August 13, 2008
PETER P. KALNAS, PLAINTIFF-APPELLANT,
TOWNSHIP OF FRANKLIN ZONING BOARD OF ADJUSTMENT AND TOWNSHIP OF FRANKLIN, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, L-1280-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 29, 2008
Before Judges S.L. Reisner and LeWinn.
Plaintiff Peter P. Kalnas appeals from a November 2, 2007 order of the trial court dismissing his complaint as untimely. We affirm.
These are the most pertinent facts. Plaintiff, together with Bruce and Anna Thorn, with whom he had an oral agreement to sell the property, applied to the Franklin Township Zoning Board of Adjustment (Board) for variances to build a single-family house on plaintiff's isolated undersized lot in Franklin Township, Gloucester County.*fn1 Plaintiff's property is located in an R-A Residential Agricultural zoning district, in which single family homes and a variety of non-residential uses are permitted. The variance application sought approval to build a house on .76 acres as opposed to the 1.5 acres required by the zoning ordinance, as well as frontage of sixty feet where the ordinance requires 150 feet.
On the first day of the variance hearing, on March 6, 2007, plaintiff's neighbors objected to the variance, but neighbor David Hill expressed an interest in meeting with plaintiff to discuss purchasing the property from plaintiff "at fair market value." During the hearing, the Board Chairman Harold Atkinson stated that the property owner should "do [an] appraisal for fair market value" and meet with "Mr. Hill and other neighbor[s] to see if there is interest to purchase." If there was no agreement of sale, the Board would consider the matter again "next month."
At the next hearing on April 3, 2007, Hill testified that he had spoken with plaintiff in an effort to discuss buying the property but that plaintiff "stated he promised [the property] to Thorn and he did not do fair market value [obtain an appraisal] as it would cost $300.00 to do that." Plaintiff did not deny that he had failed to obtain an appraisal as to the fair market value of the property. Instead, he responded that "Mr. Hill did not make an offer at all, if he was interested he would have come with check in hand." Hill replied that "the number was $100,000," but it is not clear from the record whether this was his offer or plaintiff's demand.
The Board denied the variance in a May 1, 2007 resolution which was published on May 10, 2007. The Board found that plaintiff had sent letters to the neighbors offering to purchase additional land sufficient to make his lot a conforming size, or offering to sell the property for fair market value. The Board found there was conflicting testimony as to whether plaintiff had actually made a good faith attempt to sell the property to adjoining owners. However, the Board did not resolve this conflicting testimony. Instead, the Board determined that plaintiff's lot was so small (about half the size required under the ordinance and with less than half the required frontage) that plaintiff could not satisfy the negative criteria in order to qualify for a variance. Hence, the Board declined to grant a variance conditioned on plaintiff giving the neighbors an opportunity to buy the property. See Nash v. Morris Twp. Bd. of Adjustment, 96 N.J. 97, 105-07 (1984); Harrington Glen, Inc. v. Municipal Bd. of Adjustment, 52 N.J. 22, 29-31 (1968).
Ninety-four days later, on August 13, 2007, plaintiff filed a two-count complaint seeking in lieu of prerogative writs review of the Board's decision pursuant to Rule 4:69-6(b)(3) and -6(c), and suing the Township for inverse condemnation contending that "[t]he denial of the variances by the Board deprives plaintiff of all reasonable use of the property and amounts to a compensable taking."
In an oral opinion issued on November 2, 2007, the trial judge granted summary judgment dismissing the complaint. She first concluded that plaintiff had not shown that the interests of justice required that the court extend plaintiff's time to file the prerogative writs action. She then concluded that the decision of the inverse condemnation case depended on the court's evaluation of the Board's action in denying the variances, and plaintiff therefore needed to file a timely challenge to the Board's decision in order to perfect the inverse condemnation claim. Since plaintiff failed to do so, the judge dismissed the inverse condemnation action.
On this appeal, plaintiff contends in the alternative that the trial court should have enlarged the period of time to file the complaint in the interests of justice, and that the inverse condemnation claim was subject to a six-year limitations period and was therefore timely. Our review of a trial court's grant of summary judgment is de novo, employing the same Brill standard used by the trial judge. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
In a zoning case, an action in lieu of prerogative writs must be filed within forty-five days after the resolution is published. R. 4:49-6(b)(3). However, the court may extend the time "where it is manifest that the interest of justice so requires." R. 4:49-6(c). We review the judge's decision on the extension of time for abuse of discretion. See Reilly v. Brice, 109 N.J. 555, 560 (1988); Adams v. Delmonte, 309 N.J. Super. 572, 581 (App. Div. 1998). Plaintiff's brief cites no case law or other legal support for his claim that the court should have extended his time to file the action in lieu of prerogative writs. Plaintiff did not even consult counsel until after the time limit had expired. His only explanation for the late filing was that he did not realize that he only had forty-five days to file the complaint.
We cannot conclude that the trial judge abused her discretion in declining to extend the time to file the prerogative writs action. The complaint here was filed almost two months out of time, and the case presents no special equitable or public interest bases for an extension. See Cohen v. Thoft, 368 N.J. Super. 338, 346-48 (App. Div. 2004). Both the municipality and plaintiff's objecting neighbors are entitled to the repose vouchsafed by the forty-five day time limit. See Borough of Princeton v. Bd. of Chosen Freeholders of Mercer, 169 N.J. 135, 152-53 (2001). In reaching this conclusion, we also give some weight to plaintiff's undisputed failure to obtain an appraisal so as to give his neighbors a fair basis on which to negotiate a purchase of the property.
We turn next to plaintiff's inverse condemnation claim. The requirements for perfecting an inverse condemnation claim based on zoning were addressed in Moroney v. Old Tappan Mayor and Council, 268 N.J. Super. 458 (App. Div. 1993), certif. denied, 136 N.J. 295 (1994). In that case, we made clear that a plaintiff must first seek a variance and challenge any denial in the Law Division:
Absent a decision denying a hardship variance that was binding upon plaintiffs, they had every right, even the duty, to first seek relief under the Municipal Land Use Law in effect at the time before they could claim inverse condemnation. Until the owner has exhausted all remedial measures, Toll Brothers, Inc., v. Dept. of Envir. Pro., 242 N.J. Super. 519, 531-32 (App. Div. 1990); R. 4:69-5, a landowner cannot meet the burden of proving that the ordinance deprived the owner of all economically viable use of the land. See Nash, supra.
For that reason, the issue of whether inverse condemnation had occurred was not ripe for determination prior to January 22, 1992 [when the Law Division upheld denial of the variance]. [Id. at 465 (emphasis added).]
We need not address the issue of whether, in general, the limitations period for an inverse condemnation claim is six years.*fn2 The critical issue here is that, to perfect this inverse condemnation claim, plaintiff had to properly pursue the variance application and properly pursue his appeal to the Law Division. He did not. Further, plaintiff cannot bootstrap an untimely action in lieu of prerogative writs into timeliness by adding a claim for inverse condemnation. This is not a case where plaintiff's alternate cause of action is so distinct from his prerogative writs action as to warrant application of a separate and longer limitations period. See Neelthak Development Corp. v. Township of Gloucester, 272 N.J. Super. 319 (App. Div. 1994). To the contrary, the two causes of action are inextricably intertwined.
While we affirm the judgment of the trial court, we note that plaintiff is not precluded from filing a future variance application seeking to develop the land, either for residential use or one of the other uses permitted by the zoning ordinance. If that variance is denied, plaintiff may perfect an inverse condemnation claim by filing a timely action challenging the variance denial. The plaintiff pursued that course of action in Moroney, supra, 268 N.J. Super. at 465.