Late Claim Allowed in Zoning Dispute
The New Jersey Supreme Court reinstated a dismissed complaint after finding that the forty-five day statute of limitations in R. 4:69-6(b)(3) should be enlarged because “‘it is manifest that the interest of justice so requires.’” The facts were undisputed. In May 2008 the Hopewell Township Planning Board granted preliminary site plan approval for a development plan, and approved a forty-three page resolution on September 25, 2008. The developer published notice of the approval in the Trenton Times on September 27, 2008, and notified the Township of the publication by email on October 1, 2008. The Township then published notice in The Hopewell Valley News on October 2, 2008. Following publication of both notices, an objector called the Township inquiring about the Township’s publication to calculate the time for filing an appeal. The plaintiffs filed on the forty-fifth day that notice was provided by the Township. Defendants successfully moved to dismiss the case on timeliness issues, and the Appellate Division affirmed.
The Supreme Court reversed and concluded that the three standards announced in Brunetti v. New Milford, N.J. 576 (1975) (whether the matter presented a novel or constitutional claim; whether it involved an ex parte determination; or whether it implicated a matter of great public interest), were not an exclusive list of exceptions to R. 4:69 and enlarging its time lines. The Court further relied on Cohen v. Thoft, 368 N.J. Super. 338 (App. Div. 2004), where a “communication snafu on which plaintiff relied was sufficient to trigger the three-day delay and did not prejudice the defendants.” The Court further expanded its discussion on Cohen to note that willful concealment is not necessary to justify enlargement of the filing time period, especially when a party “cannot be said to have slumbered on its rights.”
Filing deadlines can be very important in redevelopment cases where a planning board must first recommend that an area be found in need of redevelopment, and the governing body must adopt a resolution agreeing with the planning board’s recommendation. A governing body must then later adopt a redevelopment plan. These actions are reviewable as prerogative writ actions, but must be filed within the prescribed deadlines. For more on cases discussing statutes of limitation in the redevelopment context, please see the following blog posts:
Neptune Redevelopment Challenge Dismissed
Trial Court Permits Redevelopment Challenge in West Windsor Despite Timeliness Objection
The New Jersey Supreme Court’s opinion in Hopewell Valley Citizens’ Group, Inc., v. Berwind Property Group Development Co., L.P., ___ N.J. ___ (2011), may be found here.
Read more about the DeRose case mentioned in the above blog posts, in which the property owners were represented by McKirdy & Riskin’s Richard DeAngelis, Edward McKirdy and Anthony Della Pelle, on our New Jersey Condemnation Law Blog.
The author wishes to acknowledge the assistance of Cory K. Kestner, Esq., of McKirdy & Riskin, PA, in the preparation of this article.
