Before Judges Skillman, Coburn*fn1 and Fisher. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3004-02.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is an appeal from a trial court's determination that an action in lieu of prerogative writs should be dismissed because it was filed three days beyond the forty-five day period allowed under Rule 4:69-6(b)(3).
Defendants Kirsten Thoft and Ted Nadeau plan to construct a new deck and a second floor addition to a two-family house they own in Princeton Borough. The house is located in a zoning district with a 10,000 square foot minimum lot size. Since defendants' lot covers only 6,950 square feet, defendants were required to apply to the Princeton Borough Zoning Board of Adjustment for setback and coverage variances to permit the planned expansion of the house. At the hearing before the Board, plaintiff and two other neighbors testified in opposition to the application.
On July 25, 2002, the Board adopted a resolution approving the variance application. On July 26, 2002, defendants published notice of the approval in the Trenton Times, a newspaper distributed daily in Mercer County. On August 5, 2002, the Princeton Borough Zoning Officer, Frank Slimak, who was unaware defendants had already published notice of the approval, sent a letter to defendants which stated that the Borough anticipated publishing notice of the approval on August 9, 2002. Defendants did not respond to this letter or indicate to Slimak in any other way that they had already published the notice. As his letter had indicated, Slimak published notice of the approval on August 9, 2002 in the Princeton Packet, a bi-weekly newspaper distributed in the Princeton area.
Plaintiff filed this action in lieu of prerogative writs challenging the grant of the variance on September 12, 2002, which was within forty-five days of Slimak's publication of notice of the approval, but forty-eight days after the defendants' own July 26th publication of notice.
The defendants moved to dismiss plaintiff's complaint on the ground that it had not been filed within the forty-five day time period allowed under Rule 4:69-6(b)(3). The Board joined in the motion.
Plaintiff filed a certification in opposition to the motion, which stated in part:
8. From Monday, July 29, 2002, through August 7, 2002, I maintained regular telephone contact with Frank Slimak in order to be kept apprised of whether any notice of the Zoning Board's approval had been published. On August 7, 2002, at approximately 9:30 a.m., Frank Slimak called me and informed me that he intended to publish notice of the Zoning Board's approval in the August 9, 2002 issue of The Princeton Packet.
10. Prior to speaking with [defendants' counsel] on September 9, 2002, neither Slimak nor I had any knowledge or any indication from [defendants' counsel], Thoft, Nadeau or any other person, that any publication of the approval of the variances for the subject property had occurred prior to the notice published by the Zoning Board in The Princeton Packet on August 9, 2002....
11. At approximately 2 p.m. on September 9, 2002, I received a telephone call from Slimak informing me that he had just learned, much to his surprise, that Thoft and Nadeau had published notice in the July 26, 2002 edition of The Times of Trenton, of the Zoning Board's approval of their variance application. Slimak stated that he learned of this information from a ...