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Hopewell Valley Citizens’ Group, Inc. v. Berwind Property Group Development Co.

204 N.J. 569, 10 A.3d 211 (2010) (Unpublished)

ZONING; APPEALS — The court may enlarge the filing time for appeals of land use board decisions where it is manifest that the interest of justice so requires, even though courts have generally carved out three situations where such an extension is warranted, that list is not exhaustive.

A land use board granted preliminary site plan approval for a developer’s project. The approval was published twice in a local newspaper. An objector contacted the board to inquire about when the second publication took place. Using that date, instead of the date of the first publication, the objector calculated the forty-five day period within which to bring an action in lieu of prerogative writs and then sued to set aside the approvals. The board moved to dismiss the complaint as untimely based on the forty-five-day window provided by the first publication. The objector contended she was misled by the information given to her and that the representation regarding the later publication date warranted enlargement of the limitations period. Two lower courts disagreed with the objector, so she appealed.

New Jersey’s Court Rules provide that a court may enlarge the filing time for an action in lieu of prerogative writs where it is manifest that the interest of justice so requires. The word “may” generally indicates permissiveness; thus, the rule indicates that a court has discretion to enlarge a complaint timeframe when it perceives a clear potential for injustice. In prior rulings, the Appellate Division had remarked that the forty-five day rule was aimed at those who slumber on their rights, not one, for example, who is pursuing an administrative remedy.

The Court had previously carved out three main exceptions to the rule governing limitation of actions: important and novel constitutional questions; informal or ex parte determinations of legal questions by administrative officials; and important public, rather than private, interests which require adjudication or clarification. According to the Court, however, the list is not exhaustive.

Here, the objector was entirely reasonable in calling the municipality for information. That action was a logical and sensible approach, rather than a punishable short-cut. The developer and the municipality were blameless here, but so was the objector. Because the objector did not sleep on her rights, and a six-day delay was so unlikely to result in prejudice, the Court reversed the lower court’s ruling and allowed the objector to have her case adjudicated on the merits.


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