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Timothy J. Sheehan and Barbara E. Sheehan v. the Township of Princeton and the Regional Planning Board of


November 29, 2011


Per curiam.


Argued October 3, 2011

Before Judges Alvarez and Skillman.

Plaintiffs Timothy J. Sheehan and Barbara E. Sheehan appeal from the October 15, 2010 dismissal of their complaint in lieu of prerogative writs for failure to file within forty-five days of "the accrual of the right to the review, hearing or relief claimed." See R. 4:69-6(a). For the reasons that follow, we affirm.

Plaintiffs are the owners of approximately twenty-two acres of real property zoned for residential use located in Princeton Township. Defendant, the Regional Planning Board of Princeton (the Board), adopted a Master Plan Reexamination Report on October 18, 2007, pursuant to the Municipal Land Use Law, N.J.S.A. 40:55D-89, recommending that assisted living facilities not be permitted as conditional uses in residential zones, such as the one in which plaintiffs' property is located. Thereafter, on July 30, 2008, the Board's Zoning Amendment Review Committee in turn recommended that an ordinance be drafted to that effect. The Township Committee's attorney was quoted on February 26, 2010, in the Princeton Packet, the local paper in which zoning notices are routinely advertised, however, as having advised the Township Committee at a public meeting, to "hold[] off on a Master Plan change" until such time as other litigation involving plaintiffs, unrelated to the Township, was resolved. The attorney added that "in the next several months, I think we [will] be in the position to recommend moving forward with the ordinance change[.]"

The ordinance was introduced at the Township Committee meeting on March 22, 2010. It specifically barred nursing homes and assisted living residences in the RA or RB zoning districts, including plaintiffs' property, and was published in the Princeton Packet in its entirety on March 26, 2010. At its public meeting held on April 8, 2010, the Board unanimously endorsed it. The ordinance was officially adopted by the Township on April 12, 2010, and four days later, notification of its adoption was published in the Princeton Packet pursuant to law. Plaintiffs did not file their action until August 12, 2010, nearly five months after publication.

Pursuant to Rule 4:69-6(a), "no action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing or relief claimed, except as provided by paragraph (b) of this rule." In this case, the accrual of that right, as outlined in paragraph

(b) subsection (3), arose after publication of notice in a newspaper of general circulation. The time frame may be enlarged only "where it is manifest that the interest of justice so requires." R. 4:69-6(c).

Plaintiffs argue on appeal, as they did before the trial court, that the time frame should be enlarged in the interest of justice because of their reasonable reliance upon the Township attorney's statements. We agree with the motion judge that, to the contrary, reliance on statements quoted in a newspaper attributed to the Township's attorney was not a reasonable basis to enlarge the time in which to file the complaint. Such enlargements are permitted where the case falls within the guidelines contained in Brunetti v. New Milford, 68 N.J. 576, 586 (1975). They are allowed in 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 adjudification or clarification. Plaintiffs' circumstances do not fit any of the Brunetti categories, nor fall within any other exception. See Hopewell Valley Citizens'

Grp. v. Berwind Prop. Grp. Dev. Co., L.P., 204 N.J. 569, 584-85 (2011) (time enlarged when plaintiffs calculated the forty-five-day period within which to bring an action in lieu of prerogative writs based on incorrect information provided by the township planning board staff); Gregory v. Borough of Avalon, 391 N.J. Super. 181, 189 (App. Div. 2007) (in weighing the public versus private interest implicated in plaintiff's challenge, benefits of enlargement of time to the public must be weighed against the important policy of repose); Cohen v. Thoft, 368 N.J. Super. 338, 347 (App. Div. 2004) (forty-five-day time frame enlarged where plaintiffs relied upon an improper later notification of approval, reasonably assuming such publication was indeed the official notice).

Additionally, the very statement attributed to the Township attorney included the point that the municipality would be in a position to move forward in the spring of that year, which if plaintiffs were relying on third-hand accounts, would have caused them to be watchful of public notices in the months following. The next month, discussions regarding the amendment to the zoning scheme resumed in earnest and formal public notice of the proposed ordinance was published on March 26, 2010. In our view, plaintiffs had ample prior notice of the adoption of the ordinance. Thus, plaintiffs are barred from pursuing their action as it is beyond the forty-five-day limit imposed by the rule and there is no basis upon which the time should be enlarged.



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