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DOCKET NO. A-02423-12T1










October 24, 2014


Argued February 12, 2014 Decided

Before Judges Grall, Waugh and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1368-10.

M. James Maley, Jr. argued the cause for appellants (Maley & Associates, attorneys; Mr. Maley and Erin E. Simone, on the brief).

Eric J. Riso argued the cause for respondent Mantua Township Zoning Board (Marrazzzo & Pratt, P.C., attorneys; Mr. Riso, on the brief).

John Eastlack, Jr. argued the cause for respondent Timothy Zepp (Weir & Partners, LLP, attorneys; Wesley Fenza, on the brief).

Respondent Township of Mantua has not filed a brief.

The opinion of the court was delivered by


Plaintiffs Kenneth R. Jones and Marilynne S. Jones appeal from a summary judgment order that dismissed as untimely their prerogative writs action challenging the decision of the Mantua Township Zoning Board (Board) that their residential neighbor, defendant Timothy J. Zepp, could operate an engine repair business out of his detached garage because the business was a pre-existing, non-conforming use. The Board addressed the issue three times. Following its second decision, plaintiffs timely filed an action in lieu of prerogative writs. The trial court remanded the matter to the Board to consider new information, but the court did not state in its remand order whether it was retaining jurisdiction. Believing that the court had retained jurisdiction, plaintiffs did not timely file a new action in lieu of prerogative writs following the Board's remand decision. Ruling that plaintiffs should have timely filed a new prerogative writs action, the trial court dismissed plaintiffs' complaint on summary judgment. Plaintiffs appealed. We reverse.

These are the facts. Plaintiffs and Zepp live in adjacent homes in a Mantua Township neighborhood zoned for agricultural residential use. Zepp operates an engine repair business, a non-permitted use, out of a detached garage on his property. In 2009, Zepp applied to the Board "for a special exception or variance from the terms of the Zoning Ordinance of Mantua Township." In his application, Zepp explained that his father had started doing machine work in the detached garage in 1978, had operated the business continuously, and that he had taken the business over when his father passed away in 2002. The Board denied the variance but subsequently granted Zepp's request, over plaintiffs' objection, to reconsider his application. Following a hearing in June 2010, the Board determined that Zepp's engine repair business was a pre-existing, non-conforming use that he could continue to operate. The Board memorialized its decision in a July 7, 2010 resolution. Thereafter, the Board denied plaintiffs' request that it reconsider its decision in view of information plaintiffs discovered after the Board's June 2010 hearing. The information included the 1959 and the 1966 General Plan for Mantua Township.

Plaintiffs filed a complaint in lieu of prerogative writs challenging the Board's decision. Several months after commencing the prerogative writs action, plaintiffs filed a motion seeking to have the case remanded to the Board so that it could considered the 1959 and 1966 General Plans. Plaintiffs claimed that those documents demonstrated that the engine repair business Zepp operated on his property was not a pre-existing, non-conforming use. The court granted plaintiffs' motion. The resulting order did not state whether the court was retaining jurisdiction. The order's two substantive paragraphs stated

2. The within matter is hereby remanded to the [Board]. The [Board] is hereby vested with jurisdiction to consider the 1959 and 1966 Mantua General Plans;

3. The [Board] is hereby instructed to make specific findings with respect to the 1959 and 1966 Mantua General Plans[.]

On remand, the Board again determined that Zepp's business was a pre-existing, non-conforming use, a decision it memorialized in a resolution dated October 18, 2011, and published October 23, 2011. Plaintiffs did not file a new prerogative writs action challenging the Board's resolution. Rather, "[s]hortly []after" receiving a copy of the resolution, their attorney contacted the clerk of the judge who had remanded the case to the Board to request a case management conference.1

Four months later, after learning the judge who had remanded the matter had been reassigned, plaintiffs' attorney telephoned "the Clerk's office requesting that a case management conference be scheduled." Counsel averred in a certification that he was "advised there was a delay in assignment of the case and [he] [w]ould hear shortly." Counsel did not name the person with whom he spoke and did not confirm the conversation in a letter. In June 2012, plaintiffs' counsel wrote to the assignment judge and requested a status conference. The assignment judge scheduled and conducted a conference following which the Board filed a summary judgment motion. Plaintiffs cross-moved for leave to file an amended complaint.

In its summary judgment motion, the Board argued that plaintiffs failed to file their appeal within the forty-five day period for review of a zoning board's decision as required by Rule 4:69-6(b)(3). Plaintiffs responded that the judge who remanded the case to the Board had retained jurisdiction. Alternatively, they requested that the court extend the forty-five day period as permitted by Rule 4:69-6(c).

The court granted the Board's summary judgment motion and denied plaintiffs' cross-motion, explaining its decision in an oral opinion delivered from the bench on December 21, 2012. The court concluded that the judge who had remanded the case to the Board did not retain jurisdiction. In so concluding, the court found "notable" that the remand order prepared by plaintiffs' counsel as part of their motion seeking the remand did not include language retaining jurisdiction. The court also concluded that the interests of repose and allowing the matter to come to a final conclusion militated against enlarging the time for plaintiffs to file another prerogative writs action.

The court entered conforming orders the same day. Plaintiffs appealed from the order entering summary judgment and dismissing their complaint with prejudice.2

In this appeal, plaintiffs ask that we reverse the summary judgment dismissing their complaint. Our review of a summary judgment is de novo and we apply the same standard as the trial court under Rule 4:46-2. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In doing so, we view the evidence in the light most favorable to the non-moving party, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), and review the legal conclusions of the trial court de novo, without any special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Applying that standard, we conclude that the Board's summary judgment motion should have been denied.

An action in lieu of prerogative writs challenging a zoning board's decision must be filed no later than forty-five days after the board's decision is published. R. 4:69-6(b)(3). A court may enlarge the forty-five day period "where it is manifest that the interest of justice so requires." R. 4:69-6(c). Under Rule 4:69-6(c), there are "three general categories of cases that qualify for the 'interest of justice' exception: '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.'" 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 Pressler & Verniero, Current N.J. Court Rules, comment 7.3 on R. 4:69-6(c) (2014). These grounds are not exclusive, however, and relaxation "depend[s] on all relevant equitable considerations under the circumstances." Pressler & Verniero, Current N.J. Court Rules, comment 7.3 on R. 4:69-6(c) (2014) (citing Hopewell Valley Citizens' Grp., Inc. v. Berwind Prop. Grp. Dev. Co., 204 N.J. 569, 583 (2011); Cohen v. Thoft, 368 N.J. Super. 338, 346 (App. Div. 2004)). "Balanced against these [] interests . . . is the important policy of repose expressed in the forty-five day rule." Reilly v. Brice, 109 N.J. 555, 559 (1988).

This appeal poses two questions: whether plaintiffs were required to file a new prerogative writs action within forty-five days of the Board's publication of its remand decision and if so, whether the court should have enlarged that time. Applying the foregoing legal principles to the unusual circumstances of this case, we conclude that the questions are interrelated, the Board's summary judgment motion should have been denied, and the trial court should have decided the prerogative writs action on its merits.

We begin by noting that though the remand order could have been clearer, one could reasonably interpret it as a directive by the trial court for the Board to make specific findings as to the 1959 and 1966 Mantua Township General Plans so that the trial court could resolve that issue when deciding the prerogative writs action. It is difficult to discern why, if that were not the case, the trial court thought it necessary to vest the Board "with jurisdiction to consider the 1959 and 1966 Mantua General Plans" and instruct the Board "to make specific findings with respect to the 1959 and 1966 Mantua General Plans."

True, the order did not state that the court retained jurisdiction, but neither did it state that the prerogative writs action was dismissed, and the record discloses no other order or administrative directive dismissing the Law Division action. Absent some document from the court dismissing the Law Division action, it was not unreasonable for plaintiffs to assume that the action had not been dismissed and that the court had retained jurisdiction. That leads us to plaintiffs' counsel's communications with the court, which we do not find to be insignificant.

Accepting plaintiffs' counsel's certified statements as true, as we must under the summary judgment standard, Brill, supra, 142 N.J. at 540, counsel spoke with the remand judge's clerk and requested a case management conference "[s]hortly []after" receiving the Board's decision on remand. Had counsel been told at that time the prerogative writs action had been dismissed, plaintiffs could have timely filed a new action. But even when counsel contacted the clerk's office three or four months later after learning that the judge who remanded the case to the Board had been reassigned, counsel was not informed that the case had been dismissed. Rather, he was told that there "was a delay in assignment of the case and [he] should hear shortly." That message would have reasonably led counsel to believe that the case was still pending and would soon be assigned to a new judge. Thus, even if the prerogative writs action had been dismissed, the absence of a court order or administrative directive so stating and the inadvertent but nevertheless confusing communications from the court's and clerk's offices to plaintiffs' counsel caused counsel to delay taking further action and warranted an enlargement of the forty-five day time restriction for filing a new prerogative writs complaint.

We are well aware of the important policy of repose expressed in the forty-five day rule, but we are not convinced that such policy considerations outweigh the equitable considerations explained above that militate in favor of expanding the forty-five day restriction. Certification of a pre-existing, non-conforming use is generally not the type of land use decision where time is of the essence and delay can become extremely prejudicial. That proposition is evidenced in this case. The Board initially denied Zepp's application on March 3, 2010. Zepp did not appeal, but instead retained new counsel who requested the Board reconsider his application, which it did on June 2, 2010, over plaintiffs' objection that it had already ruled on the issue. Following plaintiffs' appeal and the court's remand on January 21, 2011, the Board did not conduct a hearing until September 20, 2011 and did not adopt a resolution until October 18, 2011. That is not to say that there were not legitimate reasons that explain the timing of those events. But they suggest that the policy considerations underlying repose were not critical considerations in this case.

For the foregoing reasons, we reverse the order granting summary judgment to the Board and remand this matter to the trial court to decide plaintiffs' prerogative writs action.

Reversed and remanded. We do not retain jurisdiction.

1 In a certification, plaintiffs' attorney averred that he believed he confirmed the conversation in a letter, but his file "did not reveal a confirming letter."

2 Although plaintiffs did not specify in their notice of appeal which of the December 21, 2012 orders were being appealed, they later wrote and enclosed the summary judgment order, and they explained in their case information statement that they were appealing the "December 21, 2012 Order granting summary judgment and dismissing [their] complaint with prejudice[.]"