DAVID GOODMAN, et al. v. TOWNSHIP OF PRINCETON ZONING BOARD OF ADJUSTMENT AND STEVEN DISTLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3879-04T23879-04T2

DAVID M. AND REBECCA GOODMAN,

PENNY BASKERVILLE, LORIE ROTH,

DANIEL AND YOLANDE G. OSHERSON,

CHAD GOERNER, KATHLEEN TRACEY,

KATHLEEN K. HUTCHINS, PETER

KAMINSKI, AND OWEN G. LEACH, III,

Plaintiffs-Appellants,

v.

TOWNSHIP OF PRINCETON ZONING

BOARD OF ADJUSTMENT AND

STEVEN DISTLER,

Defendants-Respondents.

___________________________________

 

Argued: September 26, 2006 - Decided October 6, 2006

Before Judges Axelrad, Coleman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-1928-04.

Lawrence C. Wohl argued the cause for appellants (Archer & Greiner, attorneys; Mr. Wohl, on the brief).

Robert P. Casey argued the cause for respondent Township of Princeton Zoning Board of Adjustment (Lenox, Socey, Wilgus, Formidoni, Brown, Giordano & Casey, attorneys; Mr. Casey, on the brief).

Nathan M. Edelstein argued the cause for respondent Stephen Distler.

PER CURIAM

Plaintiffs, a group of residents of Princeton Township, appeal from an Order for Judgment of the Law Division dismissing with prejudice their complaint in lieu of prerogative writs, challenging the Township of Princeton Zoning Board of Adjustment's grant of a use variance pursuant to N.J.S.A. 40:55D-70d for Stephen Distler to operate a jazz club in the S-2 (service) and R-9 (residential) zones. The court determined: (1) the Board had jurisdiction to entertain the use variance pursuant to the bifurcation provisions of the Municipal Land Use Law, N.J.S.A. 40:55D-76b; (2) the property owners within 200 feet of a possible off-site parking lot, which might be the subject of a subsequent site plan application and which was later abandoned, were not entitled to notice of the bifurcated use variance application and hearing under N.J.S.A. 40:55D-12; and (3) plaintiffs' complaint was filed beyond the forty-five day time limit prescribed by Rule 4:69-6(a), and no legitimate reason for an extension was established under Rule 4:69-6(c).

In light of the finding that plaintiffs' complaint was untimely, the trial court did not address the merits of the substantive findings by the Board, and provided in the order that "plaintiffs reserve the right, in a separate action, to challenge any decision by the Board regarding preliminary and/or final site plan approval."

Plaintiffs assert the same issues on appeal as were argued and rejected by the trial court, more particularly set forth as follows:

POINT I

A REVERSAL IS WARRANTED, AS THE RESPONDENT'S BIFURCATED USE VARIANCE APPLICATION CONTAINED AN OFF-SITE PARKING COMPONENT WHICH REQUIRED NOTICE TO ADJACENT PROPERTY OWNERS UNDER N.J.S.A. 40:55D-12. AS NOTICE WAS NOT PROVIDED, THE BOARD WAS WITHOUT JURISDICTION AND THE APPROVAL IS A NULLITY.

POINT II

A REVERSAL IS WARRANTED AS RESPONDENT DISTLER FAILED TO SHOW THE REQUIRED SPECIAL REASONS, OR SATISFY THE POSITIVE OR NEGATIVE CRITERIA FOR THE GRANT OF A USE VARIANCE AS REQUIRED BY N.J.S.A. 40:55D-70. THE BOARD'S APPROVAL IS ARBITRARY, CAPRICIOUS AND UNREASONABLE.

POINT III

IF PLAINTIFFS ARE FOUND TO HAVE FILED THEIR COMPLAINT IN LIEU OF PREROGATIVE WRITS BEYOND THE FORTY-FIVE (45) DAY TIME LIMIT EXPRESSED IN R. 4:69-6(a), THE TIME LIMIT MUST BE RELAXED PURSUANT TO R. 4:69-6(c) AS EXPANSION IS REQUIRED IN THE INTEREST OF JUSTICE.

We are not persuaded by the arguments advanced by appellants in Points I and III, and affirm substantially for the reasons set forth in Judge Feinberg's comprehensive written opinion of March l, 2005. We add the following brief comments. Brower Dev. Corp. v. Planning Bd. of Township of Clinton, 255 N.J. Super. 262 (App. Div. 1992), is distinguishable and we discern no basis to extend its holding to the facts of the present case. Moreover, appellants missed the forty-five day period for challenging the Board's grant of the use variance following publication of the decision by both the applicant and thereafter by the Board. Thus, this case does not have the equitable considerations we recognized in Cohen v. Thoft, 368 N.J. Super. 338, 342-47 (App. Div. 2004), for enlarging the filing date "in the interest of justice."

In view of our affirmance of the dismissal of plaintiffs' complaint as untimely, we need not address the merits of the substantive findings of the Board challenged by appellant in Point II.

Affirmed.

 

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A-3879-04T2

 

October 6, 2006