Opinion
DOCKET NO. A-4576-12T2 DOCKET NO. A-1275-13T2
06-05-2015
ADVANCED DEVELOPMENT GROUP L.L.C., Plaintiff-Appellant, v. BOARD OF ADJUSTMENT OF NORTH BERGEN, CHURCH HILL PARTNERS, L.L.C., and PLANNING BOARD OF THE COUNTY OF HUDSON, Defendants-Respondents. ADVANCED DEVELOPMENT GROUP, L.L.C., Plaintiff-Appellant, v. HUDSON COUNTY BOARD OF CHOSEN FREEHOLDERS, PLANNING BOARD OF THE COUNTY OF HUDSON, and CHURCH HILL PARTNERS, L.L.C., Defendants-Respondents.
Priscilla J. Triolo argued the cause for appellant (Bittiger Triolo, P.C., attorneys; Ms. Triolo, on the brief). Haley Jung argued the cause for respondent North Bergen Board of Adjustment (Netchert, Dineen & Hillman, attorneys; Ms. Jung, on the brief). Santo T. Alampi argued the cause for respondent Church Hill Partners, L.L.C. (Alampi & DeMarrais, attorneys; Mr. Alampi, on the brief). Edward J. Florio argued the cause for respondent Hudson County Board of Chosen Freeholders (Florio & Kenny, L.L.P., attorneys; Mr. Florio, of counsel and on the brief; Michael T. Wilkos, on the brief). John J. Curley, L.L.C., attorneys for respondent Planning Board of the County of Hudson, rely on the brief filed by Hudson County Board of Chosen Freeholders.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi and O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket Nos. L-0371-13 and L-3294-13. Priscilla J. Triolo argued the cause for appellant (Bittiger Triolo, P.C., attorneys; Ms. Triolo, on the brief). Haley Jung argued the cause for respondent North Bergen Board of Adjustment (Netchert, Dineen & Hillman, attorneys; Ms. Jung, on the brief). Santo T. Alampi argued the cause for respondent Church Hill Partners, L.L.C. (Alampi & DeMarrais, attorneys; Mr. Alampi, on the brief). Edward J. Florio argued the cause for respondent Hudson County Board of Chosen Freeholders (Florio & Kenny, L.L.P., attorneys; Mr. Florio, of counsel and on the brief; Michael T. Wilkos, on the brief). John J. Curley, L.L.C., attorneys for respondent Planning Board of the County of Hudson, rely on the brief filed by Hudson County Board of Chosen Freeholders. PER CURIAM
In this consolidated appeal, plaintiff Advanced Development Group, L.L.C. appeals from orders dismissing its complaint in lieu of prerogative writs against defendants North Bergen Board of Adjustment (Board of Adjustment), Church Hill Partners, L.L.C. (Church Hill), Hudson County Planning Board, and the Hudson County Board of Chosen Freeholders (Freeholder Board). The trial court found plaintiff's action in lieu of prerogative writs challenging the decision of the Board of Adjustment was barred under Rule 4:69-6(b)(3) because plaintiff filed its complaint more than forty-five days after Church Hill published the notice required by N.J.S.A. 40:55D-10(i). The court also found plaintiff was precluded from challenging the decision of the Hudson County Planning Board under Rule 4:69-5 because it did not exhaust its right to appeal that Board's decision to the Freeholder Board. We affirm in part and reverse in part.
I
Church Hill applied to the Board of Adjustment for site plan approval for the construction of a mid-rise residential building in North Bergen. The Board of Adjustment gave Church Hill conditional approval for its project and, on November 13, 2012, memorialized this approval in a resolution. Church Hill arranged to have notice of the approval published in The Jersey Journal, which appeared on November 23, 2012. The Board of Adjustment similarly arranged to have notice of its approval published in The Jersey Journal, which appeared on December 12, 2012.
On December 10, 2012, plaintiff's counsel filed a request for documents under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, with the Township of North Bergen, seeking documents associated with Church Hill's application. On December 20, 2012, plaintiff's counsel called the staff of the Board of Adjustment to follow-up on her client's OPRA request. On this date, plaintiff's counsel learned the Board of Adjustment had published a notice of its Church Hill decision in The Jersey Journal on December 12, 2012. A member of the staff also advised plaintiff's counsel that she was not aware of any other publications of the decision and that the Board of Adjustment was responsible for publishing its decision. On December 21, 2012, the staff faxed to plaintiff's counsel a copy of the notice that was published in The Jersey Journal.
On December 17, 2012, the Hudson County Planning Board voted to approve Church Hill's application. The resolution memorializing its approval was issued on February 20, 2013.
On January 22, 2013, plaintiff filed an action in lieu of prerogative writs against the Board of Adjustment challenging its approval of Church Hill's project. Church Hill was also named as a defendant. On February 4, 2013, plaintiff filed an amended complaint to add the Hudson County Planning Board as a defendant and challenged its decision to approve Church Hill's project.
Because neither Church Hill nor the Board of Adjustment had yet filed a responsive pleading at this juncture, plaintiff did not require a court order to amend its complaint. See R. 4:9-1.
On March 19, 2013, the court granted Church Hill's and the Board of Adjustment's motions to dismiss the complaint with prejudice on the ground the complaint had not been timely filed under Rule 4:69-6(b)(3). On May 9, 2013, the court denied plaintiff's motion for reconsideration of the March 19, 2013 order, as well as a motion to amend the complaint to add a new claim against the Board of Adjustment.
The March 19, 2013 order indicates the complaint was dismissed as to Church Hill only. On April 19, 2013, the court entered an order clarifying that the complaint was dismissed, with prejudice, as to both Church Hill and the Board of Adjustment.
In its proposed amendment, plaintiff asserted the Board of Adjustment's resolution was null and void because two members of its Board who voted on Church Hill's application were also employees of the Township of North Bergen. Plaintiff contended their employment status with the municipality rendered them ineligible to sit on the Board of Adjustment. The court determined plaintiff could not amend the complaint to add an additional claim against this defendant because the complaint against it had been previously dismissed with prejudice. The court further found that any new claims against the Board of Adjustment would be untimely under Rule 4:69-6(b)(3).
Also on this date, the court granted Church Hill's motion to dismiss plaintiff's claim against the Hudson County Planning Board from the amended complaint on the ground plaintiff failed to exhaust its administrative remedies before seeking judicial review in violation of N.J.S.A. 40:27-6.9 and Rule 4:69-5. We note, however, that the court dismissed plaintiff's claims against the Hudson County Planning Board without prejudice.
On May 24, 2013, plaintiff filed an appeal of the Hudson County Planning Board's decision to the Freeholder Board. On May 31, 2013, the Freeholder Board rejected the appeal as untimely under both N.J.S.A. 40:27-6.9 and Section V(F)(1) of the Hudson County Land Development Regulations, concluding that these provisions required plaintiff to appeal the Hudson County Planning Board's decision within ten days of notice of a county board decision.
This regulation, which mirrors language in the pertinent section of N.J.S.A. 40:27-6.9, states in relevant part:
Any person aggrieved by the action of the Planning Board in regard to subdivision review and approval or site plan review and approval may file an appeal in writing to the Board of Chosen Freeholders within ten (10) days after the date of notice by certified mail of said action.
On July 12, 2013, plaintiff filed a new action in lieu of prerogative writs against the Hudson County Planning Board, the Freeholder Board, and Church Hill. In addition to repeating essentially the same allegations against Church Hill and the Hudson County Planning Board as appeared in plaintiff's previous complaints, the second complaint alleged the Freeholder Board wrongfully refused to consider plaintiff's appeal of the Hudson County Planning Board's decision.
On September 12, 2013, the court granted the Freeholder Board's motion to dismiss the second complaint with prejudice, finding plaintiff's appeal of the Hudson County Planning Board's decision to the Freeholder Board had been untimely under N.J.S.A. 40:27-6.9 and, thus, the Freeholder Board had correctly refused to hear the appeal. On October 15, 2013, the court granted Church Hill's and the Hudson County Planning Board's motion to dismiss the second complaint with prejudice for failure to state a claim.
II
Plaintiff contends the trial court erred because: (1) its initial complaint against Church Hill and the Board of Adjustment was timely filed under Rule 4:69-6(b)(3) or, in the alternative, should have been deemed timely filed under Rule 4:69-6(c); (2) under N.J.S.A. 40:27-6.9, plaintiff was not required to appeal the Hudson County Planning Board's decision to the Freeholder Board before filing an action against it in court; (3) plaintiff was not required to file an appeal of the Hudson County Planning Board's decision to the Freeholder Board within ten days of the decision; and (4) under Rule 4:9-1, plaintiff's motion to amend the complaint to add the new claim against the Board of Adjustment should have been granted.
A
Rule 4:69-6(b)(3) requires any action in lieu of prerogative writs challenging a determination of a board of adjustment be filed within forty-five days of "the publication of a notice . . . in the official newspaper of the municipality or a newspaper of general circulation in the municipality . . . ."
N.J.S.A. 40:55D-10(i) provides that the publication of a Board of Adjustment's decision is to be arranged by the applicant unless an ordinance has designated a particular municipal officer to arrange publication. It is undisputed that there was no ordinance in place at the time the Board of Adjustment approved the applicant's project that designated a municipal officer to arrange publication of its decisions. Significantly, N.J.S.A. 40:55D-10(i) states that
The period of time in which an appeal of the decision may be made shall run from the first publication of the decision, whether arranged by the municipality or the applicant.
Because the first publication of the Board of Adjustment's decision was on November 23, 2012, under Rule 4:69-6(b)(3) plaintiff was required to file its complaint no later than January 7, 2013. Plaintiff did not file its complaint until January 22, 2013, and, thus, under a strict application of the rule's time restrictions, the complaint was not timely filed.
However, a court may enlarge the time within which a complaint shall be filed "where it is manifest that the interest of justice so requires." R. 4:69-6(c). In general, there are three kinds of cases that qualify for the "interest of justice" exception. These are cases involving
(1) important and novel constitutional questions; (2) informal or ex parte determinations of legal questions by administrative officials; and (3) important public rather than private interests which require adjudication or clarification.However, this list is not intended to be exhaustive. "The broad language of [Rule 4:69-6(c)] belies the suggestion that the intent of the rule is to restrict enlargement to one of those three categories." Hopewell Valley Citizens' Grp., Inc. v. Berwind Prop. Grp. Dev. Co., 204 N.J. 569, 584 (2011).
[Borough of Princeton v. Bd. of Chosen Freeholders of the Cnty. of Mercer, 169 N.J. 135, 152 (2001).]
In Hopewell Valley, the applicant published notice of a Board of Adjustment's decision on September 27, 2008. Id. at 572. The Board of Adjustment published its own notice on October 2, 2008. Id. at 573. Later that month, an objector at the Board of Adjustment hearings and future member of the yet- to-be-formed plaintiff contacted the Board of Adjustment secretary to determine when the decision had been published, and was advised publication was on October 2, 2008. Ibid. Relying upon that information, the plaintiff in Hopewell Valley filed a complaint in lieu of prerogative writs on November 17, 2008, which would have been timely if using the Board of Adjustment's publication date but six days late if using the applicant's publication date to determine when the forty-five day period commenced. Ibid.
The trial court dismissed the complaint as untimely and we affirmed. Id. at 574-75. The Supreme Court reversed, holding that the court should have granted an extension of time to the plaintiff in the interest of justice. Id. at 584-85. The Court concluded it was reasonable for the plaintiff to have relied upon the information provided by the Board of Adjustment staff regarding the publication date. Ibid. Further, the Court found that the plaintiff had not slumbered on its rights and the defendants were not prejudiced by the short delay in the filing of the complaint, and approved enlarging the time within which the plaintiff was to file its complaint by six days, making the filing of the complaint timely. Ibid.
Here, we conclude the trial court mistakenly exercised its discretion when it failed to extend the time within which plaintiff had to file its complaint under Rule 4:69-6(c) to January 22, 2013. The facts here are analogous to those in Hopewell Valley. Like the plaintiff in Hopewell Valley, it was reasonable for plaintiff's counsel to rely upon the representations of the Board of Adjustment's staff regarding when the Church Hill decision had been published. Although the fifteen-day enlargement of time plaintiff sought here is longer than the six-day extension obtained in Hopewell Valley, the difference is unremarkable and not material under the circumstances. Further, given plaintiff promptly endeavored to ascertain when the Board of Adjustment published its decision and the fact the complaint was filed within forty-five days of the Board's publication date, we cannot conclude plaintiff slumbered on its rights.
Church Hill asserts it was prejudiced because plaintiff filed its complaint fifteen days after the date the complaint should have been filed had the earlier publication date been utilized. Church Hill asserts that, on January 7 and January 8, 2013, it spent approximately $56,000 on the project. However, Church Hill was constructively on notice of the relaxation provisions of Rule 6:69-6(c) and the case law interpreting this Rule. Church Hill was aware of the potential that the deadline for filing the complaint might be enlarged but determined to proceed notwithstanding that risk. More important, Church Hill's claim that it was prejudiced rings hollow in light of its decision to incur these project-related expenditures before the Hudson County Planning Board approved the project on January 17, 2013.
Accordingly, we reverse the order dismissing plaintiff's complaints against Church Hill and the Board of Adjustment.
B
The trial court dismissed the complaint against the Hudson County Planning Board and the Freeholder Board because, before it filed its complaints, plaintiff failed to appeal the Hudson County Planning Board's decision to the Freeholder Board within ten days. N.J.S.A. 40:27-6.9 provides in pertinent part:
Any person aggrieved by the action of the county planning board in regard to subdivision review and approval or site plan review and approval may file an appeal in writing to the board of chosen freeholders within 10 days after the date of notice by certified mail of said action.The statute does not define who is an aggrieved person, but the Court in Howard Savings Institution v. Peep, 34 N.J. 494 (1961) observed that an aggrieved party is one that has "a personal or pecuniary interest or property right adversely affected by the judgment in question." Id. at 499 (citing In re Lent, 142 N.J. Eq. 21 (E. & A. 1948)). Moreover, it is not disputed plaintiff is an aggrieved party.
[N. J.S.A. 40:27-6.9 (emphasis added).]
Although an aggrieved party, plaintiff failed to file an appeal to the Freeholder Board until May 24, 2013, well over three months after the Hudson County Planning Board memorialized its approval of Church Hill's site plan application in a resolution. While the Hudson County Planning Board never served plaintiff with notice of its action by certified mail, there is no evidence plaintiff ever appeared before this Board to advise that it was an aggrieved party and to provide an address to where notice could be sent. It is implicit in the language of N.J.S.A. 40:27-6.9 that, in order for an aggrieved party to appeal a decision, it must make the Board aware of its existence and provide sufficient information to enable the Board to properly serve any decisions. The aggrieved party must then file an appeal within the time provided by N.J.S.A. 40:27-6.9.
Here, plaintiff's failure to appear before and to provide contact information to the Hudson County Planning Board did not toll the time within which it was required to appeal the Board's decision, but thwarted its opportunity to file a timely appeal to the Freeholder Board. We therefore affirm the order dismissing plaintiff's complaint with prejudice against the Freeholder Board. In addition, because plaintiff failed to and cannot now exhaust its right of review before the Freeholder Board, plaintiff may not pursue its prerogative writs action against the Hudson County Planning Board. See R. 4:69-5. As noted earlier, the trial court dismissed plaintiff's complaint against the Hudson County Planning Board without prejudice. However, plaintiff's failure to comply with the procedural requirements of N.J.S.A. 40:27-6.9 constitutes a legally insurmountable impediment to its ability to prosecute its claims against the Hudson County Planning Board. We thus dismiss plaintiff's complaint against the Hudson County Planning Board with prejudice.
Plaintiff contends N.J.S.A. 40:27-6.9 does not require it to appeal the Hudson County Planning Board's decision to the Freeholder Board before it may file an action in lieu of prerogative writs. Plaintiff argues the statute employs the phrase "may file an appeal" instead of "shall file an appeal," indicating the statute merely provides an option to appeal to the Freeholder Board if desired but that a party retains the right to file an action in court instead if preferred. We disagree. In our view, the use of the word "may" in the statute means that a party may seek but is not obligated to appeal the Hudson County Planning Board's decision. However, if a party does choose to appeal, it must first appeal to the Freeholder Board.
C
Finally, we reverse the order denying plaintiff's motion to amend the complaint, which has now been reinstated, to add the claim that two members of the Board of Adjustment were ineligible to sit on that Board. See Rule 4:9-1. "[A] motion for leave to amend is required by the court rule to be liberally granted and without consideration of the ultimate merits of the amendment." Interchange State Bank v. Rinaldi, 303 N.J. Super. 239 (App. Div. 1997) (citing City Check Cashing v. Nat. State Bank, 244 N.J. Super. 304, 308-09 (App. Div.), certif. denied, 122 N.J. 389 (1990); Tomaszewski v. McKeon Food, Inc., 240 N.J. Super. 404, 411 (App. Div. 1990)).
To the extent that any argument raised by a party has not been explicitly addressed in this opinion, it is because we concluded the arguments lacked sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION