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Hopewell Valley Citizens' Group, Inc v. Berwind Property Group Development Co.

January 12, 2011

HOPEWELL VALLEY CITIZENS' GROUP, INC., PLAINTIFF-APPELLANT,
v.
BERWIND PROPERTY GROUP DEVELOPMENT CO., L.P., D/B/A CARTER ROAD CE, LLC, C/O BPG PROPERTIES, LTD; HOPEWELL TOWNSHIP; HOPEWELL TOWNSHIP COMMITTEE; AND HOPEWELL TOWNSHIP PLANNING BOARD, DEFENDANTS-RESPONDENTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

SYLLABUS (This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The opinion of the court was delivered by: Justice Long

Hopewell Valley Citizens' Group, Inc. v. Berwind Property Group Development Co.

(A-83-09)

Argued October 26, 2010

Decided January 12, 2011

LONG, J., writing for the Court.

The issue in this appeal is whether plaintiff is entitled, in the "interest of justice," to an enlargement of time under Rule 4:69-6(c) within which to file an appeal from preliminary site plan approvals, and, hence, to an adjudication of the merits of its claim.

At the heart of this matter is a 359.8 acre parcel of real property (the property) located on Carter Road, in Hopewell Township (Township). On November 15, 2006, Berwind Property Group Development Co., L.P. (BPG), the property's owner, filed an application for preliminary site plan approval that was deemed complete in late 2007. In it, BPG proposed eight buildings for the property, as well as the addition of a daycare center, parking, interior roads, and a new wastewater treatment plant. Thirteen public hearings on the application were held between January and May 2008. At those meetings, witnesses appeared and members of the public voiced their concerns over the development proposed by BPG. Among those concerns were the environmental impact of clear-cutting numerous mature trees which are habitat for endangered species; stream encroachment; and the inadequacy of waste and storm water facilities.

The Board approved the preliminary site plan on May 29, 2008. The approval was memorialized in a resolution adopted September 25, 2008. That resolution placed many conditions on the development of the property. On September 27, 2008, BPG caused a notice of the resolution to be published in The Trenton Times, a daily newspaper of general circulation. On October 1, 2008, BPG informed the Board Secretary-Administrative Officer, Joan Kiernan-O'Toole, of the publication and provided an affidavit of publication to her via e-mail. The e-mail indicated that "[t]he 45-day appeal period will run until November 11, 2008." The day after the e-mail, October 2, 2008, the Board re-published notice of the resolution, that time in The Hopewell Valley News, a weekly newspaper of general circulation.

In October, Sheila Fields, a future member of the yet-to-be-formed Hopewell Valley Citizens' Group, Inc. (Citizens), and an objector who appeared at the site plan hearings, telephoned Kiernan-O'Toole and asked "when and where the Notice of Decision had been published to calculate the time for filing an appeal." Kiernan-O'Toole informed Fields that the notice had been published in The Hopewell Valley News on October 2, 2008. In reliance on that information, Fields (and Citizens) calculated that the forty-five-day period within which to bring a challenge would expire on November 17, 2008.

On November 17, 2008, Citizens' filed a complaint in lieu of prerogative writs in the Superior Court, Law Division, against defendants. The complaint set forth Citizens' concerns about the "unreasonably adverse impact on the surrounding area as well as on the environment and natural resources" the project would have on the property. On December 11, 2008, all defendants moved to dismiss the complaint for, among other reasons, failure to file a timely complaint. Citizens countered that its reasonable reliance on Kiernan-O'Tooles's representation of the publication date justified enlargement of the limitations period under Cohen v. Thoft, 368 N.J. Super. 338 (App. Div. 2004). Moreover, based on the "totality of the equitable circumstances" presented, Citizens argued that it was entitled to enlargement because it was advancing environmental issues with broad impact on the public.

The trial court denied Citizens' motion for an enlargement of time under Rule 4:69-6(c) and found no manifest injustice in its denial. In ruling, the court distinguished the circumstances presented in this case from those of the pro se plaintiff in Cohen v. Thoft, supra, reading that case to require an affirmative showing of deliberate deception, which all parties agree is not the case here. Citing Brunetti v. New Milford, 68 N.J. 576 (1975), the court applied a three-part standard that asked whether the matter presented a novel or constitutional claim; whether it involved an ex parte determination; or whether it implicated a matter of great public interest. In the absence of one of those categories, the court held that an enlargement could not be granted. Because the court concluded that none of the Brunetti factors were implicated in the case, it declined to enlarge the Rule 4:69-6 limitations period and granted the motions to dismiss.

Citizens appealed and the Appellate Division affirmed "substantially for the reasons expressed" by the trial court, differing only in its conclusion that "there may be circumstances that warrant an enlargement of time other than the [three] traditional categories" of Brunetti. The panel concluded that Citizens had failed to show any effort by BPG to mislead them, or any suggestion that the zoning ordinance itself was invalid, circumstances which may have warranted an enlargement of time. Likewise, the panel declined to embrace Citizens' argument that the issues it presented constituted public interests and found the objections to be "normal" for a land use case.

The Supreme Court granted Citizens' petition for certification.

HELD: The circumstances presented in this case satisfy the standards in Rule 4:69-6(c) and warrant enlargement of the forty-five-day period because "it is manifest that the interest of justice so requires."

1. The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, provides, in relevant part 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. R. 4:69-1 to -7. Rule 4:69-6 sets forth the time limitations on the institution of such actions. Subsection (a) acknowledges a general limitations period of forty-five days "after the accrual of the right to the review, hearing or relief claimed . . . ." R. 4:69-6(a). Subsection (b) details eleven specific exceptions to the general rule, the applicability of which are determined based on the nature or context of the challenge. R. 4:69-6(b)(1) -- (11). Subsection (b)(3) 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 . . . ." R. 4:69-6(b)(3). Subsection (c) of the rule provides: "The court may enlarge the period of time provided in paragraph (a) or (b) of this rule where it is manifest that the interest of justice so requires." R. 4:69-6(c). It is undisputed that Citizens failed to meet the deadline imposed by Rule 4:69-6(b)(3), 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 Citizens is entitled, in the "interest of justice," to an enlargement under Rule 4:69-6(c), and, hence, to an adjudication of the merits of its claim. (Pp. 10-12)

2. The methodology employed when this Court interprets one of its rules mirrors the manner in which statutes are construed. In accordance with that interpretative scheme, the analysis in this case begins with the plain language of Rule 4:69-6(c), which language suggests that a court has discretion to enlarge a Rule 4:69-6(a) or (b) timeframe when it perceives a clear potential for injustice. Prior case law is instructive regarding the outcome here, insofar as it reveals the circumstances in which the Court has held the rule applicable. In Schack v. Trimble, 28 N.J. 40 (1958), the earliest of such cases, the Court commented that "the rule was aimed at those who slumber on their rights . . . ." Id. at 49. In 1975, in Brunetti v. New Milford, supra, the Court surveyed New Jersey case law decided under the precursor to Rule 4:69 and observed that "certain cases were excepted from the rule governing limitation of actions." Id. at 586. "Included" 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." Ibid. In Reilly v. Brice, 109 N.J. 555 (1988), 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." Id. at 559. Importantly, the concealment need not be intentional or malicious, as evidenced by the fact that in Reilly the Court attributed the blame for the lateness of that proceeding to the negligence of the municipality. In Borough of Princeton v. Bd. Of Chosen Freeholders, 169 N.J. 135 (2001), the Court enlarged the limitations period, notwithstanding the defendants' interest in repose, based on "unique public policy concerns" and "the potential prejudice to the public that would result from not reaching the merits . . . ." Id. at 156. In Cohen v. Thoft, supra, the trial court dismissed the case, strictly applying both the deadlines imposed by Rule 4:69-6(b)(3) and the three categories of exceptions enunciated in Brunetti. The Appellate Division reversed, concluding that the plaintiff had not slumbered on his rights, "but instead reasonably relied on his communications with [the borough official] . . . ." Ibid. The panel also found no prejudice in the three-day delay, and directed that the case be remanded to the trial court because "it would be a miscarriage of justice to deprive plaintiff of a hearing on the merits of his challenge . . . ." Ibid. (Pp. 12-21)

3. Cohen v. Thoft is the paradigm for this case. Brunetti was never intended to limit the categories of exceptions to Rule 4:69 to the three cited therein. Like the trial court in Cohen v. Thoft, supra, the trial court in this case was mistaken when it improperly construed Brunetti's language as imposing a strict "three-part standard" that must be met for enlargement to be awarded. Here, the Appellate Division recognized the error by acknowledging that there may be circumstances that warrant an enlargement of time other than the traditional categories. However, the panel itself went astray in concluding that Cohen v. Thoft requires a willful concealment in order to justify the extension. Nothing in Cohen v. Thoft supports that view. Rather, Cohen v. Thoft is aligned with this Court's decision in Reilly, supra, that recognized municipal negligence as a basis for invoking Rule 4:69. In Cohen, the Appellate Division held that the communication snafu on which the plaintiff relied was sufficient to trigger the salutary provisions of Rule 4:69 and that the three-day delay in that case did not prejudice the defendants. The same is true here. Plaintiff was entirely reasonable in calling the Board Secretary for information. Plaintiff was inadvertently misled. To be sure, BPG was blameless, but so was plaintiff, which cannot be said to have slumbered on its rights. Further, the six-day delay was such that defendants could not have suffered prejudice sufficient to warrant the barring of this litigation. Indeed, this is the exact constellation of circumstances that Rule 4:69 was intended to address. (Pp. 21-23)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for the reinstatement of plaintiff's complaint and for further proceedings consistent with the principles to which the Court has adverted.

JUSTICE RIVERA-SOTO has filed a separate DISSENTING opinion, expressing the view that the Legislature explicitly has set forth the trigger for filing a complaint in lieu of prerogative writs, and that statutory "bright line" provision is given insufficient weight by the Court. In addition, he states that he will cast a substantive vote in cases in which the judge of the Superior Court temporarily assigned participates, except those in which the judge's vote affects the outcome. In the latter cases, the Justice will defer a decision on casting a vote and reserve the right to abstain for the reasons noted in Henry v. New Jersey Dept. of Human Services, __ N.J. __ (2010).

CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA, ALBIN, and HOENS, and JUDGE STERN (temporarily assigned) join in JUSTICE LONG's opinion. JUSTICE RIVERA-SOTO has filed a separate dissenting opinion.

Argued October 26, 2010

JUSTICE LONG delivered the opinion of the Court.

Over the objections of members of the public, the Planning Board (Board) of Hopewell Township (Township) granted preliminary site plan approval to the Berwind Property Group Development Co., L.P. (BPG) to develop a parcel of real estate on Carter Road in the Township. On September 27, 2008, BPG published a notice of the resolution in a newspaper of general circulation, and notified the Board of its action. On October 2, 2008, the Board published a second notice in another local newspaper. A pro se objector contacted the Board and was informed that the notice had been published on October 2, 2008.

In reliance on that information, the objector calculated the forty-five-day period within which to bring an action in lieu of prerogative writs and filed a complaint on November 17, 2008, against BPG, the Board, the Township, and the Township Committee (collectively, defendants). Defendants moved to dismiss the complaint as untimely based on the forty-five-day window provided by the first publication. The objector contended she was misled by the information conveyed by the Board and that the representation regarding the later publication date warranted enlargement of the limitations period. The trial court disagreed, as did the Appellate Division.

We granted certification, 201 N.J. 497 (2010), and now reverse. We conclude that the circumstances presented in this case satisfy the standards in Rule 4:69-6(c) and warrant enlargement of the forty-five-day period because "it is manifest that the interest of justice so requires." This ruling is not intended as a comment on the merits of the complaint, but only on the timeliness of its filing.

I.

At the heart of this matter is a 359.8 acre parcel of real property (the property) located on Carter Road, in the Township.*fn1

The property is presently zoned "RO-3" (Research/Office). In 1999, the prior owner of the property (Townsend Property Trust, L.P.) received approval for a general development plan (GDP) from the Board. The property is presently owned by BPG. In 2005, BPG sought and received a two-year extension of the vesting period for the Townsend proposal, which is currently set to expire on May 19, 2011. On November 15, 2006, BPG filed an application for preliminary site plan approval that was deemed complete in late 2007. In it, BPG proposed eight buildings for the property, totaling 800,000 square feet, as well as the addition of a daycare center, parking, interior roads, and a new wastewater treatment plant.

Thirteen public hearings on the application were held between January and May 2008. At those meetings, witnesses appeared and members of the public voiced their concerns over the development proposed by BPG. Among those concerns were the environmental impact of clear-cutting numerous mature trees which are habitat for endangered species; stream encroachment; and the inadequacy of waste and storm water facilities.

The Board approved the preliminary site plan on May 29, 2008. The approval was memorialized in a forty-three-page resolution adopted September 25, 2008. That resolution placed many conditions on the development of the property, including, among others, provision of additional information concerning wastewater processing needs and capabilities; modifications to the storm water management system to ensure ...


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