MARK ALLEN AUTO REPAIR INC v. MEDFORD TOWNSHIP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2443-11T1

MARK ALLEN AUTO REPAIR, INC.,

Plaintiff-Appellant,

v.

MEDFORD TOWNSHIP,

Defendant-Respondent.

December 26, 2012

Submitted December 3, 2012 - Decided

Before Judges Parrillo and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2788-11.

Begelman, Orlow & Melletz, attorneys for appellant (Paul R. Melletz, on the briefs).

Raymond Coleman Heinold & Norman, attorneys for respondent (Christopher Norman, on the brief).

PER CURIAM

Plaintiff, Mark Allen Auto Repair, Inc., appeals from a December 9, 2011 order of the Law Division dismissing its action in lieu of prerogative writs against defendant Medford Township as time-barred. We affirm.

Plaintiff operates a towing business, including the storage of towed vehicles, out of its premises in Lumberton, just outside of Medford Township. Plaintiff has performed towing services on behalf of Medford Township in the past. Although previously denied a towing contract for 2009 because its business was not located within the township1, plaintiff was placed on defendant's interim towing rotation list on January 18, 2010, for the period ending June 30, 2010.

That rotation list was only an interim measure because the township was then in the process of revising its towing ordinance. To that end, defendant provided a copy of the proposed amendment introduced on first reading on February 23, 2010 to each existing tower, including plaintiff, and invited them to attend the public meeting. At the April 12, 2010 township council meeting, representatives of several towing companies appeared and commented on the proposed ordinance. Plaintiff did not participate. The ordinance was tabled so that defendant could consider additional public comments, and later presented for final adoption on May 11, 2010. Prior to final consideration, defendant provided a copy of the amended ordinance to each towing company, including plaintiff.

Defendant adopted Medford, N.J., Ordinance 2010-5 on May 13, 2010. The ordinance provides that Medford Township, at the beginning of each annual period, shall secure contracts with towers to be called by the Medford Police Department in a sequential order based on a rotation list. Prospective towers are to submit applications to be reviewed by the Chief of Police, who is to issue recommendations to the township council, who, in turn, decides whether to award a towing contract for a three-year period. The first contract period commenced on July 1, 2010 and ends on December 31, 2012.

Medford, N.J., Ordinance 2010-5 (May 13, 2010) limits the number of towing contracts to be awarded to five.2 The ordinance also requires each applicant to submit proof that, among other things, its business is located either within the township or within five miles of the geographic center of the township, and that the storage locations for all towed vehicles meet certain standards. Initial applications were due May 1, 2010 for contracts for the towing rotation from July 1, 2010 to December 31, 2012.

Four of the seven existing towing companies whose interim towing contract with defendant were expiring, including plaintiff, submitted applications for the 2010-2012 towing rotation. On July 31, 2010, at the recommendation of the acting township manager and police department, the township council adopted Resolution 173-2010 at a public hearing rejecting plaintiff's application. The three other applicants were awarded contracts pursuant to a prior resolution. Resolution 173-2010 stated that plaintiff was denied a contract because it was not located within the five-mile limit and because its storage facilities did not comply with ordinance specifications, i.e., adequate lighting and an on-site structure with appropriate staffing.

Plaintiff's representative appeared at the public hearing and presented his objections, including allegations that the three successful applicants failed to comply with the mandatory requirements of the ordinance. Although adopted on July 31, 2010, the resolution provided that the denial of plaintiff's application would not take effect until August 15, 2010, to allow defendant the opportunity to consider issues raised by plaintiff at the hearing. After a second review by the police department, the acting township manager sent plaintiff a letter dated August 26, 2010, confirming defendant's rejection of plaintiff's towing application. Plaintiff received the letter on August 31, 2010.

One year later, on August 31, 2011, plaintiff filed a verified complaint in lieu of prerogative writs,3 challenging both: (1) the validity of Medford, N.J., Ordinance 2010-5 (May 13, 2010), which it claimed was arbitrary in limiting the number of towers and setting a maximum distance; and (2) defendant's denial of its towing application, which it claimed was discriminatory.4 Thereafter, defendant moved to dismiss the complaint with prejudice as beyond the forty-five day filing period of Rule 4:69-6. Following argument on December 7, 2011, the Law Division judge granted defendant's motion, dismissing plaintiff's action in lieu of prerogative writs with prejudice as time-barred. The judge reasoned that in filing the instant action, plaintiff waited nearly sixteen months to contest the validity of the ordinance and twelve months to challenge the denial of its application for placement on the municipal towing rotation, well beyond the forty-five day time bar of Rule 4:69-6. As to the latter, the judge concluded:

On July 31, 2012, Defendant adopted a Resolution, which denied Plaintiff's application for a towing contract. . . . However, Plaintiff represents in its Complaint that notice of the denial of Plaintiff's application was sent on August 31, 2010. Even if this Court accepts August 31, 2010 as the date on which Plaintiff's rights accrued, Plaintiff was required to file its prerogative writ complaint within 45 days, which would have been on or about October 15, 2010. However, Plaintiff's prerogative writ complaint was filed with this Court on August 30, 2011, approximately one year after the date on which Plaintiff's rights accrued.

The motion judge also found no equitable considerations or substantial public interest warranting relaxation of the time requirements of Rule 4:69-6. As to the latter, the judge soundly rejected plaintiff's claim of alleged malfeasance by local government officials, finding no record evidence of any such wrongdoing:

If one person has been treated unfairly, I'm not sure that rises to the level of a public issue. Now in terms of malfeasance, again, is there any, any fact in the record that shows such malfeasance . . . .

. . . .

Let's assume there's a public interest. I'm not going to disagree that there's a public interest. However, you're making a lot of statements in your argument which are totally unsupported by the record. Basically, this is the way I'm looking at this. As far as I can tell, this was done publicly, it was done transparently, it was done a long time ago, it's going to be done again, and I'm having real trouble figuring out where this part . . . of dishonesty or unthinking and a betrayal of the public trust [comes in.]

Lastly, the judge also rejected plaintiff's argument, as unsupported in law, that given its claim of discriminatory treatment, the time requirements for filing its prerogative writs lawsuit must be determined under the relevant provision of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3, which requires a plaintiff to wait six months after filing notice of its tort claim before bringing suit. N.J.S.A. 59:8-8. But even assuming the TCA's applicability, the judge concluded that plaintiff's complaint would still be time-barred since plaintiff waited 113 days to file its tort claim notice, well beyond the ninety-day statutory period for such notice, ibid., and that there were no exceptional circumstances to support relaxation of the statutory deadline, N.J.S.A. 59:8-9.

On appeal, plaintiff raises the following issues:

I. THE TRIAL COURT ERRED IN FINDING THAT THE COMPLAINT WAS TIME-BARRED BY RULE 4:69-6.

II. THE COURT ERRED IN FINDING THAT PLAINTIFF FAILED TO EXHAUST ADMINISTRATIVE REMEDIES.

III. THE COURT ERRED IN DISMISSING THE TORT CLAIMS PORTION OF THE COMPLAINT AS UNTIMELY.

We deem these issues of insufficient merit to warrant discussion in this opinion, Rule 2:11-3(e)(1)(E), and, accordingly, we affirm substantially for the reasons stated by Judge Bookbinder in his comprehensive and cogent written opinion of December 6, 2011,nd in his supplemental oral decision of December 7, 2011.

1 At the time, Medford, N.J., Ordinance 2005-4 required towing applicants to be located within five miles of the township.

2 Specifically, the Ordinance provides:

The governing body of the Township, at the beginning of the assigned period, shall appoint a maximum of five (5) towers to be called by the Police Department on a biweekly basis (first and fifteenth of each month). Each two-week period shall be assigned to the next tower on the primary rotation list. . . . Each tower receiving appointment shall be granted exclusive towing rights during their rotation period.

3 Earlier, on December 22, 2010, plaintiff filed a tort claim notice with defendant challenging the alleged unlawful refusal of defendant to include plaintiff in the 2010-2012 towing rotation.

4 Plaintiff also claimed that defendant unlawfully refused to hold an auction for an unredeemed vehicle on its storage lot, which plaintiff stored there when it was on the interim towing rotation.