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Legal Q & A

Matthew Weng
Matthew Weng
League Staff Attorney

Meeting Notice Requirements
and Taxpayer Bankruptcy

Q We have been having issues with the notice requirement with our land use board. We have proof that we sent notice on time. However, some individuals claim that they never received notice, and others received the notice late because they were out of town at the time. Some of these residents still attend the meeting and claim that we should not have the hearing because they have not had time to prepare even though we sent notice on time. May we still proceed?

A Notice must be sent to certain designated parties at least ten days prior to most zoning board or planning board actions. The notice itself must contain the date, time and place of the hearing; as well as what will be discussed at the meeting. The notice should also identify the property or properties that will be affected by address or block and lot number, as well as the locations of any maps and/or documents available for public viewing.

As noted above, notice must be given ten days prior to a hearing. You should not count the day of the hearing as one of the ten days.
Your specific issue essentially deals with when notice is complete: when the municipalities has satisfied its responsibilities under the Municipal Land Use Law. According to statute, notice is complete when it is send via certified mail. In other words, the land use board in question has no further duty than to ensure the notice has all the required elements, and that it is sent at least ten days prior to the hearing to all interested parties.

It follows, then, that the land use board has no duty to ensure that the interested parties actually received neither the notice, nor that the hearing take place any specific number of days after the individual received and read the notice.

In circumstances where notice is properly sent, there is no duty to reschedule a meeting for those who claim they never received a notice or received it too late to properly prepare. Even in situations where notice is not properly sent, if the individual in question attends the meeting, voices their opinion, but does not object to the notice deficiencies, they may be deemed to have waived their right to object. See Izenberg v. Bd. Of Adjustment of City of Paterson, 35 N.J. Super. 583, 588 (App. Div. 1955).

Q We have an individual in town who owes property taxes. He recently declared bankruptcy. Can we still attempt to collect those taxes? What special circumstances should we be aware of?

A First, you should immediately cease all attempts to collect the taxes, as filing for bankruptcy invokes the automatic stay, preventing any collection attempts by any creditor. The automatic stay prohibits actions such as tax sales or foreclosures due to delinquent property tax payments.

However, in 1994 the United States Congress passed an exception to the automatic stay provision that allows the tax collector in your town to create or perfect liens on property taxes.

Back taxes owed to towns are considered unsecured priority claims. A municipality should immediately file a Proof of Claim with the bankruptcy court to protect their interests. Afterwards, make sure your municipal attorney closely follows the progress of the bankruptcy filing. If the debtor files a Chapter 7 bankruptcy, the priority status of the debt owed to the municipality ensures that it will have a better chance to recover any payouts. In a Chapter 13 situation, where the debtor creates and must adhere to a repayment plan, ensure that your municipal attorney participates in the plan approval process so that the priority status of the debt is not lost in the shuffle.

Finally, keep in mind that failing to pursue your claim in bankruptcy court may not prohibit the municipality from attempting to collect the debt in state Tax Court. See Alpha-Bella VI, Inc, v. Clinton Twp., 14 N.J. Tax 597, (1995)

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


First published in New Jersey Municipalities, Volume 89, Number 2, February 2012

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