Gottlieb, J.J.D.R.C. (temporarily assigned).
This action questions the validity of two municipal ordinances which, in relevant part, require that an applicant for a construction permit or a certificate of occupancy show that all real estate taxes on the property for which the permit or certificate is sought are current before the permit or certificate will be issued.
In April 1977 defendant township enacted Ordinance 11-4-77, which requires that (a) an applicant for development under the Municipal Land Use Law submit proof that no real estate taxes or assessments for local improvements are due before the application will be considered, see N.J.S.A. 40:55D-39(e); (b) an applicant for a construction permit under the State Uniform Construction Code Act submit proof that no taxes or assessments are due before the permit will be issued, and (c) an applicant for a certificate of occupancy under the act submit proof that no taxes or assessments are due before the certificate will be issued. Although the ordinance confined the requirement
of proof of payment before a certificate of occupancy would be issued to commercial or general business uses, that requirement was expanded in November 1979 by the adoption of Ordinance 42-10-79, to include certificates covering residential uses.
Plaintiffs assert that those portions of the two ordinances which require proof of payment of taxes and assessments before a permit or certificate will be issued are invalid because ultra vires. Since they impose a requirement of an applicant in an area preempted by state legislation, they are violative of plaintiffs' equal protection rights, they are beyond the police power granted municipalities under N.J.S.A. 40:48-2, and they seek to obtain the collection of taxes by illegal means. Plaintiffs have moved for a summary judgment pursuant to R. 4:46.
Defendants oppose the summary judgment request, contending that the complaint was not filed within the 45-day time limit available under R. 4:69-6(a) and that there was a legitimate public concern existing to justify the enactment of the ordinances. They also deny that the ordinances act in an area preempted by the State.
Although it would be preferable to have the bar of the 45-day limitation of R. 4:69-6(a) affirmatively asserted by way of cross-motion for summary judgment, the court cannot overlook this contention and merely discuss the other issues in this case. The 45-day limitation must be addressed first since it may be that the limitation is dispositive of the case. Accordingly, the court shall, on its own motion, treat that contention, raised by defendants as an argument in opposition to the motion for summary judgment, as an issue affirmatively raised on motion and ripe for decision. Once the court is advised of the existence of this significant defense, it cannot be overlooked or avoided where the other party or parties move for summary judgment.
R. 4:69-6(a) limits an action in lieu of prerogative writs from being commenced more than 45 days after the accrual of
the right to the review, except as provided in paragraph (b) of that rule, which enumerates certain exceptions not here applicable. Although the court has not been supplied with definite dates of publication of final adoption of the two ordinances, which would establish a date upon which the right to review accrues, Bruno v. Shrewsbury , 2 N.J. Super. 550 (Law Div.1949), counsel have stipulated that these publications of final adoption were properly done, see N.J.S.A. 2A:82-13, and were accomplished within a few days after the formal vote on final adoption by the governing body. Since the complaint in this matter was filed on February 29, 1980, the complaint was clearly not within the 45-day period of limitation.
However, R. 4:69-6(c) authorizes the court to enlarge this time period "where it is manifest that the interest of justice so requires." Although it is clear that "exceptions to the time limitations imposed upon the in-lieu procedure should be but exceptionally condoned, and only in the most persuasive circumstances," Robbins v. Jersey City , 23 N.J. 229, 238 (1957); Kohler v. Barnes , 123 N.J. Super. 69, 80 (Law Div.1973), these exceptional circumstances exist here. Not only is there a substantial constitutional question alleged, see Brunetti v. New Milford , 68 N.J. 576, 585-587 (1975), but, as time goes on, if no restraint of the ordinance requirements is imposed, it could cause continuing harm to plaintiffs and others similarly situated. See East Rutherford Industrial Park v. State , 119 N.J. Super. 352, 360 (Law Div.1972). In addition, because of significant public interests involved, the "interests of justice" are served by allowing an enlargement of time. Surely the question of the requirements to be satisfied before an applicant can obtain a construction permit or a certificate of occupancy is as momentous to the public interest as a judicial ...