Prompt Filing of Planning or Zoning Board Approvals Can Help Decrease Developer Vulnerability to Appeals

July 2015Articles In the Zone

At what point does a planning board or zoning board approval become “final and unappealable,” enabling a developer to feel confident that a critical contingency in its purchase and sale agreement has been satisfied, or that it can move forward with a construction project on property that it already owns, without fear of an objector coming out of the woodwork to challenge the validity of the approval?

Most seasoned developers are aware that in New Jersey there is a 45 day appeal period within which an objector must file suit challenging the validity of a planning or zoning board’s approval. The 45 day period begins to run on the date that notice of the board’s decision is published in the municipality’s official newspaper of record. Even when a specific municipal official is designated by ordinance to arrange for the publication, it is generally good practice for the applicant to publish its own notice of decision in order to avoid the possibility of an oversight on the part of the municipality and to get the 45 day clock running as promptly as possible. The Municipal Land Use Law makes clear that the appeal period starts to run from the first publication of the notice of decision, whether arranged by the municipality or the applicant. A recent decision issued by the Appellate Division (four years after the New Jersey Supreme Court’s holding in Hopewell Valley Citizen’s Grp., Inc. v. Berwind Prop. Grp. Dev. Co., 204 N.J. 569 (2011)), however, serves as a reminder that an applicant would be wise to not only promptly publish its own notice of decision, but also to advise the board’s administrative staff of this fact and the date on which its notice was published, or else its efforts to close an objector’s 45 day window of opportunity to file an appeal may go for naught.

In Advanced Development Group, L.L.C. v. Board of Adjustment of North Bergen, et al., No. A-4576-12T2 (App. Div. 2015), the applicant, Church Hill Partners, L.L.C. applied to the North Bergen Zoning Board of Adjustment for approval to construct a mid-rise residential building. The Board voted to grant Church Hill conditional approval for its proposed project, and on November 13, 2012, adopted a resolution memorializing its approval. Church Hill arranged to have notice of the Board’s decision published in The Jersey Journal on November 23, 2012. The Board also arranged to have its own notice of decision published, but its notice of decision did not appear in The Jersey Journal until December 12, 2012.

On December 10, 2012, the plaintiff’s counsel filed a request with the Township of North Bergen pursuant to the New Jersey Open Public Records Act (OPRA) seeking copies of documents in connection with Church Hill’s application. On December 20, 2012, the plaintiff’s counsel contacted the Board’s administrative staff to follow-up on the status of her OPRA request. The plaintiff’s counsel learned that the Board had published a notice of its Church Hill decision in The Jersey Journal on December 12, 2012. The plaintiff’s counsel was also advised by a member of the Board’s administrative staff that they were not aware of any other publications of the Board’s decision and that the Board was responsible for publishing its own notices. On December 21, 2012, the Board’s staff faxed the plaintiff’s counsel a copy of the notice of decision that the Board published in The Jersey Journal.

On January 22, 2013, the plaintiff filed a complaint in lieu of prerogative writs against the Board and Church Hill challenging the validity of the Board’s approval of Church Hill’s application. On March 19, 2013, the trial court granted the Board’s and Church Hill’s motions to dismiss the plaintiff’s complaint, with prejudice, on the ground that its complaint had not been filed by January 7, 2013 (i.e., within 45 days of the date on which notice of the Board’s decision was first published by the applicant on November 23, 2012). The plaintiff appealed the dismissal of its complaint to the Appellate Division, arguing that its complaint had been timely filed, or, alternatively, that the trial court should have exercised its discretion to enlarge the time period within which the plaintiff was allowed to file its complaint. On appeal, the Appellate Division reversed the trial court’s order dismissing the plaintiff’s complaints against both the Board and Church Hill.

Pursuant to New Jersey Court Rule 4:69-6(c), a court may enlarge the time within which a complaint shall be filed “where it is manifest that the interest of justice so requires.” Here, the Appellate Division concluded (as did the New Jersey Supreme Court in the Hopewell Valley case) that the lower court should have exercised its discretion and enlarged the time period within which the plaintiff had to file its complaint challenging the Board’s approval, determining that it was reasonable for the plaintiff’s counsel to rely upon the representations made by the Board’s administrative staff regarding when notice of the Board’s Church Hill decision had been published. In the court’s view, it could not be said that the plaintiff had slumbered on its rights, because it endeavored to ascertain when the Board published its notice of decision and filed its complaint within 45 days of the date that the Board’s notice of decision was published.

It is noteworthy that the court was unmoved both by the fact that: (i) its decision afforded an objector an additional 15 days beyond what would otherwise have been the deadline to file suit challenging the validity of the applicant’s approval (nine more days than the extension that was awarded to the objectors in the Hopewell Valley decision), and (ii) Church Hill asserted that on January 7 and January 8, 2013 (45 days following the date on which it had arranged to have notice of the Board’s decision published in The Jersey Journal), it spent approximately $56,000 in furtherance of its approved project, presumably under the assumption that it no longer faced the risk of an appeal. With respect to the latter, the court reasoned that Church Hill was constructively on notice of the possibility of a judicial enlargement of the 45 day appeal period pursuant to Court Rule 4:69-6(c) and the cases applying the same, and that Church Hill’s claims that it would be prejudiced by a court-ordered enlargement of the appeal period rang hollow in light of its decision to incur projected-related expenses prior to the date that the Hudson County Planning Board issued its approval with respect to the project on January 17, 2013.

As illustrated by the outcome in this case, a developer in New Jersey seeking to minimize the time period during which its zoning or planning board approval remains vulnerable to an objector’s legal challenge can bolster those efforts not only by promptly filing its own notice of the board’s decision in the local newspaper of record, but also by advising the board’s administrative staff of that fact and providing them with a copy of the notice bearing its publication date, so that the staff can be in a position to accurately advise any interested members of the public as to the relevant dates.