966 Video, Inc. v. Mayor and Tp. Committee of Hazlet Tp.
| Decision Date | 27 September 1995 |
| Citation | 299 N.J.Super. 501,691 A.2d 435 |
| Parties | 966 VIDEO, INC., Plaintiff, v. MAYOR AND TOWNSHIP COMMITTEE OF HAZLET TOWNSHIP, Zoning Officer and Construction Code Official of Hazlet Township, Defendants |
| Court | New Jersey Superior Court |
That permission, though originally denied, was finally granted on or about March 17, 1994. No further action was apparently taken before the zoning board and apparently plaintiff sought no judicial relief. Moreover, N.J.S.A. 40:55D-73b was apparently never invoked, assuming an application was before the board of adjustment with an appeal having been taken.
On March 1, 1994, defendant Township Committee finally adopted Township Ordinance No. 940-94. Among other things, this ordinance provided for a new zoning district, i.e., the BP-3 (Business Professional) District, whose permitted uses included "sexually oriented businesses," which in turn was defined to include an adult bookstore or video store. Moreover, the ordinance prohibited such a business within 1500 feet of a place of worship, 500 feet of a school or 1000 feet of any public park or playground. Finally, the ordinance prohibited the location of any "sexually oriented business" in any zoning district except the BP-3 Zoning District. Plaintiff's property was not located in this new zoning district.
On March 15, 1994, defendant Township Committee finally adopted Township Ordinance No. 944-94, amending the earlier ordinance to provide for "sexually oriented businesses" to be located in the newly created I-A-1 (Industrial Assembly) District and added to the permitted uses in the I-M (Industrial Marine) District. Again, plaintiff's property was not included in these zoning districts or added to the BP-3 Zoning District, the only zones where "sexually oriented businesses" were permitted to be located.
In July, 1994, plaintiff, again, submitted an application for a certification of continued occupancy. In August, 1994, defendant zoning officer requested further information as to "the specific nature of videos/books/magazines that are proposed to be offered for sale or rental," in order that a zoning determination could be made as to whether the proposed use was permitted in the B-H When no further information was provided, the application for a certificate of continued occupancy was denied on or about October 13, 1994. Apparently no appeals as to these denials, i.e. zoning permit and/or certificate of continued occupancy, were ever brought until now. 2 Finally, on or about December 23, 1994, defendant Zoning Officer advised plaintiff that if a use was to commence prior to the issuance of a certificate of continued occupancy, prosecution for an ordinance violation would follow.
Zoning District which did not permit "sexually oriented businesses." On September 3, 1994, plaintiff's counsel made further inquiry as to defendant zoning officer's earlier letter. On September 13, 1994, defendant zoning officer reiterated his earlier request for information
On March 6, 1995, plaintiff filed a complaint in lieu of prerogative writs against defendants Mayor and Township Committee, zoning officer and construction code official. 3 In its complaint, plaintiff sought various relief against these defendants:
1. An order requiring the defendant zoning officer and construction code official to timely issue any required zoning permit and certification of continued occupancy.
2. A determination of the constitutional and statutory validity of Township Ordinance No. 944-94.
3. Damage claims under 42 U.S.C. § 1983 against (a) the defendant zoning officer and construction code official for their actions before and after the adoption of the ordinance in question claimed in violation of the First, Fifth, and Fourteenth Amendments to the United States and New Jersey Constitutions, and (b) all defendants for a claimed conspiracy to violate plaintiff's rights under the Fifth and Fourteenth Amendments to the United States Constitution.
The issues to be resolved by the court at this time as framed by the pleadings and pre trial order of June 12, 1995, are as follows:
1. Is the challenge to the validity of Township Ordinance No. 944-94 time barred under R.4:69-6?
2. Are plaintiff's claims barred under the doctrines of waiver, estoppel and/or laches?
3. Has plaintiff failed to exhaust its administrative remedies, and, if so, what are the consequences?
4. Are plaintiff's damage claims barred under the immunities claimed by the defendants?
Plaintiff argues that Township Ordinance No. 944-90 "was specifically adopted to thwart plaintiffs (sic) attempt to open its proposed business in the premises described above." (Paragraph 10, Second Count, Verified Complaint) 4
In its challenge to the ordinance, defendants argue that plaintiff is belatedly seeking to avoid the consequences of R.4:69-6(a) by attempting to cloak its claims, now, in part at least, as being an action for declaratory relief.
Plaintiff, in its complaint in lieu of prerogative writs, seeks in the Second and Third Counts a judgment declaring the ordinance in question unconstitutional and void. Seeking declaratory relief in the context of an action in lieu of prerogative writs is not necessarily unusual. Bell v. Tp. of Stafford, 110 N.J. 384, 388, 541 A.2d 692 (1988).
Moreover, the characterization or designation of the nature of an action does not determine the substantive right of plaintiff to obtain relief from the courts on the merits of his claim, so long as defendants are reasonably apprised of the factual allegations and the relief sought, have sufficient notice to defend, and are in no sense prejudiced by the characterization given the action by plaintiff. Zoning Bd. of Adj. of Green Brook v. Datchko, 142 N.J.Super. 501, 508, 362 A.2d 55 (App.Div.1976). The instant complaint meets these standards.
R.4:69-6(a) provides, in relevant part, that "no action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing or relief claimed." Plaintiff concedes its present action was not commenced within forty-five days of the final adoption of the ordinance in question, which it also acknowledges was adopted in response to its desired use for the subject property.
The Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62, provides that N.J.S.A. 2A:16-51. "A person ... whose rights, status or other legal relations are affected by a ... municipal ordinance ... may have determined any question of construction or validity arising under the ... ordinance ... and obtain a declaration of rights, status or other legal relations thereunder." N.J.S.A. 2A:16-53.
Plaintiff's present action arises, at least in part, as a result of the defendant zoning officer's letter of December 23, 1994, that prosecution would result if it commenced a use, perhaps the possibly concluded use, without benefit of a certificate of continued occupancy. See Weissbard v. Potter Drug and Chemical Corp., 6 N.J.Super. 451, 455-56, 69 A.2d 559 (Ch.Div.1949). Thus, plaintiff asserts that such enforcement based upon the ordinance in question would chill if not abridge certain constitutionally protected rights.
In Ballantyne House Assoc. v. Newark, 269 N.J.Super. 322, 635 A.2d 551 (App.Div.1993), while taking issue with a number of the substantive rulings of the trial court, nevertheless, the appellate court concluded that the court below had properly denied defendant's motion to invoke the time bar rule under R.4:69-6(a). As the court stated:
Insofar as plaintiffs' complaints challenged the constitutionality of a municipal ordinance, they were maintainable either as declaratory judgment actions, Bell v. Tp. of Stafford, 110 N.J. 384, 541 A.2d 692 (1988), or as actions in lieu of prerogative writs, Hills Development Co. v. Twnshp. of Bernards, 103 N.J. 1, 44-45, 510 A.2d 621 (1986). If viewed as declaratory judgment actions, plaintiffs' constitutional claims would not be subject to the time limit on actions in lieu of prerogative writs imposed by R.4:69-6(a).
Moreover, a declaratory judgment action is not precluded by the existence of another appropriate remedy, Vonins, Inc. v. Raff, 101 N.J.Super. 172, 177, 243 A.2d 836 (App.Div.1968), even though declaratory relief can be denied "where another remedy would be more effective or appropriate." Adams v. Atlantic City, 26 N.J.Misc. 259, 261, 59 A.2d 825 (Sup.Ct.1948); Provident Mutual Life Ins. Co. v. Unemployment Compensation Comm'n, 126 N.J.L. 348, 351-53, 19 A.2d 630 (E. & A.1941). Whether such relief...
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