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Cohen v. Thoft

368 N.J. Super. 338, 845 A.2d 1281 (App. Div. 2004)

ZONING; OBJECTIONS; NOTICE—Although there is a forty five day limit after notice of a land use board’s approval of a variance within which to file an appeal, that time limit may be extended for equitable reasons, including being misled as to the date of publication of the first notice.

A homeowner was required to apply to the local zoning board for setback and coverage variances in order to construct a new deck and a second floor addition to his home. Three neighbors testified in opposition. The board approved the application. The applicant published notice of the approval in the local daily newspaper. About two weeks later, the local zoning officer, unaware that the applicant had already published notice, wrote to the owner that the municipality would publish notice of the approval within a few days. The applicant did not respond to the letter. The zoning officer caused notice to be published a few days later.

Forty-five days after the officer’s publication of the notice, but forty-eight days after the applicant published the notice, one neighbor filed an action in lieu of prerogative writ challenging the variance grant. The owner moved to dismiss the complaint on the ground that it had not been filed within the required forty-five day time period. In response, the neighbor claimed that he had maintained regular contact with the zoning officer and the officer had called him when he published the approval.

The lower court dismissed the action, holding that the forty-five day filing deadline was to be strictly construed. The Appellate Division reversed.

A court may enlarge a deadline where justice so requires. The Appellate Division held that the applicant’s publication was valid and started the forty-five day period. On the other hand, it held that the neighbor’s diligence in contacting the zoning officer and the owner’s failure to respond to the zoning officer’s letter justified a three-day enlargement of the forty-five day appeal period.

The neighbor claimed that the notice published by the owner was defective because the draft resolution approving his application was amended and a final resolution reflecting those amendments was not formally drafted or available to the public until after the time the owner published his notice. However, N.J.S.A. 40:55D-10(g)(2) states that publication can be made after a resolution is adopted. Therefore, once the memorializing resolution had been adopted, the owner could publish the notice, even though the memorializing resolution had not yet been typed and was not yet available for review.

Courts have recognized that there are certain exceptions to rigid time limits, “including important constitutional questions, informal determinations of legal questions by administrative officials, and important public rather than private interests which require clarification.” Where the lower court went wrong was that neither the Supreme Court nor the Appellate Division had ever held that enlargement of time was limited to one of those categories. The Appellate Division held that because the Court Rule’s list used the word “including,” there were other situations that would justify extending the filing deadline.

Under the circumstances, the Court found that an extension was in the interest of justice. Because the owner did not respond to the zoning officer’s letter, both the officer and the neighbor were misled into believing that the later publication triggered the appeal period. Furthermore, it was only three days late, showing that the neighbor did not “slumber,” but instead reasonably relied upon his communications with the zoning officer. For those reasons, the Court reversed the lower court’s decision to dismiss the complaint.

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