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Williams v. Planning Board of the Township of Pilesgrove

A-1703-96T3 (N.J. Super. App. Div. 1998) (Unpublished)

ZONING; NOTICE—When the interests of justice require, the 45 day time period in which to appeal from a zoning board decision may be extended.

A property owner challenged the grant of a variance by a municipal planning board that permitted a cellular telephone tower to be built within 200 feet of his property. Summary judgment was granted against the landowner when it was determined that it had filed its complaint after expiration of the time limit for which to bring such complaints. The landowner argued that the time limit did not begin on the date of the cellular company’s publication of the board’s decision because that notice was defective, and that the time period really began two weeks later when the board published its notice. The trial judge held that this first publication was sufficient to start the 45 day appeal period running. The issue on appeal was the sufficiency of the publications and the applicability of the time restriction.

The relevant New Jersey statute expressly states that publication of a board’s decision may be done by either the applicant or the municipality, and that the 45 day time period for appeal of a board decision runs from the first publication. N.J.S. 40:55D-10. The relevant court rule, R. 4:69-6(b)(3), permits an extension of this time period when the interests of justice so require. The Appellate Division concluded that regardless of which publication started the 45 day appeal period, neither notice satisfied the content requirements of the statute. It also found that the mistake in filing the appeal was no greater than the failure to comply with the notice requirements. In reversing and remanding the lower court’s finding, it found it paradoxical that the trial judge relaxed part of the rule when determining that the notice complied with the content requirements, but then required stringent adherence to the time limit for filing, especially in light of the provision relaxing the time limit in certain circumstances.


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