iron Mountain and GF Princeton do not provide developers, applicants or municipal agencies with a bright line test for the provision of notice in instances not covered by express statutory language. However, based upon the rationale of these cases, it is fair to say that any person who holds an ownership interest in property that is the subject of a public hearing may be entitled to notice of such hearing if (1) the outcome of the proceedings at issue may affect such person’s property interest, (2) the proceedings constitute the only opportunity for such person to be heard on the matter and (3) the party charged with giving notice has actual or constructive knowledge of such person’s ownership interest.