GOLD COAST PROPERTIES, LLC v. OCEAN CITY ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0751-09T20751-09T2

GOLD COAST PROPERTIES, LLC,

Plaintiff-Appellant,

v.

OCEAN CITY ZONING BOARD OF

ADJUSTMENT and 2809 WESLEY, LLC,

Defendants-Respondents.

____________________________________

 

Argued August 10, 2010 - Decided

Before Judges Lihotz and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No.

L-245-09.

Jeffrey I. Baron argued the cause for appellant (Baron, Riefberg & Brennan, P.A., attorneys; Mr. Baron, of counsel; Jeffrey M. Brennan, on the brief).

Mark H. Stein argued the cause for respondent Ocean City Zoning Board of Adjustment (Mr. Stein, on the statement in lieu of brief).

William R. Serber argued the cause for respondent 2809 Wesley, LLC (Serber Konschak, LLP, attorneys; Mr. Serber, of counsel; Douglas A. Burke, on the brief).

PER CURIAM

Plaintiff Gold Coast Properties, LLC appeals from the summary dismissal of its complaint challenging bulk variances granted by defendant Ocean City Zoning Board of Adjustment (Zoning Board) to defendant 2809 Wesley, LLC. (defendant). Defendant moved for summary judgment, asserting plaintiff's complaint was filed out of time. We affirm.

We first provide the factual background regarding a nearly decade old dispute relating to the development of a vacant lot located at Block 2800, Lot 3 on the Ocean City Tax Map, commonly known as 2809 Wesley Avenue (Lot 3 or the subject property). In 1999, LMW Properties (LMW), an entity related to plaintiff, entered into an agreement to purchase the subject property. ATIM Family Partnership (ATIM) owned the properties in the same Block located on either side of the subject property (Lots 2 and 4).

ATIM desired to own contiguous lots and approached LMW about swapping Lot 2 for Lot 3. ATIM suggested it intended to construct a garage with overhead living space on the subject property, designed to service the existing residence on Lot 4. In 2000, LMW executed an agreement to assign its interest in acquiring the subject property to ATIM, conditioned on specific use and development restrictions. The two relevant restrictions were that ATIM was to build a garage and any development would be set back thirty-five feet from the bulkhead. ATIM completed the purchase of the subject property.

In 2004, ATIM submitted an application to the Zoning Board seeking approval to demolish the residence on Lot 4 and construct a single-family residence across the subject property and Lot 4. ATIM initiated a declaratory judgment action, challenging LMW's suggestion that its proposed development breached the use and set-back restrictions set forth in the parties' agreement. In a May 10, 2007 opinion, the trial court invalidated the use restriction but upheld the set-back requirement. Both parties appealed.

In April 2008, while the appeals were pending, defendant, as the contract purchaser of the subject property, applied to the Zoning Board for bulk variances for development of Lot 3. On November 6, 2008, defendant published a notice of its zoning board application in the Ocean City Sentinel and subsequently mailed notice of the application, by certified mail, to owners within 200 feet of the subject property. Plaintiff's notice was sent to 500 Grove Street, Haddon Heights, the address provided on the Ocean City Tax Assessor's certified list, dated October 17, 2008.

On November 19, 2008, no opposition was presented and the Zoning Board unanimously approved defendant's application. The following day, plaintiff's mailed notice was returned by the post office to defendant marked "FORWARD TIME EXP., RTN. TO SEND[ER]: GOLD COAST PROPERTIES LLC 515 GROVE ST STE 1A HADDON HGTS NJ 08035-1734." The Zoning Board's December 17, 2008 resolution approving defendant's bulk variance requests was published in the Ocean City Sentinel on January 1, 2009.

On March 3, 2009, counsel for defendant had a conversation with counsel for LMW and mentioned the November 19, 2008 Zoning Board determination. Plaintiff explains it first learned of defendant's zoning application as a result of these comments.

On April 6, 2009, plaintiff initiated its complaint in lieu of prerogative writs alleging that notice of defendant's variance application was defective and the decision of the Zoning Board was arbitrary, capricious, unreasonable and contrary to law. Plaintiff asserted it would have presented opposition to the variance requests had notice been mailed to its correct address.

Defendant moved for summary judgment, arguing plaintiff's complaint was filed outside the forty-five day limitations period set forth in Rule 4:69-6(b)(3). The trial court granted defendant's motion and dismissed plaintiff's complaint with prejudice.

On appeal, plaintiff argues the court failed to exercise its reasoned discretion as provided by Rule 4:69-6(c), which allows for entry of orders to "enlarge the period of time" for filing an action in lieu of prerogative writs "where it is manifest that the interest of justice so requires." Plaintiff maintains an interested party who fails to learn of a variance application, through no fault of its own, is entitled to an enlargement of the time to file an action. Further, plaintiff contends defendant knew of its significant interest in the proposed development, and also learned its notice was sent to an incorrect address, requiring it to re-send the notice. Plaintiff suggests the dismissal of its complaint is the equivalent of rewarding defendant for mailing notice to the wrong address.

Defendant argues it fully complied with all statutory notice requirements, N.J.S.A. 40:55D-12(b), which do not mandate that an applicant must re-send notice if a property owner neglected to notify a municipality of an address change. Defendant points out that plaintiff was familiar with the process, as it had previously reported its change of address to the municipal Tax Assessor when it moved from 36 Farmhouse Lane, Voorhees to 500 Grove Street, Haddon Heights. Nevertheless, plaintiff failed to advise of its subsequent move to 515 Grove Street.

When reviewing a grant of summary judgment, we apply the same standard as the trial court, first determining whether any genuine issue of material fact existed, and, if not, whether the trial court's ruling on the law was correct. Bressman v. Gash, 131 N.J. 517, 529 (1993); Atlantic Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) (citing Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989)), certif. denied, 154 N.J. 608 (1998); see also Rule 4:46-2(c) (stating that if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law[,]" summary judgment must be entered); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In our de novo review, we owe no deference to the motion judge's conclusions on issues of law. Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Pursuant to Rule 4:69-6(b)(3), an action to review a determination of a zoning board must be commenced no later than forty-five days after the publication of notice of the resolution in the official newspaper of the municipality or a newspaper of general circulation in the municipality. See Cohen v. Thoft, 368 N.J. Super. 338, 343 (App. Div. 2004). "The underlying purpose of the time limitation is . . . to 'give an essential measure of repose to actions taken against public bodies.'" Concerned Citizens of Princeton, Inc. v. Mayor of Princeton, 370 N.J. Super. 429, 446 (App. Div.) (quoting Washington Tp. Zoning Bd. of Adj. v. Washington Tp. Planning Bd., 217 N.J. Super. 215, 225 (App. Div.), certif. denied, 108 N.J. 218 (1987)), certif. denied, 182 N.J. 139 (2004). "The statute of limitations is designed to encourage parties not to rest on their rights. In general, ignorance of the existence of a cause of action will not prevent the running of a period of limitations except where there has been concealment." Reilly v. Brice, 109 N.J. 555, 559 (1988).

As noted above, the trial court rejected plaintiff's challenges to the Zoning Board's resolution as untimely, refusing to extend the time limit "in the interest of justice" as permitted by paragraph (c) of the Rule. R. 4:69-6(c). Prior opinions analyzing whether "the interest of justice" requires an enlargement of time have developed three general categories warranting relief, including: "(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." Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975) (footnotes omitted); see also Borough of Princeton v. County of Mercer, 169 N.J. 135, 152 (2001); Pressler, Current New Jersey Court Rules, Comment 7.3 to R. 4:69-6(c) at 1844-45 (2010).

Plaintiff implicitly acknowledges its request does not neatly fall within one of the three enumerated categories recognized as a basis to extend the forty-five day filing period. However, noting the categories are not exclusive, it argues "equitable considerations" control. Plaintiff broadly generally asserts the trial court did not "fairly weigh the equities." Further, plaintiff maintains the trial court unfairly emphasized the length of the delay and "ignored precedent that relaxes the filing restraint despite a significant delay in commencement of an action." See, e.g., Haggerty v. Red Bank Borough Zoning Bd. of Adj., 385 N.J. Super. 501, 504 (App. Div. 2006) (reversing dismissal of taxpayers challenge to Board's decision to grant site plan and variance approvals filed almost one year after notice of the Board's resolution was published, because an impermissible conflict of interest on the part of the Board's presiding officer rendered the Board's action void); Willoughby v. Planning Bd., 306 N.J. Super. 266, 273 (App. Div. 1997) (concluding trial court abused its discretion in refusing to grant an extension of time for plaintiffs to challenge the validity of defendant's ordinance rezoning property, which would have a substantial impact upon residents of the adjoining neighborhood, making it a public, not private, dispute).

We agree the Brunetti exceptions are not exclusive. See Cohen, supra, 368 N.J. Super. at 346 (stating the Court adopted a generalized standard in Rule 4:69-6(c) "to provide more flexible criteria than under the prior practice for determining when there should be an enlargement of time for bringing a prerogative writ action"). Even matters involving "purely private interests" may lead a court to "conclude that the 'interest of justice' warrants an enlargement of the forty-five day period." Gregory v. Borough of Avalon, 391 N.J. Super. 181, 189 (App. Div. 2007). Therefore, considerations of equity and fairness may warrant extending the filing period, requiring the court to "weigh the public and private interests that favor an enlargement against 'the important policy of repose expressed in the forty-five day rule.'" Ibid. (quoting Borough of Princeton, supra, 169 N.J. at 152-53); Cohen, supra, 368 N.J. Super. at 347; Adams v. DelMonte, 309 N.J. Super. 572, 581 (App. Div. 1998).

However, we reject plaintiff's overarching approach and note that in each of our opinions allowing a filing out of time, we did so because specific legal or equitable considerations warranted the matter's consideration. We do not find similar considerations in the facts presented.

Plaintiff recites the utilized mailing address was "incorrect" and, therefore, it was not properly noticed. Plaintiff states, "[a]s an owner of property within 200 feet of [defendant's] property, [plaintiff] was entitled to receive direct notice, either mailed or personally served." Although defendant did not send notice to plaintiff's current address, it is undisputed that it properly followed the requirements of the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -129 (MLUL), and mailed notice to the address of record.

"The MLUL was intended to simplify, expedite and standardize procedures for approval by local boards, limit the potential for harassment of applicants, and bring consistency, statewide uniformity, and predictability to the approval process." New York SMSA Ltd. P'ship v. Township Council of Edison, 382 N.J. Super. 541, 550 (App. Div. 2006). In this regard, we have determined "[t]he Legislature could not have stated the mandatory nature of the provisions that describe the scope and method of notice more clearly than it did[,]" concluding there is no "authority to alter these precisely drafted notice requirements in the plain language of N.J.S.A. 40:55D-12." Id. at 547-548. In New York SMSA Ltd. P'ship, we rejected the municipality's attempt to adopt an ordinance enhancing the statutory notice provisions. Id. at 549-50. "The use of mandatory language in the . . . MLUL to describe the scope and method of notice indicates that the Legislature intended uniformity on those issues." Id. at 548.

Accordingly, we cannot fault defendant, who fulfilled all of its obligations under the MLUL. The notice of its application identified the subject property by street address and lot and block numbers, described the development proposal and the municipal action sought, and provided the location and times of the hearing and map and document review. See N.J.S.A. 40:55D-11. Public notice of the hearing was published in a local newspaper of general circulation, N.J.S.A. 40:55D-12(a), and individual notice was served by certified mail to property owners within two hundred feet of the subject property, N.J.S.A. 40:55D-12(b), obtained via the certified list provided by the Ocean City Tax Assessor, N.J.S.A. 40:55D-12(c). In mailing individual notices to adjacent landowners, defendant properly relied upon the information contained in the certified list compiled by the municipal tax assessor. Ibid.

Further, we are not persuaded by plaintiff's urging to impose a duty on an applicant such as defendant to ensure all interested parties within 200 feet of the subject property actually receive notice of the Zoning Board hearing. In this regard, plaintiff argues that once defendant learned of the ineffective service, it was obligated to re-send the notice to plaintiff's correct address. Such a courtesy may, arguably, have been efficient, but is not required. Nothing in the MLUL imposes the existence of any duty above the explicit notice requirements in N.J.S.A. 40:55D-12. See Brower Dev. Corp. v. Planning Bd., 255 N.J. Super. 262, 269-70 (App. Div. 1992). In fact, the "failure to give notice to any owner . . . not on the [certified list provided by the municipal officer] shall not invalidate any hearing or proceeding." N.J.S.A. 40:55D-12(c). Consequently, we decline to engraft an enhanced notice requirement upon the distinct language of the statute.

We also cannot ignore the fact that plaintiff's failure to maintain a current address with the municipal tax office resulted in the misdirected notice. See, e.g. Township of Berkeley v. Berkeley Shore Water Co., 213 N.J. Super. 524, 533-534 (App. Div. 1986) (noting a municipality need not verify the addresses on its tax records). Plaintiff's past actions demonstrate familiarity with this obligation. See West Jersey Title & Guar. Co. v. Indus. Trust Co., 27 N.J. 144, 153 (1998).

Other statutory provisions recite requirements that notices need only be sent to the address provided by a landowner. See, e.g., N.J.S.A. 54:5-104.48 (directing that notice in tax sale foreclosures be sent to the address provided by taxpayer); Township of Berkeley, supra, 213 N.J. Super. at 533-34 (identifying that burden shifts to the taxing authorities to change their records for purpose of sending required notices if taxpayer demonstrates reasonable efforts to notify the municipality of a changed address); Township of Brick v. Block 48-7, Lots 34, 35, 36, 202 N.J. Super. 246, 252-54 (App. Div. 1985) (same). Plaintiff's contention that the burden to assure the notice is forwarded rests with the municipality or defendant lacks merit. See Sourlis v. Borough of Red Bank, 220 N.J. Super. 434, 438 (App. Div. 1987) (stating "the municipality has no obligation . . . to investigate 'whether the name and address listed on its tax rolls are correct'") (quoting Atlantic City v. Block C-11, Lot 11, 74 N.J. 34, 39-40 (1977), app. dism., 434 U.S. 1055, 98 S. Ct. 1222, 55 L. Ed. 2d 775 (1978)).

Plaintiff's remaining arguments have been considered in light of the record and the applicable law. We determine they lack sufficient merit to warrant additional discussion in a written opinion. R. 2:11-3(e)(1)(E). Accordingly, we conclude the trial court did not err or abuse its discretion in concluding there was no basis to relax the provisions set forth in Rule 4:69-6(b)(3). Consequently, plaintiff's complaint, filed beyond the forty-five day limitations period, was properly dismissed. Brill, supra, 142 N.J. at 540.

Affirmed.

 

In an unpublished opinion, we affirmed the trial court's judgment. ATIM Family Partnership v. LMW Properties Corp., No. A-5365-06 (App. Div. April 2, 2009).

The approvals permit defendant to construct a three-story, 5,600 square foot single family residence. Included among the variances contested by plaintiff was a habitable story variance allowing living space on all three floors, rather than two.

The record does not state when plaintiff moved from 500 Grove Street to 515 Grove Street.

N.J.S.A. 40:55D-12(b) provides that notice of public hearings "shall be given to the owners of all real property as shown on the current tax duplicates, located in the State and within 200 feet in all directions of the property which is the subject of such hearing."

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A-0751-09T2

August 24, 2010