JEFFREY BROADHURST et al. v. TOWNSHIP OF HOLLAND PLANNING BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3892-04T13892-04T1

JEFFREY BROADHURST and ELLEN

BROADHURST,

Plaintiffs-Appellants,

v.

TOWNSHIP OF HOLLAND PLANNING

BOARD AND ALLEN BLUMBERG,

Defendants-Respondents.

_________________________________________

 

Argued January 19, 2006 - Decided March 23, 2006

Before Judges Fuentes and Graves.

On appeal from Superior Court of

New Jersey, Law Division, Hunterdon

County, Docket No. HNT-L-400-04.

John W. Thatcher argued the cause for

appellants (Burton and Thatcher,

attorneys; Mr. Thatcher, on the brief).

John J. Bonelli argued the cause for

respondent Allen Blumberg (Porzio, Bromberg &

Newman, attorneys; Mr. Bonelli, on the brief).

Morrow & Morrow, attorneys for respondent

Township of Holland Planning Board (Donald W.

Morrow, on the letter relying on the brief

filed on behalf of respondent Allen Blumberg).

PER CURIAM

Plaintiffs appeal from the dismissal of their action in lieu of prerogative writs. Their complaint challenged the decision of the Planning Board of the Township of Holland ("Board"), granting Allen Blumberg's application for preliminary and final major subdivision of a property identified as Lot 5, Block 1 on the tax map of the Township of Holland. The Board also granted a number of bulk variances incidental to the subdivision.

The Law Division dismissed plaintiffs' complaint on defendants' motion for summary judgment, finding that the action was not brought within a reasonable time after the Board's grant of the preliminary approvals. Plaintiffs argue that the trial court erred because: (1) defendants failed to publish notice of the approvals as required by N.J.S.A. 40:55D-10(i) and R. 4:69-6(b)(3); and (2) they reasonably relied on the advice of counsel that the forty-five-day time limitation established by R. 4:69-6(b)(3), would not run until the publication of the notice required under N.J.S.A. 40:55D-10(i).

After reviewing the record, and in light of prevailing legal standards, we reverse. We hold that for an applicant to invoke the forty-five-day limitation period in R. 4:69-6(b)(3), to bar a potential plaintiff's action challenging a planning board's decision, the applicant must first strictly comply with the publication requirements in N.J.S.A. 40:55D-10(i) and R. 4:69-6(b)(3).

In a case such as this one, where the applicant has failed to meet this legal obligation, the applicant may raise plaintiff's delay in filing the action, as an affirmative defense, provided that: (1) plaintiff had actual knowledge of the planning board's decision; and (2) waited an unreasonable amount of time to file his/her action challenging the decision. In determining the applicability of this equitable remedy, a court should first decide whether the applicant is entitled to such relief, by looking to the applicant's knowledge, experience, and resources. If the applicant satisfies this threshold condition, a court should balance the burden imposed to the applicant by the delay in filing the action, and the reasons, if any, for such delay, against the right of an objector to seek judicial review of a board's decision.

Here, plaintiffs were entitled to rely on defendants' failure to comply with the publication requirement in N.J.S.A. 40:55D-10(i) and R. 4:69-5(b)(3). We further conclude that, for the reasons discussed below, that the applicant was not entitled to equitable consideration.

I

The salient facts are not disputed. Blumberg filed an application with the Board, seeking preliminary major subdivision approval for a property consisting of approximately 110 acres, with frontage on Hawk's Schoolhouse Road in the Township of Holland. Thereafter, the Board conducted four hearings on the application: March 10, 2003; April 14, 2003; May 22, 2003; and June 9, 2003. Plaintiff Jeffrey Broadhurst attended the hearings, and testified against the granting of Blumberg's subdivision application.

On July 14, 2003, the Board adopted a resolution memorializing the approval of Blumberg's application for preliminary major subdivision. Plaintiff Jeffrey Broadhurst attended the July 14, 2003 hearing, and personally witnessed the Board adopt the memorializing resolution.

N.J.S.A. 40:55D-10(i), requires that after the memorializing resolution is adopted:

[a] brief notice of the decision shall be published in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality. Such publication shall be arranged by the applicant unless a particular municipal officer is so designated by ordinance; provided that nothing contained in this act shall be construed as preventing the applicant from arranging such publication if he so desires. The municipality may make a reasonable charge for its publication. The period of time in which an appeal of the decision may be made shall run from the first publication of the decision, whether arranged by the municipality or the applicant.

[Emphasis added.]

It is undisputed that neither an official of the Board nor Blumberg, as the applicant, published the notice required by the statute.

Plaintiff Jeffrey Broadhurst contends that on August 18, 2003, he consulted with an attorney to ascertain his right to appeal the Board's decision. According to Broadhurst, this attorney advised him that under the clear language of both the applicable court rule and the statute, he had forty-five days from the date of publication of the notice to file an action in lieu of prerogative writs in the Law Division.

On June 23, 2003, twenty-one days before the Board adopted the resolution memorializing the grant of the preliminary major subdivision, Blumberg filed an application with the Board seeking a minor subdivision of 16.997 acres, to be carved out from the larger 110 acre parcel of land. In connection with this application, Blumberg's counsel published a notice of the public hearing in which this latest application would be considered and discussed. Although this notice also referenced the preliminary major subdivision approval granted on July 14, 2003, its principal purpose was to give notice of the pending minor subdivision application. The Board approved the minor subdivision application on September 8, 2003.

On June 14, 2004, the Board conducted a public hearing to consider Blumberg's application for a final major subdivision. On July 12, 2004, almost a year from the date it approved Blumberg's application for preliminary major subdivision, the Board adopted a memorializing resolution granting Blumberg's application for a final major subdivision approval. Notice of this final approval was published in the Delaware Valley News on July 22, 2004.

On September 1, 2004, 415 days after the Board adopted the memorializing resolution granting Blumberg's application for preliminary major subdivision, but just forty-one days from the publication of the notice concerning the final major subdivision approval, plaintiffs filed an action in lieu of prerogative writs in the Law Division challenging the propriety of the Board's actions.

II

Because this matter comes before us on a grant of summary judgment, we will apply the same legal standards used by the trial court when it considered defendants' motion. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 609 (1998). Although we utilize the same legal standards in conducting our own legal analysis, we are not obligated to defer to the trial court's legal conclusions. Illva Saronno Corp. v. Liberty Hill Realty, Inc., 344 N.J. Super. 443, 450 (App. Div. 2001).

We start our analysis by acknowledging that a plain reading of both N.J.S.A. 40:55D-10(i) and R. 4:69-6(b)(3) clearly favors plaintiffs' position. Under this statutory/regulatory scheme, the forty-five-day time period to file an action in lieu of prerogative writs challenging a planning board's decision starts to run from the date of publication of the notice of approval. Thus, plaintiffs contend that the "clock" began to run from July 22, 2004, the date of the publication giving notice of the memorializing resolution granting Blumberg's application for final major subdivision approval. If this is the correct starting date, then their action filed on September 1, 2004, was timely.

Despite plaintiffs' characterization, there is no question that the essence of their legal challenge here is the Board's July 14, 2003 decision granting Blumberg's preliminary major subdivision application. The other actions taken thereafter all flow from, and are predicated upon this initial decision. Thus, the question before us turns on the legal consequences of defendants' failure to comply with the publication requirement in the statute.

In Stokes v. Twp. of Lawrence, 111 N.J. Super. 134, 139 (App. Div. 1970), we held that:

an objector, even though having actual knowledge of the grant of the variance, is justified in relying on the provision in the rule for publication of notice of the municipal decision and in holding up his action at least for a reasonable time with the expectation of filing his complaint within 45 days after such publication.

The Stokes Court specifically declined to address, however, "a situation where an objector with actual knowledge of a grant of variance waits an unreasonable period of time for a publication which never takes place before bringing his action." Ibid.

Here, there is no question that plaintiffs had actual knowledge that the memorializing resolution was adopted by the Board on July 14, 2003. Jeffrey Broadhurst was present at the July 14, 2003 hearing in which the Board adopted the memorializing resolution. Publication of a planning board's decisions is not only intended to apprise the public that a definitive action has been taken, but also to signal the start of the running of the statute of limitations for appeal of the planning board's decision. Thus, the fact that plaintiffs had actual notice of the Board's decision here, does not obviate the need for publication.

Pursuant to R. 4:69-5(b)(3), the notice of publication must:

state the name of the applicant, the location of the property and in brief the nature of the application and the effect of the determination or resolution (e.g., "Variance - Store in residential zone denied"), and shall advise that the determination or resolution has been filed in the office of the board or the municipal clerk and is available for inspection.

In this light, we reject Blumberg's argument that the publication on July 18, 2003, giving notice of the August 11, 2003, hearing in which the Board considered his application for minor subdivision, was the functional equivalent of the notice required under R. 4:69-5(b)(3), because the content of this notice was not in compliance with the requirements of the Rule.

The only published reference to the July 14, 2003 grant of the preliminary major subdivision application is found buried in a notice of hearing for a minor subdivision approval, scheduled to take place on August 11, 2003. This is not legally sufficient. An applicant seeking to comply with the requirements of R. 4:69-5(b)(3), must do so in a straightforward fashion, directing the public's attention to the information legally required to be imparted, without forcing the reader to scour through the notice.

The content of the notice must also strictly comply with the requirements of R. 4:69-5(b)(3). The notice must state: (1) the name of the applicant; (2) the location of the property; (3) a brief description of the nature of the application; (4) the effect of the determination or resolution; and (5) "that the determination or resolution has been filed in the office of the board or the municipal clerk and is available for inspection."

Here, we can indulgently find that the applicant complied with the first four requirements. Conspicuously missing from the published notice, however, was clear language apprising the public that the Board's resolution had been filed in the office of the board or the municipal clerk, and was available for inspection. Because the published notice was defective, the forty-five-day period in R. 4:69-6(b)(3) for challenging a board's decision was not triggered. Cohen v. Thoft, 368 N.J. Super. 338, 344 (App. Div. 2004).

III

An applicant's failure to adhere strictly to the publication requirement in N.J.S.A. 40:55D-10(i) and R. 4:69-5(b)(3), presumptively prevents the triggering of the start of the forty-five day limitation to appeal a planning board's decision. Such failure however, may not always give a prospective plaintiff an absolute right to wait indefinitely until this defect is cured. Stokes, supra, 111 N.J. Super. at 139.

Here, Blumberg argues that plaintiffs' decision to wait 415 days from the July 14, 2003 grant of preliminary major subdivision approvals to file a legal action challenging this decision is unreasonable, and should not be insolated from the preclusive effect of the time restrictions in R. 4:69-6(b)(3). We disagree.

A court attempting to craft an equitable remedy in the face of an applicant's failure to comply with the publication requirement, must first determine whether he/she is entitled to such consideration. Here, the applicant was at all relevant times represented by counsel. He filed a series of applications seeking to develop a large parcel of land, for commercial purposes. Under these circumstances, it is not unreasonable to require defendant to adhere to the strict and clear mandates of the law.

This is not the case where equity compels a different result. We are not confronted here with an applicant seeking zoning relief to modify his/her private residence, and who, thereafter, fails to appreciate the legal significance of the publication requirement. Under such circumstances, a court may then look to the reasonableness of plaintiff's actions, both with respect to his/her actual knowledge of the status of the application, and the amount of time elapsed in filing the appeal. Confronted with such a case, a court may balance the burden imposed by the delay to the applicant, against the right of the plaintiff to seek judicial review of a board's decision. Stokes, supra, 111 N.J. Super. at 139.

We conclude that under these circumstances, plaintiffs' action in lieu of prerogative writs filed on September 1, 2004, challenging the decision of the Board granting Blumberg's preliminary major subdivision application was timely filed. The judgment of the Law Division is reversed. The matter is remanded for a trial on the merits.

Reversed and remanded.

 

Although not clear from the record, we infer that the Board initially granted Blumberg's application at the hearing held on June 9, 2003. We draw this inference based on the provisions in N.J.S.A. 40:55D-10g(2), which requires that a "memorializing resolution [be] adopted at a meeting held not later than 45 days after the date of the meeting at which the municipal agency voted to grant or deny approval."

We refer to "defendants" in the plural, because N.J.S.A. 40:55D-10(i) provides that: "Such publication shall be arranged by the applicant unless a particular municipal officer is so designated by ordinance; provided that nothing contained in this act shall be construed as preventing the applicant from arranging such publication if he so desires." Thus, Blumberg had the legal authority, and, by inference, the obligation to publish such notice, even in the face of municipal abdication of this responsibility. Here, although not clearly reflected in the record, both parties have indicated in their briefs that the planning board's secretary was designated by ordinance to publish the requisite notice.

The notice merely provided that Blumberg's application and plan were filed in and available for inspection at the municipal clerk's office.

(continued)

(continued)

13

A-3892-04T1

March 23, 2006