NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Gilroy and Nugent.
Plaintiff Ronald Cabezas appeals from the February 16, 2010 order granting summary judgment to defendants and dismissing plaintiff's complaint challenging the validity of a Township of Mahwah (the Township) street ordinance. We affirm.
The facts are essentially undisputed. Plaintiff resides in the Township on Stephens Lane near its intersection with Olney Road. Olney Road is a through street that connects on the north to Stephens Lane and on the south to Miller Road.
On July 23, 2009, the Township adopted Ordinance No. 1652 which restricted the use of fifteen feet of Olney Road between Stephens Lane and Miller Road to use by "bona fide emergency vehicles responding to an emergency and public utility and Township vehicles performing public utility and/or maintenance functions." On August 6, 2009, the Township published notice of its adoption of the ordinance. Although Ordinance No. 1652 is the subject of this appeal, we will first review the history of the prior ordinance to provide a context for the present dispute.
Olney Road originally extended northerly from Miller Road to a dead end, but in the late 1990s Olney Road was extended farther north to Stephens Lane. In February 2005, the Township adopted Ordinance No. 1533 that declared a limitation on the use of twenty feet of Olney Road to only emergency, municipal, and public utility vehicles. According to the ordinance, the Township restricted the road use in the interest of public safety. In May 2006, the New Jersey Department of Transportation (NJDOT) approved the ordinance. In November 2006, the Township amended the ordinance to reduce the area of restricted use from twenty feet to fifteen feet. The amended ordinance, No. 1556, became effective November 20, 2006.
On May 10, 2007, plaintiff filed a complaint in the Law Division alleging that the Township's adoption of the amended ordinance was arbitrary, capricious, and violated his state and federal civil rights "to use and traverse that portion of Olney Road closed as a public thoroughfare by the Defendants." The parties subsequently cross-moved for summary judgment. On September 24, 2008, the trial court determined that there was no objective, tangible evidence to support the Township's contention that the ordinance was adopted in the interest of public safety. Consequently, the court held that the adoption of the ordinance was "palpably arbitrary, capricious and unreasonable." Confirming that plaintiff had abandoned his claims that the ordinance violated his constitutional rights to use the road, the court dismissed those claims with prejudice. The court entered a conforming order on October 27, 2008.
On July 23, 2009, the Township adopted Ordinance No. 1652 which prohibited the use of the same fifteen feet of Olney Road to all vehicles except "emergency, public utility, and Township vehicles performing public utility and/or maintenance functions." The ordinance included a copy of the NJDOT engineers' findings that Olney Road at the restricted access point was too narrow to safely accommodate two lanes of traffic. The ordinance stated that the Township had engaged an independent engineering firm to conduct a study of the need for restricting access to Olney Road, and that the study confirmed the NJDOT's findings. Finally, the Township's municipal engineer concurred with the independent engineers' report. The ordinance became effective on August 26, 2009.
On October 30, 2009, plaintiff filed a single-count verified complaint in the Chancery Division challenging the adoption of the ordinance. Plaintiff requested that the court "[d]eclar[e]" Ordinance No. 1652 to be "illegal and violative of law," "null and void," and "arbitrary and capricious." Plaintiff did not allege any violations of his constitutional rights.
On December 14, 2009, defendants filed a motion for summary judgment before the Chancery Division, arguing that plaintiff's cause of action was "substantively an action in lieu of prerogative writs," and that it had not been filed within forty-five days of the enactment of the ordinance as required by Rule 4:69-6(a). Plaintiff responded that the action was a declaratory judgment action filed pursuant to N.J.S.A. 2A:16-53, not an action in lieu of prerogative writs. Alternatively, plaintiff argued that the time frame for filing an action in lieu of prerogative writs should be relaxed in the interest of justice because the action was a matter of public interest. On January 19, 2010, the Chancery Division transferred the case to the Law Division, characterizing the cause of action as one for declaratory judgment, but explicitly refraining from "address[ing] or resolv[ing] whether the action is or is not an action in lieu of prerogative writs, and/or whether the action is or is not timely."
Defendants renewed their summary judgment motion in the Law Division. There, the court determined that the action was substantively an action in lieu of prerogative writs and dismissed the complaint because it was not filed within forty-five days as required by Rule 4:69-6(a). The court determined that plaintiff's claim did not fall within the purview of the "interest of justice" exception provided by Rule 4:69-6(c). The court entered an order on February 15, 2010, dismissing plaintiff's complaint with prejudice.
Plaintiff renews on appeal his arguments that the trial court erred by determining that his complaint was an action in lieu of prerogative writs, not a declaratory judgment action; and alternatively, that the trial court erred by refusing to extend the forty-five day limit for filing an action in lieu of prerogative writs.
The summary judgment standard is set forth in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995). The motion judge must determine whether the competent evidential materials, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. Id. at 540. However, if summary judgment turns on a question of law, or if further factual development is unnecessary in light of the issues presented, then summary judgment need not be delayed. United Sav. Bank v. State, 360 N.J. Super. 520, 525 (App. Div.), certif. denied, 177 N.J. 574 (2003). An appellate court employs "the same standard ...