Supreme Court allows enlargement of time for land use appeals

The New Jersey Supreme Court allowed the enlargement of the 45 days filing requirement to file an appeal of a land use decision. In the case of Hopewell Valley Citizens' Group, Inc. v. Berwind Property Group Development Co., Justice 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 Supreme Court held that the circumstances presented in this case warrant enlargement of the forty-five-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 (a) acknowledges a general limitations period of forty-five 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 that 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 in this case the objector failed to meet the deadline imposed by the Rules insofar as it did not file its complaint within forty-five days of the first notice published by the developer. The Court’s task is to determine whether the objector 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 Rule’s language suggests that a court has discretion to enlarge a time frame when it perceives a clear potential for injustice. The Rule was aimed at those who slumber on their rights. Certain cases are excepted from the rule governing limitation of actions. 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 found that the Plaintiff was entirely reasonable in calling the Board Secretary for information on the date of publication of the notice of decision to determine the date of expiration of the period of time to appeal the land use board decision. Plaintiff was inadvertently misled. To be sure, the developer was blameless, but so was plaintiff. Further, the six-day delay was such that defendants could not have suffered prejudice sufficient to warrant the barring of this litigation. The Court held that this was the exact type of circumstances that the Rules were designed to address.

The decision stands for the proposition 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 such violation of the time limitation was based upon a mistake coupled with an objector’s reasonable reliance. The decision 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.

Amendments to DEP Rules on Coastal Development

On June 7, 2010 the Division of Land Use Regulation of the New Jersey Department of Environmental Protection adopted amendments to the Coastal Zone Management Rules. The amendments foster and promote development in the Coastal Zone. The amendments impact the Bay Island Rule by exempting from the restrictive requirements of that rule Bader Field (the now closed Atlantic City Municipal Airport) in order to allow intense resort development; the Atlantic City Rule to modify the list of protected streets ends in the City of Atlantic City by adding additional street ends and allowing the closure of other streets based upon recent proposed commercial and casino development; and the Traffic Rule to modify the parking requirements for residential development to permit one parking space per unit for those units 650 square feet or smaller within one-half mile of an oceanfront beach or dune. If a unit is larger than 650 square feet, then two parking spaces per unit are required. These amendments facilitate coastal zone development demonstrating flexibility while attempting to provide adequate parking for residential development in crowded coastal areas.

Supreme Court Upholds Jackson Township Tree Clearing Ordinance

On May 13th 2009 the New Jersey Supreme Court reversed the Superior Court and Appellate Division and held that the Township of Jackson’s tree removal ordinance is a valid exercise of police power because the details of the ordinance, including the tree replacement fee, the escrow fund, and the planting of trees and shrubs on public property when replanting at the original location is not feasible, are rationally related to the broad environmental goals that inform the ordinance. Rather than a land use regulation the court viewed the ordinance  as enabled under plenary state legislative authority using the  police power, which justifies legislation to further
the public health, safety, welfare, and morals. The Township specifically declared that it was enacting the tree removal ordinance under the police power statute, N.J.S.A. 40:48-2.  The Court distinguished the Ordinance from one enacted under the Municipal land Use Law and held that while the ordinance touches on the use of land, it is not a planning or zoning initiative that implicates the Municipal Land Use Law. As Police-power legislation  the Ordinance must not be unreasonable, arbitrary, or capricious. Additionally, the means must have a real and substantial relation to the object sought to be obtained. Ordinances enacted pursuant to the police power are presumptively valid. Absent a sufficient showing to the contrary, it will be assumed that the legislation rested upon some rational basis within the knowledge and experience of the legislature.generic environmental regulation.

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Conversion of Age Restricted Housing to Non-Age-Restricted Housing

Senate Bill No. 2577 Permits the conversion of age-restricted housing units to non-age-restricted housing. The Bill has passed both houses of the Legislature and is on the Governor's desk for signature. To be eligible for conversion, a developer must agree to set aside a percentage of units in the development not to exceed 20% for affordable housing. The project must have preliminary and final approval prior to the Bill's effective date. Moreover the developer must not have taken any deposits or conveyed any units to buyers under the age-restricted program. The local land use board has the right to review the parking standards, recreation and other amenities, water supply and sanitary sewer  to ensure that these elements are adequate for the amended project. There is also a procedure that gives the developer recourse to the courts if  the local land use board refuses to approve the conversion.  The Bill if signed will breathe life into a number of age-restricted approvals that are not feasible in these challenging economic times.     

Permit Litigation with New Jersey Department of Environmental Protection

As a result of the New Jersey Appellate Division's recent decision in the case of Dragon vs.  New Jersey Department of Environmental Protection, a developer can no longer utilize the long standing procedure in contested matters of entering into a settlement agreement or letter of authorization in lieu of issuing an actual permit. In addition the court held that the Department lacked the authority to waive substantive coastal policies in the absence of a comprehensive regulatory procedure to waive such policies. 

The practice pointer is to make sure that any settlement of DEP litigation which permits an entitlement is memorialized in an actual issued DEP permit which is accordance with all applicable regulations and policies.