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Mitchell v. Mayor

Superior Court of New Jersey, Appellate Division

July 5, 2013

DEIRDRE MITCHELL, Plaintiff-Respondent,
v.
LEONIA MAYOR AND COUNCIL, Defendants-Appellants, and SIMA DEVELOPMENT, L.L.C., Defendant-Respondent, and LEONIA BOARD OF ADJUSTMENT, Defendant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 8, 2013

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-10149-11.

Giblin & Giblin, attorneys for appellant (Brian T. Giblin, on the brief).

Sekas & Abrahamsen, L.L.C., attorneys for respondent Sima Development, L.L.C. (Richard J. Abrahamsen and John J. McKenna, on the brief).

Before Judges Ashrafi and Guadagno.

PER CURIAM

Defendants, Leonia Mayor and Council appeal from the April 18, 2012 order of the Law Division dismissing a complaint in lieu of prerogative writs filed by plaintiff Deirdre Mitchell. We affirm.

I.

Defendant Sima Development, LLC (Sima), is the owner of property identified as Block 1203, Lots 4, 5 and 6 (the Property), commonly known as 322-326 Grand Avenue in the Borough of Leonia. Sima filed applications with the Leonia Zoning Board of Adjustment (Board) for use and bulk variances and for preliminary and final site plan approval. Sima sought to demolish an existing residential structure and construct a two-story commercial building on the Property.

The Board heard the application over the span of six public hearing dates and approved Sima's application in a resolution dated July 28, 2011. Notice of the approval was published in The Record newspaper, pursuant to N.J.S.A. 40:55D-12(a). Shortly thereafter, two residents of Leonia, William Ziegler and Susan Boyd, filed a timely appeal of the Board's actions to defendants Leonia Mayor and Council.

The Ziegler/Boyd appeal was withdrawn by letter dated November 21, 2011. The letter indicates that there has been an "amicable resolution" of the matter between Ziegler, Boyd and the developer.

On December 13, 2011, plaintiff, Deirdre Mitchell, also a Leonia resident, filed a complaint in lieu of prerogative writs and an application for an order to show cause in the Law Division, naming the Board, the Leonia Mayor, and the Leonia Council as defendants. Plaintiff sought "permission to continue the timely filed appeal before the Mayor and Council, so that they can challenge the Board of Adjustment's July 28, 2011 decision to grant use and bulk relief and site plan approval to Sima Development, LLC."

On January 27, 2012, the Law Division ordered Sima joined as an indispensable party. On April 18, 2012, after oral argument, the Law Division dismissed plaintiff's complaint as untimely filed. The judge noted that the complaint filed by plaintiff exceeded the forty-five-day deadline proscribed by Rule 4:69-6 in which to challenge municipal action in the Superior Court. Although this period may be enlarged in the interests of justice, the judge found none of the factors justifying an extension were met.

Plaintiff did not appeal the dismissal. However, on May 29, 2012, defendants Leonia Mayor and Council, and the Board filed a notice of appeal, apparently seeking to assert plaintiff's procedural rights. An amended notice of appeal filed on June 29, 2012, removed the Board as an appellant.

II.

Initially, we note that only a party aggrieved by an order can appeal from it. Howard Sav. Inst. of Newark v. Peep, 34 N.J. 494, 499 (1961). Generally, "to be aggrieved a party must have a personal or pecuniary interest or property right adversely affected by the judgment in question." Ibid. Plaintiff was clearly aggrieved by the dismissal of her complaint, but defendants have made no showing of any interest adversely affected by that judgment.

Had the Ziegler/Boyd appeal proceeded, defendants' role in this matter would have been to serve as a quasi-judicial appellate tribunal. The Borough of Leonia Ordinance 37-29 permits "any interested party [to] appeal to the governing body any final decision of the Board of Adjustment granting a variance pursuant to N.J.S.A. 40:55D-70(d)." Perhaps realizing they are unable to demonstrate an adverse effect from the dismissal, Leonia's Mayor and Council argue on plaintiff's behalf that the interests of justice require that she be permitted to file her complaint out of time. We disagree.

As the Law Division found, three general categories of cases qualify for the "interest of justice" exception contained in Rule 4:69-6(c), permitting enlargement of the 45 day limitation of Rule 4:69-6(a). "'[C]ases 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'" satisfy the "interest of justice" standard of Rule 4:69-6(c). Borough of Princeton v. Bd. of Chosen Freeholders, 169 N.J. 135, 152 (2001) (quoting Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975)).

The reference in paragraph (c) that "[t]he court may enlarge the period of time" has been construed by our Supreme Court as conferring discretionary authority upon the trial court. Hopewell Valley Citizens' Grp., Inc. v. Berwind Prop. Grp. Dev. Co., 204 N.J. 569, 577-78 (2011) (citing Wiese v. Dedhia, 188 N.J. 587, 592 (2006)). The Court in Hopewell Valley emphasized that the reference to manifest injustice in the rule required the plaintiff "to show plainly or make palpably evident or certain by showing or displaying" that he or she will endure injustice if the time restrictions of the rule are not relaxed. Id. at 578.

Here, defendants Leonia Mayor and Council attempt to explain plaintiff's untimely filing by arguing that plaintiff was relying on the Ziegler/Boyd appeal to challenge the Board's decision and was unaware that the appeal was withdrawn. Defendants concede that plaintiff could have joined the Zeigler/Boyd appeal at any time, but did not. "The statute of limitations is designed to encourage parties not to rest on their rights." Borough of Princeton, supra, 169 N.J. at 153.

The only public interest concern the Leonia Mayor and Council raise is that "the [Board] allowed a prohibited [commercial] use to be located in a residential zone, contrary to the zoning ordinance . . . ." Simple dissatisfaction with the decision of a zoning board, without more, does not constitute good cause requiring enlargement of the Rule 4:69-6 limitations period. We agree with the Law Division that the interests of justice do not warrant an expansion of the forty-five day time limitation. We affirm substantially for the reasons expressed in the well-reasoned and comprehensive decision of Judge Alexander H. Carver, III.

Affirmed.


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