August 23, 2011
GERALD A. GREENBERG,*FN1 PLAINTIFF-APPELLANT,
236 E. ABSECON BOULEVARD MOBILE HOME PARK, LLC, CITY OF ABSECON AND ZONING BOARD OF ADJUSTMENT OF THE CITY OF ABSECON, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-611-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 10, 2010
Before Judges Axelrad, Lihotz and J. N. Harris.
Plaintiffs appeal from summary judgment by the Law Division dismissing
their complaint in lieu of prerogative writs, challenging the grant of
land use approvals by defendant, the Zoning Board of Adjustment of the
City of Absecon (the Board). The court found the Board had
jurisdiction to grant site plan approval and bulk variances*fn2
to defendant 236 E. Absecon Boulevard Mobile Home Park, LLC
(Absecon Homes). The approvals allowed the residential development of
defendants' property, which is adjacent to plaintiffs' homes. The
court also found plaintiffs' complaint was untimely, and the
circumstances did not warrant enlarging the limitations period. We
affirm, albeit on narrower grounds than the Law Division.
On February 16, 2010, plaintiffs filed a complaint in lieu of prerogative writs against Absecon Homes, the City of Absecon, and the Board. Count I alleged the Board lacked jurisdiction to hear Absecon Homes' site plan application and associated bulk variances and thus, the 2008 approvals for the proposed redevelopment were void and of no effect. Count II alleged the Board's 2007 determination that the proposed redevelopment plan was not an expansion of a non-conforming use was arbitrary and capricious. Count III alleged there was a substantial deviation between the 2007 and 2008 site plans, rendering invalid or inapplicable the Board's 2007 conclusion that the project did not expand a pre-existing non-conforming use and did not need a "special reasons" variance under N.J.S.A. 40:55D-70d(l) or (2) (a "d" variance). Plaintiffs sought an order declaring: (1) the Board's 2008 site plan and variance approval to be void and of no effect and (2) as currently configured, Absecon Homes' project to be an improper expansion of a non-conforming use and requiring a "special reasons" variance. Plaintiffs also sought injunctive relief. Plaintiffs additionally filed an order to show cause seeking to enjoin Absecon Homes from further construction. On February 24, 2010, the parties agreed Absecon Homes would not perform any additional work on the site except for delivery of materials until the anticipated cross-motion for summary judgment was heard.
According to the parties, they and the court agreed plaintiffs' submission would be treated as a motion for summary judgment. Absecon Homes and the Board filed cross-motions for summary judgment. Following oral argument, the court granted summary judgment in favor of all defendants, and dismissed, with prejudice, plaintiffs' complaint. A memorandum of decision and memorializing order was issued on April l4, 2010. This appeal ensued.
On appeal, plaintiffs argue:
BECAUSE IT IS A COLLATERAL ATTACK ON AN "UTTERLY VOID" MUNICIPAL ACTION, PLAINTIFFS' CHALLENGE TO THE ZONING BOARD'S 2008 APPROVAL IS BOTH TIMELY AND MERITORIOUS.
A. THE TRIAL COURT ERRED IN HOLDING THAT THE ZONING BOARD HAD "ANCILLARY JURISDICTION" TO GRANT SITE PLAN APPROVAL WITH BULK VARIANCES.
B. BECAUSE THE ZONING BOARD LACKED JURISDICTION, ITS 2008 SITE PLAN AND VARIANCE APPROVAL WAS "UTTERLY VOID."
C. COUNT I OF PLAINTIFFS' COMPLAINT IS A COLLATERAL ATTACK ON THE 2008 APPROVAL.
D. NEITHER EQUITABLE ESTOPPEL NOR LACHES BARS PLAINTIFFS' CHALLENGE TO THE 2008 APPROVAL.
UNRESOLVED FACTUAL ISSUES PRECLUDE SUMMARY JUDGMENT ON PLAINTIFFS' CHALLENGE TO THE ZONING BOARD'S 2007 "INTERPRETATION."
Based on our review of the record and applicable law, we are convinced summary judgment was appropriate and plaintiffs' complaint was properly dismissed as time-barred.
Plaintiffs are adult individuals who reside in a community known as Absecon Shores in Absecon, New Jersey. Portions of the community abut the subject property (the property), which is owned by Absecon Homes. The property, identified as Block 173, Lot 1 on the Tax Map of Absecon, consists of approximately 2.4 acres. Absecon Homes acquired the property in March 2002, which, at the time, contained fifteen mobile home pads, four permanent residential cottages, and a commercial structure shaped like a ship, which had a retail store on the first floor and a residential apartment on the second floor.
The property has been zoned "Highway Commercial" (HC) since l964. However, the residential and commercial uses on the property were established as pre-existing non-conforming uses and the Board issued certificates of non-conformity to Absecon Homes' predecessor in title in 2000 and 2002.
Absecon Homes planned to demolish the dilapidated mobile homes and replace them with manufactured housing on fourteen new sites that would be leased to tenants. It also planned to raze the boat-shaped structure and eliminate the commercial use, as well as install all new site improvements.
Absecon Homes applied to the Board in February 2007, requesting an interpretation pursuant to N.J.S.A. 40:55D-70b that its proposed redevelopment plan was permitted in the HC zoning district under the prior certificates of non-conforming use. Absecon Homes alternatively requested a variance to expand the non-conforming use, pursuant to N.J.S.A. 40:55D-70d(2). In April 2007, Absecon Homes published legal notice of the application and public hearing and notified all property owners within 200 feet of the property by certified mail as required by the Municipal Land Use Law ("MLUL"). See N.J.S.A. 40:55D-12a, b.*fn3 Three of the plaintiffs in this action, Lawrence and Sara Scanlon of 100 Park Avenue and Jacqueline Butler of 106 Laurel Circle, were specifically provided with the 200 feet notice of the application and hearing.
At the Board hearing on June l9, 2007, Paul Casaccio, a principal of Absecon Homes and Timothy Michel, his planner, testified as to the character, scope, and intensity of the current and proposed development. Michel described the existing buildings and structures on the site as "in very poor condition" and the mobile homes on the site as "old and really obsolete." Both witnesses explained that Absecon Homes would upgrade the existing mobile home park with fourteen new double-wide manufactured homes that would be constructed on concrete slab foundations, would install a new infrastructure, and construct a new road system to service the new development, all in conformity with federal, state, and local standards. Michel opined that the redevelopment did not constitute an expansion of the pre-existing non-conforming use. No member of the public, including any plaintiff, opposed the application. At the conclusion, the Board determined the fourteen mobile homes were permitted under the prior certificates of non-conformity, subject to subsequent site plan approval.
On August 21, 2007, the Board adopted Resolution #4-2007 memorializing its decision. The Resolution included, in relevant part, the finding that the proposed redevelopment was not an enlargement of the non-conforming use, which would require a use variance pursuant to N.J.S.A. 40:55D-70d(2), and was permitted as within the previously issued certificates of non-conformity. The resolution also noted that the proposal was subject to Absecon Homes' receipt of major site plan approval pursuant to the Board's "ancillary jurisdiction." Notice of the Board's decision was published by Absecon Homes in the Press of Atlantic City on August 31, 2007.
On May 21, 2008, Absecon Homes applied to the Board for preliminary and final site plan approval and associated "c" variances for setback and building separation requirements pursuant to the terms of the interpretation it had previously obtained. It is undisputed Absecon Homes, again, properly published and provided notice of the hearing to property owners within 200 feet of the property as required by the MLUL. Moreover, once again, three plaintiffs -- the Scanlons and Butler -- were specifically provided with notice by certified mail.
At the Board hearing on August 19, 2008, no member of the public, including any plaintiff, opposed the application. The Board granted preliminary and final site plan approval to Absecon Homes with all requested dimensional variances for front, side and rear yard setbacks, and adopted memorializing Resolution #2-2008 on September 16, 2008. Notice of the decision was published in the Press of Atlantic City on October 2, 2008.
This suit was filed by plaintiffs in February 2010. All parties moved for summary judgment. Defendants argued the forty-five day statute of limitations in Rule 4:69-6(b)(3) barred the entire complaint, the Board's 2008 site plan and bulk variance approval was a proper exercise of its ancillary jurisdiction, and the equitable doctrines of estoppel and laches barred plaintiffs' attack.
Absecon Homes presented the certification of Casaccio who represented that the site was partially cleared in reliance on the site plan approval. He stated that Absecon Homes incurred approximately $214,013.15 in redevelopment expenses from November 17, 2008 through February l6, 2010 "in reliance on the site plan approval." The itemized expenses included project engineering fees of $13,254.60; municipal inspection, review and cash guaranty fees of $54,130.88; fees of $12,739.23 to Atlantic City Electric for installation of a new electrical system on the site; $54,044 to New Jersey Water Co. for implementing a new water system with water lines servicing the site; and payments of $31,000 for buying out the tenancies of seven of the mobile home owners to induce them to remove their decrepit units from the pad sites so Absecon Homes could proceed with the demolition and construction of the infrastructure and site work. Absecon Homes also lost $33,563 in rent from tenants who resided in units that have since been demolished as part of the development plan. Casaccio further certified that his related company, a dealer in new mobile homes, had one sale that was imminent to a buyer who intended to take advantage of the federal tax credit, which was lost because it had to be used by April 30, 2010.
With respect to the 2008 approval, plaintiffs argued that Count I of their complaint was a meritorious collateral attack on an "utterly void" exercise of the Board's jurisdiction, that was neither time-barred nor subject to the equitable defenses, and with respect to the 2007 decision, that summary judgment was premature because unresolved factual issues affected whether a basis existed to enlarge the limitations period.
Following oral argument, the court granted summary judgment in favor of all defendants, dismissed plaintiffs' complaint with prejudice, and issued a memorializing order and written decision. The court rejected plaintiffs' contention that the 2008 Board action was "utterly void" and concluded the Board's decision was a proper exercise of its ancillary jurisdiction pursuant to N.J.S.A. 40:55D-76b because the 2007 application included a request for a variance under N.J.S.A. 40:55D-70d(2). Noting the undisputed fact that plaintiffs did not file their Law Division complaint until approximately sixteen months after publication of the 2008 decision, the court found plaintiffs' attack was time-barred.
The court next addressed plaintiffs' assertions contained in Counts II and III that the Board's decision was arbitrary and capricious because the application significantly expanded the non-conforming use, and that discovery was needed to determine if the 2008 application intensified the non-conforming use. Reviewing the evidence before it and noting that extensions of time for filing actions in lieu of prerogative writs should only be granted in limited circumstances, Robbins v. City of Jersey City, 23 N.J. 229, 238-39 (l957), the court found no factual issues precluded summary judgment on the remaining counts and an extension of the forty-five day limitations period was not warranted in the "interests of justice." In light of its ruling, the court did not reach Absecon Homes' argument that the complaint was barred by the equitable doctrines of laches and estoppel. This appeal ensued.
When reviewing a grant of summary judgment, we employ the same standards used by the motion judge under Rule 4:46. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in the light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no deference to the motion judge's conclusions on issues of law, Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010); Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).
We need not address the issue of the Board's ancillary jurisdiction to grant site plan approval and bulk variances as we are satisfied Count I of plaintiffs' complaint is a direct attack on the Board's 2008 action. As the complaint was filed well beyond the forty-five day limitations period contained in Rule 4:69-6(b)(3), and we discern no basis to enlarge the limitations period, it was properly dismissed as time-barred.
Appeals from local land use decisions are accomplished by actions in lieu of prerogative writs. R. 4:69-1 to -7; see also Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:69 (2011). Under Rule 4:69-6(b)(3), an action to review a zoning board's decision must be brought within forty-five days of the publication of the notice of decision. This limitation "is aimed at those who slumber on their rights, and is designed to give an essential measure of repose to actions taken against public bodies." Wash. Twp. Zoning Bd. of Adjustment v. Wash. Twp. Planning Bd., 217 N.J. Super. 215, 225 (App. Div.) (internal citation omitted), certif. denied, 108 N.J. 218 (1987).
It is undisputed plaintiffs failed to meet the deadline imposed by Rule 4:69-6(b)(3), as they did not file their complaint in lieu of prerogative writs within forty-five days of October 2, 2008, the publication date of the Board's decision granting site plan approval and variances. Rather, plaintiffs waited approximately sixteen months to file their complaint.
We reject plaintiffs' argument that the limitations period is inapplicable because the Board's action was "utterly void" and subject to collateral attack at any time, and their reliance on Najduch v. Township of Independence Planning Board, 411 N.J. Super. 268, 274 (App. Div. 2009). Based on our review of the record and applicable law, we are satisfied plaintiffs' complaint was a direct, not collateral, attack on the Board's approval of Absecon Homes' site plan and variances subject to the limitations period, and that Najduch is inapposite.
If the Board's action were "'utterly void,' then it may be subject to 'collateral' attack at any time, but a 'direct' attack must be made within the limitations period whether [such action] be merely 'irregular' or utterly void." Schultze v. Wilson, 54 N.J. Super. 309, 321 (App. Div.) (citing Thornton v. Vill. of Ridgewood, l7 N.J. 499, 510 (l955); Marini v. Borough of Wanaque, 37 N.J. Super. 32, 40 (App. Div. l955); V.F. Zahodiakin Eng'g Corp. v. Summit Zoning Bd. of Adjustment, 8 N.J. 386, 395 (l952)), certif. denied, 29 N.J. 511 (1959). See also Najduch, supra, 4ll N.J. Super. at 274; Sitkowski v. Zoning Bd. of Adjustment, 238 N.J. Super. 255, 261 (App. Div. 1990).
In Schultze, a landowner filed an action in lieu of prerogative writs seeking to invalidate a building permit issued to a builder by the borough's building inspector two years prior and restrain the builder from completing the construction of a building on the premises. Supra, 54 N.J. Super. at 313. Based in large part on our review of the complaint, which sought to restrain the builder from taking any action pursuant to the permit and to require the builder to surrender the permit, we held that the landowner's action constituted a direct attack on the permit. Id. at 321-22. Accordingly, the complaint was barred by the applicable limitations period for the filing of an action in lieu of prerogative writs. Id. at 322.
By contrast, in Najduch, the planning board had granted preliminary site plan approval for construction of a shopping center to the subject property in 1989, conditioning approval on a change in the zoning or a use variance because the property was in a residential zone. Supra, 411 N.J. Super. at 270-71.
In 2007, after the property had been rezoned to permit commercial uses, the new owner obtained amended final site plan approval from the township's then-consolidated land use board for construction of a shopping center predicated on the l989 preliminary site plan approval. Id. at 271-72. The owner sought to rely on the prior approval solely to claim the benefit of an exception under the Highlands Act applicable to projects that received preliminary or final site plan approval before March 29, 2004. Id. at 271.
Within forty-five days of publication of the notice of the resolutions granting final site plan approval, the plaintiffs, who owned adjoining property, filed actions in lieu of prerogative writs challenging the governing body's adoption of an ordinance rezoning part of the property, the jurisdiction of the planning board in entertaining the l989 application for preliminary site plan approval, and the subsequent action of the land use board in granting the amended final site plan approval. Id. at 272.
We held that the owner's claim that the planning board lacked jurisdiction to grant site plan approval under the MLUL for a use that was prohibited in the zoning district, id. at 278, was a collateral attack that could be raised at any time, id. at 274. It is clear from the court's explanation that the sole reason the planning board's grant of preliminary site plan approval in l989 was deemed to be "collaterally" attacked during the course of the 2007 action in lieu of prerogative writs, and thus not time-barred, was because those complaints, which were timely filed, challenged the land use board's 2007 decision to permit an amendment to the l989 site plan.
As Judge Skillman explained:
Plaintiffs' challenge to the 1989 site plan approval is collateral and the basis of its challenge is jurisdictional. Plaintiffs challenged the validity of that approval only because the Land Use Board accepted the contentions . . . that the 1989 site plan approval was valid, that it remained in effect nearly twenty years later, and that [the property owner] could pursue its current plans for construction of a shopping center by an amendment of that 1989 approval rather than by a new application. Plaintiffs' actions in lieu of prerogative writs challenged the Land Use Board's  resolutions accepting those contentions and granting [the property owner's] application for approval of its application for amendment of the 1989 site plan approval. [The property owner] does not dispute that plaintiffs' actions were filed within forty-five days of publication of the notice of those resolutions. . . . [Its] argument is simply that plaintiffs are barred from challenging the validity of the 1989 site plan approval as one of the grounds of their actions challenging the Land Use Board's resolutions.
However, plaintiffs were placed in the position of mounting this challenge only because the Land Use Board's 2007 resolutions allowed [the property owner] to resurrect the 1989 site plan approval in order to claim the benefit of the exemption from regulation under the Highlands Act . . . for development projects that received preliminary or final site plan approval before March 29, 2004. Consequently, plaintiffs' challenge to the validity of the 1989 site plan approval as one of the bases of its challenge to the 2007 resolutions was "collateral" in nature. Moreover, plaintiffs' challenge is "jurisdictional" because they contend the Planning Board lacked statutory authority to grant site plan approval for a proposed use that was not permitted by the zoning ordinance. Therefore, the trial court correctly ruled that plaintiffs' challenge to the validity of the 1989 site plan approval was timely. [Id. at 274-75.]
In the present case, plaintiffs neither filed a timely complaint in lieu of prerogative writs nor was there any Board action after 2008 that could be construed as resurrecting either the 2007 determination respecting the non-conforming use certificates or the 2008 site plan approval. Based on our review of the complaint it is clear that plaintiffs mounted a direct attack on the Board's jurisdiction to consider Absecon Homes' site plan and variance application. In Count I, plaintiffs expressly alleged the Board "lacked jurisdiction to hear [Absecon Homes'] site plan application and the bulk variances associated with it" and "[c]onsequently, the site plan approval and variances granted by the  [B]oard in 2008 are void and of no effect." In Count II and III, plaintiffs challenged as arbitrary, capricious, unreasonable and invalid the Board's 2007 determination that Absecon Homes' proposed fourteen unit mobile home park was not an expansion of a non-conforming use.
Nor are we convinced that plaintiffs' alternative remedy of injunctive relief against defendants from taking further action pursuant to the site plan approval ("prohibiting all defendants from taking any steps to effectuate advancement or completion of [Absecon Homes'] l4-unit mobile home park, including the issuance of any permits or approvals by the municipal defendants; and any demolition, site preparation or construction" by Absecon Homes) renders their challenge collateral rather than direct. As in Schultze, plaintiffs' complaint sought to restrain defendants from taking any action in furtherance of the challenged municipal approval, which we deemed to be a "direct attack." See Schultze, supra, 54 N.J. Super. at 321-22.
As we have determined that plaintiffs' complaint is a direct challenge to the Board's action, and is thus subject to the time-bar of Rule 4:69-6, we turn now to plaintiffs' claim of error by the court in declining to enlarge the forty-five day limitations period.
Rule 4:69-6(c) 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." The exception is typically applied to "cases involving (1) important and novel constitutional questions; (2) informal or ex parte determinations of legal questions by administrative officials; and (3) important public rather than private interests which require adjudication or clarification." Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975) (footnotes omitted). These categories are not exclusive, and the time period may be enlarged "where it is manifest that the interest of justice so requires." Cnty. of Ocean v. Zekaria Realty, Inc., 271 N.J. Super. 280, 288 (App. Div.) (citation omitted), cert. denied, 513 U.S. 1000, 115 S. Ct. 510, 130 L. Ed. 2d 417 (1994). See also Hopewell Valley Citizens' Grp., Inc. v. Berwind Prop. Grp. Dev. Co., 204 N.J. 569, 583-84 (2011) (recognizing that the intent of the rule is not to restrict enlargement to one of these three categories); Cohen v. Thoft, 368 N.J. Super. 338, 346-47 (App. Div. 2004) (explaining that the three categories of grounds for enlargement are not exclusive and enlargement depends on all relevant equitable considerations under the circumstances). The determination of relaxation should be made in light of "all the relevant equitable considerations under the circumstances." Pressler & Verniero, Current N.J. Court Rules, comment 7.3 on R. 4:69-6 (2011).
"Because of the importance of stability and finality to public actions, courts do not routinely grant an enlargement of time to file an action in lieu of prerogative writs." Tri-State Ship Repair & Dry Dock Co. v. City of Perth Amboy, 349 N.J. Super. 418, 423 (App. Div.), certif. denied, 174 N.J. 189 (2002). In determining whether to grant or deny an enlargement of the limitations period, "courts should . . . consider the length of the delay and the reason proffered for that delay." Id. at 424. "It is also appropriate to look to the previous actions or inactions of the plaintiff; if it sat idly by in the past, its entitlement to enlargement of the time limit is weakened." Southport Dev. Grp., Inc. v. Twp. of Wall, 310 N.J. Super. 548, 556 (App. Div.), certif. denied, 156 N.J. 384 (l998). As Justice Long recently noted in Hopewell, a court has the discretion whether to enlarge the Rule 4:69-6 timeframe in the interests of justice. Supra, 204 N.J. at 578.
Enlargement of the forty-five day period was not warranted where the court found the plaintiffs "to be sophisticated and significant costs were assumed by the developer and the Borough. Given the failure to make a timely challenge, and a nearly two year delay, the Borough also lost the opportunity to timely address and make changes to the ordinance." Rocky Hill Citizens for Responsible Growth v. Planning Bd., 406 N.J. Super. 384, 402-03 (App. Div. 2009). While we found the zoning board's action to be of interest to the "limited public," we concluded it was "not the public interest envisioned by the Court in permitting limited expansion of the rule." Id. at 401. In Washington Township, a three-week enlargement of the limitations period was not warranted based on "ample evidence that the developer relied on the planning board approval and expended substantial sums of money in the extensive revision of architectural and engineering plans" in reliance on the approval. Supra, 217 N.J. Super. at 224-25.
Plaintiffs' claims do not implicate any of the three enumerated categories and plaintiffs provide neither evidence nor a proffer of how the court's ruling resulted in a clear potential for injustice. Their allegations simply concern the Board's jurisdiction over a site plan application and garden variety challenges to interpretations or decisions by the Board made at public hearings with full transparency and the legally required public notice having been provided. Moreover, the present controversy merely affects the development of a single tract of land and adjoining property owners, and thus does not implicate important public interests. See Rocky Hill, supra, 406 N.J. Super. at 401 (holding that an ordinance of interest to a "limited public" is "not the public interest envisioned by the Court in permitting limited expansion" of Rule 4:69-6, as there "are no public funds involved, no political upheavals, no significant impact on density, traffic, ratables or any interest other than the concerns expressed by individual plaintiffs and their supporters and no constitutional implications"); Cohen, supra, 368 N.J. Super. at 346-47 (noting dispute over variance granted to neighbor to expand a deck implicated a private interest); Tri-State, supra, 349 N.J. Super. at 424 (finding that a plaintiff's inclusion of its property in a redevelopment district involved a private rather than public interest).
In contrast, the equities overwhelmingly weigh in favor of the time-bar. It is undisputed Absecon Homes complied with the publication and 200 foot notice requirements of the MLUL as to both Board hearings. Moreover, three of the plaintiffs received actual notice of both the 2007 and 2008 hearings. Nevertheless, plaintiffs sat on their rights, without explanation, for approximately sixteen months after publication of the notice of the site plan approval and variances. Absecon Homes waited forty-five days and when no lawsuit was filed, it began to clear the site and expend substantial sums in furtherance of the proposed redevelopment in reliance on the Board's approval. It also lost rental income. Accordingly, we do not perceive an equitable or public interest to justify that delay, regardless of whether plaintiffs' substantive arguments are couched in statutory or constitutional terms.
We also reject plaintiffs' argument that unresolved factual issues precluded summary judgment on Counts II and III. It is well settled that a party "to a summary judgment motion, who resists the motion on the grounds of incomplete discovery is obliged to specify the discovery that is still required." Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 538 (App. Div. 2009), certif. denied, 203 N.J. 93 (2010). The opposing party "has an obligation to demonstrate with some degree of particularity the likelihood that further discovery will supply the missing elements of the cause of action." Wellington v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div.) (citation and internal quotation marks omitted), certif. denied, 177 N.J. 493 (2003); see also Port Imperial Condo. Ass'n v. K. Hovnanian Port Imperial Urban Renewal, Inc., 419 N.J. Super. 459, 474 (App. Div. 2011). The burden is also on the opposing party to respond by affidavits setting forth specific facts showing there is a genuine issue for trial rather than resting on mere allegations or denials.
R. 4:46-5(a); G.D. v. Kenny, 205 N.J. 275, 304 (2011). Plaintiffs have failed to provide any explanation as to how further discovery would justify an enlargement of the forty-five day limitations period or what type of discovery is necessary. Nor have they presented any evidence supporting their claim of a "substantial deviation" between the 2007 and 2008 site plans presented by Absecon Homes. Accordingly, we discern no error by the court in entering summary judgment in favor of defendants dismissing all counts of plaintiffs' complaint with prejudice.