NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 11, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4789-12.
Reginald Jenkins, Jr. argued the cause for appellant (Price, Meese, Shulman & D'Arminio, P.C., attorneys; Mr. Jenkins, of counsel and on the briefs).
David M. Watkins argued the cause for respondent St. Gabriel's Syrian Orthodox Church (Law Offices of David M. Watkins, attorneys; Marc A. Greenberg, on the brief).
Alexander T. West, Jr. argued the cause for respondent Zoning Board of Adjustment for the Borough of Haworth.
Peter J. Scandariato argued the cause for respondent Borough of Haworth (Phillips Nizer, LLP, attorneys; Mr. Scandariato, of counsel and on the brief).
Before Judges Fuentes, Simonelli, and Fasciale.
In this action in lieu of prerogative writs, plaintiff appeals from the judgment of the Law Division upholding a decision by the Zoning Board of Adjustment (the "Zoning Board") for the Borough of Haworth (the "Borough") denying plaintiff's appeal to the Zoning Board, as time-barred under N.J.S.A. 40:55D-72a. We affirm.
Plaintiff and St. Gabriel's Syrian Orthodox Church ("St. Gabriel's") own real property in the Borough. In 2011, St. Gabriel's sought approval from the Haworth Planning Board (the "Planning Board") to modify certain aspects of a previously-approved site plan. On November 10, 2011, David A. Hals, Borough Engineer, analyzed the request and determined that the proposed modifications did not require Planning Board approval because they were minor and otherwise materially conformed to the Borough's zoning requirements.
On December 7, 2011, Timothy Tracy, plaintiff's president, wrote a letter to Hals and the Borough's Construction Code Official Harry Kraus (the "Tracy letter"), questioning Hals' determination and asking Hals to "review and [provide an] opinion on this matter." On January 13, 2012, Hals responded to the Tracy letter indicating that his opinion remained the unchanged.
On February 16, 2012, plaintiff's counsel wrote a letter to the Zoning Board's attorney specifically citing N.J.S.A. 40:55D-70a in support of plaintiff's request for "an interpretation hearing" before the Zoning Board "in regard to the zoning interpretation presented by David A. Hals, P.E., Municipal Engineer on behalf of the Planning Board." Plaintiff's counsel enclosed five specific "exhibits" that he presumably believed were relevant to the Zoning Board's determination. Of particular relevance here, we note that plaintiff's counsel specifically asked the Zoning Board to consider his February 16, 2012 letter and "the accompanying documents" as plaintiff's objection "to the zoning interpretation made by Mr. Hals on January 13, 2012."
The Zoning Board conducted a public hearing on May 1, 2012, to consider plaintiff's appeal. After hearing from counsel for both plaintiff and St. Gabriel's, by a vote of three in favor and four opposed, the Zoning Board rejected a motion "that the Board of Adjustment [had] jurisdiction to hear testimony on the appeal" and therefore deemed plaintiff's appeal untimely under N.J.S.A. ...