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Gold Coast Properties, LLC v. Ocean City Zoning Board of Adjustment

A-0751-09T2 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; NOTICES — When the forty-five day time limit for bringing an action in lieu of prerogative writ has passed, an extension will not be granted to an interested property owner who, because failing to keep its address of record updated with the tax collector, did not receive notice.

A developer applied to the municipal zoning board for bulk variances to develop a vacant lot. As required by state law, the builder published a notice of its application in the local newspaper and mailed a notice to each owner within 200 feet of the property. About a month after the mailing, the municipal zoning board approved the builder’s variances. A day later, the builder received back in the mail, marked undeliverable, the letter that it had sent to one neighbor. The builder received its approvals.

That neighbor then initiated an action in lieu of prerogative writ, arguing both that the builder’s variance application was defective and that the zoning board’s decision was arbitrary, capricious, unreasonable, and contrary to law. The neighbor argued that it would have opposed the zoning board if it had received actual notice. The builder moved for, and the court granted, summary judgment on the grounds that the forty-five day limitation period for filing such a lawsuit had elapsed.

On appeal, the neighbor argued that the lower court erroneously failed to exercise its discretionary powers to lengthen the limitation period in the interest of justice. It argued that justice required a longer time period where an interested party fails to learn of an application through no fault of its own. The builder, in turn, argued that it followed the letter of the statutory notice requirement, which does not call for actual notice and, instead, requires only that an applicant mail to the addresses on file with the local tax assessor.

The Appellate Division identified three recognized categories of instances that warrant a time extension: where important and novel constitutional questions are implicated; where ex parte determinations of legal questions have occurred by administrative officials; and, where important public interests require adjudication or clarification. Even though these categories are not exclusive, any time extension requires specific legal or equitable considerations, and not a vague appeal to equity. According to the Court, such considerations were not present here. In affirming, the Court also emphasized the fact that the builder had followed all notice requirements of the statute by mailing to the address on file. The Court declined to create a requirement of actual notice or of any other enhanced notice. Finally, the Court noted the neighbor’s own failure to maintaining a current address with the municipal tax collector.

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