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Hopewell Valley Citizens Group v. Berwind Property Group Development Co.


January 8, 2010


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2862-08.

Per curiam.


Argued: December 9, 2009

Before Judges Cuff, Payne and C.L. Miniman.

Plaintiff Hopewell Valley Citizens Group is a group comprised of residents of Hopewell Township (Township) organized to oppose development of a site in the Township. It appeals an order dismissing their complaint in lieu of prerogative writs challenging preliminary site plan approval of a proposed development in the research/office district of the Township. Judge Feinberg dismissed the complaint as untimely. We affirm.

Defendant Berwind Property Group Development Co., L.P. (Berwind) sought preliminary site plan approval for development of a 360-acre parcel in the Township. As approved, the project includes construction of four three-story, 91,000-square-foot buildings, parking, interior roads, landscaping and related stormwater management. Three existing buildings on the site, totaling 315,444 square feet, will remain. The property is located in the research/office zoning district and the project is a permitted use in the zone. The preliminary site plan approval carries thirty-eight conditions, including decommissioning of an existing helistop, availability of public water to serve the site, prohibition of irrigation systems, measures to control light pollution, capacity limitations on the on-site wastewater treatment facility, protection of all stream corridors and wetlands on site, and receipt of all other required approvals and permits.

Defendant Hopewell Township Planning Board (Planning Board) adopted the resolution granting preliminary site plan approval on September 25, 2008. Rule 3:1-6 of the Planning Board Rules and Regulations allows the applicant to publish notice of planning board action; it provides in pertinent part

A brief notice of the decision shall be published in the official newspaper of the municipality, if there is one, or in a newspaper of general circulation in the municipality. Such publication shall be arranged by the applicant unless a particular municipal officer is so designated by ordinance. Nothing herein contained shall be construed as preventing the applicant from arranging such publication if so desired.

On September 27, 2008, as arranged by Berwind, the notice was published in The Trenton Times, a newspaper of general circulation in the Township. On October 1, 2008, counsel for Berwind notified the Township Land Use Administrative Officer/Planning Board Secretary and counsel for the Planning Board that the required notice had been published and provided an affidavit of publication. On October 2, 2008, the Township published notice of the resolution in the Hopewell Valley News, a weekly publication of general circulation in the Township. On November 17, 2008, plaintiff filed its complaint in lieu of prerogative writs. Plaintiff concedes that the complaint was filed six days beyond the forty-five day period allowed by Rule 4:69-6.

In opposition to Berwind's motion to dismiss, plaintiff argued that Rule 4:69-6 allows enlargement of time in the interests of justice, and the nature of the project and the effect of the project on the Hopewell community requires relaxation of the time to challenge the approval. Moreover, plaintiff advised the court that an objector and member of plaintiff group contacted the Township administrative officer in mid-October 2008 to learn the date and place of publication; she was informed of the date the Township published the notice.

In her tentative decision delivered at the commencement of oral argument on the motion to dismiss, Judge Feinberg noted that Rule 4:69-6 establishes a strict time limit to challenge an approval. The judge also stated that it is the responsibility of the objector who seeks to challenge municipal action to "peruse the newspaper" and "to know when, in fact, the notice is published and because often times a developer, particularly one who filed an application, I guess back in 2006 and began this planning in 1999, having gotten their approval, they were pretty anxious to publish and get moving, and that's perfectly legitimate."

Judge Feinberg rejected the notion that the Township administrator was obliged to do anything other than advise a caller when the Township published the required notice. Moreover, the judge found nothing to suggest that the applicant or the Township employee made any attempt to deceive plaintiff or any of its members.

The judge explained the three-part test for enlargement of time and held that the issues presented in plaintiff's complaint were neither novel nor of constitutional dimension. In addition, she characterized the dispute as "frankly, a fairly typical land use case." In other words, although the issues presented are important to the litigants, they are not of great public interest as that term is understood. Finally, the judge observed that the approval obtained by Berwind was preliminary rather than final site plan approval. Thus, she concluded there was no basis to enlarge the time to file the complaint.

Following oral argument, Judge Feinberg announced that she would not alter her tentative decision. She stated:

I am not convinced that this is a case that would justify an expansion under [Rule 4:69], and under [N.J.S.A.] 40:55D-10i,... I think it does place a significant burden on counsel, or a litigant, to make sure that they're aware of the papers involved and to know when the trigger time applies. And here, it's different than the Cohen*fn1 case, where there was an affirmative deception.

It was filed [fifty-one] days, not a lot of time, only six days late, but nonetheless, there's a three part standard and I don't think it's been met here.

Plaintiff filed a timely appeal from the January 23, 2009 order dismissing the complaint. On appeal, plaintiff argues that it did not sleep on its rights, it relied in good faith on the information received from the Township administrative officer, that the holding in Cohen, supra, is closely on point, that the action seeks to vindicate important public interests, and Berwind has not suffered prejudice by the delay.

We affirm substantially for the reasons expressed by Judge Feinberg in her January 23, 2009 oral opinion. We add the following remarks.

We acknowledge that there may be circumstances that warrant an enlargement of time other than the traditional categories of important and novel constitutional questions, informal or ex parte determinations of legal questions by administrative officials, and important public rather than private interests. Cohen, supra, 368 N.J. Super. at 345. Those circumstances may include affirmative attempts to mislead or confuse objectors about the date of publication, id. at 347, or challenges to the validity of an ordinance not adopted in conformity with applicable statutory requirements, Reilly v. Brice, 109 N.J. 555, 560-61 (1988). Here, however, there is no suggestion that Berwind sought to mislead or confuse the objectors about the date of publication or that the zoning ordinance is infirm. Rather, Berwind simply proceeded as authorized in the rules and regulations adopted by defendant Planning Board.

We are also not persuaded that the issues presented by plaintiff concern issues of great public importance rather than the normal concerns expressed by objectors to local development. Here, the Planning Board granted preliminary site plan approval for a permitted use. No variances were required and none were granted. In addition, the property is not undeveloped ground. Rather, three existing buildings totaling more than 300,000 square feet of space, including a dormitory and a helistop, are on the site. Conditions imposed by the Planning Board require demolition of the dormitory and elimination of the helistop. Thus, this project is markedly different from the dramatic rezoning that was inconsistent with the adopted master plan in Willoughby v. Planning Board of Deptford, 306 N.J. Super. 266 (App. Div. 1997), and the redevelopment plan not adopted in accordance with the statute governing such action as in Concerned Citizens v. Mayor & Council of Princeton Borough, 370 N.J. Super. 429 (App. Div.), certif. denied, 182 N.J. 139 (2004). It is, in fact, more analogous to the opposition mounted to the site plan approval for a permitted residential use in Rocky Hill Citizens for Responsible Growth v. Planning Board of Rocky Hill, 406 N.J. Super. 401 (App. Div. 2009).

We, therefore, affirm the January 23, 2009 order dismissing plaintiff's complaint as untimely.


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