RONALD CABEZAS v. TOWNSHIP OF MAHWAH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3429-09T4

RONALD CABEZAS,

Plaintiff-Appellant,

v.

TOWNSHIP OF MAHWAH, MAYOR

RICHARD MARTEL, and COUNCIL OF

THE TOWNSHIP OF MAHWAH,

Defendants-Respondents.

____________________________________

October 31, 2011

Argued November 4, 2010 - Decided

Before Judges Fuentes, Gilroy and Nugent.

On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-347-09.

Richard Galler argued the cause for appellant (Marc N. Isenberg, attorney; Mr. Isenberg, on the brief).

Andrew T. Fede (Herten Burstein) argued the cause for respondents (Archer & Greiner, P.C., attorneys; Mr. Fede, on the brief).

PER CURIAM

Plaintiff Ronald Cabezas appeals from the February 16, 2010 order granting summary judgment to defendants and dismissing plaintiff's complaint challenging the validity of a Township of Mahwah (the Township) street ordinance. We affirm.

The facts are essentially undisputed. Plaintiff resides in the Township on Stephens Lane near its intersection with Olney Road. Olney Road is a through street that connects on the north to Stephens Lane and on the south to Miller Road.

On July 23, 2009, the Township adopted Ordinance No. 1652 which restricted the use of fifteen feet of Olney Road between Stephens Lane and Miller Road to use by "bona fide emergency vehicles responding to an emergency and public utility and Township vehicles performing public utility and/or maintenance functions." On August 6, 2009, the Township published notice of its adoption of the ordinance. Although Ordinance No. 1652 is the subject of this appeal, we will first review the history of the prior ordinance to provide a context for the present dispute.

Olney Road originally extended northerly from Miller Road to a dead end, but in the late 1990s Olney Road was extended farther north to Stephens Lane. In February 2005, the Township adopted Ordinance No. 1533 that declared a limitation on the use of twenty feet of Olney Road to only emergency, municipal, and public utility vehicles. According to the ordinance, the Township restricted the road use in the interest of public safety. In May 2006, the New Jersey Department of Transportation (NJDOT) approved the ordinance. In November 2006, the Township amended the ordinance to reduce the area of restricted use from twenty feet to fifteen feet. The amended ordinance, No. 1556, became effective November 20, 2006.

On May 10, 2007, plaintiff filed a complaint in the Law Division alleging that the Township's adoption of the amended ordinance was arbitrary, capricious, and violated his state and federal civil rights "to use and traverse that portion of Olney Road closed as a public thoroughfare by the Defendants." The parties subsequently cross-moved for summary judgment. On September 24, 2008, the trial court determined that there was no objective, tangible evidence to support the Township's contention that the ordinance was adopted in the interest of public safety. Consequently, the court held that the adoption of the ordinance was "palpably arbitrary, capricious and unreasonable." Confirming that plaintiff had abandoned his claims that the ordinance violated his constitutional rights to use the road, the court dismissed those claims with prejudice. The court entered a conforming order on October 27, 2008.

On July 23, 2009, the Township adopted Ordinance No. 1652 which prohibited the use of the same fifteen feet of Olney Road to all vehicles except "emergency, public utility, and Township vehicles performing public utility and/or maintenance functions." The ordinance included a copy of the NJDOT engineers' findings that Olney Road at the restricted access point was too narrow to safely accommodate two lanes of traffic. The ordinance stated that the Township had engaged an independent engineering firm to conduct a study of the need for restricting access to Olney Road, and that the study confirmed the NJDOT's findings. Finally, the Township's municipal engineer concurred with the independent engineers' report. The ordinance became effective on August 26, 2009.

On October 30, 2009, plaintiff filed a single-count verified complaint in the Chancery Division challenging the adoption of the ordinance. Plaintiff requested that the court "[d]eclar[e]" Ordinance No. 1652 to be "illegal and violative of law," "null and void," and "arbitrary and capricious." Plaintiff did not allege any violations of his constitutional rights.

On December 14, 2009, defendants filed a motion for summary judgment before the Chancery Division, arguing that plaintiff's cause of action was "substantively an action in lieu of prerogative writs," and that it had not been filed within forty-five days of the enactment of the ordinance as required by Rule 4:69-6(a). Plaintiff responded that the action was a declaratory judgment action filed pursuant to N.J.S.A. 2A:16-53, not an action in lieu of prerogative writs. Alternatively, plaintiff argued that the time frame for filing an action in lieu of prerogative writs should be relaxed in the interest of justice because the action was a matter of public interest. On January 19, 2010, the Chancery Division transferred the case to the Law Division, characterizing the cause of action as one for declaratory judgment, but explicitly refraining from "address[ing] or resolv[ing] whether the action is or is not an action in lieu of prerogative writs, and/or whether the action is or is not timely."

Defendants renewed their summary judgment motion in the Law Division. There, the court determined that the action was substantively an action in lieu of prerogative writs and dismissed the complaint because it was not filed within forty-five days as required by Rule 4:69-6(a). The court determined that plaintiff's claim did not fall within the purview of the "interest of justice" exception provided by Rule 4:69-6(c). The court entered an order on February 15, 2010, dismissing plaintiff's complaint with prejudice.

Plaintiff renews on appeal his arguments that the trial court erred by determining that his complaint was an action in lieu of prerogative writs, not a declaratory judgment action; and alternatively, that the trial court erred by refusing to extend the forty-five day limit for filing an action in lieu of prerogative writs.

The summary judgment standard is set forth in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995). The motion judge must determine whether the competent evidential materials, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. Id. at 540. However, if summary judgment turns on a question of law, or if further factual development is unnecessary in light of the issues presented, then summary judgment need not be delayed. United Sav. Bank v. State, 360 N.J. Super. 520, 525 (App. Div.), certif. denied, 177 N.J. 574 (2003). An appellate court employs "the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

We agree with the trial court that the issue of whether the action was cognizable as an action in lieu of prerogative writs, a declaratory judgment action or both, was a question of law. We begin our analysis with a discussion of prerogative writs and declaratory judgments. The New Jersey Constitution provides:

Prerogative writs are superseded and, in lieu thereof, review, hearing and relief shall be afforded in the Superior Court, on terms and in the manner provided by rules of the Supreme Court as of right, except in criminal causes where such review shall be discretionary.

[N.J. Const. art. VI, 5, 4.]

"That clause was drafted to 'streamline and strengthen the traditional prerogative writs which were available in the pre-1947 Supreme Court.'" Alexander's Dep't Stores, Inc. v. Borough of Paramus, 125 N.J. 100, 107 (1991) (quoting In re LiVolsi, 85 N.J. 576, 593 (1981)). One such writ was the writ of certiorari. Ibid.

The historic function of the common-law writ of certiorari is to supervise and review the proceedings of all inferior tribunals not proceeding according to the course of the common law, for the correction of . . . errors of law revealed by the record. . . . The power comprehends the supervision of statutory tribunals and governmental establishments, including municipal corporations.

[Fischer v. Twp. of Bedminster, 5 N.J. 534, 539-40 (1950).]

"The writ of certiorari . . . 'has long been available in New Jersey to afford judicial review of administrative agency actions in general and of municipal ordinances in particular.'" Alexander's Dep't Stores, supra, 125 N.J. at 107 (quoting Hills Dev. Co. v. Twp. of Bernards, 103 N.J. 1, 44-45 (1986)).

The procedural requirements of actions in lieu of prerogative writs are contained in Rule 4:69. "Thus R. 4:69 governs challenges to municipal action." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:69 (2012). Generally, "[n]o action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review . . . ." R. 4:69-6(a). This temporal limitation is "aimed at those who slumber on their rights," Schack v. Trimble, 28 N.J. 40, 49, (1958), "and is designed to give an essential measure of repose to actions taken against public bodies." Wash. Twp. Zoning Bd. of Adjustment v. Wash. Twp. Planning Bd., 217 N.J. Super. 215, 225 (App. Div.), certif. denied, 108 N.J. 218 (1987).

Rule 4:69-6(b) provides eleven exceptions to the forty-five day rule, none of which is applicable here. Rule 4:69-6(c) permits the court to "enlarge the period of time provided in paragraph (a) or (b) of this rule where it is manifest that the interest of justice so requires." Such cases include 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, 169 N.J. 135, 152 (2001) (quoting Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975)); see also Hopewell Valley Citizens' Grp., Inc. v. Berwind Prop. Grp. Dev. Co., 204 N.J. 569, 583-584 (2011) (noting that these three exceptions to the forty-five day time limit are not intended to be exhaustive). Still, even public interests must be balanced against "'the important policy of repose expressed in the forty-five day rule.'" Hopewell Valley, supra, 204 N.J. at 580 (quoting Reilly v. Brice, 109 N.J. 555, 559 (1988)).

The Uniform Declaratory Judgments Act (the Act), N.J.S.A. 2A:16-50 to -62, provides in relevant part:

A person . . . whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.

[N.J.S.A. 2A:16-53.]

N.J.S.A. 2A:16-53 "confers the declaratory action right on a person whose legal rights are affected by a municipal ordinance." Pressler, supra, comment 1.3 on R. 4:42-3. The Act "is declared to be remedial," and should be liberally construed to accomplish its general purpose. N.J.S.A. 2A:16-51. Its "mandate is to afford relief from uncertainty with respect to a party's rights . . . ." ML Plainsboro Ltd. P'ship v. Twp. of Plainsboro, 316 N.J. Super. 200, 204 (App. Div. 1998).

Here, the complaint did not designate the cause of action as either an action in lieu of prerogative writs or a declaratory judgment action. Regardless, a plaintiff's "characterization or designation of the nature of an action" does not determine plaintiff's substantive rights. Zoning Bd. of Adjustment of Green Brook v. Datchko, 142 N.J. Super. 501, 508 (App. Div. 1976). Consequently, the trial court was required to determine the substance of plaintiff's cause of action.

The trial court noted that plaintiff alleged the ordinance was "illegal and contrary to State and Federal law," and that plaintiff sought a declaration the ordinance was "illegal and violative of law." In so doing, the court explained it was not clear what legal rights plaintiff claimed were being affected by the ordinance. The court was reluctant to "qualify this action as a declaratory judgment action, when the Court can find no legal rights of Plaintiff or any State or Federal law that is being violated by [the ordinance]."

A plaintiff's challenge to an ordinance on constitutional grounds is maintainable as a declaratory judgment action. Bell v. Twp. of Stafford, 110 N.J. 384, 390-91 (1988). Additionally, "[a] judgment for declaratory relief, if appropriate, is not precluded by the existence of another appropriate remedy." R. 4:42-3. However, when plaintiff challenged Ordinance No. 1556, he abandoned his claims that he had a constitutional right to use the streets and roads in the Township. Those claims were dismissed with prejudice and he did not renew them when he filed his complaint in this action. Instead, he asserted that as a resident and homeowner in the Township, he is entitled to use the "public streets, thoroughfares, and rights-of-way" in the Township, but then alleged that the ordinance was illegal and contrary to state and federal law. In essence, plaintiff challenged Ordinance No. 1652 on the basis that its adoption was arbitrary, capricious and unreasonable; the same reasons the trial court declared the adoption of the previous ordinance, No. 1556, invalid. We note the trial court in that decision characterized the action as an action in lieu of prerogative writs.

In view of plaintiff's abandonment of his constitutional attack on the ordinance, the vagueness of his pleadings, and the nature of the relief he sought, namely, invalidation of the ordinance, we conclude that the trial court correctly determined plaintiff's complaint was substantively an action in lieu of prerogative writs.

Plaintiff argues that the court erred by not expanding the forty-five day time limit in the interest of justice as permitted by Rule 4:69-6(c). Plaintiff maintains that this action involves an important public interest. The trial court rejected that argument and determined that "no reasonable factfinder would find any interests . . . that would be deemed important to warrant adjudication or clarification." We find no error in the trial court's determination.

Moreover, even if this matter was considered a declaratory judgment action, or if the forty-five day time limit for a prerogative writs action was expanded, the ordinance would have withstood plaintiff's challenge. A municipality is statutorily authorized to limit the use of streets to certain classes of vehicles. N.J.S.A. 39:4-197(1)(b); see Twp. of Cedar Grove v. Sheridan, 209 N.J. Super. 267, 278 (App. Div.), certif. denied, 104 N.J. 464 (1986). However, this authority is not limitless. "[T]he standard has been adopted that the exclusion of a certain class of vehicles from municipal streets must bear a direct relationship to the public safety and not be arbitrary, discriminatory or capricious." Samuel Braen, Inc. v. Mayor & General Council of Waldwick, 28 N.J. 476, 481 (1958) (citing Terminal Storage, Inc. v. Twp. of Raritan, 15 N.J. Super. 547, 551 (Law Div. 1951)).

In determining Ordinance No. 1556 invalid, the trial court concluded there was no competent, objective evidence to support the decision to restrict access to Olney Road due to public safety concerns. The court specifically found that there were no competent engineering studies to support the decision. Significantly, the court commented that had the municipality relied on "objective tangible support for the putative safety concerns, a limited use highway regulation . . . would easily pass muster."

When it adopted Ordinance No. 1652, the Township supported the adoption of the ordinance based on its safety concerns with engineering reports from the NJDOT, independent consultants, and the Township engineer. Those reports provide the facts which rationally support the conclusion that the adoption of the ordinance is in the public interest.

Affirmed.