Opinion
DOCKET NO. A-2164-14T4
06-29-2016
YKDB SERVICES, LLC, and DOUGLAS BLAUVELT, Plaintiffs-Appellants, v. BOROUGH OF HAWTHORNE, and JOHN PALLOTTA, ZONING OFFICIAL, Defendants-Respondents.
Matthew Jeon, attorney for appellants. Michael J. Pasquale, attorney for respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2210-12. Matthew Jeon, attorney for appellants. Michael J. Pasquale, attorney for respondents. PER CURIAM
Plaintiffs, YKDB Services, LLC (YKDB) and its owner Douglas Blauvelt, appeal from an October 14, 2014 Law Division order denying their motion to add additional defendants and restore the matter to the active trial calendar. They also appeal from a December 8, 2014 order denying their motion for reconsideration. We affirm.
According to plaintiffs' verified complaint in lieu of prerogative writs (YKDB I), YKDB began operating a "massage center and spa" in the Borough of Hawthorne (Hawthorne) after the Hawthorne Zoning Board of Adjustment (Zoning Board) issued a Certificate of Compliance on November 8, 2011.
On May 15, 2012, police arrested an employee of YKDB and charged her with prostitution after she solicited an undercover detective with a sexual act. The police had been investigating the establishment after receiving reports of prostitution at YKDB. The employee eventually pled guilty to the lesser-included charge of disorderly conduct. The Hawthorne Zoning Officer subsequently issued a notice revoking YKDB's Certificate of Compliance, effectively putting YKDB out of business. On May 25, 2012, plaintiffs filed suit in Passaic County Superior Court and applied for a stay of enforcement of the revocation of the Certificate of Compliance, which was granted.
In her allocution, the employee admitted to regularly engaging in prostitution at YKDB. Additionally, she testified that other YKDB employees engaged in prostitution as well.
On May 8, 2013, the court remanded YKDB I to the Zoning Board for a determination as to whether the Zoning Officer exceeded his authority by revoking YKDB's Certificate of Compliance. The stay entered by the court remained in place.
In the court's May 8, 2013 remand order, the Zoning Board received ninety days to hear and consider the matter. The order provided that plaintiffs "shall not be required to file a formal application and shall not be barred from proceeding by virtue of the time limitation set forth in [N.J.S.A. 40:55D-72(a)]." Once the Zoning Board issued its decision, the order granted each party forty-five days "to decide whether or not to pursue additional relief before the Court." The court retained jurisdiction. Following a hearing, the Zoning Board concluded that that the Zoning Officer did not exceed his authority. On August 19, 2013, the Zoning Board adopted a resolution that included findings of fact and conclusions of law supporting its decision.
More than one year later, long after the forty-five-day window to pursue additional relief provided in the court's May 8, 2013 remand order, plaintiffs moved to amend their complaint in YKDB I to include the Zoning Board as a defendant. A different judge denied the application on October 14, 2014, and denied a motion for reconsideration on December 8, 2014, concluding that plaintiffs would need to file a new action in lieu of prerogative writs. On January 12, 2015, plaintiffs filed their notice of appeal in YKDB I.
On February 4, 2015, the Municipal Council of Hawthorne voted to deny plaintiffs' application for renewal of their license to operate a massage establishment. The next day, the Zoning Officer revoked plaintiffs' Certificate of Compliance reasoning that the stay was no longer in place to preclude municipal action. Plaintiff ceased all business activity on February 5, 2015.
Plaintiffs then filed a second action in lieu of prerogative writs (YKDB II), and sought a stay of the Zoning Officer's action revoking its Certificate of Compliance. On March 12, 2015, the Law Division denied the application. --------
On appeal, plaintiffs argue that the trial court erred in denying plaintiffs' motions to add additional defendants and restore the matter to the active trial calendar. We disagree.
Rule 4:69-6, which governs the time limitations applicable to actions in lieu of prerogative writs, provides, in relevant part:
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 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
. . . .
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.
"The [forty-five-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 (App. Div.) (citation and internal 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 or clarification." Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975) (footnotes omitted).
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 Rule 4:69 to the three cited therein"); See also Pressler & Verniero, 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) — "[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 Valley, 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) (quoting Cohen v. Thoft, 368 N.J. Super. 338, 346-47 (App. Div. 2004)). Both willful concealment of pertinent information and municipal negligence have been found to justify enlargement under the rule. Hopewell Valley, 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 expressed in the forty- five day rule." Borough of Princeton v. Bd. of Chosen Freeholders of Mercer Cnty., 169 N.J. 135, 152-53 (2001) (citation omitted).
Here, the trial court did not abuse its discretion in denying enlargement. Plaintiffs' claim does not qualify under any of the three exceptions, nor is there a potential for injustice in disallowing his claim. Prostitutes openly solicited customers for sex in plaintiffs' business; the public interest is not served by allowing this establishment to remain open. The Zoning Board's decision to shut plaintiffs' business down after an employee solicited an undercover detective for sex was neither arbitrary nor capricious.
Further, plaintiffs' claim that the court's May 8, 2013 remand order waived the forty-five day window to pursue additional relief is belied by the record, as the order specifically states both parties were granted forty-five days to pursue additional relief. Plaintiffs' reliance upon Ghandi v. Cespedes, 390 N.J. Super. 193 (App. Div. 2007), is inapposite. Ghandi deals with R. 1:13-7(a), which provides for dismissal of civil cases for lack of prosecution. In this instance, plaintiffs are attempting to challenge a governmental decision under Rule 4:69-6.
In sum, the trial court did not abuse its discretion in denying enlargement. Plaintiffs' assertions of waiver find no support in the record.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION