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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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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The Ziegler/Boyd appeal was withdrawn by letter dated November 21, 2011.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 ...


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