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Funeral Home Management, Inc. v. Borough of Oradell

A-5870-01T2 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; NOTICE—Although a notice of planning board approval did not, as required, state that a copy of the resolution was on file with the clerk, a complainant who has actually received a copy cannot file an appeal more than 45 days after receiving its copy.

A funeral home operator challenged a municipality’s grant of site plan approval to a competitor as “spot zoning.” It also claimed that the planning board improperly approved the application because the applicant failed to meet the conditional use standards outlined in the zoning code. New Jersey law requires a challenge to a zoning or planning board determination to be filed within 45 days after notice is published. The notice must state the name of the applicant, the address of the property, and the effect of the resolution. It must also advise the public that the board’s resolution was filed in the office of the board or municipal clerk and is available for inspection.

A notice advising the public of site plan approval of the new funeral home was published on October 17, 2001. The notice did not state that the resolution was on file with the clerk and available for inspection. On November 20, 2001, the attorneys for the objecting funeral home operator obtained a copy of the minutes of the meeting at which the site plan was approved. A complaint was not filed until February 5, 2002. The applicant and the planning board moved to dismiss the complaint on the grounds that it was not filed within 45 days after receipt of notice of the planning board’s decision approving the site plan. The funeral home operator claimed that because the October 17 notice did not specify that the resolution was available for inspection, the 45-day period did not commence on the date of that notice. The lower court, rejecting that argument, found that even though the published notice was defective, the funeral home operator received actual notice of the decision when its attorney received copies of the minutes. Since the complaint was filed more than 45 days after the funeral home operator received a copy of the resolution, it was not timely. The funeral home operator argued that there are exceptions that permit a court to extend the 45-day period, but the lower court disagreed, holding that there must be an important public, rather than a private, interest at stake in order to extend the time period. Since this case involved a private dispute between competing funeral homes, it was not proper to extend the time period. The Appellate Division affirmed.

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