Posted by: Patricia Salkin | September 24, 2011

NJ Supreme Court Holds Extension to Timeframe for Filing of Appeal was Warranted in the Interests of Justice

Berwind Property Group Development C o., L.P. (“BPG”), who owns approximately 360 acres in the township, filed with the planning board (the “Board”) an application for preliminary site plan approval for the construction of eight buildings, as well as other improvements, on its property. On May 29, 2008, the Board approved BPG’s preliminary site plan, on September 27, 2008, BPG caused to be published in a daily newspaper, notice of the site plan approval, and on October 2, 2008, the Board republished notice of the site plan approval in another weekly newspaper. In October, Sheila Fields, a member of Hopewell Valley Citizens’ Group, Inc. (“Citizens”), inquired with the Board as to “when and where the Notice of Decision had been published to calculate the time for filing an appeal.”  The Board’s secretary informed Fields that notice had been published on October 2, 2008. Fields then calculated the 45-day period within which to appeal the board’s approval of BPG’s site plan.  New Jersey Court Rules, Rule 4:69 requires appeals from planning board decisions be brought with “45 days from publication of a notice once in the official  newspaper of the municipality or a newspaper of general circulation in the municipality ….” On November 17, 2008, Citizens filed in court a complaint against BPG and the township, challenging the site plan approval. BPG and the township urged the court to dismiss the case.  Among other things, they argued that Citizens’ complaint was “untimely.”  The complaint had been filed 45 days after the date the Board caused notice of the site plan approval to be published, however, it had been filed more than 45 days after the first publication—when BPG caused notice of the site plan approval to be published. Citizens argued that the representation of the date of publication made by the Board’s Secretary “justified enlargement of the limitations period.”  Rule 4:69-6(c) provided that:  “The court may enlarge the period of time [to appeal local land use decisions] where it is manifest that the interest of justice so requires.” 

Both the trial court and the appellate court disagreed with Citizens and they appealed to the state supreme court. The New Jersey Supreme Court, however, held that Citizens was entitled to an extension of the deadline to file the appeal.  The court held that “the circumstances presented in this case satisfy[ied] the standards in Rule 4:69-6(c) and warrant[ed] enlargement of the forty-five day period because ‘it is manifest that the interest of justice so requires.’” 

The court interpreted Rule 4:69-6(c) as allowing it discretion to enlarge a timeframe for filing an appeal of a local land use decision when the court “perceives a clear potential for injustice.”  The court found the circumstances of the case were “the exact constellation of circumstances that Rule 4:69 was intended to address.”  The court found that Citizens’ (via Fields) inquiry with the Board secretary was not, as the township and BPG had argued, “a punishable shortcut.”  Rather, the court found it was “a logical and sensible approach.”  In response to that inquiry, the Board Secretary “inadvertently misled” Citizens regarding the date from which the 45-day limit had to be calculated.  “To be sure, BPG was blameless, but so was [Citizens] . . . .”  Citizens did not “slumber” on its rights; and BPG was not sufficiently prejudiced by the six-day delay in the filing of the complaint.  Accordingly, the court concluded that enlargement of the 45-day period was appropriate. 

Hopewell Valley Citizens’ Group, Inc. v. Berwind Property Group Development Co., L.P., 2011 WL 93017 (N.J. 1/12/2011)

 For the Court Clerk’s Summary see: http://appellatelaw-nj.com/wp-content/uploads/2011/01/hopewellvalleycitizensvberwind.pdf

 This summary is excerpted from the Zoning Bulletin published by Thomson Reuters


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