Casella Farms Homeowners Association, Inc. v. Mayor and Township Committee of the Township of Harrison

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3880-22

CASELLA FARMS

HOMEOWNERS

ASSOCIATION, INC.,

Plaintiff-Appellant,

v.

MAYOR AND TOWNSHIP

COMMITTEE OF THE

TOWNSHIP OF HARRISON

and WH DEVELOPMENT

URBAN RENEWAL, LLC,

Defendants-Respondents.

____________________________

HOLDING SMITH, INC., and

HOLDING SONS &

DAUGHTERS, INC.,

Plaintiffs-Respondents,

v.

MAYOR AND TOWNSHIP

COMMITTEE OF THE

TOWNSHIP OF HARRISON

and WH DEVELOPMENT

URBAN RENEWAL, LLC,

Defendants-Respondents.

_______________________________

Argued September 9, 2024 – Decided October 31, 2024

Before Judges Gooden Brown and Vanek.

On appeal from the Superior Court of New Jersey, Law

Division, Gloucester County, Docket No. L-1280-22.

Jeffrey M. Brennan argued the cause for appellant

Casella Farms Homeowners Association, Inc. (Baron &

Brennan, PA, attorneys; Jeffrey M. Brennan, on the

briefs).

M. James Maley, Jr., argued the cause for respondent

Mayor and Township Committee of the Township of

Harrison (Maley Givens, PC, attorneys; M. James

Maley, Jr., Emily K. Givens, and Erin E. Simone, on

the brief).

Christopher M. Terlingo and Thomas A. Muccifori

argued the cause for respondent WH Development

Urban Renewal, LLC (Archer & Greiner, PC, attorneys;

Thomas A. Muccifori, Clint B. Allen, and Christopher

M. Terlingo, on the brief).

PER CURIAM

In this action in lieu of prerogative writs, plaintiff Casella Farms

Homeowners Association, Inc., (Casella Farms) appeals from the July 12, 2023,

Law Division order dismissing with prejudice plaintiff's second amended

complaint (SAC) against defendants Mayor and Township Committee of the

A-3880-22

2

Township of Harrison (Township) and WH Development Urban Renewal, LLC

(Urban Renewal). The complaint sought an order invalidating Harrison

Township Ordinance 13-2022, which adopted the King's Landing

Redevelopment Plan for specified properties. The complaint also sought a

declaration that Urban Renewal had no rights or entitlements under the

Ordinance or the corresponding King's Landing Redevelopment Plan in

connection with its application to construct a warehouse development project.

Because the action was untimely and the trial judge correctly denied an

enlargement of time under Rule 4:69-6(c), we affirm.1

I.

By way of background, the Local Redevelopment and Housing Law

(LRHL), N.J.S.A. 40A:12A-1 to -63, permits a municipality to determine that a

tract of land constitutes an area in need of redevelopment when the

municipality's governing body finds "at least one of the conditions set forth

in N.J.S.A. 40A:12A-5." Hirth v. City of Hoboken, 337 N.J. Super. 149, 161

1

In a February 28, 2023, trial court order, the parties consented to the

consolidation of Casella Farms's action with a separate action in lieu of

prerogative writs brought by plaintiffs Holding Smith, Inc., and Holding Sons

& Daughters, Inc. (the Holding plaintiffs). Because the Holding plaintiffs failed

to file timely answering briefs, we entered an order on December 15, 2023,

suppressing the filing of any brief thereafter.

A-3880-22

3

(App. Div. 2001). A redevelopment project must be "in accordance with a

redevelopment plan adopted by ordinance of the municipal governing body,"

N.J.S.A. 40A:12A-7(a), "follow[ing] the same procedure as the adoption of any

municipal ordinance," Milford Mill 128, LLC v. Borough of Milford, 400 N.J.

Super. 96, 110 (App. Div. 2008) (quoting Cox, New Jersey Zoning & Land Use

Administration, § 38-4.3, at 906 (2008)).

After declaring an area to be in need of redevelopment, the governing

body "may direct the planning board to prepare a redevelopment plan . . . for a

designated redevelopment area." N.J.S.A. 40A:12A-7(f). The planning board

or its equivalent must then "transmit to the governing body, within [forty-five]

days after referral, a report containing its recommendation concerning the

redevelopment plan." N.J.S.A. 40A:12A-7(e); see also Hirth, 337 N.J. Super. at

165 ("The governing body may propose a redevelopment plan and refer it to the

planning board for its review. Alternatively, the governing body may direct the

planning board to prepare a plan for the governing body's review . . . .") (citation

omitted) (citing N.J.S.A. 40A:12A-7(e) to (f)). Upon adoption by the municipal

governing body, the redevelopment plan then "becomes either all or part of the

zoning for the redevelopment area." Weeden v. City Council, 391 N.J. Super.

214, 224 (App. Div. 2007).

A-3880-22

4

In late 2018, the Township designated by resolution Block 46, Lot 2, and

Block 47, Lots 1, 2, 3, 3.01, and 4, as a non-condemnation area in need of

redevelopment pursuant to the LRHL based on the Joint Land Use Board's

(Board's) evaluation and recommendation. The Township then authorized the

Board to prepare a redevelopment plan for the specified parcels, referred to as

the Redevelopment Area. As directed, the Board prepared a redevelopment plan

entitled the King's Landing Redevelopment Plan and submitted it to the

Township's governing body in March 2022, with a recommendation that it be

adopted.

The Redevelopment Area consists of approximately seventy-three acres

of primarily agricultural land sitting between adjacent Woolwich Township and

Tomlin Station Road in the Township's "C-57 Special Gateway Zoning District"

(C-57 Zone). The C-57 Zone permits three-acre-minimum lots with up to 20,000

square feet of total building coverage, a maximum height of thirty-five feet, and

uses including "[w]arehousing and distribution." Plaintiff's residential

properties are situated opposite the Redevelopment Area on the easterly side of

Tomlin Station Road.

In the King's Landing Redevelopment Plan, the Board "[e]ncourage[d]

mixed uses such as residential, commercial, and industrial to create a well -

A-3880-22

5

integrated community," "direct[ed] [the Township's] efforts toward the location

and development of planned office industrial-warehouse areas in the immediate

vicinity of the major regional traffic arteries," and "promoted [orderly

community growth] in areas where municipal services such as sewer and water

are or will be available." As to the zoning regulations, the Plan reduced the lot

size minimum to two acres, removed the maximum building size limitation, and

increased the permitted height to sixty feet for warehouse and distribution uses.

On April 4, 2022, the Township introduced Ordinance 13-2022, adopting

the King's Landing Redevelopment Plan recommended by the Board, and, on

April 8, 2022, published notice in the South Jersey Times pursuant to N.J.S.A.

40:49-2(a). The published notice read:

PUBLIC NOTICE THE TOWNSHIP OF HARRISON

IN THE COUNTY OF GLOUCESTER *** NOTICE

OF FIRST READING . . . ORDINANCE NO. 13-2022

– AN ORDINANCE OF THE MAYOR AND

TOWNSHIP COMMITTEE OF THE TOWNSHIP OF

HARRISON, COUNTY OF GLOUCESTER

ADOPTING A REDEVELOPMENT PLAN FOR

BLOCK 46, LOT 2; BLOCK 47, LOTS 1, 2, 3, 3.01, 4

IN THE TOWNSHIP OF HARRISON,

GLOUCESTER. COUNTY, STATE OF NEW

JERSEY[] (First reading April 4, 2022, public hearing

April 18, 2022)[.] This Ordinance was introduced and

passed on first reading at the public [m]eeting of the

Township . . . on April 4, 2022, and will be considered

for final passage at a public meeting to be held by the

Township . . . at the Harrison Township Municipal

A-3880-22

6

Building located on Bridgeton Pike in Mullica Hill,

New Jersey, at 7:00 [p.m.] on the 18th day of April,

2022, at which time and place any person interested will

be given an opportunity to be heard. Copies of

the . . . Ordinance may be obtained from the

[m]unicipal [c]lerk's [o]ffice, between the hours of

8:00 . . . [a.m.] and 4:00 . . . [p.m.], Monday through

Friday, at no cost, prior to the public hearing.

In accordance with the notice, on April 18, 2022, the Township conducted

a public hearing on the Ordinance at which the Mayor and Township Committee

discussed the King's Landing Redevelopment Plan and heard public comments.

Following the hearing, the Township adopted the Ordinance without objection.

The operative sections of the Ordinance read in part:

Section 2. The Township Committee declares

and determines that said Redevelopment Plan meets the

criteria, guidelines, and conditions set forth in N.J.S.A.

40A:12A-7, provides realistic opportunities for the

development and rehabilitation of the Township and

specifically the Redevelopment Area, and is otherwise

in conformance with N.J.S.A.40A:12A-1[ to -49].

Section 3. The Township Committee hereby

accepts the recommendations of the Planning Board

and adopts the attached Redevelopment Plan entitled

"King's Landing Redevelopment Plan" dated March 30,

2022, for the Township of Harrison and specifically

Block 46, Lot 2; Block 47, Lots 1, 2, 3, 3.01, 4.

Section 4. The Township Committee of the

Township of Harrison shall have, be entitled to, and is

hereby vested all power and authority granted by the

A-3880-22

7

aforementioned statutory provisions to effectuate the

Redevelopment Plan.

Section 5. The Redevelopment Plan shall only be

available to an applicant, proper owner, developer or

redeveloper that has an executed Redevelopment

Agreement with the Township to the extent set forth

therein.

[(Emphasis omitted).]

Thereafter, a notice of adoption of the Ordinance was published in the

South Jersey Times on April 27, 2022, reading in part:

TAKE NOTICE that the . . . Ordinance was introduced

and passed on first reading at a [p]ublic [m]eeting of

the Township . . . held April 4, 2022[,] and after

posting and publication according to law, was again

read, further considered for final passage, and finally

adopted at a public hearing at a meeting of [the

Township] held on April 18, 2022.

Subsequently, Urban Renewal filed an application with the Board for

preliminary and final major site plan approval for a proposed warehouse

development project in the Redevelopment Area, and, on October 14, 2022,

published a notice in the South Jersey Times detailing its application. Urban

Renewal's application "consist[ed] of four . . . warehouse buildings . . . with a

combined total of 2,182,101 . . . square feet of building area, each building

having a maximum height of up to [sixty] feet." The proposed warehouse

development would be situated on about seventy-three acres of land "located

A-3880-22

8

along both the north . . . and south side of [U.S. Route 322/County Road 536],"

"adjacent to Tomlin Station Road." In a corresponding application, Urban

Renewal had received approval from Woolwich Township's land use board due

to the warehouse project spanning both municipalities.

After conducting public hearings over the course of two public meetings,

the Board denied Urban Renewal's application on December 15, 2022. In its

memorializing resolution, although the Board recognized that "the proposed

project [was] consistent with the overall development scheme for the . . .

property envisioned by the Redevelopment Plan," the Board was mindful that

"[m]embers of the public were vehement and outspoken in their opposition to

the proposed project." In a separate action not part of this appeal, Urban

Renewal filed a complaint in lieu of prerogative writs seeking reversal of the

Board's decision. Ultimately, the trial court reversed the Board's denial of Urban

Renewal's site plan application as "arbitrary, capricious, and unreasonable."

Seven months after the Ordinance's adoption, on November 30, 2022,

plaintiff filed the three-count complaint against the Township that is the subject

of this appeal. The complaint sought the invalidation of Ordinance 13-2022 and

the corresponding King's Landing Redevelopment Plan. In count one, plaintiff

asserted the Township "failed to publish notice in advance of the passage of [the

A-3880-22

9

Ordinance] in compliance with the provisions [of] N.J.S.A. 40:49-2," governing

notice for ordinances.2 Specifically, plaintiff alleged the notice was

noncompliant by not including "a 'clear and concise statement prepared by the

clerk of the governing body setting forth the purpose of the ordinance '" and not

including "any indication of the massive warehouse development which it

facilitates." In count two, plaintiff asserted the Ordinance was not compliant

with the LRHL, and in count three, plaintiff alleged the Ordinance was infirm

because it contained no "explicit amendment to the zoning district map included

in the zoning ordinance." In its SAC filed January 20, 2023, plaintiff joined

2

N.J.S.A. 40:49-2 delineates the procedure for passage of an ordinance by a

municipal governing body, providing in part:

Every ordinance after being introduced and having

passed a first reading . . . shall be published in its

entirety or by title or by title and summary at least once

. . . in a newspaper printed in the county and circulating

in the municipality, together with a notice of the

introduction thereof, the time and place when and

where it will be further considered for final passage, a

clear and concise statement prepared by the clerk of the

governing body setting forth the purpose of the

ordinance, and the time and place when and where a

copy of the ordinance can be obtained without cost by

any member of the general public who wants a copy of

the ordinance.

[N.J.S.A. 40:49-2(a).]

A-3880-22

10

Urban Renewal, seeking a declaration that Urban Renewal "ha[d] no rights or

entitlements" under the Ordinance or Redevelopment Plan. 3

On February 16, 2023, the Township and Urban Renewal filed separate

motions to dismiss plaintiff's complaint with prejudice under Rule 4:6-2(e),

arguing plaintiff failed to file its action in accordance with the forty-five-day

time limits prescribed in Rule 4:69-6, and failed to justify an enlargement of the

forty-five-day filing period under the public interest exception contained in Rule

4:69-6(c). Plaintiff countered that it satisfied the public interest exception, the

Township's noncompliance with N.J.S.A. 40:49-2 excused its untimely filing,

and the filing period did not begin to run until plaintiff had reason to know the

Ordinance's purpose.

After conducting oral argument, the judge accepted defendants' position,

rejected plaintiff's, and dismissed plaintiff's complaint with prejudice in a July

12, 2023, order. In an accompanying memorandum of decision, the judge

explained that because plaintiff failed to justify an enlargement of time for filing

its prerogative writs complaint under Rule 4:69-6(c), and the notice preceding

3

Urban Renewal was joined after the trial court issued a consent order

permitting intervention pursuant to Rule 4:33-1.

A-3880-22

11

enactment of the Ordinance was substantially compliant with N.J.S.A. 40:49 -

2(a), plaintiff failed to state a claim under Rule 4:6-2(e). This appeal followed.

On appeal, plaintiff raises the following points for our consideration:

I. THE TRIAL COURT ERRED IN ITS

DETERMINATION THAT THIS MATTER DID NOT

IMPLICATE THE PUBLIC INTEREST EXCEPTION

WARRANTING AN ENLARGEMENT OF THE

[FORTY-FIVE]-DAY APPEAL PERIOD PURSUANT

TO [RULE] 4:69-6(C)[.]

II. THE TRIAL COURT ERRED IN ITS

DETERMINATION THAT THE NOTICE

PUBLISHED BY THE TOWNSHIP FOLLOWING

THE INTRODUCTION OF ORDINANCE NO. 13-

2022 COMPLIED WITH N.J.S.A. 40:49-2[.]

A. The Clear And Unambiguous Language

Of N.J.S.A. 40:49-2 Requires The Notice

To Include Both The Ordinance's Title And

A Separate Statement Of Purpose Prepared

By The Clerk.

B. Even Assuming, Arguendo, That

N.J.S.A. 40:49-2 Was Not Clear And

Unambiguous, The Statute's Legislative

History Leaves No Doubt As To The

Drafters' Intent For The Notice To Include

Both The Ordinance's Title And A Separate

Statement Of Purpose Prepared By The

Clerk.

C. The Notice Published In Advance Of

The Hearing And Passage Of Ordinance

No. 13-2022 Was Deficient Because It Did

A-3880-22

12

Not Include A Separate Statement Of

Purpose Prepared By The Clerk.

D. Ordinance No. 13-2022 Is Void

Because Its Hearing And Passage Was

Preceded By Defective Notice.

III. THE TRIAL COURT ERRED IN ITS

APPLICATION OF THE STANDARD OF REVIEW

FOR A MOTION TO DISMISS BROUGHT

PURSUANT TO [RULE] 4:6-2(e)[.]

II.

We review "de novo the trial court's determination of [a] motion to dismiss

under Rule 4:6-2(e)" and owe "no deference to the trial court's legal

conclusions." Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman &

Stahl, P.C., 237 N.J. 91, 108 (2019). We must "'pass no judgment on the truth

of the facts alleged' in the complaint and must 'accept them as fact only for the

purpose of reviewing the motion to dismiss.'" Mueller v. Kean Univ., 474 N.J.

Super. 272, 283 (App. Div. 2022) (quoting Banco Popular N. Am. v. Gandi, 184

N.J. 161, 166 (2005)). Accordingly, our inquiry is to be "undertaken with a

generous and hospitable approach," affording plaintiff "every reasonable

inference of fact." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J.

739, 746 (1989).

A-3880-22

13

Rule 4:69-6(a) requires that an action in lieu of prerogative writs be filed

no later than "[forty-five] days after the accrual of the right to the review,

hearing or relief claimed," except in certain circumstances not applicable here.

Nevertheless, a court "may enlarge" the forty-five-day limitation period "where

it is manifest that the interest of justice so requires." Rule 4:69-6(c).

Enlargement of the prerogative writs limitation period is left to the trial court's

discretion "when it perceives a clear potential for injustice." Hopewell Valley

Citizens' Grp., Inc. v. Berwind Prop. Grp. Dev. Co., 204 N.J. 569, 578 (2011)

(citing Reilly v. Brice, 109 N.J. 555, 560 (1988)). We review the trial court's

determination whether to enlarge the time in which a party may file an action in

lieu of prerogative writs pursuant to Rule 4:69-6(c) for an abuse of discretion.

Reilly, 109 N.J. at 560.

Although our courts have not provided "an exhaustive list of

circumstances pursuant to which enlargement can be awarded," Hopewell

Valley, 204 N.J. at 583, our Supreme Court has identified three general

categories that qualify for enlargement, first enunciated in Brunetti v. Borough

of New Milford, 68 N.J. 576, 586 (1975). Those "general categories of cases

that qualify for the 'interest of justice' exception" include "(1) important and

novel constitutional questions; (2) informal or ex parte determinations of legal

A-3880-22

14

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, 68 N.J. at 586).

Here, plaintiff advanced the "important public [interest]" exception. Ibid.

In determining whether to enlarge the time under that exception, the "public

interest must be balanced against 'the important policy of repose expressed'" in

the rule. Hopewell Valley, 204 N.J. at 580 (quoting Reilly, 109 N.J. at 559); see

also Southport Dev. Grp., Inc. v. Twp. of Wall, 310 N.J. Super. 548, 556 (App.

Div. 1998) (discussing the impact on the municipality and the plaintiff in

addition to "the previous actions or inactions of the plaintiff" as factors for

determining the appropriateness of an enlargement). That is because "th[e]

'statute of limitations is designed to encourage parties not to rest on their rights.'"

Rocky Hill Citizens for Responsible Growth v. Plan. Bd., 406 N.J. Super. 384,

398 (App. Div. 2009) (quoting Horsnall v. Washington Twp. Div. of Fire, 405

N.J. Super. 304, 313 (App. Div. 2009)).

We have addressed the public interest category in a line of cases following

Brunetti. In Willoughby v. Planning Board, 306 N.J. Super. 266 (App. Div.

1997), the plaintiffs, a citizen's group and two neighborhood residents,

A-3880-22

15

challenged an ordinance approximately nine months after it was adopted. Id. at

270-72.

The ordinance rezoned a particular property owned by

Wolfson Group, Inc.[,] from "Office Campus" to

"Town Center." [Id. at 271.] The ordinance prompted

the plaintiffs to mount a political campaign resulting in

the incumbents being turned out of office. Wolfson

submitted an application for site plan approval to the

town's planning board. Eventually, the town council

adopted an ordinance returning the zoning to Office

Campus; however, Wolfson's site plan was approved by

the planning board, and the plaintiffs then brought suit

challenging site plan approval and the repealed zoning

ordinance, which allowed for this site plan. The trial

judge refused to enlarge the forty-five[-]day limitation

period and dismissed the complaint.

We reversed and determined that development of

the property in accordance with the zoning change

would have a significant impact on the residents of the

adjoining neighborhood and would impact the flow of

traffic on a major thoroughfare; moreover, the public

would lose access to nature trails due to the rezoning.

Additionally, we observed that the claimed benefits of

"increased shopping facilities, employment

opportunities and tax ratables" as a result of the

rezoning were all matters of public interest. Id. at 277.

We also noted that the political campaign and

municipal election results were both evidence of the

public's interest in this matter. Ibid. Finally, we

concluded that "[u]nder these circumstances, there

[was] no basis for concluding that Wolfson justifiably

relied upon plaintiffs' failure to file suit within forty-

five days or that Wolfson's interest in repose outweighs

the public interest in a decision on the merits of

plaintiffs' claims." Id. at 278-79.

A-3880-22

16

[Rocky Hill, 406 N.J. Super. at 400-01 (last two

alterations in original).]

Later, in Concerned Citizens of Princeton, Inc. v. Mayor and Council of

Princeton, 370 N.J. Super. 429, 435, 442 (App. Div. 2004), the plaintiffs, a

group of local merchants and residents, filed a "complaint in lieu of prerogative

writs challenging [defendant Princeton Borough Council's] designation of

certain municipally-owned properties located in the central business district of

the downtown area of Princeton as constituting an area in need of redevelopment

pursuant to the [LRHL]." Although the complaint was filed "more than ten

months after the challenged redevelopment designation," id. at 445, we held "the

trial court properly applied its discretion in concluding that the interests of

justice warranted enlarging the period of time within which plaintiffs could

challenge the action of the Borough Council." Id. at 435.

In support of enlargement, we pointed to the plaintiffs'

allegations of "numerous violations and

misapplication" of the [LRHL], "as well as arbitrary

and capricious municipal action in the redevelopment

designation of public lands." [Id.] at 447. We observed

that the designation would also require the expenditure

of public funds through the issuance of bonds. Ibid.

Finally, although we noted that the plaintiffs

demonstrated a strong public interest by submitting a

significant number of signatures opposing the project,

ibid., that factor was seriously called into question by

A-3880-22

17

our concurring colleague. Id. at 473 ("I would not

equate mere numerosity with 'important public rather

than private interests that require adjudication.'")

(Hoens, J.A.D., concurring).

[Rocky Hill, 406 N.J. Super. at 399-400.]

More recently, in Rocky Hill, we upheld the trial court's denial of an

enlargement of the limitation period. Id. at 403. There, the plaintiffs, a citizen's

group and other residents, filed an action in lieu of prerogative writs challenging

an ordinance governing Rocky Hill's historic preservation district and defendant

Rocky Hill Planning Board's approval of a subdivision application for new

construction in the district. Id. at 390, 396-97. Plaintiffs' complaint was filed

October 27, 2006, and the challenged ordinance was adopted December 20,

2004, representing a nearly two-year delay. Id. at 391, 396.

In distinguishing Concerned Citizens and Willoughby, which we

characterized as "the exception rather than the rule" for granting an enlargement

as a matter of public interest, Rocky Hill, 406 N.J. Super. at 401, we stated:

None of the factors present in those cases are apparent

here. There are no public funds involved, no political

upheavals, no significant impact on density, traffic,

ratables or any interest other than the concerns

expressed by the individual plaintiffs and their

supporters and no constitutional implications.

Plaintiffs' primary argument is that the ordinance will

undermine the "efficacy" of the District and that

permissible scale, size, mass and arrangement of future

A-3880-22

18

construction in the District will be affected. While

certainly the ordinance is of interest to this limited

public, this is not the public interest envisioned by the

Court in permitting limited expansion of the rule.

[Ibid.]

In rejecting plaintiffs' justification for the delay in challenging the

ordinance, we explained:

Public consideration of this ordinance was

extensive. Numerous public hearings were held[,] and

participation was substantial. The time to challenge the

ordinance was within the prescribed limitation period.

The suggestion that there was no reason to move

forward to challenge the ordinance because of a lack of

understanding as to the Planning Board's interpretation

of the ordinance is unavailing. . . . In essence, plaintiffs

adopted a "wait and see" attitude that does not foreclose

them from attacking the bona fides of the application,

but should not form the basis for seeking the

extraordinary relief of an extension to allow an attack

on the bona fides of the ordinance.

....

We cannot accept a "wait and see" strategy as a

basis for granting relief from the limitations rule. All

ordinances, at some point, will be subject to the

interpretation of the appropriate agency. To suggest

that the right to challenge should accrue when the

interpretation is contrary to one's view subordinates the

public interest in repose to the private interests of the

objectors. That is what is suggested here, and it is

unacceptable as an appropriate outcome. This

ordinance emerged from a cauldron of debate and

review. Plaintiffs' view of the merits did not change

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19

over the almost two years since the ordinance was

adopted.

[Id. at 402-03.]

Cf. Adams v. DelMonte, 309 N.J. Super. 572, 581 (App. Div. 1998) (permitting

enlargement when "the full aspect of [the defendant's] enterprise did not become

apparent until the subsequent [p]lanning [b]oard hearing was conducted").

Here, the judge determined plaintiff failed to demonstrate a justification

for enlargement within the public interest exception. The judge analogized the

public interest in the ordinance to the public's interest in Rocky Hill and

concluded that "such interest [was] not the type of interest contemplated under

the limitation's exception." Reviewing the factors set forth in Willoughby,

Concerned Citizens, and Rocky Hill, the judge expounded:

Rocky Hill alludes to what type of interest could

rise to the level of warranting an extension to the filing

deadline. "There are no public funds involved, no

political upheavals, no significant impact on density,

traffic, ratables or any interest other than the concerns

expressed by the individual plaintiffs and their

supporters and no constitutional implications." [406

N.J. Super. at 401.] None of those significant issues

exist in this matter either. There are no public funds

involved, no political upheavals, and no significant

impact on density, traffic or ratables. Plaintiff[] loosely

reference[s] tax ratables as a reason for the public

interest, but do[es] not support such an argument.

There is nothing in the record to suggest that the

Ordinance creates a significant tax ratable issue.

A-3880-22

20

Plaintiff[] also reference[s] the potential for an increase

in traffic. This may be accurate, but there is nothing in

the record to suggest that there will be a "significant

impact" on traffic or that the traffic situation will affect

most of the Township or just the small area around the

project. Many [o]rdinances, if not most, may have

some effect on the public, but that does not justify an

extension of filing deadlines. There must be something

significant that has an effect on a larger portion of the

Township, not potentially just some of the roads around

the project.

We agree with the judge's analysis. Prior to adoption of the Ordinance,

the public—of which plaintiff's property owners are a part—were made aware

of and had the opportunity to comment on the proposed Redevelopment Plan at

multiple public hearings. See Great Atl. & Pac. Tea Co. v. Borough of Point

Pleasant, 137 N.J. 136, 142 (1994) ("The entire process is replete with the

opportunity for public participation."). Yet, plaintiff waited several months

after the Township's publication of the notice of final adoption before filing its

challenge to the Ordinance. By then, Urban Renewal was in the process of

obtaining approval of its site plan application from the Board relying on the

Ordinance.

Unlike the repealed zoning ordinance challenged in Willoughby, the

Township enacted the Ordinance after the Board prepared a Redevelopment

Plan, reviewed the plan against the land use element of the Township's master

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plan, and recommended that the Township adopt it. See Willoughby, 306 N.J.

Super. at 277-78 (noting the primary basis of the plaintiffs' challenge was that

the zoning ordinance was not substantially consistent with the land use element

of the municipal master plan). Indeed, in recommending the Redevelopment

Plan, the Board specifically determined that "[i]mplementing th[e]

Redevelopment Plan w[ould] help [the Township] achieve

the . . . [development, employment, and commercial] goals and objectives"

outlined in the Township's master plan and subsequent reexaminations.

We reject plaintiff's contention that "th[e] matter also involves political

upheaval." In support, plaintiff points to statements by the Township mayor

during an end-of-year message posted on YouTube on December 31, 2020, that

showcased inconsistencies between the Township's planning documents and the

Ordinance and Redevelopment Plan. We do not believe that such statements

qualify as the type of political upheaval contemplated in Willoughby, 306 N.J.

Super. at 277. Similarly unavailing is plaintiff's argument that the Ordinance

and Redevelopment Plan affected the expenditure of public funds in a manner

consistent with Concerned Citizens, 370 N.J. Super. at 447. In support, plaintiff

primarily points to the payment in lieu of taxes (PILOT) agreement entered

between the Township and the redeveloper after the Ordinance was adopted.

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Although a PILOT agreement may implicate public funds in so far as it

generates revenue, it does not compare to the issuance of public bonds that

indebt a municipality for years into the future. Indeed, the income generated

from a PILOT agreement differs from bonds in that the former supplements the

public purse at a discount to the normal property tax receipts, see N.J.S.A.

40A:20-11, while the latter generates short-term revenue at the cost of

indebtedness, see In re City of Margate City, 424 N.J. Super. 242, 244, 251

(App. Div. 2012) (discussing "the public policy favoring voter participation in

a legislative decision to incur indebtedness" by a municipality through the

issuance of bonds).

Plaintiff also attempts to bootstrap the heated public hearings on Urban

Renewal's site plan application to attack the Ordinance, citing "substantial

public opposition." However, participation at the public hearings concerning

the development of a property within the redevelopment area governed by the

Redevelopment Plan was not contemplated by the courts in determining whether

a challenge was within the public interest. Rocky Hill, 406 N.J. Super. at 402.

As in Rocky Hill, "[t]here was no deception here" as the Ordinance and

Redevelopment Plan were subject to public comment and thoroughly vetted.

406 N.J. Super. at 402. Inasmuch as the Board's hearing on Urban Renewal's

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application occurred more than six months after the adoption of the Ordinance,

plaintiff's delay in challenging the Ordinance must be weighed against Urban

Renewal's reliance on its enactment and "underpin[s] the purpose of the forty-

five[-]day time limitation." Concerned Citizens, 370 N.J. Super. at 475 (Hoens,

J.A.D., concurring).

We also reject plaintiff's contention that the Township's failure to publish

notice in strict compliance with N.J.S.A. 40:49-2(a) by including "a clear and

concise statement prepared by the clerk of the governing body setting forth the

purpose of the ordinance" excuses plaintiff's untimely challenge. When the

Legislature amended N.J.S.A. 40:49-2(a) in 1995, it intended to simplify the

notice requirements incumbent on municipalities adopting ordinances and

reduce the associated expenses. According to the Sponsors' Statement at the

time the bill was introduced to the Legislature, the statutory option of publishing

"a clear and concise statement setting forth the purpose of the ordinance and a

notice of the time and place when and where copies of the proposed ordinance

may be obtained by the public" was intended "to reduce the costs associated with

the publication of municipal ordinances." Sponsors' Statement to S. 7 (June 13,

1994) (L. 1995, c. 259); see also S. Cmty. Affs. Comm. Statement to S. 7 (June

22, 1994) (describing the same intent as detailed in the Sponsors' Statement).

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Based on a comparison between the published notice and the Ordinance,

nothing is missing from the notice that is otherwise effectuated by the operative

sections of the Ordinance. The Township succinctly provided the public with

the details necessary to inform interested individuals of the nature of the

Ordinance as well as the time and place of proposed final adoption and the time

and place where a copy of the Ordinance, including the Redevelopment Plan,

could be obtained. The Ordinance's title as described in the published notice

leaves little doubt as to the Township's purpose in adopting the Ordinance and

specifies the affected blocks and lots. As the judge stated, "[a]n interested

person would understand that the Township is adopting an ordinance, and that

the Ordinance's purpose is to adopt a redevelopment plan for certain lands which

are specifically identified."

We are satisfied the judge correctly evaluated the Willoughby, Concerned

Citizens, and Rocky Hill factors in determining whether plaintiff's challenge to

the Ordinance fell within the public interest exception. We discern no abuse of

discretion in the judge's denial of an enlargement of time under Rule 4:69-6(c).

Based on our decision, we need not address plaintiff's remaining arguments.

Affirmed.

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