RATAN PALACE, LLC VS. TOWNSHIP OF NORTH BERGEN PLANNING BOARD (L-4183-16, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4059-16T1
RATAN PALACE, LLC,
Plaintiff-Appellant,
v.
TOWNSHIP OF NORTH BERGEN
PLANNING BOARD, ROHIT GAUR
and SUMAN LATA,
Defendants-Respondents.
_______________________________
Argued August 8, 2018 – Decided August 23, 2018
Before Judges Hoffman and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No.
L-4183-16.
Francis A. Kirk argued the cause for appellant
(Tesser & Cohen, attorneys; Francis A. Kirk,
on the briefs).
Nylema Nabbie argued the cause for respondent
Township of North Bergen Planning Board
(Gittleman Muhlstock & Chewcaskie, LLP,
attorneys; Brian M. Chewcaskie and Nylema
Nabbie, on the brief).
Denis F. Driscoll argued the cause for
respondents Rohit Gaur and Suman Lata
(Inglesino, Webster, Wyciskala & Taylor, LLC,
attorneys; Nicholas A. Grieco, of counsel;
Joseph M. Franck and Alyssa E. Spector, on the
brief).
PER CURIAM
Plaintiff Ratan Palace LLC appeals from the February 22, 2017
order denying its motion to file an amended complaint and the
April 19, 2017 order of final judgment denying relief and
dismissing its complaint. After a review of the contentions in
light of the record and applicable principles of law, we affirm.
Plaintiff is the owner of real property in the Township of
North Bergen (Township) on which it operates a Holiday Inn Express
Hotel. In February 2015, the Township enacted Township of North
Bergen, N.J., Code § 239-15 (Ordinance 239-15), which changed the
zoning in the Paterson Plank Road/Grand Avenue area to multifamily
residential dwelling units with studio, one-bedroom, and two-
bedroom units.
In January 2016, defendants Rohit Gaur and Suman Lata
(defendants) purchased property on Paterson Plank Road in the
newly zoned area. On April 27, 2016, the Township adopted Township
of North Bergen, N.J., Code § 292-16 (Ordinance 292-16), which
permitted hotel use only for defendants' lots, not the entire
zone. The notice of passage of the ordinance was published on May
3, 2016.
2 A-4059-16T1
Defendants filed an application before defendant, Township
of North Bergen Planning Board (Board), in June 2016, seeking site
plan approval and certain variances in connection with its proposal
to build a hotel. Plaintiff was not within the required radius
to receive notice of the application and asserts it was unaware
of the August hearing. After testimony, the Board approved the
application.
The application was scheduled for a final vote for final site
plan approval at the September 6, 2016 Board meeting. Plaintiff
was present at the meeting and objected to the approval of the
application. The Board adopted Resolution 2016-21 that evening,
memorializing its earlier approval.
In October 2016, plaintiff filed a complaint in lieu of
prerogative writs against defendants and the Board, challenging
the final site plan approval, and contending Ordinance 292-16 was
impermissible "spot zoning" implemented solely to permit a use for
defendants' property not previously allowed in that zone. All
defendants answered the complaint and the parties attended a case
management conference.
Plaintiff moved to amend its complaint to add the Township
as a defendant in January 2017. The named defendants opposed the
motion, arguing any amendment would be futile because plaintiff
failed to timely challenge Ordinance 292-16. After oral argument,
3 A-4059-16T1
the trial judge issued a cogent written decision denying the
motion.
Under Rule 4:69-6(a)(3), an action in lieu of prerogative
writs must be commenced within forty-five days of the publication
of the notice of enactment. In considering whether to extend the
requisite time to challenge the ordinance as permitted under Rule
4:69-6(c), the judge stated plaintiff had not asserted a public
interest to justify the limited expansion of time permitted under
the rule. He also noted plaintiff had not submitted any proofs
to support its allegation that the ordinance was amended
specifically to benefit defendants. As the challenge to the
ordinance was untimely filed, the judge determined that any
amendment to add the Township as a defendant would be futile. The
motion to amend the complaint was denied.
Following a trial in April 2017, the judge determined he
could not "find any evidence in the record to conclude the Planning
Board's decision was arbitrary, capricious, or unreasonable." He
noted the expert testimony regarding parking and traffic, signage,
and proposed building materials, and concluded "[t]he application
was approved because it was in compliance with the ordinance's
permitted hotel use." As the Township was not a party to the
suit, the validity of the ordinance permitting a hotel use on
4 A-4059-16T1
defendants' property was not before the court. Final judgment was
entered on April 19, 2017.
On appeal, plaintiff argues the court erred in denying its
motion to amend the complaint and should have declared Ordinance
292-16 invalid because it departed from the Township's Master Plan
and was impermissible spot zoning. We disagree.
We review a judicial decision to deny a motion to amend a
pleading for an abuse of discretion. Franklin Med. Assocs. v.
Newark Pub. Sch., 362 N.J. Super. 494, 506 (App. Div. 2003)
(holding the decision on a motion to amend is "left to the sound
discretion of the trial court").
Rule 4:9-1 governs the amendment of a pleading, requiring the
leave of court or written consent for any amendment after the
filing of an Answer. Although such motions are to be "granted
liberally," the determination is "best left to the sound discretion
of the trial court in light of the factual situation existing at
the time each motion is made." Kernan v. One Washington Park
Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998) (quoting Fisher
v. Yates, 270 N.J. Super. 458, 467 (App. Div. 1994)). However,
if the amendment will result in prejudice to the non-moving party
or would otherwise be futile, the motion should be denied.
Bustamante v. Borough of Paramus, 413 N.J. Super. 276, 298 (App.
Div. 2010).
5 A-4059-16T1
The passage of Ordinance 292-16 was published on May 3, 2017.
The judge properly concluded the time to challenge the ordinance
expired on June 17, 2016, forty-five days later. However,
plaintiff did not challenge the ordinance until it filed the
prerogative writ action in October and, even then, it was not
asserted against the proper party.
Rule 4:69-6(c) permits a court to enlarge the forty-five day
time period to challenge a municipal action when "it is manifest
that the interest of justice so requires." Our Supreme Court has
interpreted the rule to permit an enlargement of time in "cases
involving: (1) important novel or constitutional questions; (2)
informal or ex parte determinations of legal questions by
administrative officials; and (3) important public rather than
private interests which require adjudication or clarification."
Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975).
Plaintiff argued to the trial judge, as he does before us,
that the action involves an important public interest. However,
plaintiff provides no further support for the statement. The only
record before the court was the transcript from the Board hearing,
provided by counsel and reviewed by the judge after oral argument
6 A-4059-16T1
on plaintiff's motion. The judge noted there was no "basis in the
record to establish the public interest envisioned in Rocky Hill."1
In Rocky Hill, a citizen's group challenged the planning
board's grant of an application for an age-restricted development
as well as an ordinance permitting the re-zoning of the area for
the development. Id. at 390. We affirmed the trial judge's ruling
that the challenge to the ordinance was untimely under Rule 4:69-
6. Id. at 403. We found plaintiff had not established a public
interest to warrant an enlargement of time because there were "no
public funds involved, no political upheavals, no significant
impact on density, traffic, ratables or any other interest other
than the concerns expressed by the individual plaintiffs and their
supporters." Id. at 401.
Plaintiff here seeks to distinguish Rocky Hill, asserting the
ordinance at issue in that case was a "subject of intense debate"
with extensive public hearings and consideration. In contrast,
plaintiff states, Ordinance 292-16 was a "seemingly
inconsequential amendment to a redevelopment plan encompassing
eleven lots in a community of 60,000 people . . . unlikely to be
noticed." This statement belies plaintiff's argument that the
ordinance involved any public interest, but rather supports the
1
Rocky Hill Citizens for Responsible Growth v. Planning Bd. of
the Borough of Rocky Hill, 406 N.J. Super. 384 (App. Div. 2009).
7 A-4059-16T1
conclusion that it is only the private interest of plaintiff as a
business competitor at play here.
We also find plaintiff's reliance on Willoughby v. Planning
Board of Township of Deptford, 306 N.J. Super. 266 (App. Div.
1997), unpersuasive. There, we reversed the trial court's denial
of an extension of the forty-five day period under Rule 4:69-6.
Id. at 279. We found the matter was one of public interest, as
the development of the property in accordance with the zoning
change would have a significant impact on residents of an adjoining
neighborhood and the flow of traffic on a major roadway. Id. at
277-78. Plaintiff here has not established any of those factors.
The limited expansion permitted under the rule is the
exception, and plaintiff has not demonstrated the public interest
required to meet that exception. Therefore, the trial judge
properly denied the motion to amend as futile, as any challenge
to the ordinance was time-barred.
Plaintiff next argues the trial judge should have struck down
Ordinance 292-16 on its own as impermissible spot zoning and
noncompliant with the Township's Master Plan. As discussed above,
however, without the Township as a party to the action, there can
be no challenge to the ordinance. Although plaintiff contests the
actions of the Township in passing the ordinance, it did not name
the Township as a party, therefore losing the opportunity to
8 A-4059-16T1
challenge the ordinance. See Jackson Holdings, LLC v. Jackson
Twp. Planning Bd., 414 N.J. Super. 342, 350 (App. Div. 2010)
(holding a "governing body must also be joined as a defendant
before a court entertains a challenge to the validity of a zoning
ordinance").
Therefore, the only issue before the trial judge was whether
the Board's decision to approve defendants' application was
arbitrary or capricious. Plaintiff presents no arguments to
support a contrary finding. The Board considered defendants'
application, which was supported by expert testimony, and
determined it complied with the ordinance's permitted use. The
trial judge's conclusion upholding the Board's decision is
supported by the credible evidence in the record.
Affirmed.
9 A-4059-16T1