The opinion
NOT FOR PUBLICATION WITHOUT THE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-3772-21
PAUL SCHORR,
Plaintiff-Appellant,
v.
THE PLANNING BOARD OF
THE CITY OF TRENTON and
AJAX HOLDING II, LLC,
Defendants-Respondents,
___________________________
Submitted December 5, 2023 – Decided January 18, 2024
Before Judges Whipple and Paganelli.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0546-22.
Paul Schorr, appellant pro se.
McGill & Hall LLC, attorneys for respondent The
Planning Board of the City of Trenton (George D.
McGill, of counsel and on the brief).
Sills Cummis & Gross, PC, attorneys for respondents
Ajax Holding II, LLC (Mark Evan Duckstein, of
counsel and on the brief).
PER CURIAM
Paul Schorr (Schorr) appeals from the June 27, 2022 order dismissing, as
untimely, his challenge of the Planning Board of the City of Trenton's (Board)
approval of Ajax Holdings II, LLC, project (Ajax or Ajax Project). We affirm.
I.
We glean the facts and procedural history from the motion records. On
April 14, 2021, Ajax filed an application with the Board for variances and final
and preliminary site plan approvals.
On August 12, 2021, the Board held a public meeting. Before considering
Ajax's application, the Board considered the application of another developer,
Vista. Ajax and Vista had the same principals and were represented by the same
attorney, but their applications were separate.
After Vista's presentation but before the Board's vote the following
interaction transpired on the record:
[Board Member]: . . . there[ is] some question in some
of the correspondence about right to salvage material
from the building before it comes down? Is that a
consideration of yours . . . ?
[Vista]: Yeah, absolutely. Yeah. Do you want any
bannisters . . . ?
[Board Member]: I might just want that iron fence from
in front of the building.
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[Vista]: Well, it[ is] all yours. . . . We[ will] be happy
to work with historic preservation. . . .
[Board Attorney]: Okay, we[ will] add that condition.
[Board Member]: Thank you.
[Board Chairperson]: Coordinate through either the
Historic Commission or the Landmarks folks with that?
[Vista]: Sure.
Thereafter, the Board considered Ajax's application; hearing testimony on
behalf of Ajax, public comment, and objection from Schorr. The Board voted
to approve the application. On October 28, 2021, the Board adopted a resolution
granting Ajax's application. On November 3, 2021, the Times of Trenton
published notice of the Board's resolution granting Ajax's application.
On November 12, 2021, nine days after the Board's notice of publication
of the Ajax resolution, Schorr filed a "Complaint In Lieu of Prerogative Writs
and for Other Relief" (Initial Complaint) against the Board, Ajax, and Vista.
The Initial Complaint alleged the Board's approval was arbitrary, capricious and
unreasonable and the Board member's request for the historic fence created a
conflict of interest. Schorr sought reversal of the approvals and a remand "in
view of the potential conflict of interest."
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In response to the Initial Complaint, Ajax filed a motion to dismiss
arguing, in part, Schorr, "c[ould ]not challenge two distinct and unrelated project
approvals in a single action." Schorr opposed that part of the motion arguing
"that both matters 'involve common questions of law,' and it is in the interest of
judicial economy to consider the projects together."
On January 25, 2022, the motion judge heard the parties' oral arguments
and, in a written opinion, found "[Schorr's] [c]omplaint improperly join[ed]
legal challenges to two separate and distinct claims." He found joinder was not
required under Rule 4:28-1, nor permitted under Rule 4:29-1. The motion judge
noted Schorr "remain[ed] free to bring an action against each project separately[
and he was] not pass[ing] judgment on the merits of . . . [the] [c]omplaint." The
motion judge entered an order dismissing Schorr's Initial Complaint without
prejudice.1
1
Schorr's Notice of Appeal does not include the January 25, 2022 order of
dismissal. "Therefore th[e] order[ is] not within the scope of his appeal, and we
will not address [it]." 30 River Court East Urban Renewal Co. v. Capograsso,
383 N.J. Super. 470, 474 (App. Div. 2006) (citing R. 2:5-1(f)(3)(i); Fusco v. Bd.
of Educ. of Newark, 349 N.J. Super. 455, 460-62 (App. Div. 2002)). However,
we note that Rule 4:30 provides "[m]isjoinder of parties is not ground for
dismissal of an action. Parties may be dropped or added by the court order on
motion by any party or its own motion. Any claim against a party may be
reserved or severed and proceeded with separately by court order."
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On March 24, 2022, Schorr filed a New Complaint against the Board and
Ajax.
On May 24, 2022, Ajax filed a motion to dismiss the New Complaint as
untimely under Rule 4:69-6(a). Ajax contended "Schorr failed to take any action
towards re-filing his claims against Ajax until he initiated this action . . . a period
of [fifty-seven] days from the entry of the [motion judge]'s dismissal order."
Moreover, "[e]ven if the period of time during which the [Initial] Complaint was
pending . . . is ignored, [sixty-six] days expired between the publication of notice
and filing of the [New] Complaint."
Schorr opposed the motion arguing, in part: (1) Ajax's calculation of the
days for filing was "arbitrary," because as of the motion judge's January 25,
2022 order, the forty-five-day time period had elapsed; and (2) the Board failed
to "submit[] any papers in response" to the Initial or New Complaints.
The motion judge heard the parties' oral arguments on June 25, 2022. On
June 27, he authored another written opinion. The motion judge found Schorr's:
complaint . . . violat[ed] . . . Rule 4:69-6(a). On
November 3, 2021, . . . Ajax's application for land use
approvals was publicly noticed in the Times of Trenton.
. . . On November 12, 202[1], nine days after public
notice, [Schorr] filed his [I]nitial [C]omplaint . . . . This
[c]ourt dismissed the same on January 25, 2022. The
[c]ourt does not factor the pendency of the initial
complaint into is calculations. Once this [c]ourt
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dismissed [the Initial Complaint, Schorr] retained
thirty-six days in which he could timely file a complaint
against [d]efendants. [Schorr filed the New Complaint]
on March 25, 2022, fifty-seven days after his [I]nitial
[C]omplaint was dismissed and twenty-one days
beyond the forty-five-day deadline.
The motion judge explained the dismissal of the Initial Complaint "was not an
invitation for [Schorr] to take an extended period of time," and despite
"maintain[ing] thirty-six days to file []his action . . . [Schorr] failed to do so."
Finding "Rule 4:69-6 exists to provide 'stability and finality to public actions[]'
[and] 'to give an essential measure of repose to actions taken against public
bodies[,]'" (citations omitted), the motion judge dismissed the New Complaint
with prejudice because it was untimely.
The motion judge "dismiss[ed] the [New C]omplaint in its entirety,
notwithstanding the failure of the [Board] to file a responsive pleading." The
judge reasoned
[a] filing out of time is out of time as to all [d]efendants
and to leave the [New C]omplaint open against the
public body [Board], or to permit the entry of default
against it, would merely require the . . . Board to seek
to vacate default and then file a successful motion to
dismiss the [New C]omplaint. That is not a wise use of
judicial or public resources.
Here, Schorr argues the motion judge erred: (1) "in determining that [he]
did not comply with Rule 4:69-6 when the action commenced on November 12,
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2021, nine . . . days after the notice of decision published on November 3, 2021";
(2) "in dismissing the conflict of interest . . . after sworn statements by [a] board
member, 'I might just want that iron fence from in front of the building' and by
[Vista], 'Well it[ is] yours'"; and (3) "by dismissing the request to permit the
entry of default against the . . . Board after stating on the record that they had
not filed responsive pleadings." We conclude Schorr's arguments are
unavailing.
II.
This appeal presents issues regarding the application of Rule 4:69-6.
"Appellate review of the meaning of the New Jersey Court Rules is de novo."
State v. Dickerson, 232 N.J. 2, 17 (2018).
A.
"The immediate issue before us is whether [Schorr] filed a timely action
in lieu of prerogative writs[, Rule 4:69-6,] challenging the validity" of the
Board's approval of the Ajax Project. In re Ordinance 2354-12 of W. Orange,
223 N.J. 589, 596 (2015). Rule 4:69-6(b)(3) provides:
[n]o action in lieu of prerogative writs shall be
commenced . . . to review a determination of a planning
board . . . after [forty-five] days from publication of a
notice once in the official newspaper of the
municipality or a newspaper of general circulation in
the municipality . . . .
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Schorr argues that he complied with the Rule because he "commenced [an
action] within nine days after publication of the notice of decision." In effect,
he avers the timely filing of his Initial Complaint satisfied the Rule's timing
requirement, and, thereafter, he was free to file the New Complaint regardless
of the timeframe required by the Rule. We disagree.
The Rule 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. 2002) (quoting Washington
Twp. Zoning Bd. of Adj. v. Washington Twp. Planning Bd., 217 N.J. Super.
215, 225 (App. Div. 1987)).
The Initial Complaint was timely filed, nine days after public notice of the
Ajax project. However, the Initial Complaint was dismissed on January 27,
2022. Thereafter, allowing for the tolling of the time between the date of filing
of the Initial Complaint and the date of dismissal, Schorr had thirty-six days
remaining to file the New Complaint. He failed to do so.
We conclude Schorr's delayed filing violated Rule 4:69-6(b)(3). To
conclude otherwise would frustrate the design of the Rule, "to give an essential
measure of repose to actions taken against public bodies." Tri-State Ship, 349
N.J. Super. at 423. Therefore, his complaint is barred.
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B.
Schorr argues the Board member's question regarding the salvage of iron
fencing rises to the level of a conflict of interest. This argument is misguided.
A claim alleging a conflict of interest on the part of a board member is an
important public interest that may warrant enlargement under Rule 4:69-6(c).
See Haggerty v. Red Bank Borough, 385 N.J. Super. 501, 511 (App. Div. 2006).
However, Schorr explains that he "raises the issue of a [c]onflict of [i]nterest[,]
not to ask for an enlargement[ of the forty-five-day period under Rule 4:69-
6(c)], but to seek reversal of the [Board's] decision."
Therefore, Schorr's conflict of interest argument goes to the merits of the
Board's approval. In challenging the merits Schorr must comply with Rule 4:69-
6(a)(3). Since we conclude Schorr failed to comply with Rule 4:69-6(a)(3), his
conflict of interest argument is barred. See Matter of Borough of Englewood
Cliffs, 473 N.J. Super. 189, 205 (App. Div. 2022) (holding the Borough was
time barred by Rule 4:69-6 from asserting a conflict of interest in challenging
its own action in approving settlements).
C.
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Schorr argues the motion judge erred in "dismissing the request to permit
the entry of default against the . . . Board after stating on the record that they
had not filed responsive pleadings." We disagree.
Our conclusion that Schorr's New Complaint was filed untimely applies
equally to Ajax and the Board. We agree with the motion judge that to allow a
futile entry of default would be a waste of judicial and public resources.
Rule 1:1-2 provides:
The rules . . . shall be construed to secure a just
determination, simplicity in procedure, fairness in
administration and the elimination of unjustifiable
expense and delay. . . . [A]ny rule may be relaxed or
dispensed with by the court in which the action is
pending if adherence to it would result in an injustice.
In the absence of rule, the court may proceed in any
manner compatible with these purposes and, in civil
cases, consistent with case management/trial
management guidelines set forth in Appendix XX of
these rules.
Here, Schorr was provided with a full and complete opportunity to argue
the merits of the timeliness of his filing. Therefore, we conclude the dismissal
as to all defendants, including the Board, was appropriate.
Affirmed.
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