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Cliff v. City of South Amboy

A-5742-06T3 (N.J. Super. App. Div. 2008) (Unpublished)

REDEVELOPMENT; APPEALS — The forty-five day limit for challenging a final municipal action supports a strong public policy and a challenge made well after that deadline will be rejected even if it alleges a conflict of interest on the governing body’s board where that conflict of interest was a matter of public record.

A strip club entered into a settlement agreement with the municipality setting a date upon which the club was to close its business. The settlement agreement gave the club four years. Before the end of the four years, the municipality undertook an investigation and adopted a redevelopment plan. The strip club did not oppose the plan. The municipality then moved to enforce the settlement because the club failed to close on time. While the motion was pending, the club sought bankruptcy protection asking to be relieved of its obligation to comply with the terms of the settlement. The bankruptcy court denied protection because the municipality had substantially performed its obligations under the agreement.

One month after this denial, the manager of the club sued the municipality, and for the first time challenged the redevelopment plan on the basis that a member of the planning board recommending the plan had also been a consultant who found the land to be subject to redevelopment and also prepared the redevelopment plan. The lower court dismissed the complaint, holding that it was barred by the forty-five day rule for challenging a final municipal action. It refused to relax the time period, finding that it was a matter of public record that the board member held several roles, and such a challenge should have been made during the proscribed appeal period. It found any effect of a purported conflict had been diluted by the municipality’s governing body’s ultimate approval of the board’s recommendations and by subsequent public hearings.

On appeal, the Appellate Division affirmed the lower court’s ruling for substantially the reasons stated. It held that the forty-five day limitation period was to give an essential measure of repose to actions taken against public bodies. The Court observed that the rule may be relaxed when important public interests rather than private interests require adjudication or clarification. In this instance, it noted the challenger was not a disinterested resident of the municipality, but a manager of a business that had a strong financial interest in having the establishment continue to operate. While the Court did not condone the dual role of the board member, it assumed that the club was trying to advance its private interest by attempting another method to keep its business going, rather than to advance any public interest.

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