New Jersey Case of the Month: Developers Cannot Necessarily Rely on Strict Application of Time Limitations for Appeals

February 2011Newsletters In the Zone

In the case of Hopewell Valley Citizens’ Group, Inc. v. Berwind Property Group Development Co. (A-83-09), the New Jersey Supreme Court, with Justice Virginia Long writing for the court, considered the issue of whether an objector to a planning board’s grant of site plan approval is entitled, in the “interest of justice,” to an enlargement of time under the Civil Practice Rules. These rules require an interested party to file an appeal of a planning board approval within 45 days from the date of publication of the notice of decision.

The decision reached by the court proposes that developers can no longer rely on the time limitations for appeals to be strictly applied where an objector has not slept on its rights if the time limitation violation was based upon a mistake on which the objector reasonably relied.

At the heart of this matter is a 359.8 acre parcel of real property located on Carter Road in Hopewell Township. On Nov. 15, 2006, Berwind Property Group Development Co., L.P. (BPG), the property’s owner, filed an application for preliminary site plan approval that was deemed complete in late 2007. BPG proposed eight buildings for the property as well as the addition of a daycare center, parking, interior roads and a new wastewater treatment plant. Thirteen public hearings on the application were held between January and May 2008 at which witnesses appeared and members of the public voiced their concerns over BPG’s proposed development. Among those concerns were the environmental impact of clear-cutting numerous mature trees that are habitat for endangered species; stream encroachment; and the inadequacy of waste and stormwater facilities.

In spite of the testimony of the public, the planning board approved the preliminary site plan on May 29, 2008. The approval was memorialized in a resolution adopted Sept. 25, 2008. On Sept. 27, 2008, BPG caused a notice of the resolution to be published in The Trenton Times, a daily newspaper of general circulation.

On Oct. 1, 2008, BPG informed the Board Secretary-Administrative Officer, Joan Kiernan-O’Toole, of the publication and provided an affidavit of publication to her via e-mail noting “[t]he 45-day appeal period will run until November 11, 2008.” On Oct. 2, 2008, the Board republished notice of the resolution in The Hopewell Valley News, a weekly newspaper of general circulation.

In October, Sheila Fields, a future member of the yet-to-be-formed Hopewell Valley Citizens’ Group, Inc. (Citizens) and an objector who appeared at the site plan hearings, telephoned the Board Secretary-Administrative Officer and asked “when and where the Notice of Decision had been published to calculate the time for filing an appeal.” The Board Secretary-Administrative Officer informed Fields the notice had been published in The Hopewell Valley News on Oct. 2. Relying on that information, Fields (and Citizens) calculated the 45-day period would expire on Nov. 17, 2008.

Citizens filed a complaint in lieu of prerogative writs on Nov. 17, 2008, which was within 45 days from the date Citizens was told the notice of decision was published but greater than 45 days from the date BPG published the first notice.

Citizens argued it was entitled to enlargement because it was advancing environmental issues with broad impact on the public.

The trial court denied Citizens’ motion for an enlargement of time under the Civil Practice Rules and found no manifest injustice in its denial. The court distinguished the circumstances presented in this case from those where there was an affirmative showing of deliberate deception, which all parties agreed was not the case in this instance.

Moreover, the court applied a three-part standard that asked whether (1) the matter presented a novel or constitutional claim; (2) it involved an ex parte determination; or (3) it implicated a matter of great public interest. In the absence of one of those categories, the court held an enlargement could not be granted. The court concluded none of the factors were implicated in the case, declined to enlarge the limitations period and granted the motions to dismiss.

Citizens appealed, and the Appellate Division affirmed “substantially for the reasons expressed” by the trial court, differing only in its conclusion that “there may be circumstances that warrant an enlargement of time other than the [three] traditional categories.” The panel concluded Citizens had failed to show any effort by BPG to mislead them, or any suggestion the zoning ordinance itself was invalid, circumstances that may have warranted an enlargement of time. Likewise, the panel declined to embrace Citizens’ argument that the issues it presented constituted public interests and found the objections to be “normal” for a land use case.

The Supreme Court granted Citizens’ petition for certification and held the circumstances presented in this case warrant enlargement of the 45-day period because “it is manifest that the interest of justice so requires.”

The Municipal Land Use Law provides that “[t]he 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.” N.J.S.A. 40:55D-10(i). Appeals from local land use decisions are accomplished by actions in lieu of prerogative writs. The Civil Practice Rules set forth the time limitations on the institution of such actions. Those rules acknowledge a general limitations period of 45 days “after the accrual of the right to the review, hearing or relief claimed . . . .” The portion of the rules relating to appeals of land use decisions provides no action shall be commenced “after 45 days from the publication of a notice once in the official newspaper of the municipality or a newspaper of general circulation in the municipality . . . .” A subsection of the rule provides: “The court may enlarge the period of time where it is manifest that the interest of justice so requires.”

It is undisputed that Citizens failed to meet the deadline imposed by the Rules as it did not file its complaint within 45 days of the first notice published by the developer. The court’s task is to determine whether Citizens is entitled, in the “interest of justice,” to an enlargement of time under the Rule and, hence, to an adjudication of the merits of its claim.

The methodology employed when the court interprets one of its rules mirrors the manner in which statutes are construed. Thus, the analysis in this case begins with the plain language of the Rule, which suggests a court has discretion to enlarge a timeframe when it perceives a clear potential for injustice. Prior case law is instructive as to when the courts have held the Rule to be applicable. The Rule was aimed at those who slumber on their rights. Certain cases are excepted from the rule governing limitation of actions, and included in that category were three traditional types of challenges: “important and novel constitutional questions;” “informal or ex parte determinations of legal questions by administrative officials;” and “important public rather than private interests which require adjudication or clarification.” The court recognized that, as a general proposition, “ignorance of the existence of a cause of action will not prevent the running of a period of limitations except when there has been concealment.”

The court has enlarged the limitations period, notwithstanding the defendants’ interest in repose, based on “unique public policy concerns” and “the potential prejudice to the public that would result from not reaching the merits . . . .”

In another case dismissed by a trial court, the court strictly applied both the deadlines imposed by the Civil Practice Rules and the three categories of exceptions. The Appellate Division reversed, concluding the plaintiff had not slumbered on his rights, “but instead reasonably relied on his communications with [the borough official] . . . .” The panel also found no prejudice in the three-day delay and directed the case be remanded to the trial court because “it would be a miscarriage of justice to deprive plaintiff of a hearing on the merits of his challenge . . . .”

Here, the Appellate Division recognized the error by acknowledging there may be circumstances that warrant an enlargement of time other than the traditional categories. However, the panel itself went astray in concluding the law requires a willful concealment in order to justify the extension, and nothing in the case law supports that view. The law is that municipal negligence is a valid basis for invoking an enlargement of time to file an appeal. The Appellate Division has held that a communication snafu on which the plaintiff relied was sufficient to trigger enlargement and the three-day delay in that case did not prejudice the defendants.

The same is true in Hopewell. The plaintiff was entirely reasonable in calling the Board Secretary for information and was inadvertently misled. Certainly BPG was blameless, but so was the plaintiff, who cannot be said to have slumbered on its rights. Further, the six-day delay was such that the defendants could not have suffered prejudice sufficient to warrant the barring of this litigation. The court held this was the exact type of circumstances the Rules were designed to address.

Accordingly, the judgment of the Appellate Division was reversed, and the matter was remanded to the trial court for the reinstatement of the plaintiff’s complaint and for further proceedings to determine the merits of the appeal.

The decision not only indicates that developers cannot rely on the strict application of time limitations for appeals when the violation was based upon a mistake on which the plaintiff reasonably relied and the plaintiff did not sleep on its rights, but it also points to the importance of a developer’s actions. In this instance, had the developer sent the publication to the objector, the result would have been different.

For more information, please contact Jack Plackter at 609.572.2200 or [email protected]