For a real estate developer in New Jersey, it seems that there is no “repose” when it comes to the finality of land use approvals. Repose you ask? While the word may garner images of warm weather days at poolside, a developer can only think of repose as the day the appeal period expires on hard-won land use approvals, especially after facing objecting citizens at multiple hearings.
Under New Jersey’s Municipal Land Use Law (MLUL), land use approvals can be appealed within 45 days of a publication of a Notice of Decision in the town’s ordinance designated “official” newspaper. Under the MLUL, the developer is responsible to publish the Decision unless the town’s ordinance directs otherwise. The date of first publication starts the 45 day appeal period. On that 46th day following publication, the appeal period expires and “repose” commences, and the approval has become final and unappealable. A developer can then move forward with its project, secure in the knowledge that repose has begun ... or not.
Last week, the New Jersey Supreme Court heard arguments in Hopewell Valley Citizens' Group v. Berwind Property Group Development Co. where a Hopewell Township citizens group with a long list of environmental concerns about Berwind’s extensive office project petitioned the Court to exercise its discretion to extend the appeal period by a mere six days. In support, the Citizens argued that they filed their appeal timely, if only Hopewell Twp. had verbally advised them of the correct date of publication of the Notice of Decision. So much for repose!
Turns out there were two Notices. Berwind published the first notice and the second, later Notice, was published by the Township. Problem was the Township only advised the Citizens of the later, Township publication date. As a result, based on Berwind’s earlier publication date, they filed their appeal six days past the appeal period and into the period of repose. Apparently, no one read the “official” newspaper.
Berwind argued that it is entitled to repose as of the 46th day, because not only did it publish first, it also followed the guidance provided in the 2004 Appellate Division opinion of Cohen v. Thoft by promptly e-mailing verification of the publication date to the Township. Berwind’s e-mail even calculated the expiration date for appeal to assist the Township, only to be notified weeks later by a local newspaper, that its site plan approval had been challenged in Superior Court by Citizens. So much for developer self-help!
Hopewell Township did not explain the source of its misinformation and its counsel argued that municipalities cannot be burdened with the obligation to provide correct information concerning the appeal period where a developer publishes the Notice. After all, the objector could read the “official” newspaper and / or find the notice on-line. Thou shalt not rely on City Hall?
The Supreme Court can look to Cohen for some guidance, but not entirely. The Appellate Division in Cohen extended the appeal period three days in a purely private dispute between adjoining landowners due to what may have been perceived as misleading shenanigans by the developer. In Cohen, the developer obtained a variance and published a Notice of Decision the next day, but did not advise the municipality it had done so, and thereafter failed to correct the municipality when it indicated its subsequent intent to publish. The neighbor’s appeal was timely filed - but only under the second, municipal publication date.
The Appellate Division in Hopewell Citizens' was not persuaded by the Citizens arguments. The Appellate Division opinion, issued in January 2010, denied expansion of the appeal period, determining that enlargement was not justified because the issues barred by the expiration of the appeal period did not present important constitutional law or of public interest matters, or settle ex-parte or informal opinions of legal issues made by administrative officials. Counsel for Hopewell Citizens' strongly disagreed with the Appellate Division’s view and cited the Supreme Court to the extensive environmental issues that Citizens allege were given short shrift by a Planning Board that held 5 public hearings in 19 business days, allegedly to avoid new environmental regulations concerning a stream located on the property.
Whether the Supreme Court will disagree with both trial and appellate court decisions, which ruled against the requested six-day extension, is an open question. The ultimate result will inevitably compare the facts of Cohen to those in Hopewell Citizens' and determine whether a municipally misinformed, but public interest oriented, group of objectors can prevail at the expense of a diligent and fully compliant large project developer whose repose was so abruptly halted. Stay tuned.
Nancy A. Lottinville is Counsel to the Gibbons Real Property & Environmental Department. Howard D. Geneslaw, a Director in the Gibbons Real Property & Environmental Department, assisted in the preparation of this post.