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Legal Q & A

Statute of Limitations and Notice of Land Use Hearings

Deborah M. Kole
League Staff Attorney
Deborah M. Kole, League Staff Attorney

Q Our municipality has just been sued by a long time resident under the Tort Claims Act. He claims that the municipality is liable for the massive damage to his property caused by flooding during a recent storm. His contention is that improvements made to nearby municipal property three years ago caused the drainage runoff that has repeatedly flooded his land since then. Although he filed the required TCA notice eighteen months ago when more minor flooding occurred, he did not file suit until after the most recent storm caused extensive damage to his property. Isn’t he barred from suit by the two year statute of limitations under the TCA, since the alleged negligence occurred over three years ago?

A A recent New Jersey Supreme Court case indicates that he is not. In the case of Lyons v. Township of Wayne, A-98-04 (2005), the Court reversed the Appellate Division’s holding affirming summary judgment based on the running of the two year statute of limitations in the New Jersey Tort Claims Act, NJSA 59:8-1 to -11. In that case, suit was also filed more than two years after the acts that allegedly caused the repeated flooding to plaintiff’s property. Viewing the facts in the light most favorable to plaintiff (as the law requires for purposes of summary judgment) the Court assumed that the flooding was caused by the negligence of the municipality, and therefore found that its failure to abate the condition after receiving notice of the problem made the situation one of “continuing nuisance.” In such a situation, said the Court, each day the nuisance continues starts a new statute of limitations.

The court went on to quote another New Jersey Supreme Court case, Russo Farms, Inc. v. Vineland Board of Education, 144 NJ 84 (1996), which said that a party subject to a continuing nuisance can”…collect damages for each injury suffered within the limitations period.” Therefore, the court reversed the finding of summary judgment, and remanded the case for fact finding to determine if there was liability on the part of defendant.

Under the facts as you relate them, then, the statute of limitations under the New Jersey Tort Claims Act does not automatically bar the resident’s suit against the municipality





Q I am a council member in my community. Our municipality has an ordinance requiring those submitting applications for variances, major subdivisions, and major and minor site plans to give notice of the hearings concerning these applications to the public in several ways. First, legal notice in a newspaper is required. Second, individual notice is required to all property owners within 300 feet of the subject property. Third, a sign giving notice of the application and hearing must be posted on the subject property. Our new municipal attorney says that this ordinance is invalid as it currently stands, and must be modified. Can you explain this to me?

A In the case of New York SMSA Limited Partnership d/b/a/ Verizon Wireless v. Township Council of the Township of Edison, Docket No. A-6490-03T5, decided February 2, 2006, the Appellate Division found amendments to an ordinance that required similar notice invalid, on the basis that the notice requirements went beyond those in the Municipal Land Use Law and were inconsistent with that law. The court said that the statutes concerning notice of land use hearings, NJSA 40:55D-11 and -12, make it clear what discretion is and is not given to municipalities. NJSA 40:55D-12(a) provides that “…the governing body may by ordinance require public notice for such categories of site plan review as may be specified by ordinance…”, thus allowing communities to require notice for hearings concerning major and minor site plans as well as the statutorily mandated notice for hearings on variances and major subdivisions. Therefore, a municipality does have some discretion over the type of land use hearings that must be noticed.

However, the court continued, no such discretion is given to municipalities to modify the type of notice that must be given. The court said “The Legislature could not have stated the mandatory nature of the provisions that describe the scope and method of notice more clearly than it did…” Legal notice in the newspaper and individual notice to property owners within 200 feet of the subject property are the only types of notice that can be required under the MLUL. In response to the claim of the municipality that requiring more notice to the public cannot be inconsistent with the MLUL, the court disagreed, saying that the MLUL seeks to balance the interests of developers and the residents of the municipality and to achieve simplicity and uniformity in land use procedures. Therefore, the court invalidated the ordinance to the extent that it created enhanced notice requirements.

This column is for informational purposes only, and is not intended as legal advice.



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