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Terpack v. Howell Township Planning Board

A-1460-00T2 (N.J. Super. App. Div. 2002) (Unpublished)

ZONING; NOTICES— Objections to a land use board’s resolution must be filed within the requisite number of days after publication of the first proper notice, even for an objector who is only aware of a later published notice and even if the objector is relying on publication information furnished by the successful applicant.

A final subdivision approval was granted to a project and notice of the decision of the board was published on April 12, 2000. The notice was prepared by the developer’s attorney. The statute provides that an applicant can arrange for such a publication “unless a particular municipal officer is so designated by ordinance.” Here, it did not appear that there was such a particular municipal officer. A second notice was published, probably by the board, on April 22, 2000. No one was able to determine “why the second notice was prepared and published. The two notices were virtually identical in substance.” On June 5, 2000, more than forty-five days after April 12, but less than forty-five days after April 22, a neighbor filed a complaint with the Law Division. The lower court held that the complaint was not timely filed and that “there were no exceptional circumstances present” which could justify enlarging the time within which the neighbor could file suit. The neighbor appealed, contending that it reasonably relied on the April 22 notice to its detriment. It asserted that the developer’s attorney had furnished it a copy of the notice and that the affidavit of publication related to the April 22 filing, an assertion which the developer’s attorney. The Appellate Division found that this dispute was of no real consequence. It held that the neighbor “could have and should have, read the newspaper to see when the notice was published or inquired of the newspaper when it had been published.” Had it done so, it would have discovered the April 12 notice. Further, there was no great public interest sufficient to justify relaxation of the time limitation. In sum, the Court felt that the neighbor did not show this to be an exceptional case and that the lower court did not mistakenly exercise its discretion when it denied an extension of the forty-five day time limit.

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