No Repose for the Weary: Developers Must Deal With Untimely Appeals of Site Plan Approval

by:    Katherine A. Muscalino

A recent decision from the New Jersey Supreme Court gives developers something new to worry about — appeal of their land use approvals even after the expiration of the 45 day prerogative writ window.  The decision, which appears to deny developers the very repose that this limitation was intended to provide, means that developers remain exposed to lawsuits even after the statutory period lapses.

In Hopewell Valley Citizens’ Group Inc. v. Berwind Property Group Development Co., an applicant obtained preliminary site plan approval for a General Development Plan on May 29, 2008, over the objections of members of the public.  The approval was memorialized on September 25, 2008 and the defendant published notice of the resolution’s approval on September 27, 2008.  On October 1, 2008, the defendant informed the municipality’s Board Secretary/Administrative Officer of its publication of the approval.

Despite this notice, the Board Secretary/Administrative Officer published additional notice of the resolution on October 2, 2008.  Thereafter, an objector contacted the Board Secretary/Administrative Officer and inquired as to the date of the approval’s publication.  The Board Secretary/Administrative Officer replied that the approval had been published October 2.  The objector then used the October 2 date to calculate the 45 day period in which a prerogative writ action could be filed, and filed suit on November 17, 2008.  The suit was thus filed six days after the 45 day period expired from the original publication of the approval, but within 45 days of the second publication.


The Municipal Land Use Law provides that “the period of time in which an appeal of the decision may be made shall run from the first publication of the decision, whether arranged by the municipality or the applicant.”  N.J.S.A. 40:55D-10(i) (emphasis added).  However, Rule 4:69-6 provides that “The Court may enlarge the period of time provided… where it is manifest that the interest of justice so requires.” 

Despite the objectors’ claim that the interests of justice required an enlargement of time because of the environmental impact at stake, both the trial court and the appellate division refused to extend additional time to the objectors.  Relying on Brunetti v. New Milford, 68 N.J. 576 (1975), the lower courts held that time could only be enlarged when one of three issues is present: 1) a novel or constitutional claim; 2) an ex parte determination; or 3) a matter of great public interest.  The Appellate Division additionally noted that had the applicant or the municipality deliberately misled the objector, or had the zoning ordinance itself been invalid, a enlargement of time may have been appropriate.  Concluding that none of these circumstances had occurred, the lower courts refused to enlarge the time for an appeal.

The Supreme Court rejected this analysis, finding that the lower courts applied an overly narrow interpretation of Brunetti and overlooked the applicability of the Appellate Division’s holding in Cohen v. Thoft, 368 N.J.super. 338 (App. Div. 2004).  In Cohen, an applicant published notice of an approval 14 days before the zoning officer published notice of the same approval.  A pro se objector filed an action in lieu of prerogative writs within 45 days of the zoning officer’s publication of the resolution, but 48 days after the defendants had published.  The Appellate Division concluded that because the objector had not slumbered on his rights, “but instead reasonably relied on his communications with the borough official in assuming the [borough official’s notice] was the official notice that triggered the 45 day period for challenging the variance approval,” an enlargement of time was appropriate.  The court also found that there would be no prejudice to the applicant in the three-day delay.

Applying Cohen to the Hopewell Valley case, the Court held that the objector “was entirely reasonable in calling the Board Secretary for information…  In response, [the Borough Secretary/Administrative Official] inadvertently misled [the objector] regarding the date from which the forty-five day limit had to be calculated.  To be sure, [the applicant] was blameless, but so was [the objector], which cannot be said to have slumbered on its rights.  Further, the six-day delay was such that defendants could not have suffered prejudice sufficient to warrant the barring of this litigation.  Indeed, this is the exact constellation of circumstances that Rule 4:69 was intended to address.”  Apparently, the Court does not consider the $10,000 spent by the applicant between the approval and the objector’s complaint, or the pending legal expenses of litigation, as prejudicial.

This opinion should give applicants considerable pause, as it denies them the very repose the MLUL 45 day requirement was intended to provide.  Instead, they remain exposed to some possibility of suit even after the statutory period lapses, in the event that their approval has been published multiple times.

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