Claudia Casser v. Township of Knowlton , 441 N.J. Super. 353 ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1815-13T4
A-2127-14T4
CLAUDIA CASSER,
APPROVED FOR PUBLICATION
Plaintiff-Appellant, July 7, 2015
v. APPELLATE DIVISION
TOWNSHIP OF KNOWLTON, MAYOR AND
COMMITTEE FOR KNOWLTON, individually
and in their official capacities,
TOWNSHIP OF KNOWLTON PLANNING BOARD,
MEMBERS OF THE TOWNSHIP OF KNOWLTON
PLANNING BOARD, individually and in
their official capacities, RENE MATHEZ,
DAVID A. SMITH, RONALD C. FARBER,
SCOTT ODORIZZI, CLAYTON TALYOR, MICHAEL
TIRONI, HAL BROMM, GEORGE JAMES,
CARLA CONSTANTINO, MASER CONSULTING,
P.A., JOSEPH J. LAYTON, MARK J. HONTZ
and TED RODMAN,
Defendants-Respondents,
and
KATHY CUNTALA, JOHN ANDERSON,
PETER PAGLIA and VIVIAN PAGLIA,
Defendants.
__________________________________
CLAUDIA CASSER,
Plaintiff-Appellant,
v.
TOWNSHIP OF KNOWLTON, MAYOR AND
COMMITTEE FOR THE TOWNSHIP OF
KNOWLTON, individually and in
their official capacities,
TOWNSHIP OF KNOWLTON PLANNING
BOARD, MEMBERS OF THE TOWNSHIP OF
KNOWLTON PLANNING BOARD, individually
and in their official capacities,
RENE MATHEZ, DAVID A. SMITH,
RONALD C. FARBER, FRANK VAN HORN,
GEORGE JAMES, CLAYTON TAYLOR,
MICHAEL TIRONI, DALE GLYNN,
HAL BROMM and HOWARD COWELL,
Defendants-Respondents,
and
MARK J. HONTZ, ROGER THOMAS,
RICHARD P. CUSHING, HEYER, GRUEL
& ASSOCIATES, P.A., FRED HEYER and
PAUL N. RICCI,
Defendants.
__________________________________
Submitted May 12, 2015 - Decided July 7, 2015
Before Judges Reisner, Haas and Higbee.
On appeal from the Superior Court of New
Jersey, Law Division, Warren County, Docket
Nos. L-125-10, L-151-13, and L-203-14, and
Somerset County, Docket No. L-248-13.
Claudia Casser, appellant pro se.
2 A-1815-13T4
Robert J. Greenbaum, attorney for
respondents in A-1815-13 and A-2127-14
Township of Knowlton, Mayor and Committee
for Knowlton, Township of Knowlton Planning
Board, Members of the Township of Knowlton
Planning Board, Rene Mathez, David A. Smith,
Ronald C. Farber, Clayton Taylor, Michael
Tironi, Hal Bromm, and George James;
respondents in A-1815-13 Scott Odorizzi and
Carla Constantino; and respondents in A-
2127-14 Frank Van Horn, Dale Glynn and
Howard Cowell.
Thompson Becker & Bothwell, L.L.C.,
attorneys for respondents in A-1815-13 Maser
Consulting, P.A. and Joseph J. Layton
(Joseph T. Ciampoli, on the brief).
McElroy, Deutsch, Mulvaney & Carpenter, LLP,
attorneys for respondent in A-1815-13 Mark
J. Hontz (Craig J. Smith, on the brief).
Law Offices of Joseph Carolan, attorneys for
respondent in A-1815-13 Ted Rodman (Mr.
Carolan and George H. Sly, Jr., on the
brief).
PER CURIAM
We have consolidated two appeals for purposes of this
opinion. Appeal A-2127-14 concerns a 2010 complaint in which
plaintiff Claudia Casser sought, on various theories, to
challenge land use approvals that the Knowlton Township Planning
Board issued to her in 2007. Appeal A-1815-13 (the companion
appeal) concerns a complaint plaintiff filed on April 18, 2013,
challenging land use approvals issued to two other landowners
and challenging the validity of the local zoning ordinance.
3 A-1815-13T4
We affirm in A-2127-14. We conclude that a party may not
circumvent the exhaustion doctrine by waiting until it is too
late to file the predicate action required for exhaustion, and
then claiming that exhaustion would be "futile" because that
action is time-barred. In A-1815-13, we remand to the trial
court for further proceedings consistent with this opinion.
[At the direction of the court, Section I
has been omitted from the published version
of the opinion.]
II
Plaintiff's land use application concerned approximately
100 acres of land located in the Township's farmland
preservation zone. In general, the zone permitted construction
of houses on ten-acre lots. However, the zoning ordinance
required that, on tracts of fifty acres or more, residences must
be clustered, leaving at least fifty percent of the total land
area as "open space." The latter term was defined as land
"restricted to agriculture," open space restricted to use by
residents of the development of which the open space was a part;
or public open space. Instead of clustering the development on
her land, plaintiff proposed to subdivide the land into three
"farmettes" (small horse farms) of between eight and ten acres
each, with a house on each farmette, plus one approximately
4 A-1815-13T4
seventy-acre remainder parcel on which she proposed to maintain
an existing house.
Plaintiff proposed to sell to the State the development
rights on most of the remainder parcel, so that it would be
permanently preserved for farmland use. However, she was
unwilling to agree to deed restrict the remainder parcel as part
of the variance application, since that would defeat her ability
to sell the development rights. Instead, she proposed to
satisfy the open space requirement by aggregating contiguous
portions of land on the three farmettes and deed-restricting the
farmettes for agricultural use.1
The Board conducted six days of public hearings on the
variance application. Plaintiff, an attorney who previously sat
on the Township Zoning Board, represented herself at most of the
hearings. During the hearings, the application was modified so
that plaintiff would create two relatively small farmettes of
eight or nine acres each, one farmette of twenty-five acres, and
a remainder parcel of fifty-seven acres. A portion of each of
1
In the context of this application, the term "open space"
clearly did not refer to publicly accessible space such as a
public park or other recreation facility. See N.J. Shore
Builders Ass'n v. Twp. of Jackson, 401 N.J. Super. 152, 155-56
(App. Div. 2008), aff'd o.b., 199 N.J. 449 (2009). Rather, as
plaintiff herself acknowledges in her brief, the term referred
to agricultural easements designed to ensure that the land would
continue to be used for agricultural purposes.
5 A-1815-13T4
the four lots was to be deed restricted for agricultural use,
with a total of 49.971 acres in all to be deed restricted.
Plaintiff would be entitled to develop the approximately 100-
acre tract with a maximum of ten new houses, while also
maintaining the existing house. On October 23, 2007, the Board
granted all of the requested variances, including relief from
the clustering requirement.
As part of the approvals, the Board required that the
farmettes be deed-restricted against further subdivision, and
the remainder lot be deed restricted against further subdivision
resulting in more than seven resulting lots, or fewer than seven
if the ordinance allowed fewer lots at the time of the future
subdivision. Those conditions were required by the zoning
ordinance.2 In other words, plaintiff would be held to the
representations she made at the time of the application, on
which the Board relied in granting the variances. The
restrictions ensured that neither plaintiff nor future
purchasers could later seek variances for more intensive
development of the land. As required by the zoning ordinance,
2
The ordinance provided that: "The maximum tract density shall
be established at the time of the initial application for
development of a tract. This density shall not be exceeded in
subsequent subdivisions. All lots shall include a deed
restriction against further subdivision." Knowlton Twp. Land
Dev. Ordinance § 11-297(D)(4).
6 A-1815-13T4
the terms of the variance approvals also ensured that the
designated portions of the land would continue to be used for
agricultural purposes, as plaintiff's application had
represented they would be. Knowlton Twp. Zoning Ordinance § 11-
297 (C)(12)(a)(4).
Plaintiff did not file a complaint in lieu of prerogative
writs challenging the October 23, 2007 resolution within forty-
five days, as required by Rule 4:69-6(a). Instead she waited
almost three years before asserting assorted claims aimed at
undoing the resolution. On January 28, 2010, plaintiff wrote a
letter to the Knowlton Township Committee, claiming that she was
unable to sell the subdivided lots due to the real estate crash
of 2008. Plaintiff also alleged that she only recently "came
across" a June 25, 2009 opinion of the New Jersey Supreme Court,
holding that municipalities had no authority to require public
open space set-asides as a condition of granting minor
subdivision approvals. See N.J. Shore Builders Ass'n, supra,
199 N.J. at 452, aff'g o.b., 401 N.J. Super. 152 (App. Div.
2008).3 Plaintiff contended that the 2007 Planning Board
resolution was ultra vires and demanded that the Township
3
Plaintiff, an attorney and former zoning board member, did not
mention the Appellate Division's published opinion issued on
June 23, 2008.
7 A-1815-13T4
compensate her "for the 50 acres the Planning Board illegally
required [her] to set aside as Open Space."
On March 5, 2010, plaintiff filed a complaint against the
Township, its mayor and Township Committee, the Planning Board,
and various other municipal officials. Among other things, she
contended that the Township had repeatedly "down-zoned" the area
in which her land was located, until finally the zoning
permitted one house per ten acres. She claimed that, when the
Township adopted the 2003 zoning ordinance that governed her
eventual variance application, she did not realize that the
ordinance required set-asides of open space as a condition of
subdividing tracts larger than fifty acres.4 She also contended
that she only recently learned, through requests under the Open
Public Records Act (OPRA), that between 1993 and 2004, several
other landowners in the Township had been granted subdivision
approval without being required to set aside land for open
space.
Plaintiff contended, under various legal theories, that
Township officials had illegally sought to preserve open space
in the Township at the sole expense of large landowners, who
4
However, plaintiff's appendix contains the minutes of the
public hearing at which the Township considered the 2003
ordinance; as plaintiff admits, she appeared at that hearing and
testified against the proposed ordinance.
8 A-1815-13T4
were required to contribute some of their land for preservation
as a condition of being able to develop their property.
Plaintiff alleged that the Township's actions constituted
unlawful discrimination under the New Jersey Constitution and
the New Jersey Civil Rights Act and an unconstitutional taking
of private property.
Plaintiff also asserted that the defendants discriminated
against her on the basis of her gender and her religion, 5 and
retaliated against her for voting against "the 'old boys'" when
she was a member of the Township's Zoning Board. Lastly,
plaintiff asserted a civil Racketeer Influenced and Corrupt
Organizations Act (RICO) claim against defendants, alleging that
they illegally used their power to deprive her and others of
their rights while seeking to benefit their own property values
and granting favorable treatment to other landowners, and that
they fraudulently concealed their activity by failing to provide
her with information in response to her OPRA requests.
5
Plaintiff's reply brief clarified that she has abandoned those
claims.
9 A-1815-13T4
On those theories, she asked the court to set aside the
conditions of the 2007 resolution or require the Township to
compensate her.6
III
The case was assigned, in succession, to three different
Law Division judges. On May 5, 2011, the first judge entered an
order dismissing almost all of plaintiff's claims against a
group of professionals who provided legal or consulting services
to the Board. The only claim not dismissed concerned a count
for fraudulent concealment of evidence which the court found
could not be decided on a motion to dismiss. All of those
entities and individuals later reached settlements with
plaintiff and were dismissed from the case.
The Township, its officials and employees, and the Board
and its members (collectively, the Township defendants) then
moved for summary judgment as to all claims except fraudulent
6
In a proposed amended complaint, and in her appellate brief,
plaintiff admitted that she had sold the twenty-five acre
parcel, which was one of the three subdivided farmettes; she
contended that, as to those acres, a rescission of the variance
conditions would not provide relief. In her proposed amended
complaint, she asked for damages instead, without stating the
sale price she obtained or how that price compared to what she
claimed the State might have paid had she sold the development
rights to the same land. Elsewhere in her pleadings, plaintiff
contended that before applying for the variances, she offered to
sell the development rights to the State for $10,000 per acre,
but the State only offered about $6500 per acre and she
therefore refused to sell.
10 A-1815-13T4
concealment. In an oral opinion issued on August 31, 2011, the
first judge dismissed counts five, six, seven, ten and twelve
against the Township defendants without prejudice.7 Relying on
Rezem Family Associates, LP v. Borough of Millstone, 423 N.J.
Super. 103 (App. Div.), certif. denied, 208 N.J. 368 (2011), the
judge reasoned that plaintiff had failed to exhaust
administrative and judicial remedies. The court also denied
without prejudice plaintiff's cross-motion for summary judgment
with respect to the variance conditions, because plaintiff had
failed to challenge those conditions in an action in lieu of
prerogative writs. On May 25, 2012, the first judge denied
another summary judgment motion filed by defendants, largely on
procedural grounds and because the parties' briefs did not
adequately address certain issues. In particular, the judge
noted that certain counts of the complaint might be construed as
actions in lieu of prerogative writs, but the briefs did not
address whether they were untimely under Rule 4:69-6(c)
(permitting enlargement of the time limit in the interests of
justice).
7
These counts set forth the following claims: five
(discriminatory application of ordinance), six (disproportionate
burden on owners of certain lots), seven (unlawful
discrimination against a protected class), ten (New Jersey Civil
Rights Act) and twelve (New Jersey RICO).
11 A-1815-13T4
The first judge subsequently recused herself and the case
was transferred from Warren County to Somerset County, where it
was assigned to a second judge. The Township defendants then
filed another summary judgment motion. The motion was supported
by an expert report from Charles McGroarty, a licensed
professional planner, who explained in detail that the Board's
resolution did not deprive plaintiff of the use of her property,
because she retained the right to build ten houses on the land,
in addition to the existing farmhouse.
The expert also reviewed and analyzed each of the land use
applications in which plaintiff claimed other landowners were
treated more favorably. McGroarty explained that, contrary to
plaintiff's assertions, in all but two or three cases the
applicants in fact set aside large amounts of their land for
agricultural preservation. Plaintiff opposed the summary
judgment motion, without filing an expert report. She also
filed a motion to amend her complaint, seeking to add a claim in
lieu of prerogative writs, and to re-plead the civil rights and
RICO claims that the first judge had dismissed without
prejudice.
On April 12, 2013, the second judge issued an order denying
the motion to amend the complaint and granting defendants'
summary judgment motion as to counts one through four, eight,
12 A-1815-13T4
nine, and eleven.8 The order mistakenly noted that the first
judge had dismissed all of the remaining counts on May 25, 2012;
in fact, the first judge did not dismiss the fraudulent
concealment count.
In a detailed thirteen-page written opinion, the second
judge denied plaintiff's motion to file an action in lieu of
prerogative writs. He concluded that under Rule 4:69-6(a),
plaintiff was required to file such an action within forty-five
days after the date of the Board's resolution in 2007.
Answering the question left open by the first judge, the second
judge found that plaintiff did not establish any grounds to
relax the time limit in the interests of justice, pursuant to
Rule 4:69-6(c). He also considered that discovery had ended and
the case was scheduled for trial on June 3, 2013.
The second judge found no merit in plaintiff's claim that,
merely by attempting to now plead her prerogative writ claim,
however untimely it might be, she had exhausted her
8
The counts are as follows: count one (exceeding the authority
of the Municipal Land Use Law), count two (failure to proceed
under N.J.S.A. 40:55D-44), count three (equitable estoppel or
injunction), count four (request for declaratory judgment and
reformation of Board resolution), count eight (improper taking
without just compensation), count nine (inverse condemnation)
and count eleven (reformation of irregularly configured lot
boundaries).
13 A-1815-13T4
administrative remedies and should be permitted to re-plead her
civil rights claims. Relying on Rezem, supra, 423 N.J. Super.
at 116-17, and 41 Maple Associates v. Common Council of Summit,
276 N.J. Super. 613, 619-20 (App. Div. 1994), the judge reasoned
that "[b]ecause Plaintiff did not file a timely prerogative writ
action, she failed to exhaust her administrative remedies, and
is now precluded from bringing her civil rights claims."
Addressing the summary judgment motion, the judge concluded
that plaintiff waived her claims under counts one, two, three,
four and eleven of her existing complaint when she failed to
file a timely prerogative writ action. Relying on Rezem, the
judge further concluded that plaintiff's unjustified failure to
challenge the land use approvals in a prerogative writ action
likewise barred her from pursuing her takings and
inverse condemnation claims. The judge denied plaintiff's
reconsideration motion on May 28 2013, for reasons set forth in
an accompanying statement of reasons.
As previously noted, plaintiff appealed and we remanded the
case to the trial court for the limited purpose of considering
the fraudulent concealment claim. On remand, that issue was
decided by a third judge,9 who denied plaintiff's motion to amend
9
The third judge had previously considered and dismissed
plaintiff's complaint in the second action she filed against
(continued)
14 A-1815-13T4
her complaint, granted defendants' summary judgment motion,
dismissed the fraudulent concealment claim, and dismissed the
complaint against all then-remaining defendants.10
In a written statement of reasons, the third judge
considered and rejected plaintiff's argument that she could
assert an independent cause of action for the tort of fraudulent
concealment of evidence. Relying on Rosenblit v. Zimmerman, 166
N.J. 391, 406-07 (2001), the judge reasoned that plaintiff had
the documents before she filed the 2010 litigation. He found
that she could not "show that she was damaged in the underlying
litigation by having to rely on an evidential record that did
not contain the evidence defendant concealed." He also found
that that plaintiff could not show that defendants acted with
"intent to withhold evidence" when they gave her "access to
municipal vaults that contained the entirety of Knowlton
Township's records." The judge further concluded that
plaintiff's proposed amended complaint would not cure the
fundamental defects in her claim. The judge denied plaintiff's
(continued)
most of the same defendants. That dismissal is the subject of
plaintiff's appeal in A-1815-13.
10
In adding a paragraph dismissing the complaint, the judge left
no doubt that the trial court litigation was over and the case
was ripe for appeal. Clearly, the dismissal was with prejudice.
15 A-1815-13T4
reconsideration motion on November 12, 2014, finding that her
motion presented "no new evidence" and "no new arguments."
IV
Plaintiff then filed an appeal (A-2127-14) from the
November 12, 2104 order and the various interlocutory orders
that preceded it. Our review of the Law Division's summary
judgment orders is de novo, employing the same standard used by
the trial court. See Bhagat v. Bhagat, 217 N.J. 22, 38 (2014);
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995). Likewise, we owe no deference to a trial court's legal
interpretations. D'Agostino v. Maldonado, 216 N.J. 168, 182-83
(2013). We review a trial court's decision denying a
reconsideration motion for abuse of discretion. Cummings v.
Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). We apply the
same standard to the trial court's decision of a motion for
leave to amend a complaint. See Franklin Med. Assocs. v. Newark
Pub. Sch., 362 N.J. Super. 494, 506 (App. Div. 2003).
On this appeal, plaintiff contends that the 2003 ordinance
should have been declared unlawful on its face. She argues
that, if the ordinance were declared void, her "fact-intensive
'taking' Counts 8 and 9 disappear from the case." Her argument
fails for several reasons.
16 A-1815-13T4
First, as plaintiff acknowledges, on August 7, 2013, the
Governor signed legislation that expanded municipal authority to
enact ordinances concerning clustered development and the
preservation of open space. L. 2013, c. 106. Also, in 2013,
the Township amended the farmland preservation chapter of its
zoning ordinance. Among other things, the ordinance no longer
requires clustering as a condition for minor subdivisions.
Consequently, the 2003 zoning ordinance is no longer the
Township's most current applicable zoning ordinance, and a
facial challenge to the 2003 ordinance would now be moot. See
Khodara Envtl., Inc. v. Beckman, 237 F.3d 186, 194 (3d Cir.
2001).
Second, plaintiff cannot circumvent the procedural barriers
to her 2010 Law Division action by re-characterizing this
litigation as a facial challenge to the 2003 ordinance. The
2010 litigation sought relief from the terms of the Board
resolution granting her the variances. In the alternative, she
sought money damages. The second trial judge held that
plaintiff was not entitled to either form of relief, on any of
her assorted legal theories, because she failed to file a timely
action in lieu of prerogative writs and that failure barred her
from pursuing her other causes of action. That ruling was
17 A-1815-13T4
eminently correct, for the reasons stated by the judge in his
written opinion.
In particular, we agree with the trial court that Rezem
controls this case. In Rezem, the former owner of a large tract
of land sued Millstone Borough and its land use board, claiming
that the defendants violated the plaintiff's civil rights by
making false statements, fraudulent claims and factual
misstatements in an effort to keep the plaintiff's land as open
space. Rezem, supra, 423 N.J. Super. at 108. After reciting a
litany of alleged bad faith conduct by assorted public agencies,
the plaintiff alleged that it was forced to sell the land to
Somerset County at a much lower price than various potential
developers would have paid. Id. at 111-12.
The plaintiff's complaint was similar to Casser's 2010
filing:
The eight counts of plaintiff's complaint
alleged: (count one) substantive due process
violations under 42 U.S.C. § 1983; (count
two) § 1983 conspiracy; (count three)
temporary regulatory takings; (count four)
substantive due process violations under the
New Jersey Civil Rights Act, N.J.S.A. 10:6-1
and -2; (count five) negligence by the Van
Dyke defendants; (count six) intentional
tort by the Van Dyke defendants; (count
seven) conspiracy; and (count eight) civil
racketeering in violation of the New Jersey
Civil Racketeer Influenced and Corrupt
Organizations Act (NJRICO), N.J.S.A. 2C:41-1
to -6.
18 A-1815-13T4
[Id. at 108.]
The trial court dismissed the complaint, and the plaintiff
appealed. Id. at 109. Without deciding whether any of the
defendants' alleged actions were sufficiently conscience-
shocking to support a cause of action under § 1983 or the State
Civil Rights Act, we agreed with the trial court "that Rezem's
complaint must be dismissed because it contains no allegation
that Rezem, or potential developers, exhausted available
administrative and judicial remedies, or sought a final decision
on any application for a zoning change or development of the
land, before plaintiff filed this civil rights lawsuit." Id. at
116 (emphasis added).
In reaching that conclusion, we relied on a string of prior
cases, including 41 Maple Associates, supra, which held that the
plaintiff's inverse condemnation and § 1983 claims were "not
ripe for adjudication without a showing that the plaintiffs had
attempted to remedy the deprivation of their land use rights
through available administrative and judicial proceedings."
Rezem, supra, 423 N.J. Super. at 116 (citing 41 Maple Assocs.,
supra, 276 N.J. Super. at 619-20); see also OFP, LLC. v. State,
395 N.J. Super. 571 (App. Div. 2007), aff'd o.b., 197 N.J. 418
(2008); House of Fire Christian Church v. Zoning Bd. of Adj. of
Clifton, 379 N.J. Super. 526 (App. Div. 2005).
19 A-1815-13T4
In Rezem, we concluded that, by whatever theory the
plaintiff asserted its claims, they were barred by the
plaintiff's failure to pursue local administrative remedies
followed by an action in lieu of prerogative writs:
Whether we describe the applicable
principle as exhaustion of remedies,
ripeness of the claim, or the "finality
rule," as defendants characterize it, we
hold that plaintiff's substantive due
process claims in a land use case require a
showing either that plaintiff has obtained a
final decision under available state
procedures or that such an attempt would
have been futile.
. . . .
In the absence of any attempt to make
use of available procedures and remedies,
Rezem's complaint improperly converts a
zoning case into civil rights litigation.
We reject that effort and affirm the trial
court's dismissal of Rezem's § 1983 and
State civil rights claims for lack of
ripeness or of finality of defendants'
zoning and planning decisions.
[Rezem, supra, 423 N.J. Super. at 118-20.]
Rezem is on point here. Contrary to plaintiff's argument,
Rezem did not establish a new principle of law, and there is no
reason to apply the case prospectively only. We also find no
merit in plaintiff's claim that a prerogative writ remedy is
"futile" or "unavailable" for purposes of the exhaustion
doctrine.
20 A-1815-13T4
The problem plaintiff faces here is of her own making. She
is an attorney and a former zoning board member. If she wanted
to challenge the terms of the variance granted her by the
Planning Board, she had forty-five days in which to file an
action in lieu of prerogative writs. She makes no claim here
that she was unaware of the deadline set by Rule 4:69-6(a).
Instead she waited three years to file this lawsuit, and her
complaint would have been untimely even if one or more of the
counts were deemed as a prerogative writ challenge. Her proposed
amended complaint was even more untimely.
Plaintiff may not circumvent the exhaustion requirement by
waiting until it is years too late to file a prerogative writ
action, and then claiming that she need not exhaust remedies
because that action is time-barred. Allowing her to proceed in
that fashion would make a mockery of the exhaustion doctrine,
and would defeat "the important policy of repose expressed in
the forty-five day" time limit set by Rule 4:69-6(a). Rocky
Hill Citizens for Responsible Growth v. Planning Bd. of Rocky
Hill, 406 N.J. Super. 384, 398 (App. Div. 2009) (citation and
internal quotation marks omitted). Indeed, "[b]ecause of the
importance of stability and finality to public actions, courts
do not routinely grant an enlargement of time to file an action
in lieu of prerogative writs," and "[t]he longer a party waits
21 A-1815-13T4
to mount its challenge, the less it may be entitled to an
enlargement." Tri-State Ship Repair & Dry Dock Co. v. City of
Perth Amboy, 349 N.J. Super. 418, 423-24 (App. Div.) (citations
omitted), certif. denied, 174 N.J. 189 (2002).
Further, we agree with the trial court that the interests
of justice do not warrant relaxing the forty-five day time limit
under Rule 4:69-6(c). The record reflects that plaintiff was
not deprived of the right to develop or sell her land. To the
contrary, she owned about 100 acres of land subject to ten-acre
zoning; the Board's decision safeguarded her right to subdivide
the land and build ten houses. She has already sold the twenty-
five acre subdivided lot. The fact that the variance terms may
have prevented her from also selling development rights to the
State does not give rise to a takings cause of action. See
Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 298
(2001) (noting, in a zoning context, that "neither diminution of
land value itself nor impairment of the marketability of land
alone constitutes a taking"), cert. denied, 535 U.S. 1077, 122
S. Ct. 1959, 152 L. Ed. 2d 1020 (2002). Finally, defendants'
expert report thoroughly debunked plaintiff's theory that many
other landowners were treated more favorably than she was.
22 A-1815-13T4
Plaintiff's additional arguments on this appeal are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E). We affirm the orders on appeal in A-2127-14.
[At the direction of the court, Section V
has been omitted from the published version
of the opinion.]
Affirmed in A-2127-14. Remanded in A-1815-13. We do not
retain jurisdiction.
23 A-1815-13T4