J-RO PROPERTIES, LLC, et al. v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF HOBOKEN, et al.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 6811-03-T5A-6811-03T5

J-RO PROPERTIES, LLC, a New

York Limited Liability

Company, STS RENTAL REALTY,

LLC, a New York Limited

Liability Company, SERAFINO

REALTY, LLC, a New York

Limited Liability Company,

OBSERVER HIGHWAY PLAZA, LLC,

a New Jersey Limited Liability

Company, GEORGE MASTRODIMOS,

CARLOS FIGUEIREDO, JODIE

GOLDBERG, JOHN COLUCCI, KABER

CAPRIHAN, VAN YOHOYOMA,

STEPHANIE CHEN, RANDALL S.

FAST, KEVIN CODY, and CARL BECKER,

Plaintiffs-Appellants,

v.

ZONING BOARD OF ADJUSTMENT

OF THE CITY OF HOBOKEN,

TAX ASSESSOR OF THE CITY

OF HOBOKEN, OFFICE OF THE

TAX COLLECTOR OF THE CITY

OF HOBOKEN, JAMES G. MUSTO,

DEAN S. GEIBEL, METRO HOMES,

and HOBOKEN BRUSHLESS CARWASH,

LLC,

Defendants-Respondents.

_______________________________

 

Argued September 13, 2005 - Decided

Before Judges Kestin and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Hudson County,

L-6754-03.

Jeffrey Kantowitz argued the cause for

appellants (Goldberg, Mufson and Spar,

attorneys; Mr. Kantowitz, of counsel and

on the brief).

James J. Burke argued the cause for

respondents Dean S. Geibel, Metro Homes, and Hoboken Brushless Carwash, LLC (James J. Burke and Associates, attorneys; Mr. Burke,

of counsel and on the brief).

Matthew M. McDowell argued the cause for

respondents Hoboken Tax Assessor and Office

of the Tax Collector (Florio and Kenny,

attorneys; Mr. McDowell and Robert A. Verdibello, on the brief).

Marilyn G. Gittleman argued the cause for

respondent Hoboken Board of Adjustment

(Kaufman, Bern and Deutsch, attorneys;

Douglas M. Bern, of counsel; Ms. Gittleman on the brief).

Respondent James G. Musto did not file a

brief.

PER CURIAM

Plaintiffs appeal from the dismissal of their complaint challenging municipal approvals that permitted construction of a car wash on property near the condominium complex in which they own units. They recognize that the complaint was not timely filed but assert that the motion judge should have enlarged the time for filing the complaint pursuant to R.4:69-6(c). We disagree and affirm.

Defendant Hoboken Brushless Carwash, LLC, filed an application with the Zoning Board of Adjustment of the City of Hoboken seeking approval of its proposed construction and the bulk and use variances which it required. In accordance with N.J.S.A. 40:55D-12(b), notices were sent on September 6, 2002 to property owners within 200 feet of the applicant's property. The names and addresses of those to be noticed were obtained from the municipality in accordance with N.J.S.A. 40:55D-12(c) which requires: "Upon the written request of an applicant, the administrative office of a municipality shall ... make and certify a list ... of names and address of owners to whom the applicant is required to give notice ...." The statute protects applicants by entitling them "to rely upon the information contained in such list and failure to give notice to any owner not on the list shall not invalidate any hearing or proceeding."

Plaintiffs are owners of units in a high-rise condominium complex adjoining the property on which the car wash was to be constructed. Notice to those owners was made by providing notice to the Condominium Association. Such notice is authorized by N.J.S.A. 40:55D-12(b) which provides that, with respect to condominium unit owners such as plaintiffs, the notice requirement "shall be deemed satisfied on notice to the ... Condominium Association, ...." For purposes of this opinion, we assume, as did Judge Gallipoli, that the address for the Condominium Association governing plaintiff's units was incorrectly listed and that the notice sent on September 6, 2002 was never received. Nevertheless, it is undisputed that the applicant faithfully followed the statutory requirements for notice.

The application was approved on December 17, 2002 and notice of the resolution was published on January 8, 2003. Accordingly, the time within which plaintiffs might appeal expired on February 24, 2003, forty-five days after the date of publication. R.4:69-6(b)(3). Demolition of the property on which the car wash was to be constructed began sometime in May of 2003 and the Condominium Association was notified by letter dated April 4, 2003 that Hoboken Brushless Carwash, LLC would need access to the property. That letter was received by the Condominium Association on June 6, 2003. This complaint was filed on December 26, 2003.

Judge Gallipoli recognized that R.4:69-6(c) permits enlargement of the forty-five day period "where it is manifest that the interest of justice so requires." Judge Gallipoli also recognized that the "interest of justice" test generally comprises three categories of cases: those involving "(1) important and novel constitutional questions; (2) informal or ex parte determinations of legal questions by administrative officials; and (3) important public rather than private interests which require adjudication or clarification." Borough of Princeton v. Bd. of Chosen Freeholders of Mercer, 169 N.J. 135, 152 (2001)(quoting Brunetti v. Borough of New Milford, 68 N.J. 576, 586, (1975)).

Judge Gallipoli analyzed each of those factors in light of the plaintiff's delay in this action and reasoned that:

The time period should be enlarged, if there are substantial and novel constitutional questions involved, which I find do not exist here;

If there are informal -- or ex parte determinations made by administrative officials, which are challenged, which is not applicable here; or

Where there is an important public rather than private interest, which requires adjudication or clarification.

In other words, one doesn't have to be limited to those three areas. There might be other situations where a manifest interest of justice . . . standard would justify enlarging the 45-day time period.

Nonetheless, acknowledging the case, I find there is no manifest interest of justice standard, here, that works to the plaintiffs' benefit.

And I find really what is sought to be vindicated, here, is the private rather than public interest of the plaintiffs. There's no doubt that what's occurring here will probably impact on the economics of these condominium units and certainly those units which are in close proximity to the sidewall of the proposed Car Wash and which are on that side of the building. Nonetheless, that's a private interest, not a public interest which needs vindication here.

If there is a problem with regard to statutory interpretation, it doesn't need to be addressed in this particular case; nor does the problem, if it is a problem, with regard to the Tax Assessor timely updating the tax duplicates.

In sum, I find that the applications to dismiss this case as being untimely filed should be granted. And one . . . need not go further with regard to any of the other allegations asserted on behalf of the plaintiffs.

Those conclusions are well-grounded in this record and may not be disturbed. We are in substantial agreement with the reasons given by Judge Gallipoli in his June 17, 2004 oral decision.

Affirmed.

 

The name of Kaber Caprihan was spelled as Kaber Carihan in the Notice of Appeal papers filed in this case. For purposes of this opinion, we are using the spelling of Kaber Caprihan which was the spelling in the Complaint In lieu of Prerogative Writ filed on December 26, 2003.

(continued)

(continued)

6

A-6811-03-T5

September 28, 2005

 


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