By: Henry T. Chou, Esq.
The New Jersey Supreme Court has revisited the question of whether a plaintiff is entitled to an enlargement of time beyond the 45-day period for filing a prerogative writ action where there is confusion over the date on which public notice of a land use approval is published.
In Hopewell Valley Citizens' Group, Inc. v Berwind Group Development, issued on January 12, 2011, objectors filed a prerogative writ action challenging the Planning Board's grant of preliminary site plan approval for a 359.8-acre development in Hopewell Township. Early in the litigation, it was determined that the objectors' action was filed six days late due to their reliance upon the Planning Board Secretary's mistaken representation as to when public notice of the approval was published, i.e., the date on which the 45-day period for filing prerogative writ actions began to run under the Court Rules. As a result, the trial court dismissed the objectors' action as untimely and the Appellate Division affirmed the trial court's decision.
The Supreme Court granted certification of the matter and reversed the lower courts' decisions, holding that the "interests of justice" warranted an expansion of time for the objectors to file a prerogative writ action because the late filing resulted directly from their reliance upon the Planning Board Secretary's mistaken representation concerning the publication date of the notice of approval.
In so holding, the Court analogized the case to its 2004 decision in Cohen v. Throft, in which it similarly allowed an objector to pursue a prerogative writ action that was filed three days late because the objector had reasonably relied upon the zoning officer's erroneous representation concerning the publication date of the notice of approval. In Cohen, the Court determined that an enlargement of time “in the interests of justice” need not always fall within the three previously specified exceptions involving (1) substantial and novel constitutional questions; (2) informal or ex parte determinations made by administrative officials which do not involve “a sufficient crystallization of a dispute along firm lines to call forth the policy of repose” and where the right to relief depends upon determination of a legal question; and (3) an important public rather than a private interest which requires adjudication or clarification. Thus, in Cohen, the Court essentially expanded the definition of "interests of justice" and made the doctrine more flexible in its application.
The Court's decision in the Hopewell solidifies its previous holding in Cohen and confirms that the definition of "interests of justice" has been expanded to include situations involving a plaintiff's reasonable reliance upon the mistaken representations of a municipal employee concerning the publication date of a notice of approval. Applicants and objectors before land use boards should take heed and ensure that the issue of publication of notices of approval is given special attention.