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Colony Realty, LLC v. Borough of Red Bank

A-0477-04T2 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; APPEALS—Although the 45 day time limit for appealing zoning decisions can be relaxed by a court in the interest of equity or where there is a novel or constitutional issue, it is inappropriate to do so when the dispute is purely a private matter between neighbors.

A developer sought major site plan approval from a municipal planning board to construct an office building and underground parking garage. The planning board approved the site plan. At the same time, a municipal ordinance was adopted that amended the floor area ratio requirement. The amendment cured a deficiency that would otherwise have required the developer to obtain a variance from the zoning board. The notice approving the planning board resolution was published. Shortly thereafter, several newspaper stories were published describing the project. Fifteen months after the notice approving the resolution was passed, a neighbor’s attorney told the developer’s attorney that it intended to challenge the validity of the resolution approving the site plan. Two months later, the neighbor filed suit claiming that the municipal zoning ordinance was defective, null and void, and unenforceable. The developer made a motion to dismiss the neighbor’s complaint as untimely. The lower court granted summary judgment dismissing the challenge, finding that the neighbor’s suit was barred because it was not filed within forty-five days after the resolution approving the site plan was published. It refused to relax the forty-five day requirement because the neighbor failed to provide the court with a sufficient reason for relaxing the rule.

The Appellate Division affirmed, noting that the purpose of the forty-five day requirement is to give a measure of repose to lawsuits against public bodies and to prevent people from “sitting on their rights.” The Court noted that, in addition to the various newspaper articles pertaining to the project, the neighbor’s property was about four hundred yards away from the developer’s project so it was highly unlikely that the neighbor first discovered the project more than a year after the notice of approval was published. The Court also noted that the neighbor waited more than two months after notifying the developer’s attorney that it intended to file a claim before it actually filed it. Even assuming that the neighbor received its notice just before its attorney advised the developer of the pending challenge, the neighbor still failed to file its suit within forty-five days thereafter. The neighbor claimed the forty-five day requirement should have been relaxed in the interests of justice. The rule can be relaxed if the case involves important and novel constitutional questions, informal determinations of legal questions by administrative officials, or important public interests that require a determination or clarification. The lower court found that none of those criteria were met as the case only involved a private dispute between neighboring property owners. The Appellate Division agreed. It also rejected the neighbor’s argument that because the planning board approved a site plan requiring a variance, which could only be approved by the zoning board, the planning board resolution was beyond its authority and subject to attack. The Court found that even if it were to conclude that the planning board exceeded its authority, that challenge still had to be made within forty-five days.


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