Opinion
DOCKET NO. A-0873-13T4
10-19-2015
FULTON'S LANDING, INC., Plaintiff-Appellant, v. BOROUGH OF SAYREVILLE, MAYOR AND COUNCIL, AND SAYREVILLE PLANNING BOARD, Defendants-Respondents.
Timothy P. Beck argued the cause for appellant (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, attorneys; Mr. Beck, on the briefs). Nicholas Racioppi, Jr., argued the cause for respondents (Riker, Danzig, Scherer, Hyland & Perretti, attorneys; Mr. Racioppi and Marc D'Angiolillo of counsel and on the brief; Jonathan M. Sandler and Arjun Shah, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Kennedy, and O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-5034-11. Timothy P. Beck argued the cause for appellant (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, attorneys; Mr. Beck, on the briefs). Nicholas Racioppi, Jr., argued the cause for respondents (Riker, Danzig, Scherer, Hyland & Perretti, attorneys; Mr. Racioppi and Marc D'Angiolillo of counsel and on the brief; Jonathan M. Sandler and Arjun Shah, on the brief). PER CURIAM
Plaintiff, Fulton's Landing, Inc., appeals from two Law Division orders which, together, dismissed its complaint against defendants with prejudice. The first order was entered by the Law Division on June 10, 2013, and dismissed counts one through nine of plaintiff's complaint in lieu of prerogative writs, which sought a declaration that Ordinance No. 160-11 adopted by the Borough of Sayreville (Borough) was invalid, arbitrary, capricious, and violated plaintiff's due process and equal protection rights. The second order, entered on September 9, 2013, granted summary judgment to defendants, dismissing the remainder of plaintiff's complaint, which sought monetary damages under 42 U.S.C. § 1983, N.J.S.A. 10:6-2, and a common-law claim asserting that defendants had unlawfully created a "cloud of potential taking" upon plaintiff's property.
As we explain in more detail later in this opinion, this litigation was commenced after the Borough adopted Ordinance 160-11 which rezoned plaintiff's property from one in which residential housing was a permitted use, to one in which only office/business uses were permitted. Within months after this litigation commenced, the Borough adopted Ordinance 177-12, a substantively identical ordinance to Ordinance 160-11, without personal notice to plaintiff.
One year after the passage of the new ordinance, the Borough's attorney sent correspondence to plaintiff's counsel demanding withdrawal of the complaint and asserting that Ordinance 177-12 rendered Ordinance 160-11 moot. Defendants thereafter moved to dismiss the complaint for mootness. The motion judge determined that Ordinance 177-12 superseded Ordinance 160-11, and opined that plaintiff was out of time to challenge Ordinance 177-12. He then entered an order dismissing those counts of the complaint seeking a declaration that Ordinance 160-11 was invalid. Later, the judge dismissed on summary judgment the remaining counts in the complaint that sought damages.
On appeal, plaintiff raises the following arguments:
POINT I: DEFENDANTS HAD NOT ESTABLISHED THEY WERE ENTITLED TO JUDGMENT OF DISMISSAL AS A MATTER OF LAW AND THE LOWER COURT'S ORDERS MUST BE REVERSED.
POINT II: THE DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT AS MOOT DID NOT ESTABLISH THAT ORDINANCE 117-12 REPEALED ORDINANCE 160-11 OR RENDERED IT MOOT AS A MATTER OF LAW, AND THE MOTION SHOULD HAVE BEEN DENIED UNDER THE R. 4:46 STANDARD.
A. ORDINANCE 177-12 DID NOT REPEAL ORDINANCE 160-11.
B. THE CHALLENGED SED-2 ZONE WAS CREATED SOLELY THROUGH ORDINANCE 160-11 AND THE OTHER ENACTMENTS IDENTIFIED IN THE COMPLAINT.
C. THE INVALIDATION OF ORDINANCE 160-11 WOULD ALSO INVALIDATE ANY 160-11 TERMS REITERATED IN ORDINANCE 177-12.
POINT III: AS DEFENDANTS' FAILURE TO PROVIDE PERSONAL NOTICE OF ORDINANCE 177-12 TO PLAINTIFF VIOLATED N.J.S.A. 40:55D-62.1 AND RENDERED THE ORDINANCE INEFFECTIVE AND VOID AS TO PLAINTIFF, THE COURT ERRED IN FINDING THE INVALID ORDINANCE REPEALED THE CHALLENGED ORDINANCE AND RENDERED THE COMPLAINT MOOT.
A. PERSONAL NOTICE WAS REQUIRED AS ORDINANCE 177-12 WAS NOT THE PRODUCT OF GENERAL REEXAMINATION.
B. THE ORDINANCE'S APPLICATION TO PLAINTIFF'S PROPERTY ONLY REQUIRED PERSONAL NOTICE.
C. PERSONAL NOTICE WAS REQUIRED DUE TO THE ACTIVE LITIGATION.
POINT IV: THE COURT ERRED IN DISMISSING THE DAMAGES COUNTS.
For the reasons stated hereinafter, we reverse the orders at issue and we remand the action to the Law Division for further proceedings consistent with this opinion.
I.
In reviewing a ruling on a motion to dismiss, we apply a plenary standard of review. "The court examines the legal sufficiency of the facts alleged on the face of the complaint, doing so with liberality, and accords every reasonable inference to the plaintiffs." Borough of Seaside Park v. Comm'r of N.J. Dep't of Educ., 432 N.J. Super. 167, 200 (App. Div.) (citing Printing Mart-Morristown v. Sharp Elecs., 116 N.J. 739, 746 (1989)), certif. denied, 216 N.J. 367 (2013). The "essential test," Green v. Morgan Props., 215 N.J. 431, 451 (2013), is "whether a cause of action is 'suggested' by the facts." Printing Mart, supra, 116 N.J. at 746 (quoting Velantzas v. Colgate-Palmolive, 109 N.J. 189, 192 (1988)). "[A] reviewing court 'searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Ibid. (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)).
We are not concerned with the "ability of plaintiffs to prove the allegation contained in the complaint." Ibid. (citing Somers Constr. Co. v. Bd. of Educ., 198 F. Supp. 732, 734 (D.N.J. 1961)). Instead, "plaintiffs are entitled to every reasonable inference of fact[,] . . . [and t]he examination of a complaint's allegations of fact . . . should be one that is at once painstaking and undertaken with a generous and hospitable approach." Green, supra, 215 N.J. at 452 (internal quotation marks omitted) (quoting Printing Mart, supra, 116 N.J. at 746).
Notwithstanding this "indulgent standard," id. at 456, "[a] pleading should be dismissed if it states no basis for relief and discovery would not provide one." Rezem Family Assocs. v. Borough of Millstone, 423 N.J. Super. 103, 113 (App. Div.) (citation omitted), certif. denied and appeal dismissed, 208 N.J. 366 (2011). In those "rare instances," Smith v. SBC Commc'ns, 178 N.J. 265, 282 (2004), "[a] motion to dismiss pursuant to Rule 4:6-2(e) ordinarily is granted without prejudice." Hoffman v. Hampshire Labs, 405 N.J. Super. 105, 116 (App. Div. 2009) (citing Smith, supra, 178 N.J. at 282).
Our review of the trial court's dismissal order in this context is de novo. A reviewing court "appl[ies] a plenary standard of review from a trial court's decision to grant a motion to dismiss and it owe[s] no deference to the trial court's conclusions." Gonzalez v. State Apportionment Comm'n, 428 N.J. Super. 333, 349 (App. Div. 2012) (alteration in original) (internal citation and quotation marks omitted), certif. denied, 213 N.J. 45 (2013).
Similarly, we review a grant of summary judgment de novo and apply the same standard under R. 4:46-2(c) that governs the motion court. Oyola v. Xing Lan Liu, 4 31 N.J. Super. 493, 497 (App. Div. 2013) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995)). Accordingly, we view all the evidentiary materials that were before the Law Division on the motion, including the facts and inferences therefrom, in the light most favorable to the non-moving party. Estate of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J. 369, 374 (2010).
Applying these well-established principles, we conclude that the Law Division's dismissal of plaintiff's complaint in its entirety was premature, overbroad, and, in certain respects, based on a mistaken application of the law. We now turn to the specific components of our conclusion.
II.
What follows are the facts, viewed from a perspective most favorable to plaintiff.
Plaintiff owns approximately 100 acres of land on Main Street in Sayreville, identified as Lot 1, Block 249 and Lot 1, Block 250 on the Official Tax Maps of the Borough. At the time plaintiff acquired the land, the Borough's Master Plan — reexamined in December 2004 pursuant to N.J.S.A. 40:55D-89 — designated plaintiff's property as a PD-7 zone, where "residential, single-family detached planned development" was permitted.
In January 2004, plaintiff applied to the Sayreville Planning Board (Board) for preliminary major subdivision approval for 207 single-family homes to be built on its property. When the Board refused to schedule a hearing on plaintiff's application, it filed suit and the matter was ultimately remanded to the Board for a hearing.
On January 10, 2007, the Board voted to deny plaintiff's application, despite the fact that plaintiff was at that time providing additional information pertinent to the application requested by Board representatives. Plaintiff subsequently continued its efforts to secure municipal approval for the project.
On March 2, 2011, the Board adopted a "Supplemental Modification to the Reexamination Report of the Master Plan and Land Development Regulations." This report assessed "the feasibility of expanding the limits of the Special Economic (SED) District on Main Street . . . which is Lot 1 in Block 249 as well as Lot 1 in Block 250." The zoning change purportedly was reflective of "the overall goals and objectives of the Borough in light of . . . the National Recession of 2008 and the bursting of the housing bubble in Middlesex County and New Jersey." The Board's recommendation affected only plaintiff's property.
On April 1, 2011, the Borough introduced Ordinance 160-11, expanding the Special Economic District, as set forth in the Supplemental Master Plan. Ordinance 160-11 did not permit residential use in the new SED-2 zone, and, further, in section 26-84.8(e) provided that:
It shall be the responsibility of the developer to set aside 20% of the site to be dedicated to the Borough for park and open space uses including pedestrian and bicycle trails as well as buffer requirements. The intent is an open space corridor and buffer of at least 200 feet wide which should be established along the western and southern boundary lines of Lot 1 in Block 249. The open space area would connect residential properties on Main Street with Kennedy Park, directly to the South.The municipality adopted the ordinance on May 23, 2011, despite plaintiff's opposition and formal protest.
On July 8, 2011, plaintiff filed a complaint in lieu of prerogative writs seeking damages and a declaration that Ordinance 160-11 and the Supplemental Modification to the Reexamination Report were invalid. Defendants answered the complaint and the Law Division embarked upon a series of pretrial conferences addressing bifurcation, discovery, and like issues.
In the midst of this litigation, on February 1, 2012, at the request of the Board, a professional planner submitted to the Borough a four-page "Proposed Amendment to the Master Plan" setting forth some minor substantive edits and clarifications to its text. This amendment, like Ordinance 160-11, affected only plaintiff's property. Substantively, the planner suggested that the amendment include edits to the text of page 111-17, to wit: "the westerly Lot 1 in Block 249 is recommended to have a substantial buffer or dedicated open space corridor at least along the westerly boundary line to further insulate the adjacent residential uses." The planner also suggested deleting the text from the "Land Use Study Areas and Recommendations" that read, "Finally, it is recommended that the area to the west of the future road should be rezoned to permit a mix of what would be termed 'transitional uses.' These uses would include cluster single family residential development with a common open space component, recreational facilities, senior citizen housing and neighborhood type office uses fronting on the Lakeview Extension Road."
On February 5, 2012, the Borough published a Notice of Public Hearing concerning a proposed Amendment to the Master Plan, and on February 13, 2012, Ordinance 177-12 was introduced and later was adopted on February 27, 2012. When it first published public notice of the proposed ordinance adopting the amendment, the Borough did not provide personal notice to plaintiff. Moreover, defendants did not at that time amend their discovery responses to advise of the new ordinance, and did not advise the Law Division during the many conferences that followed.
Ordinances 160-11 and 177-12 are identical except that section 26-84.9(e) of Ordinance 177-12 provides:
It shall be the responsibility of the developer to establish a buffer area of at least 200 feet in width along the western and southern boundary lines of Lot 1 in Block 249. Alternatively, a set aside totaling at least 20% of the lot area may be dedicated to the bicycle trails in a location that serves as a buffer and accommodates a connection to residential properties on Main Street with Kennedy Park, directly to the south.
This provision differs from the section in Ordinance 160-11 in that: (1) the order of the first and second sentences is switched; and (2) the two-hundred foot buffer is made mandatory rather than a suggestion.
While Ordinance 177-12 did not specifically refer to Ordinance 160-11, it contained a repealer clause providing that:
All other ordinances in conflict or inconsistent with this ordinance are hereby repealed, to the extent of such conflict or inconsistency. In the event of any inconsistencies between the provisions of this Ordinance and any prior ordinance of the Borough, the provisions hereof shall be determined to govern. All other parts, portions and provisions of the Ordinances of the Borough are hereby ratified and confirmed, except where inconsistent with the terms hereof.
Defendants argue that Ordinance 177-12 served to repeal Ordinance 160-11 in its entirety, rendering plaintiff's complaint moot, and that the mere passage of time insulates it from attack. As noted above, for over one year following the adoption of Ordinance 177-12, defendants continued to engage plaintiff in litigation over its substantive challenges to Ordinance 160-11. Case management conferences were conducted, and orders entered, on August 13, 2012, December 20, 2012, and January 29, 2013. These orders included the bifurcation of certain counts of the complaint, amendments to witness lists, the provision of expert reports, and other issues concerning discovery management.
On February 18, 2013, consistent with its obligations under the Case Management Orders, plaintiff served two expert reports on defendants: the Otteau Summary Market Study Report and a planning report authored by Paul Grygiel, AICP, PP. On March 27, 2013, defendants sent plaintiff correspondence demanding that plaintiff withdraw the complaint. The letter provided, in part:
Ordinance No. 177-12, adopted by the Borough in February, 2012, supersedes Ordinance No. 160-11 and to the extent that the complaint and Mr. Grygiel's Planning Report ("Grygiel Report") are contingent upon Ordinance No. 160-11, they are both moot and must be withdrawn.
Plaintiff refused to withdraw the complaint and stated, in part:
To the extent you are suggesting that Plaintiff is required to amend its ComplaintIt does not appear from the record that a Case Management Conference was conducted on this issue. Less than a month later, defendants moved to dismiss plaintiff's complaint as moot and to strike plaintiff's expert market study report.
to reflect a challenge to Ordinance No. 177-12 is form over substance. The arbitrary, capricious and unreasonable zoning change that was implemented by Ordinance No. 160-11 and the Supplemental Modification is simply carried forward via the new ordinance. However, Plaintiff will seek leave of court to do so, if necessary.
I believe that scheduling a Case Management Conference to address all of these issues would be appropriate.
During oral argument on the motion, the following exchange took place between the motion judge and plaintiff's attorney:
MR. CRESITELLO: The bottom line is, is it's our position, whether it was 160-11 or 177-12, it's still arbitrary, capricious and unreasonable. There is no valid purpose —
THE COURT: But there's no challenge to 177-12.
MR. CRESITELLO: Well, but that's the point. I mean, we're asking under the case law that we've submitted that we be permitted to amend the complaint. Essentially, the — the —
THE COURT: But even if I allowed you to amend the complaint, you're still — you still got the 45-day rule issue. Why did you sit and wait?
MR. CRESITELLO: Well, Judge, —
THE COURT: And the 45 days is going to apply to the date you make the application for the amendment. And if I'm sitting here, you say, well, we want to amend the complaint, if it was, you know, 30 days after they amended — they adopted the ordinance, or even, you know, —
MR. CRESITELLO: Well, this comes back -
THE COURT: — two months after they adopted the ordinance.
MR. CRESITELLO: Judge, I can't answer — I mean, we — we've made an inquiry of our client as to why certain things weren't done. We don't know. I don't have an answer for the Court.
Respectfully, there was discovery, there were documents exchanged in a packet that I believe we received sometime in the middle of February. There was a resolution from the planning board indicating that the master plan and then, subsequently, the ordinance was being adopted. We were in the middle of this litigation. We didn't get a copy of the ordinance; it wasn't provided. And I guess, technically, they don't have to provide that to us.
But we would argue that I think, you know, under the — under the case law, as well as certain principles that are specific to this case, the 45 days could be set aside. We should be allowed to amend our complaint. It relates back to the exact same challenge of 160.
. . . .
THE COURT: I don't have a motion to amend the complaint.
The motion judge concluded that Ordinance 177-12 was adopted as the result of a periodic reexamination of the Borough's Master Plan and that therefore, plaintiff was not entitled to personal notice under N.J.S.A. 40:55D-62.1. The judge entered an order granting defendants' motion to dismiss counts one through nine of the complaint as moot, but denied defendants' motion to dismiss the remaining counts of the complaint, explaining, in part:
Ordinance 160-11 has been essentially repealed. The way the ordinance is structured, the language used is 'superseded,' but the effect is to repeal 160-11.
. . . .
That's the superseding ordinance which voids — essentially repeals 160-11. And, therefore, the relief sought in the complaint is moot as it relates to counts one through nine.
On June 28, 2013, defendants moved for summary judgment on the remaining counts of the complaint, and plaintiff cross-moved for reconsideration of the earlier order, explicitly raising the lack of personal notice of adoption of the second ordinance. Plaintiff opposed summary judgment on the basis that discovery was not complete, under the prior case management orders. On September 9, 2013, the motion judge granted defendants' motion and denied the cross-motion, explaining, in part:
One of the problems that I had is we have a statement of undisputed facts that have been submitted with the moving papers for the defendants, which have not been disputed by
the plaintiffs in this matter and I have to accept those as the facts.
. . . .
As far as the federal violations that are alleged, there's no specificity that's been set forth in the complaint that is, in fact, required. The only thing that is alleged in general terms are issues of taking without compensation. That's an issue that I had already dismissed. There is no question that with reference to the zoning that has been put in place that the plaintiffs allege a deprivation that there are uses that are permitted. It has not been zoned into inutility. There is no question about that. It may not be the uses that the plaintiff prefers or the reason for which the plaintiff purchased the property for development rights or reasons . . . but that's not the issue. So there's no taking involved.
. . . .
There are no other allegations that can support a violation of a 1983 action, including classification of the plaintiff itself.
III.
Plaintiff initially argues that Ordinance 177-12 carried forward, rather than superseded, Ordinance 160-11 and therefore, the substantive challenges to 160-11 were not rendered moot by the adoption of 177-12. Alternatively, plaintiff argues that the 2012 Proposed Amendment to the Master Plan that resulted in the adoption of Ordinance 177-12, was, in fact, an amendment to a zoning ordinance, and personal notice was required under N.J.S.A. 40:55D-62.1. Plaintiff argues that defendants' failure to provide statutory notice voids Ordinance 177-12 and Ordinance 160-11, consequently, is not moot.
Finally, plaintiff argues that even if not required by statute, fairness dictates that defendants' failure to inform plaintiff of actions taken to significantly alter the course of the litigation — in addition to other considerations under the applicable case law — requires relaxation of the forty-five day rule, and plaintiff should be permitted to amend its complaint.
We conclude that the motion judge erred in dismissing plaintiff's complaint. Moreover, the judge erred in denying plaintiff the opportunity to amend its complaint to challenge Ordinance 177-12. In reaching this conclusion, we are mindful of the generous and indulgent approach required when considering motions that result in the sudden death of plaintiff's cause of action and that dismissals "should ordinarily be without prejudice and that plaintiffs generally should be permitted to file an amended complaint to cure the defects in their pleading." Nostrame v. Santiago, 213 N.J. 109, 128 (2013).
Plaintiff argues that the Law Division erred in concluding that Ordinance 177-12 mooted Ordinance 160-11 because 177-12 is merely an extension of 160-11 as evidenced by the fact that "[t]he ordinance's language is virtually identical to Ordinance 160-11[;] [t]he permitted uses are identical[;] [t]he sports and recreation health facilities definition in [section] 26-84.8(b)(3) even contain the same stylistic bullets (diamonds) and permitted sporting fields and facilities[,]" etc.
The distinction between the effect of an ordinance that completely repeals and then readopts a prior ordinance, and one that merely amends the prior ordinance, arises as a consequence of the "time of decision" rule. If, at the time of decision, a court is considering an ordinance that completely repealed a prior ordinance, all substantive and procedural challenges to the prior ordinance are rendered moot. However, if the ordinance under review did not repeal, but rather, simply amended the prior ordinance, then the prior ordinance remains in effect and challenges to it are not mooted.
The time of decision rule holds that a reviewing court must apply the law in effect at the time of its decision, not the law that was in effect when the issues were originally presented. Manalapan Realty v. Twp. of Manalapan, 140 N.J. 366, 378-79 (1995). Clearly, municipalities may adopt changes to a zoning ordinance at any time. Eastampton Ctr., LLC v. Planning Bd. of Twp. of Eastampton, 354 N.J. Super. 171, 196-97 (App. Div. 2002). When a new ordinance constitutes a complete reenactment of a previously adopted ordinance (even with some changes), the new ordinance supersedes and replaces the old ordinance, "and, under the time of decision rule, its substantive provisions [] control." Campbell v. Borough of North Plainfield, 404 N.J. Super. 337, 348-49 (App. Div. 2008).
Here, it is clear that Ordinance 177-12 is an exact duplicate of Ordinance 160-11. Relying on the repealer clause in Ordinance 177-12 — which repeals all previous actions inconsistent with the ordinance — plaintiff submits that this fact renders Ordinance 160-11 in full effect to the extent that it is consistent with the terms of 177-12. Defendants aver that because the two ordinances are in haec verba, one can reach no other conclusion than that Ordinance 177-12 is a reenactment of Ordinance 160-11 and therefore superseded Ordinance 160-11, rendering it void.
In Campbell, supra, 404 N.J. Super. 337, we confronted a similar issue. There, North Plainfield had adopted an ordinance as part of a periodic review of its Master Plan that created a new zoning district. Id. at 344. The plaintiff then filed an action in lieu of prerogative writs challenging the ordinance on various procedural and substantive grounds. Ibid. During the pendency of the suit, North Plainfield adopted a second ordinance which restated the provisions of the first ordinance, but also contained some modifications in the permitted density and setbacks in the new zone. Id. at 348.
We rejected the defendants' argument that the second ordinance constituted a complete reenactment and readoption of the first ordinance, thereby mooting any procedural or substantive irregularities in the first ordinance. Id. at 349-50. We explained that no one on the Borough Council expressed a belief that the second ordinance did anything other than incorporate a few substantive changes to the new zone already created and established in accordance with the first ordinance; that the second ordinance was adopted without extended debate regarding the wisdom of creating a new zoning district; and that the language of the second ordinance clearly expressed that it was "amending" the prior ordinance. Id. at 350.
The facts in Campbell are similar to those in the case before us. The "amendment" to Ordinance 160-11 was occasioned by the comments of a planner respecting the need to establish a buffer area within the new zone; no one suggested that the planner urged reconsideration of the SED-2 Zone itself; the language employed in the ordinance itself is amendatory; and adoption of the new ordinance was not preceded by an extended debate about the desirability of creating a new zoning district. Therefore, we conclude that the Law Division erred in determining that the new ordinance completely "superseded" the older ordinance on the facts before us, rendering moot any challenges to the older ordinance.
Given this conclusion, it is also clear that, for the same reasons, the Borough was required to serve plaintiff with personal notice of the adoption of Ordinance 177-12 under N.J.S.A. 40:55D-62.1.
The Proposed Amendment to the Master Plan that resulted in the adoption of Ordinance 177-12 did not arise from a "broad-based review of a municipality's entire zoning scheme," but rather, was, at best, an isolated effort to edit the prior ordinance that unfortunately evaded the personal notice requirements of the statute.
The motion judge concluded that Ordinance 177-12 was adopted as the result of a periodic reexamination of the Borough's master plan and that, therefore, plaintiff was not entitled to personal notice. We disagree.
N.J.S.A. 40:55D-62.1 provides:
Notice of a hearing on an amendment to the zoning ordinance proposing change to the classification or boundaries of a zoning district, exclusive of classification or boundary changes recommended in a periodic general reexamination of the master plan by the planning board pursuant to section 76 of P.L. 1975, c. 291 (C. 50:55D-89), shall be given at least 10 days prior to the hearing by the municipal clerk to the owners of all
real property as shown on the current tax duplicates, located, in the case of a classification change, within the district and within the State within 200 feet in all directions of the boundaries of the district.
Thus, personal notice is not required where zoning changes are made as the result of a master plan reexamination pursuant to N.J.S.A. 40:55D-89, which calls for reexamination of the master plan at least every ten years. N.J.S.A. 40:55D-62.1. The Legislature determined that individual notice is rendered superfluous when the rezoning is consistent with the recommendations from the periodic review of the master plan. Gallo v. Mayor and Twp. Council of Lawrence Twp., 328 N.J. Super. 117, 126 (App. Div. 2000). This is because the nature of such a review is so widely publicized, the process can hardly be deemed secretive. Ibid.
In Gallo, the township planning board began reexamination of its master plan in 1992 and proceeded to conduct work meetings pursuant to the reexamination through 1995. Id. at 119-20. In 1997, following the adoption of the new master plan, the planning board proposed an ordinance necessary to implement the plan, but did not provide personal notice under N.J.S.A. 40:55D-62.1. Id. at 121-22. Because the master plan reexamination extended in excess of two years, during which time numerous work meetings, public hearings, and general notice was provided to the entire municipality, we concluded that the reexamination process provided for substantial public input, public debate, and feedback, which obviated the need for personal notice. Id. at 123.
Finally, Gallo distinguished between isolated zoning changes and zoning changes which result from a broad-based review of the municipality's entire zoning scheme. Id. at 125. In doing so, we noted that the Legislature recognized the difference between an amendment to a zoning ordinance, and an adoption of a reexamined revised master plan resulting in enabling ordinances to implement the revisions therein. Ibid.
Our analysis turns on whether the Township intended to utilize a master plan review under N.J.S.A. 40:55D-89 to adopt an amendment to a zoning scheme as part of a larger undertaking a "broad-based review of a municipality's entire zoning scheme." Ibid. Unlike Gallo, Ordinance 177-12 was not adopted at the conclusion of a lengthy, public periodic reexamination of the master plan. The Board conducted a periodic reexamination of the master plan in 2011, more than six years after its previous reexamination in 2004. That reexamination resulted in public hearings, an application to contest the proposed ordinance by plaintiff, and ultimately in the adoption of Ordinance 160-11, which served as the basis of plaintiff's complaint. By contrast, the amendment that followed can hardly be deemed "broad based." Rather, it addressed two minor textual edits and deleted one sentence from the open space requirement section of Ordinance 160-11.
Under these circumstances, we conclude that the Borough was obligated to serve personal notice of its consideration of the ordinance upon plaintiff, and that its failure to do so renders the ordinance potentially void and invalid. See Riggs v. Long Beach, 109 N.J. 601, 611 (1988) (emphasis added) (providing that "a court may declare an ordinance invalid if in enacting the ordinance the municipality has not complied with the statute.") It plainly appears that the Borough undertook merely to adopt an amendment to a zoning ordinance, but circumvented the personal service requirement under N.J.S.A. 40:55D-62.1. While generally, a "[f]ailure to provide proper notice deprives a municipal zoning board of jurisdiction and renders null any subsequent action[,]" Rockaway Shoprite Assocs., Inc. v. City of Linden, 424 N.J. Super. 337, 351 (App. Div. 2011), nullification of the ordinance is not the only remedy available.
In Rockaway, the court recognized that there was no authority directly on point, and instead relied on the recommendations set forth in Patrick J. Rohan, 8-52 Zoning and Land Use Controls § 52.08(2) (2011) to void the ordinance at issue in that case. Id. at 352. These recommendations are not controlling and in fact they explain that the court faces a major challenge when it is required to fashion a remedy for a procedurally defective ordinance.
Given the facts of this case, we refrain from nullifying Ordinance 177-12 and remand the matter to the Law Division with instruction that plaintiff is granted leave to amend the complaint to assert the same challenges to that ordinance, as plaintiff initially raised to Ordinance 160-11. We find this remedy to be consistent with the principles underlying the court rule governing expansion of the forty-five day limit, and avoids needlessly voiding an ordinance challenged only by plaintiff as the sole landowner affected thereby.
R. 4:69-6, which governs the time limitations applicable to actions in lieu of prerogative writs, provides in relevant part as follows:
(a) General Limitation. No action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing or relief claimed, except as provided by paragraph (b) of this rule.
(b) Particular Actions. No action in lieu of prerogative writs shall be commenced
. . . .
(3) 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 disproving 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 . . . .
. . . .
(c) Enlargement. The court may 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.
[R. 4:69-6.]
"The 45-day time frame contained within R. 4:69-6 is designed to give an essential measure of repose to actions taken against public bodies." Tri-State Ship Repair & Dry Dock Co. v. City of Perth Amboy, 349 N.J. Super. 418, 423-24 (App. Div.) (internal citation and quotation marks omitted), certif. denied, 174 N.J. 189 (2002). Three general categories qualify for enlargement in the interest of justice: "(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." Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975).
This list, however, is not exclusive. Hopewell Valley Citizens' Grp. v. Berwind Prop. Grp. Dev., 204 N.J. 569, 583-84 (2011) (clarifying that "Brunetti was never intended to limit the categories of exceptions to R. 4:69 to the three cited therein"); Pressler, Current N.J. Court Rules, comment 7.3 on R. 4:69-6(c) (2016) ("[T]hese grounds for relaxation are not exclusive, relaxation depending on all relevant equitable considerations under the circumstances.")
Rather, the reference in paragraph (c) that "[t]he court may enlarge the period of time," has been construed as conferring discretionary authority upon a court "when it perceives a clear potential for injustice." Hopewell, supra, 204 N.J. at 578. "Even if a case involves purely private interests, a court may 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) (citing Cohen v. Thoft, 368 N.J. Super. 338, 347 (App. Div. 2004)). Both willful concealment of pertinent information and municipal negligence have been found to justify enlargement under the rule. Hopewell, supra, 204 N.J. at 580-83. In determining whether enlargement is appropriate, a court must weigh the public and private interests that favor an enlargement against "the important policy of repose express in the forty- five day rule." Borough of Princeton v. Bd. of Chosen Freeholders of Mercer Cnty., 169 N.J. 135, 152-53 (2000).
Applying these principles here, it is plain that Ordinance 177-12 is identical in substance to Ordinance 160-11, and defendants were, without question, on notice of plaintiff's arguments challenging the substance of 160-11. Plaintiff presently seeks to apply those same arguments to the new ordinance. Consequently, enlargement of the forty-five day rule would not interfere with the rule's objective to afford repose to the municipality. See Comm. of Pet'rs for Repeal of Ord. No. 522 (2013) of West Wildwood v. Frederick, 435 N.J. Super. 552, 562 (App. Div. 2014) (permitting enlargement of the forty-five day rule where "prejudice to the Borough was minimal or non-existent" as "[p]laintiff expressed its inten[t] to exercise [its] right to challenge [the] ordinance, by filing a petition of protest putting the Borough on notice" and "[the] complaint was filed before the bond sale was effectuated, stripping the Borough of a claim of reliance on the period of repose") (alterations in original) (internal citation and quotation marks omitted).
Further, we note that even if defendants were correct in their argument that the Borough was not obligated to serve personal notice of the pendency of the new ordinance before the council, the statute would not have excused counsel from its duty to the court, client, and adversary, not to expend time and resources belaboring a point that defense counsel knows to be no longer relevant, no less for over a year. In New Jersey, counsel has a complete duty of candor to both the court and an adversary, which is violated when counsel "fail[s] to disclose to the tribunal a material fact knowing that the omission is reasonably certain to mislead the tribunal[.]" Brundage v. Estate of Carambio, 195 N.J. 575, 591 (2008) (quoting Pressler, Current N.J. Court Rules, Rules of Professional Conduct 3.3(5) at 534 (2016)).
We do not mean to suggest that the Borough or counsel intended to mislead the court or counsel respecting the adoption of the new ordinance or its effect on this litigation. That said, we are concerned with the obligations of the parties to promptly advise both the court and their adversaries about issues as they arise that impact a case, especially where, as here, the court is actively case-managing the matter.
Finally, we note defendants' arguments in support of the motion judge's rulings include judicial estoppel, and other technical objections. We have determined that these arguments, while thoughtful and earnest, require neither another conclusion on appeal nor extensive consideration on this record.
Accordingly, we reverse the orders at issue here, and remand this matter to the Law Division for entry of an order permitting plaintiff to amend the complaint within twenty days to include Ordinance 177-12, and for further proceedings consistent with this opinion. Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
Because the motion judge subsequently granted summary judgment striking plaintiff's claims for damages based in part, on the earlier order striking the challenge to the ordinance, we reverse that order, as well. We also take note of plaintiff's argument that it was still involved in discovery pursuant to case management orders. We do not preclude defendants from renewing their motion for summary judgment, however, and we express no opinion on the merits of plaintiff's damage claims. --------
CLERK OF THE APPELLATE DIVISION