In Re: Petition for Referendum to Repeal Ordinance 2354-12 of the Tp. of West Orange(073069)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the

interest of brevity, portions of any opinion may not have been summarized.)

In re Petition for Referendum to Repeal Ordinance 2354-12 of the Twp. of W. Orange

(A-54-13) (073069)

Argued October 7, 2015 – Decided December 21, 2015

ALBIN, J., writing for a unanimous Court.

In this appeal, the Court considers whether plaintiffs’ action in lieu of prerogative writs challenging a

municipal ordinance authorizing the issuance of $6,300,000 in bonds to finance a redevelopment project in the

Township of West Orange is untimely under the twenty-day limitation period of N.J.S.A. 40A:2-49 and Rule 4:69-

6(b)(11).

The Mayor and Township Council of West Orange passed a resolution declaring the Township’s downtown

area to be an “area in need of redevelopment.” On March 20, 2012, the Township adopted Ordinance 2354-12

(ordinance) allowing it to issue $6,300,000 in redevelopment bonds to fund the project. The effective date of the

ordinance was twenty days after its publication, which occurred on March 22, 2012.

Several Township residents formed a committee to challenge the ordinance by referendum and filed a

referendum petition with the Township Clerk. That filing suspended the ordinance by operation of law pending the

Clerk’s review of the validity and sufficiency of the petition. The Clerk rejected the petition because it contained an

insufficient number of valid signatures and because the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-

28 (Redevelopment Law), precluded the submission of a bond ordinance for voter approval. An amended petition

was rejected for the same reasons.

Fifty-three days after final publication of the ordinance, plaintiffs commenced this action by verified

complaint in lieu of prerogative writs challenging both the validity of the ordinance and the rejection of the

referendum petition. The trial court determined that because the ordinance was a redevelopment bond ordinance,

the Redevelopment Law prohibited public approval by referendum. Although the court also suggested that plaintiffs

had not established the invalidity of the ordinance based on the absence of review by the Local Finance Board, the

court did not reach that issue because it held the action untimely under N.J.S.A. 40A:2-49 and Rule 4:69-6(b)(11),

and dismissed the complaint.

The Appellate Division affirmed the dismissal in an unpublished opinion. The panel found that the

complaint was not filed within twenty days of the publication date of the ordinance, as required by Rule 4:69-

6(b)(11), and that the plaintiffs did not seek an enlargement of that period under Rule 4:69-6(c). The panel rejected

plaintiffs’ argument that the time for filing an action did not begin to run until after the Township Clerk’s second

rejection of the referendum petition. The panel therefore concluded that plaintiffs’ challenge to the ordinance was

time-barred, and was properly dismissed. This Court granted limited certification. 217 N.J. 51 (2014).

HELD: A challenge to a redevelopment bond ordinance must be filed within twenty days of the final publication of

the ordinance pursuant to Rule 4:69-6(b)(11) and N.J.S.A. 40A:2-49, barring the most extraordinary circumstances,

which are not present here. Although Rule 4:69-6(c) permits an enlargement of the filing period in the interest of

justice, N.J.S.A. 40A:2-49, which states that a bond ordinance is conclusively presumed to be valid twenty days

after publication, counsels against exceptions to the twenty-day filing rule. Consequently, plaintiffs’ action, which

was not filed until fifty-three days after publication of the ordinance, is untimely and was properly dismissed.

1. The issue of the timeliness of plaintiffs’ action in lieu of prerogative writs challenging the validity of the West

Orange redevelopment bond ordinance requires construction of a court rule and a statute, and therefore presents a

question of law which is subject to de novo review. (p. 9)

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2. Plaintiffs first challenged the ordinance by filing a petition for referendum. Although the right to referendum is

generally applicable to any ordinance, the Legislature has authority to exempt specific categories of ordinances from

the reach of ballot approval. The ordinance challenged here is a redevelopment bond ordinance in form and

substance. The Legislature has unambiguously decreed that an ordinance enacted under the Redevelopment Law is

not subject to voter approval. The Township Clerk therefore properly concluded that the ordinance was not subject

to referendum. (pp. 10-12)

3. Plaintiffs’ challenge to the validity of the ordinance, asserted through the action in lieu of prerogative writs filed

fifty-three days after publication of the ordinance, was brought beyond the twenty-day period mandated by N.J.S.A.

40A:2-49 and Rule 4:69-6(b)(11). Under N.J.S.A. 40A:2-49, it is conclusively presumed that a bond ordinance is

valid twenty days after publication of final passage of the ordinance. The statute further states that interested parties

are estopped from denying the validity of the ordinance after the twenty-day period. A predecessor statute similarly

cloaked a municipal bond ordinance with a presumption of validity and estopped legal challenges after the requisite

filing period. The twenty-day limitation period is intended to prevent any action which would cast a cloud on the

validity of the bonds, and provide confidence to financial markets and investors that municipal bonds authorized by

ordinance will not be subject to a legal challenge after expiration of the stated period. The Legislature has therefore

expressed the need for strict time limits governing the commencement of lawsuits challenging bond ordinances.

(pp. 12-15)

4. The twenty-day limitation period of N.J.S.A. 40A:2-49 is mirrored by Rule 4:69-6(b)(11). Rule 4:69-6(c)

permits an enlargement of the requisite filing period where it is manifest that the interest of justice requires that

relief. Any expansion of the limitations period, however, must be balanced against the important policy of repose

expressed in the Rule. Consequently, in the challenge to the bond ordinance asserted here, the enlargement of time

provision of Rule 4:69-6(c) must yield to the plain meaning and purpose of N.J.S.A. 40A:2-49, including the

conclusive presumption of validity of a bond ordinance after twenty days, which militate against exceptions to the

filing period. Only in the most extraordinary of circumstances, which are not presented here and are difficult to

envision, should a court entertain a request to enlarge the twenty-day filing period for an action in lieu of prerogative

writs challenging a municipal bond ordinance. (pp. 15-17)

5. The referendum petition that plaintiffs filed seeking to place the ordinance on the ballot does not toll the twenty-

day limitation period for challenging the ordinance’s validity. N.J.S.A. 40A:2-49 and Rule 4:69-6(b)(11). To

decide otherwise would sanction a template that delays the implementation of a duly enacted bond ordinance,

contrary to statute and Court Rule. (pp. 18-19)

The judgment of the Appellate Division, which upheld the trial court’s dismissal of plaintiffs’ action in lieu

of prerogative writs, is AFFIRMED.

CHIEF JUSTICE RABNER; JUSTICES PATTERSON and SOLOMON; and JUDGE CUFF

(temporarily assigned) join in JUSTICE ALBIN’S opinion. JUSTICES LaVECCHIA and FERNANDEZ-

VINA did not participate.

2

SUPREME COURT OF NEW JERSEY

A-54 September Term 2013

073069

IN RE: PETITION FOR

REFERENDUM TO REPEAL

ORDINANCE 2354-12 OF THE

TOWNSHIP OF WEST ORANGE,

ESSEX COUNTY, WINDALE

SIMPSON, MARK MEYEROWITZ,

ALTHIA TWEITEN, MICHAEL

SCHARFSTEIN, AND ROSARY

MORELLI,

Plaintiffs-Appellants,

v.

THE TOWNSHIP OF WEST ORANGE,

a Municipal Corporation of

the State of New Jersey,

ROBERT D. PARISI, Mayor, and

KAREN CARNEVALE, Clerk of

West Orange Township,

Defendants-Respondents,

and

PRISM GREEN ASSOCIATES IV,

L.L.C., PRISM GREEN URBAN

RENEWAL ASSOCIATES IV,

L.L.C., and GP 177 MAIN URBAN

RENEWAL, L.L.C.,

Defendants/Intervenors-

Respondents.

Argued October 7, 2015 – Decided December 21, 2015

On certification to the Superior Court,

Appellate Division.

George B. Campen argued the cause for

appellants.

1

William W. Northgrave argued the cause for

respondents (McManimon, Scotland & Baumann,

attorneys).

Patricia E. Stern, Deputy Attorney General,

argued the cause for amicus curiae Local

Finance Board (John J. Hoffman, Acting

Attorney General of New Jersey, attorney;

Melissa H. Raksa, Assistant Attorney

General, of counsel; Donald M. Palombi,

Deputy Attorney General, on the letter

brief).

Louis N. Rainone appeared on behalf of

intervenors-respondents and relied on the

argument of respondents (DeCotiis,

FitzPatrick & Cole, attorneys; Daniel E.

Zwillenberg, on the letter joining in

respondents brief).

Edward Purcell, Associate Counsel, submitted

a brief on behalf of amici curiae New Jersey

State League of Municipalities and New

Jersey Institute of Local Government

Attorneys (William J. Kearns, Jr., General

Counsel, attorney).

JUSTICE ALBIN delivered the opinion of the Court.

The matter before us concerns a challenge to the validity

of a municipal ordinance authorizing the issuance of $6,300,000

in bonds to finance a redevelopment project in the Township of

West Orange. Plaintiffs filed an action in lieu of prerogative

writs claiming that the Township failed to secure the

statutorily required approval for the bond ordinance from the

Local Finance Board, which is a part of the Division of Local

Government Services within New Jersey’s Department of Community

2

Affairs (State’s Local Finance Board). On that basis,

plaintiffs submit that the bond ordinance is invalid.

The trial court dismissed the prerogative-writs action

because plaintiffs filed their complaint fifty-three days after

final publication of the bond ordinance -- well outside the

twenty-day period permitted by Rule 4:69-6(b)(11). The

Appellate Division affirmed.

We hold that a challenge to a redevelopment bond ordinance

must be filed within twenty days of the final publication of the

ordinance in accordance with Rule 4:69-6(b)(11), barring the

most extraordinary of circumstances, which are not present here.

N.J.S.A. 40A:2-49 provides that bond ordinances are

“conclusively presumed” to be valid twenty days after

publication of the final passage of the ordinance. The clear

purpose of N.J.S.A. 40A:2-49 is to assure bondholders and

financial markets that bonds, once issued, will not be subject

to attack. Permitting late-filed challenges to bond ordinances

would erode public confidence in the legitimacy of bonds that

are issued and almost certainly lead to delay in the

implementation of such ordinances. We must read Rule 4:69-

6(b)(11) in conjunction with the public policy expressed in

N.J.S.A. 40A:2-49. We therefore affirm the dismissal of

plaintiffs’ late-filed action. We do not reach the issue of

whether this bond ordinance required approval from the State’s

3

Local Finance Board.

I.

A.

The Mayor and Township Council of West Orange passed a

resolution declaring the Township’s downtown area, which

includes the historic Edison Storage Battery Building, to be an

“area in need of redevelopment.” On March 20, 2012, the Mayor

and Council enacted Ordinance 2354-12 allowing the Township to

issue $6,300,000 in redevelopment bonds to fund the project. In

doing so, the Township directly exercised redevelopment powers

conferred on it by the Local Redevelopment and Housing Law,

N.J.S.A. 40A:12A-1 to -73, in particular N.J.S.A. 40A:12A-37.

The Township pledged its full faith and credit toward repayment

of the bonds. To that end, the ordinance provided that the

municipality would “be obligated to levy ad valorem taxes upon

all the taxable real property within the Township.” The

effective date of the ordinance was twenty days after its

publication, which occurred on March 22, 2012.

Several Township residents formed a Committee of

Petitioners to challenge the ordinance by referendum -- that is,

to place the ordinance on the ballot for voter approval. On

April 5, 2012, the Committee filed with the Township Clerk a

referendum petition supported by the signatures of municipal

residents. Upon the filing of the referendum petition, the

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ordinance was suspended by operation of law until the Clerk

completed her review of the validity and sufficiency of the

petition. See N.J.S.A. 40:69A-189.

On April 16, 2012, the Clerk rejected the referendum

petition on two separate grounds. First, she concluded that the

Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-28, barred

the submission of a bond ordinance for voter approval. Second,

she determined that the Committee of Petitioners had submitted

an insufficient number of valid signatures to trigger a

referendum. On May 2, 2012, the Clerk rejected an amended

petition for the same two reasons.

Fifty-three days after the ordinance’s publication, on May

14, 2012, a “Protest Committee” consisting of plaintiffs,

Windale Simpson, Mark Meyerowitz, Althia Tweiten, Michael

Scharfstein, and Rosary Morelli, filed a verified complaint in

lieu of prerogative writs challenging both the validity of the

ordinance and the Township Clerk’s rejection of the referendum

petition. The complaint named West Orange Township, the Mayor,

and the Township Clerk as defendants. Plaintiffs alleged that

the bond ordinance was void because the Township had not

submitted the ordinance to the State’s Local Finance Board for

approval. Plaintiffs also alleged that the Township Clerk

wrongly rejected the referendum petition. In particular,

plaintiffs claimed that the Local Redevelopment and Housing Law

5

did not exempt this bond ordinance from a referendum and that

the petition contained a sufficient number of qualifying

signatures.

The redeveloper for the downtown village project was

granted leave to intervene in the lawsuit by the trial court.1

B.

The trial court determined that the West Orange ordinance

was “nothing more nor less than a re-development bond

ordinance.” On that basis, the court found that N.J.S.A.

40A:12A-28 of the Local Redevelopment and Housing Law prohibited

the submission of the ordinance for public approval by

referendum.

The court also noted that plaintiffs had not established

that the Township was required to submit the bond ordinance for

Local Finance Board review and therefore had not proved that the

ordinance was invalid. Ultimately, the court concluded that it

did not have to reach that issue because plaintiffs’ complaint

challenging the validity of the redevelopment bond ordinance was

not filed within the twenty-day limitation period set by

N.J.S.A. 40A:2-49 and Rule 4:69-6(b)(11). Accordingly, the

1 The redeveloper, Prism Green Associates IV, L.L.C., Prism Green

Urban Renewal Associates IV, L.L.C., and GP 177 Main Urban

Renewal, L.L.C., relied on the arguments advanced by West Orange

Township.

6

court dismissed the action in lieu of prerogative writs.

Plaintiffs appealed the dismissal of their complaint.

C.

The Appellate Division affirmed the dismissal in an

unpublished opinion. The panel held that N.J.S.A. 40A:12A-28

unequivocally expressed the Legislature’s intent to exclude

Local Redevelopment and Housing Law ordinances, such as the West

Orange bond ordinance, from citizen review in a referendum. The

panel also found that the action in lieu of prerogative writs

challenging the validity of the bond ordinance was not filed

within twenty days of the ordinance’s publication, as required

by Rule 4:69-6(b), and that plaintiffs did not seek from the

trial court an enlargement of that time period in “the interest

of justice,” pursuant to Rule 4:69-6(c). The panel rejected

plaintiffs’ argument that the time for filing the prerogative-

writs action did not begin to run until after the Township

Clerk’s second rejection of their referendum petition.

Accordingly, the panel concluded that plaintiffs’ challenge to

the ordinance was time-barred.

We granted plaintiffs’ petition for certification on two

issues: (1) “whether plaintiffs’ action challenging the

municipal ordinance was time[-]barred; and, if not, [(2)]

whether the ordinance was invalid because of the municipality’s

failure to submit an application for approval of the issuance of

7

bonds to the Local Finance Board in the Department of Community

Affairs.” In re: Petition for Referendum to Repeal Ordinance

2354-12 of the Twp. of W. Orange, 217 N.J. 51 (2014). The New

Jersey Institute of Local Government Attorneys and the New

Jersey State League of Municipalities, and the State’s Local

Finance Board accepted this Court’s invitation to participate as

amici curiae.

II.

Plaintiffs argue that the filing of the referendum

petition, which tolled the date the bond ordinance went into

effect, also tolled the date for filing the prerogative-writs

action, which challenged the validity of the ordinance.

Further, plaintiffs submit that this Court can enlarge the time

permitted for filing the prerogative-writs action in “the

interest of justice,” in accordance with Rule 4:69-6(c).

Plaintiffs maintain we should not pass on the important issue

before us: whether the Township may forego “the statutory

requirement for Local Finance Board review and approval.”

Defendants contend that the redevelopment bond ordinance

adopted by West Orange Township is not subject to voter review

in a referendum, citing N.J.S.A. 40A:12A-28, or to Local Finance

Board approval, citing N.J.S.A. 40A:12A-29(a), -37, -67.

Defendants, moreover, claim that plaintiffs’ untimely

prerogative-writs action is barred by N.J.S.A. 40A:2-49 and Rule

8

4:69-6(b)(11). Amici curiae advance arguments in support of the

positions taken by defendants.

III.

A.

The immediate issue before us is whether plaintiffs filed a

timely action in lieu of prerogative writs challenging the

validity of the West Orange redevelopment bond ordinance. To

decide that issue we must construe a court rule and a statute.

Our standard of review of such matters of law is de novo. See

Occhifinto v. Olivo Constr. Co. LLC, 221 N.J. 443, 453 (2015)

(“[W]e review legal determinations based on an interpretation of

our court rules de novo.”); Murray v. Plainfield Rescue Squad,

210 N.J. 581, 584 (2012) (“In construing the meaning of a

statute, our review is de novo.”); see also Manalapan Realty,

L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995) (“A trial court’s

interpretation of the law and the legal consequences that flow

from established facts are not entitled to any special

deference.”).

B.

We begin by noting that West Orange Ordinance 2354-12

clearly provides for the issuance of redevelopment bonds

pursuant to the Local Redevelopment and Housing Law and related

Local Bond Law. Ordinance 2354-12 is a self-described “bond

ordinance” for the funding of general improvements within the

9

“Downtown Redevelopment Area.” The ordinance authorizes the

issuance of “negotiable bonds” in the amount of $6,300,000 to

finance costs related to “environmental remediation, public

parking and certain infrastructure work” in the Redevelopment

Area. The Township has pledged its “full faith and credit”

toward the repayment of the principal and interest on the bonds

through the levy of “ad valorem taxes upon all the taxable real

property within the Township.”

Plaintiffs first challenged the ordinance by filing a

petition for referendum. A referendum petition is a challenge

to the wisdom of a statute, not a challenge to its legal

validity. See In re Ordinance 04-75, 192 N.J. 446, 450 (2007).

A referendum is an exercise in direct democracy that allows for

an ordinance to be placed on the ballot for voter approval or

rejection. Tumpson v. Farina, 218 N.J. 450, 468 (2014) (citing

N.J.S.A. 40:69A-185). The right to referendum is granted by

statute and extends to those municipalities whose forms of

government are organized in accordance with certain legislative

schemes. See id. at 467. The Legislature has provided “that

the voters of Faulkner Act municipalities, such as West Orange,

shall ‘have the power of referendum which is the power to

approve or reject at the polls any ordinance’ passed by the

council.” Id. at 468 (quoting N.J.S.A. 40:69A-185).

10

Although the right to referendum generally applies to “any

ordinance,” N.J.S.A. 40:69A-185, the Legislature has authority

to exempt specific categories of ordinances from the reach of

ballot approval. Ordinance 04-75, supra, 192 N.J. at 467. The

Legislature “determine[s] how much direct democracy through

referendum should be conferred on the voters of a municipality.”

Ibid. The Legislature, for example, has exempted zoning

ordinances passed pursuant to the Municipal Land Use Law,

N.J.S.A. 40:55D-1 to -129, from referendum challenges.

Ordinance 04-75, supra, 192 N.J. at 466; see N.J.S.A. 40:55D-

62(b) (“No zoning ordinance and no amendment or revision to any

zoning ordinance shall be submitted to or adopted by initiative

or referendum.”). Likewise, the Legislature has provided that

“[n]o ordinance, amendment or revision of an ordinance, or

resolution under [the Local Redevelopment and Housing Law] shall

be submitted to or adopted by initiative or referendum,

notwithstanding any other law to the contrary.” N.J.S.A.

40A:12A-28.

West Orange Township Ordinance 2354-12, in form and

substance, is a redevelopment bond ordinance. The Township

passed the bond ordinance through the exercise of redevelopment

powers conferred on municipalities by the Local Redevelopment

and Housing Law. See N.J.S.A. 40A:12A-1 to -73. The

Legislature has unambiguously decreed that an ordinance enacted

11

under the Local Redevelopment and Housing Law is not subject to

approval at the ballot box. The Township Clerk, therefore,

properly concluded that Ordinance 2354-12 was not subject to

referendum.

IV.

A.

The referendum petition -- filed with the Township Clerk

two weeks after publication of the adopted bond ordinance -- was

not a challenge to the legality of the ordinance. The petition

was not a court pleading. Rather, it was a procedural step

taken toward placing the ordinance on the ballot for voter

approval.

Not until fifty-three days after publication of the

ordinance did plaintiffs file an action in lieu of prerogative

writs in Superior Court attacking the ordinance’s legal

validity. In their complaint, plaintiffs alleged that the

Township was required to secure approval of the Local Finance

Board for the issuance of redevelopment bonds before incurring a

municipal debt. That challenge, however, was not brought within

the time limit mandated by statute and our court rule.

N.J.S.A. 40A:2-49 provides that “the following shall be

conclusively presumed” twenty days after publication of the

final passage of a bond ordinance:

a. the accuracy, correctness and

12

sufficiency of any annual or supplemental debt

statement filed in connection therewith;

b. any recitals or statements of fact

contained in such ordinance or preamble or

recital thereof;

c. determinations in said ordinance as to

purposes for which said obligations are

authorized, the period or average period of

usefulness, the maturities of any obligations,

and the validity of the purpose or purposes

for which authorized;

d. the due and regular introduction,

publication and final passage and adoption of

such ordinance;

e. the compliance with the provisions of

this chapter and every other law of such

ordinance and all matters in connection

therewith, and the issuance of obligations

authorized thereby or pursuant thereto by the

local unit.

Further, after the twenty-day time period, all interested

persons are “estopped [forever] from denying that such ordinance

or its final adoption or issuance of obligations thereunder do

not comply with the provisions of this and every other law, or

from questioning in any manner the validity of such ordinance or

any obligations issued thereunder in any action or proceeding.”

N.J.S.A. 40A:2-49.

A predecessor statute, the Pierson Act, L. 1916, c. 252,

similarly cloaked a municipal bond ordinance with a presumption

of validity and estopped legal challenges to such an ordinance

13

twenty days after its publication.2 The purpose of the twenty-

day limitation period is “to prevent any action . . . which

would cast a cloud upon the validity of the bonds.” Watters v.

Mayor & Common Council of Bayonne, 89 N.J. Eq. 384, 385 (Ch.

1918) (commenting on limitation period imposed by Pierson Act).

The evident purpose of both N.J.S.A. 40A:2-49 and the Pierson

Act is to give confidence to financial markets and investors

that municipal bonds authorized by ordinance will not be subject

to a legal challenge after a prescribed time period. Jersey

City Educ. Ass’n v. City of Jersey City, 316 N.J. Super. 245,

251-52 (App. Div. 1998) (“The approval of a municipal bond

ordinance and the complexities of preparing for the sale of

municipal bonds must have the benefit of the repose arising from

a statutory time-bar on continued litigation.”), certif. denied,

158 N.J. 71 (1999). The marketability of such bonds clearly

2 The Pierson Act, which authorized and regulated the issuance of

municipal bonds, provided, in pertinent part:

[T]wenty days after the publication of a

statement signed by the clerk . . . stating

that an ordinance or resolution in a form

published therewith has been adopted or

approved, as the case may be, such ordinance

or resolution shall be conclusively presumed

to have been duly and regularly passed and to

comply with the provisions of this or any

other act, and the validity thereof or of any

bond issued in accordance therewith . . . .

[L. 1916, c. 252, § 2(3).]

14

would be adversely affected if an ordinance could be attacked

after the issuance of the bonds. See id. at 251 (“The pendency

of a suit after the passage of a municipal bond ordinance

prevents a city or its bond counsel from representing to the

public that the proceeds of the bond will be used for the public

purposes designated within the bond ordinance.”). Thus, the

Legislature has expressed the need for strict time limits

governing the initiation of lawsuits challenging bond

ordinances.

B.

The twenty-day limitation period governing challenges to

bond ordinances in N.J.S.A. 40A:2-49 is mirrored in our court

rules. Rule 4:69-6(b)(11) states: “No action in lieu of

prerogative writs shall be commenced . . . to review any

resolution or ordinance authorizing the issuance of notes or

bonds of any municipality or other political subdivision, after

20 days from the date of the first publication thereof following

final passage.” Rule 4:69-6(c) allows a court to “enlarge the

period of time provided . . . where it is manifest that the

interest of justice so requires” in all eleven categories of

matters identified in Rule 4:69-6(a) and (b), including bond

ordinances.3

3 The time limitation for filing an action in lieu of prerogative

writs is generally forty-five days, but is subject to a number

15

Generally, the interest-of-justice provision for expanding

the limitation period will apply to cases involving “important

and novel constitutional questions,” “informal or ex parte

determinations of legal questions by administrative officials,”

“important public rather than private interests which require

adjudication or clarification,” Borough of Princeton v. Bd. of

Chosen Freeholders of Mercer, 169 N.J. 135, 152 (2001) (quoting

Brunetti v. Borough of New Milford, 68 N.J. 576, 586, (1975)),

and “a continuing violation of public rights,” ibid. (quoting

Reilly v. Brice, 109 N.J. 555, 559 (1988)). Even in such

instances, any expansion of the limitation period must be

balanced against the “important policy of repose” expressed in

the rule. Id. at 153 (quoting Reilly, supra, 109 N.J. at 559).

This case, however, presents distinctive concerns. Here,

Rule 4:69-6(b)(11), which requires the filing of an action in

lieu of prerogative writs within twenty days of a bond

ordinance’s publication, must be read in conformity with

N.J.S.A. 40A:2-49 -- the statute that confers on a bond

ordinance both a conclusive presumption of validity and

of exceptions as set forth in Rule 4:69-6(b). For example, a

prerogative-writs action challenging certain elections may not

be filed more than fifteen days after the election, R. 4:69-

6(b)(1), and an action challenging “any decision of a board of

chosen freeholders refusing or granting a permit to erect a

building in the bed of any highway” may not be filed more than

thirty days after the decision, R. 4:69-6(b)(6).

16

protection from legal attack after the twenty-day limitation

period.

Although Rule 4:69-6(c) permits an enlargement of the

filing period “where it is manifest that the interest of justice

so requires,” in the case of an ordinance authorizing the

issuance of bonds, N.J.S.A. 40A:2-49 counsels against exceptions

to the twenty-day filing rule. That is so because the public

and financial markets presume that a municipality issues legally

valid bonds. “Prospective bond purchasers are entitled to

knowledge of litigation prior to the date of the sale of

municipal bonds.” Jersey City Educ. Ass’n, supra, 316 N.J.

Super. at 251 n.6. Litigation, unquestionably, will adversely

“affect[] the sale of municipal bonds.” Ibid.

Thus, the exception to Rule 4:69-6 must give way to the

plain and common-sense meaning and purpose of N.J.S.A. 40A:2-49.

We cannot dismiss, however, a possible scenario in which a bond

ordinance, even past the twenty-day limitation period, must be

declared void in the manifest interest of justice. Only in the

most extraordinary of circumstances -- circumstances that are

not presented here and difficult to envision -- should a court

entertain a request to enlarge the twenty-day filing period for

an action in lieu of prerogative writs challenging an ordinance

authorizing the issuance of municipal bonds.

V.

17

We reject plaintiffs’ argument that a referendum petition

modifies the twenty-day time limitation set forth in N.J.S.A.

40A:2-49 and Rule 4:69-6(b)(11) for the filing of a prerogative-

writs action challenging the validity of a bond ordinance.

Nothing in the statute or court rule suggests that a referendum

petition tolls the prerogative-writs limitation period.

Plaintiffs had two paths by which to challenge the bond

ordinance: (1) a prerogative-writs action aimed at the

Township’s failure to secure Local Finance Board approval for

the bond ordinance and (2) a referendum petition seeking to

place the ordinance on the ballot. Plaintiffs could have

pursued one path, the other, or both paths at the same time.

Obviously, an ordinance that is declared void because it

violates a statute does not need to be repealed in a referendum.

Logic and public policy suggest that a challenge to an

ordinance’s validity should not be delayed. Here, plaintiffs

chose to file a referendum petition even though an ordinance

authorizing the issuance of redevelopment bonds cannot be put to

a vote in a referendum. See N.J.S.A. 40A:12A-28 (stating that

no ordinance enacted pursuant to Local Redevelopment and Housing

Law “shall be submitted to or adopted by initiative or

referendum, notwithstanding any other law to the contrary”).

Pursuing a referendum in no way alters the twenty-day period in

which an action in lieu of prerogative writs must be filed to

18

challenge the legal validity of a bond ordinance. If we were to

declare otherwise, we would sanction a template that delays the

implementation of a duly enacted bond ordinance, contrary to

N.J.S.A. 40A:2-49 and Rule 4:69-6(b)(11).

Accordingly, plaintiffs’ action in lieu of prerogative

writs was not timely filed and must be dismissed. We therefore

do not decide whether the West Orange bond ordinance required

Local Finance Board approval.

VI.

For the reasons expressed, we affirm the judgment of the

Appellate Division, which upheld the trial court’s dismissal of

plaintiffs’ action in lieu of prerogative writs.

CHIEF JUSTICE RABNER; JUSTICES PATTERSON and SOLOMON; and

JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN’S

opinion. JUSTICES LaVECCHIA and FERNANDEZ-VINA did not

participate.

19

SUPREME COURT OF NEW JERSEY

NO. A-54 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

IN RE: PETITION FOR REFERENDUM TO REPEAL ORDINANCE 2354-12 OF THE

TOWNSHIP OF WEST ORANGE, ESSEX COUNTY, WINDALE SIMPSON, MARK

MEYEROWITZ, ALTHIA TWEITEN, MICHAEL SCHARFSTEIN, AND ROSARY MORELLI,

Plaintiffs-Appellants,

v.

THE TOWNSHIP OF WEST ORANGE, a Municipal Corporation of the State of New

Jersey, ROBERT D. PARISI, Mayor, and KAREN CARNEVALE, Clerk of West Orange

Township,

Defendants-Respondents,

and

PRISM GREEN ASSOCIATES IV, L.L.C., PRISM GREEN URBAN RENEWAL

ASSOCIATES IV, L.L.C., and GP 177 MAIN URBAN RENEWAL, L.L.C.,

Defendants/Intervenors-

Respondents.

DECIDED December 21, 2015

Chief Justice Rabner PRESIDING

OPINION BY Justice Albin

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY

CHECKLIST AFFIRM

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA -----------

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA -----------

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X

TOTALS 5