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Broadhurst v. Township of Holland Planning Board

A-3892-04T1 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; NOTICES — Even when an objector has actual knowledge of the passage of a land use board’s resolution, the objector is nonetheless entitled to rely on the publication requirements before filing suit, even though in certain circumstances, a balancing of equities might bar the objector’s suit.

An objector attended several municipal planning board meetings and was present when the board passed a resolution approving a major subdivision application. More than a year later, in a published notice regarding another hearing to consider an application for minor subdivision approval on the same property, the property owner referenced the earlier approval by the board. Within forty-five days of this published notice, the objector filed an action in the Law Division challenging the board’s year-old approval of the major subdivision application. The lower court dismissed the suit as time barred because an objector has only forty-five days from the date of publication of a board’s approval to file an action in the Law Division challenging that decision. Contrary to R. 4:69-6(b)(3) and the Municipal Land Use Law, neither the municipality nor the applicant originally published notice of the approval. Publication of a board’s decision must include: the name of the applicant; the location of the property; a brief statement of the nature of the application and effect of the board’s decision; and notice that the decision is available for inspection in either the municipal clerk’s office or in the board’s clerk’s office. An applicant must comply with the publication notice in a straightforward fashion and may not bury it in another notice. Missing from this applicant’s later published notice was a statement that the board’s earlier resolution was on file and available for inspection. Even where an objector has actual knowledge of the passage of the board’s resolution, the objector is nonetheless entitled to rely on the publication requirements before filing suit in the Law Division. The fact that an objector has actual knowledge of the board’s decision does not relieve the applicant of its responsibility to publish notice of the board’s decision.

However, the failure by the applicant or the municipality to publish notice of the board’s decision does not always give an objector an absolute right to wait indefinitely before filing its action in the law Division. Here, the applicant argued that the objector acted unreasonably in waiting more than a year to file its complaint and therefore should not benefit from a failure to strictly comply with the publication requirements. Equity requires balancing the burden imposed on an applicant by an objector’s delay in filing its action against the right of the objector to seek judicial review. In this case, the applicant was a commercial landlord represented by counsel. Consequently, the Appellate Division ruled it is reasonable to require such an applicant to strictly comply with the publication requirement. The decision of the Law Division dismissing the objector’s action was reversed and the matter was remanded for trial.


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