DONALD NUCKEL v. BOROUGH OF LITTLE FERRY PLANNING BOARD, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 1523-04T11523-04T1

DONALD NUCKEL,

Plaintiff-Appellant,

v.

BOROUGH OF LITTLE FERRY PLANNING

BOARD and THE GENERAL'S GROUP, L.L.C.,

Defendants-Respondents.

 
 

Argued October 19, 2005 - Decided

Before Judges Weissbard, Winkelstein, and

Francis.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, L-8066-03.

Roger W. Breslin, Jr. argued the cause for

appellant (Beattie Padovano, attorneys;

Mr. Breslin, on the brief).

Brian T. Giblin argued the cause for respondent

Borough of Little Ferry Planning Board (Giblin

& Giblin, attorneys; Mr. Giblin and Michael A.

Gannaio, on the brief).

Andrew T. Fede argued the cause for respondent

The General's Group (Contant, Atkins & Fede,

attorneys; Mr. Fede, of counsel and on the brief).

PER CURIAM

Plaintiff Donald Nuckel appeals from an order of summary judgment dismissing his complaint in lieu of prerogative writs based on his failure to join an indispensable party. We reverse.

The facts underlying the present controversy began in early 2003 when the General's Group (the Group) filed a development application with the Borough of Little Ferry Planning Board (the Board), seeking lot consolidation, subdivision, conditional use, preliminary site plan approval and several bulk variances for the property designated as Lots 5, 8, 9, and 10 in Block 5.01 on the tax assessment map of Little Ferry (the property). Specifically, the Group sought to consolidate four contiguous lots that are adjacent to Route 46 to the south, Bergen Turnpike to the west, and the Hackensack River to the east. After consolidation, the Group planned to subdivide the property, which is located in the B-H Highway Business Zone, into two lots, Lot 8.01 to the west containing a total area of 123,905.19 square feet and Lot 8.02 to the east consisting of 170,883.3 square feet. The Group proposed to construct a four-story, ninety-two-room hotel on Lot 8.02 with attendant parking and other improvements. No development was proposed on Lot 8.01 other than an access drive to Lot 8.02 and additional landscaping.

The Board held five public hearings on the Group's application between April 28 and August 20, 2003. Plaintiff, represented by counsel, attended these hearings as an interested citizen of Little Ferry who opposed the development project. He presented the testimony of several witnesses, including traffic, planning, and environmental engineering experts.

The Board approved the development application of the Group on August 20, 2003 and adopted a resolution memorializing its findings and conclusions on September 17, 2003. Shortly thereafter, on September 22, the Board published a notice of the adoption of the resolution in a newspaper of general circulation in the municipality.

On November 5, 2003, plaintiff filed a complaint in lieu of prerogative writs against the Board, alleging that it had acted in an arbitrary, capricious and unreasonable manner in granting the application. Plaintiff did not initially name the Group as a defendant because plaintiff's counsel was apparently unaware that the joinder of a successful applicant was required. When plaintiff's counsel became aware that such joinder was mandatory, he filed an amended complaint naming the Group as an additional defendant on April 5, 2004.

The Group moved for summary judgment, and on September 10, 2004, the judge granted the motion, reasoning that plaintiff failed to comply with R. 4:69-6(b)(3) because he did not name the successful applicant as a party within the forty-five day time limitation prescribed by the rule. Plaintiff promptly sought reconsideration, which was denied on October 22, 2004.

The Group obtained the necessary approvals for its development project from the New Jersey Department of Environmental Protection (DEP) on August 4, 2004. On September 7, 2004, plaintiff, through his landowning entities North Village I, L.L.C. and North Village II, L.L.C., appealed the grant of those approvals. That appeal is currently pending before the DEP. Consequently, no construction has commenced on the project.

On appeal plaintiff presents the following arguments:

POINT I

THE 45 DAY LIMITATION PRESCRIBED BY RULE 4:69-6(b)(3) FOR COMMENCEMENT OF AN ACTION IN LIEU OF PREROGATIVE WRITS TO REVIEW A MUNICIPAL PLANNING BOARD DETERMINATION DOES NOT BAR THE SUBSEQUENT JOINDER OF A NON-GOVERNMENTAL INDISPENSABLE PARTY PURSUANT TO RULES 4: 28 AND 4:30.

A. Joinder Of Necessary Parties Is Governed By Rules 4: 28 And 4:30

B. The Statute Of Limitations Argument

C. The Stokes Case

POINT II

EVEN ASSUMING RULE 4:69(b)(3) APPLIES TO NON-GOVERNMENTAL INDISPENSABLE PARTIES, THE 45 DAY TIME LIMITATION SHOULD BE ENLARGED "IN THE INTEREST OF JUSTICE," AND JOINDER OF THE GENERAL'S GROUP, LLC PERMITTED, PURSUANT TO

RULE 4:69-6(c).

A. The Law As To Enlargement Of Time

B. Reasons For Enlargement Of Time In This Case

We agree with plaintiff's second argument, and therefore reverse. In light of our disposition, we have no need to address plaintiff's first contention.

The issue presented is a question of law subject to our de novo review. The motion judge did not predicate his ruling on any factual determinations that would compel our deference. See Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

Rule 4:69-6(b)(3) establishes the time period within which a party challenging a planning board's decision to grant a development application must file an action in lieu of prerogative writs. The rule provides, in pertinent part, that:

No action in lieu of prerogative writs shall be commenced . . . to review a determination of a planning board or board of adjustment, or a resolution by the governing body or board of public works of a municipality approving or disapproving a recommendation made by the planning board or board of adjustment, after 45 days from the publication of a notice once in the official newspaper of the municipality or a newspaper of general circulation in the municipality.

[R. 4:69-6(b)(3).]

The rule further provides that the notice must state the applicant's name and the location of the property, and must briefly state the nature of the application and the effect of the determination or resolution. Ibid. Significantly, both the rule and its comment are silent as to whether any necessary or indispensable parties must also be joined within forty-five days. See ibid.; Pressler, Current N.J. Court Rules, comment on R. 4:69-6 (2005).

New Jersey Municipal Land Use Law also makes clear that notice of a decision of a municipal planning board must be published in the official newspaper of the municipality or in a newspaper of general circulation of the municipality and that the period of time in which an objector may appeal the planning board's decision begins to run from the first publication of the decision. N.J.S.A. 40:55D-10(i). In this case, the Board published notice of its decision to approve the Group's application in a newspaper of general circulation in the municipality on September 22, 2003. Thus, it is indisputable that the forty-five day time period in which plaintiff could file an action challenging the Board's decision, as prescribed by R. 4:69-6(b)(3), began to run on September 22, 2003.

Furthermore, it is indisputable that the Group is a necessary party to the action challenging the Board's approval of its development application. In Stokes v. Twp. of Lawrence, 111 N.J. Super. 134, 138 (App. Div. 1970), we specifically held that the successful applicant is an indispensable party to an action challenging the grant of a variance. The Stokes court explained that the successful applicant has "a real and substantial interest in the subject matter of the action, and a judgment could not justly be made without adjudging or necessarily affecting his interest." Ibid. Accordingly, an objector who appeals a municipal approval must join as defendants both the municipal agency and the applicant pursuant to R. 4:28-1. Ibid.; see also Cox, New Jersey Zoning and Land Use Administration, 33-1.3 (2005); Pressler, Current N.J. Court Rules, comment on R. 4:28-1 (2005) (citing Stokes, supra).

Plaintiff filed his original complaint against the Board on November 5, 2003, within the forty-five day time limitation of R. 4:69-6(b)(3). However, plaintiff did not add the Group, a necessary party, as a defendant until April 5, 2004, well after the forty-five day window had passed.

Plaintiff argues that his addition of the Group as a defendant should have been authorized by R. 4:69-6(c), which permits enlargement of the forty-five day time limitation "where it is manifest that the interest of justice so requires." However, plaintiff first advanced that argument in his motion for reconsideration.

Defendants argue that the judge properly denied plaintiff's motion for reconsideration because plaintiff reargued the same contentions that the judge had rejected, as if his motion were an appeal. Additionally, defendants argue that the judge properly denied the motion for reconsideration because plaintiff raised a new argument based on R. 4:69-6(c), and new theories are an improper basis for a motion for reconsideration. We disagree.

Defendants are correct that a litigant should not seek reconsideration merely due to dissatisfaction with the court's decision; the appropriate course of action in that instance is to appeal. D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). Reconsideration should be utilized only in cases that "fall into that narrow corridor in which either 1) the court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the court either did not consider, or failed to appreciate the significance of probative, competent evidence." Ibid. Here, plaintiff arguably sought reconsideration on an appropriate basis. Specifically, the judge stated in his opinion of September 10, 2004, that summary judgment was granted because plaintiff failed to comply with R. 4:69-6(b)(3), which "provides that all parties, including the successful applicant, must be named as a party defendant within that same time period." This statement was incorrect, in that the rule is silent as to whether all parties must be named within the forty-five day period, as plaintiff has contended in Point I of his argument on appeal. On the motion for reconsideration, plaintiff brought this error to the judge's attention so that he could reconsider his reasoning in light of the correct language of the rule, but he declined to do so. Even if the judge's decision was ultimately correct, an issue we do not decide, that does not mean the motion for reconsideration was not proper.

Defendants are correct in pointing out that plaintiff raised R. 4:69-6(c) for the first time in his reconsideration motion and also in noting that new theories of liability or defense do not form the proper basis for motions for reconsideration. See Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996) (concluding plaintiff improperly offered new theory of liability during motion for reconsideration); Lahue v. Pio Costa, 263 N.J. Super. 575, 598 (App. Div.) (concluding defendant's attempt to raise new defense during motion for reconsideration was untimely), certif. denied, 134 N.J. 477 (1993). Plaintiff's request that the judge invoke R. 4:69-6(c), however, is not analogous to raising a new theory of liability or defense. Unlike new theories of liability or defense, R. 4:69-6(c) can be invoked by the court itself in appropriate circumstances. See Reilly v. Brice, 109 N.J. 555, 560 (1988) (concluding circumstances warranted enlargement of time period in interest of justice under R. 4:69-6(c) even when plaintiffs did not request enlargement in trial court); Cohen v. Thoft, 368 N.J. Super. 338, 344-45 (App. Div. 2004) (invoking R. 4:69-6(c) to enlarge time period even though plaintiff's argument to trial court for time enlargement rested on other grounds). Thus, even if plaintiff had not asked the judge to grant an enlargement of time pursuant to R. 4:69-6(c), the judge could have exercised his discretion in invoking that provision in the interest of justice. Accordingly, it is proper for us to consider whether the facts of this case warrant invoking an enlargement of the forty-five day time period pursuant to R. 4:69-6(c).

The Court explained the origins of R. 4:69-6(c) in Brunetti v. Borough of New Milford, 68 N.J. 576, 586-87 (1975), where it stated that the provision was intended to codify decisional exceptions to the time limitation. Specifically, the Court noted that the exceptions "included cases 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." Id. at 586.

In Cohen, supra, 368 N.J. Super. at 346-47, we recently clarified the situations in which a court can enlarge the time period pursuant to R. 4:69-6(c). We concluded that the circumstances of the case warranted an enlargement of the time limitation in the interest of justice even though the case did not fall into any of the three exceptions enumerated in Brunetti. We explained:

[N]either the Supreme Court nor this court has ever held that a party seeking an enlargement of time under Rule 4:69-6(c) must show that a case falls within one of those categories. To the contrary, the Court in Brunetti indicated that the exceptions to the rigid time limits on the bringing of a prerogative writ action recognized before adoption of the predecessor to Rule 4:69-6(c) merely "included" those categories of cases, 68 N.J. at 586, and the Court that adopted the generalized standard set forth in Rule 4:69-6(c) said that it intended to provide "more flexible criteria" than under the prior practice for determining when there should be an enlargement of the time for bringing a prerogative writ action. Oldfield [v. Stoeco Homes, Inc., 26 N.J. 246, 262 (1958)]. Moreover, we held in Adams v. DelMonte, 309 N.J. Super. 572, 580-82 (App. Div. 1998) that an enlargement of time for bringing a prerogative writ action was required in the interest of justice even though that case did not fall within one of the three categories of cases identified in Brunetti. Therefore, the trial court erred in concluding that plaintiff was not entitled to an enlargement of time because his case did not fall within any of those categories.

[Ibid.]

This case arguably falls within the third category enumerated in Brunetti, as a case involving the public interest. The general area of the project has substantial flooding problems, which could potentially cause difficulty for emergency vehicles to enter the proposed hotel site. Additionally, the proposed hotel would be located on the Little Ferry Circle, which already has considerable traffic problems, and the site plan did not include a public walkway along the Hackensack River, which had been recommended in the Borough's 2003 Master Plan Re-examination Report. As these examples illustrate, plaintiff does not simply allege concerns related to his own interests as a nearby landowner, but instead raises concerns that affect the general public. This situation is distinguishable from Adams v. DelMonte, 309 N.J. Super. 572, 581 (App. Div. 1998), in which the court declined to invoke the public interest exception because the land use issue affected only a single tract of land and a small number of people, the defendant and his immediate neighbors.

In any event, even if this case is not regarded as involving an important public interest, pursuant to Cohen, supra, we can still look to the particular facts and circumstances of the case to determine whether the interest of justice requires an enlargement of the forty-five day time limitation. Having done so, we conclude that an enlargement of the forty-five day period "in the interest of justice" is warranted. R. 4:69-6(c). Plaintiff expended considerable time, effort, and resources in attending the hearings on the proposed project and presenting expert testimony to support his objections. He did not "slumber on his rights," Schack v. Trimble, 28 N.J. 40, 49 (1958), but rather promptly filed an action against the Board within forty-five days of the notice that the Board had approved the project. Furthermore, neither the Board nor the Group suffered prejudice as a result of plaintiff's delay in joining the Group as a defendant. The amended complaint asserted no new cause of action against the Board, and the Group has not yet begun construction on the project due to the appeal of the necessary permits that is currently pending before the DEP. See Adams, supra, 309 N.J. Super. at 582 (invoking R. 4:69-6(c) and considering fact that defendant was not prejudiced by filing delay because he had not altered or added to his business in meantime). In addition, the Group cannot be said to have lacked notice of the initial lawsuit, as plaintiff made his objections known at each public hearing on the project. See Stokes, supra, 11 N.J. Super. at 140 (finding "it difficult to believe" that successful applicant was not aware of action brought by neighbors when neighbors had objected to application at all meetings). In Cohen, we took note of the fact that under the three Brunetti exceptions, "even a very substantial enlargement of the time" within which to file a prerogative writs action may be granted. Cohen, supra, 368 N.J. Super. at 346 (quoting Willoughby v. Planning Bd. of Deptford, 306 N.J. Super. 266, 276 (App. Div. 1997)). Here, the period of time was indeed substantial, six months, but, as we have noted, the Group did not suffer any demonstrable prejudice by that inadvertent delay. Indeed, it does not appear that there was any activity on the case in the period of delay.

Moreover, general considerations of justice disfavor dismissing a case when the failure to follow a court rule is due to the actions of counsel, not to any conduct of the litigant, and the other party has not been prejudiced as a result of counsel's neglect. See Gnapinsky v. Goldyn, 23 N.J. 243, 247-48 (1957) (declining to dismiss case due to errors of plaintiff's counsel and reasoning that dismissal imposes "too great a penalty upon a litigant who doubtless was personally blameless"); Savoia v. F.W. Woolworth Co., 88 N.J. Super. 153, 160-61 (App. Div. 1965) (declining to dismiss case when defendant's counsel failed to comply with numerous court rules but defendant was not at fault and plaintiffs suffered no prejudice); Schlosser v. Kragen, 111 N.J. Super. 337, 346 (Law Div. 1970) (recognizing that dismissal is generally improper when noncompliance with court rules is due to neglect or forgetfulness of counsel and other party not prejudiced). Here, plaintiff's failure to initially join the Group as a defendant was due to his counsel's lack of knowledge that the successful applicant was an indispensable party and was not due to any conduct on the part of plaintiff. The Group was not prejudiced by the delay, as construction on the project cannot begin until the appeal before the DEP is resolved. Thus, plaintiff should not be penalized for his counsel's failure to join the Group within the forty-five day time limitation, and the case should proceed to the merits.

 
Reversed.

(continued)

(continued)

15

A-1523-04T1

November 30, 2005