Faulhaber v. Township Committee of Tp. of Howell

Decision Date21 January 1994
Citation274 N.J.Super. 83,643 A.2d 52
PartiesJohn M. FAULHABER, III, and Carol Faulhaber, Plaintiffs, v. TOWNSHIP COMMITTEE OF the TOWNSHIP OF HOWELL, Defendant, and Wal-Mart Stores, Inc., a Delaware Corporation, Defendant/Intervenor. (Civil), Monmouth County
CourtNew Jersey Superior Court

John Paul Doyle, Brick, for plaintiffs (Doyle and Cucci, attorneys).

Allen S. Kaplan, Howell, for defendant Tp. of Howell (Kaplan & Bookbinder, attorneys).

William J. Mehr, Freehold, for defendant/intervenor Walmart (Mehr & LaFrance, attorneys).

Mark Williams, Woodbridge, for defendant/intervenor landowners.


This action in lieu of a prerogative writ challenges the actions taken on November 12, 1991, by the Howell Township Committee (hereinafter referred to as the "Township Committee"), in adopting an ordinance changing the zone classification of five lots from ARE-2 to Highway Development (hereinafter referred to as "HD").

The plaintiffs, who are property owners in Howell Township, contend initially that their suit filed on September 14, 1992, is timely as it was filed within forty-five days of the effective filing of the ordinance with the Monmouth County Planning Board as required by N.J.S.A. 40:55D-16. In the alternative, they contend that if the suit were not filed in a timely fashion, the interests of justice require an enlargement of the time. R. 4:69-6c.

The court, after a seven day trial, finds the right to sue accrued upon publication of the notice following the adoption of the ordinance, and that the interests of justice do not require an enlargement of time. Therefore, judgment will enter in favor of the defendants.

The lots in question are described as Lots 11, 12, 16.01 and parts of Lots 13 and 14, in Block 74 in Howell Township. Block 74 is a fifty-five acre triangular shaped property bounded by Route 9, Lanes Mill and Kent Roads. Route 9 is the major north- route through Howell Township. The roadway is divided with a concrete median divider. There is much vacant land found adjacent to Route 9, south of its intersection with Route I-195. North of that interstate roadway, the existing development along Route 9 is more established. The property involved in this law suit is located south of Route I-195. Lanes Mill Road intersects with Route 9. This intersection is one of the few intersecting roads in Howell Township allowing a motorist to turn either north or south onto Route 9. Across Lanes Mill Road from Block 74 is the Southard Elementary School. Kent Road proceeds south to the boundary with Lakewood Township in Ocean County and is bounded for the most part by lands in their undeveloped condition and by some scattered residential homes.

Until 1989, the triangular shaped parcel was zoned so that only a small portion allowed commercial development. The Highway Commercial zone (hereinafter referred to as "HC"), which up until that point was the predominant commercial zone in Howell Township, allowed small commercial uses on relatively small lots. The development resulting from HC zoning was characterized by isolated commercial uses or strip stores scattered along the highway frontage. There was no significant impediment in the requirements for the HC zone which limited or restricted access of motorists onto Route 9.

The New Jersey Department of Transportation, in the late 1980's, finished the construction dualizing Route 9 throughout its entire length in Howell Township. In 1988, more or less coincident with the completion of construction on Route 9, for the first time in its Master Plan, the Township created the concept of HD zoning. The conceptual HD zone plan required larger lots than the HC zone and as described by the planner at trial limited or restricted points of access to Route 9. Additionally, it required significant setbacks from the highway and intersecting streets. The thrust or purpose of the HD zoning described in the master plan was to attract a variety of creative, larger commercial and office uses.

The land use map included within the 1988 Master Plan depicted only a small portion of Block 74 as an HD zone, basically following the lines of the earlier HC zone. The balance of lands within the triangle were depicted on the land use map as ARE-2, an agricultural zone which allowed single family residences on lots of two acres. Across Kent Road all of the property was designated to be zoned ARE-2.

In 1989, the Township Committee adopted the zoning ordinance to effectuate the master plan and zoned a much larger portion of block 74 as HD, leaving only the five lots now at issue which measure a total of five acres as ARE-2. The lot lines created in the 1989 zoning ordinance resulted in a portion of two lots being zoned partially HD and the balance ARE-2, thus creating split lots. Other lots were undersized as compared with the requirements of ARE-2. It was established at trial that absent the expanded dimensions of this zoning district line in 1989 in the area of this triangular shaped property, development could not have gone forward and been in compliance with the requirements of the HD zone.

In the summer of 1991, Wal-Mart became interested in developing a store within the triangular area, but advised there was a need to zone the remaining five lots as HD before it could go forward with development plans, as four of the lots zoned ARE-2 comprised a portion of the property it wished to purchase.

The Township Committee was most interested to attract Wal-Mart to Howell Township. The actions taken by Howell Township in the summer and fall of 1991, which led to the amendment of the zoning ordinance are the actions now under attack by the plaintiffs.

The plaintiffs contend that in the committee's haste to attract a large regional development it violated the Open Public Meetings Act. The plaintiffs further contend that the committee attempted to avoid public scrutiny and knowledge of its actions by scheduling the discussions and actions regarding the ordinance very late in its meeting, after much other business had been resolved, and even then, failed to disclose the interest of Wal-Mart. Moreover, they allege that the committee carried out their intentions by adopting an allegedly deficient ordinance that did not sufficiently inform members of the public of its real intention. Further, the plaintiffs assert that the former mayor was so biased in favor of Wal-Mart that she caused the Township Committee to take action in a rushed, improper fashion, therefore, resulting in the requirements of law not being honored. As well, the plaintiffs contend that the ordinance is not consistent with the master plan and is the product of both improper spot zoning and fiscal zoning.

The plaintiffs argue that considered separately or together, the grounds alleged above are sufficient to cause the court to enlarge the time to file suit. Relying on the same grounds, the plaintiffs argue that should the time be enlarged, the ordinance must be set aside.

R. 4:69-6 requires that actions challenging a zoning ordinance be brought within forty-five days after the accrual of the right to review a zoning ordinance. The right to review a zoning ordinance, as will be hereafter noted, begins upon publication of a notice after its adoption on second reading. N.J.S.A. 40:49-2. Here the ordinance was introduced by the Township Committee on September 16, 1991, and adopted on November 12, 1991. The notice in question was published on November 15, 1991, in the Asbury Park Press. This suit was filed in September of 1992, and consequently far outside the forty-five days.

The court, however, has the authority to enlarge time to bring suit "where it is manifest the interest of justice so requires." R. 4:69-6c. The time may be enlarged only when exceptional circumstances exist and upon the most persuasive of grounds. Robbins v. Jersey City, 23 N.J. 229, 238, 128 A.2d 673 (1957).

There are competing interests that are involved and bear upon the issue of enlarging the time to bring suit. On the one hand, there is a need of certainty and finality to actions taken by governmental agencies. Additionally, the rule is designed to encourage parties not to rest on their rights. Reilly v. Brice, 109 N.J. 555, 559, 538 A.2d 362 (1988); Schack v. Trimble, 28 N.J. 40, 49, 145 A.2d 1 (1958). This has been described as a policy of repose. Reilly, supra, 109 N.J. at 559, 538 A.2d 362; Wash. Tp. Zon. Bd. v. Planning Bd., 217 N.J.Super. 215, 225, 525 A.2d 331 (App.Div.1987). It must be remembered, governing officials are conducting the public's business, not their own personal affairs. Citizens have the right to rely upon actions taken by public officials in the planning and carrying on of their own affairs. Therefore, the public has the right to expect that any legal challenge to actions taken will be pursued in an expeditious fashion. On the other hand, an individual may be seriously aggrieved as the result of actions taken by public officials. In many circumstances, such an individual has the right to expect that a court will adjudicate his or her claim of unlawful action on the part of public officials.

There are three basic grounds recognized by the court concerning when the time to sue will be enlarged, namely, when a substantial and novel constitutional issue is involved (Schack, supra, 28 N.J. at 47, 145 A.2d 1; when certain informal or ex parte determinations are made by administrative officers, without "a sufficient crystallization of a dispute along firm lines" (id. at 49-50, 145 A.2d 1; see also, Reilly, supra, 109 N.J. at 559, 538 A.2d 362); or when an important public, rather than private, question requires clarification or adjudication (see Brunetti v. Borough of New Milford, 68 N.J. 576, 585-87, 350 A.2d 19 (1975) (citations omitted); Pressler, Current NJ Court Rules, comment on R. 4:69-6 (1994). Clearly, only the last ground has any possible application to the facts...

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    ...the 45 days. Such an interpretation has been rejected. The right to sue begins with publication. In Faulhaber v. Tp. Committee, 274 N.J.Super. 83, 98-99, 643 A.2d 52 (Law Div.1994), a notice advising of the adoption of an ordinance was published even though the ordinance had not yet been fi......

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