Cohen v. Thoft

845 A.2d 1281, 368 N.J. Super. 338
CourtNew Jersey Superior Court Appellate Division
DecidedApril 19, 2004
StatusPublished
Cited by9 cases

This text of 845 A.2d 1281 (Cohen v. Thoft) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cohen v. Thoft, 845 A.2d 1281, 368 N.J. Super. 338 (N.J. Ct. App. 2004).

Opinion

845 A.2d 1281 (2004)
368 N.J. Super. 338

George N. COHEN, Plaintiff-Appellant,
v.
Kirsten THOFT, Ted Nadeau and Princeton Borough Zoning Board of Adjustment, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued January 21, 2004.
Decided April 19, 2004.

*1282 George N. Cohen, appellant, argued the cause pro se.

Christopher S. Tarr, Princeton, argued the cause for respondents Kirsten Thoft and Ted Nadeau (Smith, Stratton, Wise, Heher & Brennan, attorneys; Mr. Tarr, of counsel; F. Clifford Gibbons, on the brief).

William T. Sutphin, Princeton, argued the cause for respondent Princeton Borough Zoning Board of Adjustment.

Before Judges SKILLMAN, COBURN[1] and FISHER.

The opinion of the court was delivered by SKILLMAN, P.J.A.D.

This is an appeal from a trial court's determination that an action in lieu of prerogative writs should be dismissed because it was filed three days beyond the fortyfive day period allowed under Rule 4:69-6(b)(3).

Defendants Kirsten Thoft and Ted Nadeau plan to construct a new deck and a second floor addition to a two-family house they own in Princeton Borough. The house is located in a zoning district with a 10,000 square foot minimum lot size. Since defendants' lot covers only 6,950 square feet, defendants were required to apply to the Princeton Borough Zoning Board of Adjustment for setback and coverage variances to permit the planned expansion of the house. At the hearing before the Board, plaintiff and two other neighbors testified in opposition to the application.

On July 25, 2002, the Board adopted a resolution approving the variance application. On July 26, 2002, defendants published notice of the approval in the Trenton Times, a newspaper distributed daily in Mercer County. On August 5, 2002, the Princeton Borough Zoning Officer, Frank Slimak, who was unaware defendants had already published notice of the approval, sent a letter to defendants which stated that the Borough anticipated publishing notice of the approval on August 9, 2002. Defendants did not respond to this letter or indicate to Slimak in any other way that they had already published the notice. As his letter had indicated, Slimak published notice of the approval on August 9, 2002 in the Princeton Packet, a bi-weekly newspaper distributed in the Princeton area.

Plaintiff filed this action in lieu of prerogative writs challenging the grant of the variance on September 12, 2002, which was within forty-five days of Slimak's publication of notice of the approval, but fortyeight days after the defendants' own July 26th publication of notice.

The defendants moved to dismiss plaintiff's complaint on the ground that it had not been filed within the forty-five day time period allowed under Rule 4:69-6(b)(3). The Board joined in the motion.

Plaintiff filed a certification in opposition to the motion, which stated in part:

8. From Monday, July 29, 2002, through August 7, 2002, I maintained regular telephone contact with Frank Slimak in order to be kept apprised of whether any notice of the Zoning Board's approval had been published. On August 7, 2002, at approximately 9:30 a.m., Frank Slimak called me and informed me that he intended to publish notice of the Zoning Board's approval in the August 9, 2002 issue of The Princeton Packet.

....

10. Prior to speaking with [defendants' counsel] on September 9, 2002, neither Slimak nor I had any knowledge *1283 or any indication from [defendants' counsel], Thoft, Nadeau or any other person, that any publication of the approval of the variances for the subject property had occurred prior to the notice published by the Zoning Board in The Princeton Packet on August 9, 2002....

11. At approximately 2 p.m. on September 9, 2002, I received a telephone call from Slimak informing me that he had just learned, much to his surprise, that Thoft and Nadeau had published notice in the July 26, 2002 edition of The Times of Trenton, of the Zoning Board's approval of their variance application. Slimak stated that he learned of this information from a telephone call he received that day from [defendants' counsel], on behalf of Thoft and Nadeau.

After hearing argument, the trial court granted defendants' motion to dismiss, stating in its oral opinion:

Rule 4:69-6(b)(3) establishes a strict 45 day filing deadline for the commencement of actions in lieu of prerogative writs....
The publication made by the defendant Thoft and Nadeau is the triggering event for the 45 day period as it was the first publication made after the adoption of the resolution.... [P]ursuant to N.J.S.A. [40:55(D)-10(i) ], the publication can be made either by the board or the applicant. Here the applicant properly made the publication.... [T]he plaintiff's reliance on the second publication was to his own detriment. Here the plaintiff was aware that the resolution had been adopted ... with changes and therefore was on notice that the publication could be made at any time thereafter....
Rule 4:69-6(c) allows the court to enlarge a deadline only where it is manifest that the interest of justice so requires. There are limited situations in which the Courts have found reason to enlarge the time for the filing of a complaint.
The plaintiff has not asserted any of those reasons here. Plaintiff has not asserted a substantial or novel constitutional question. There was not an ex parte determination by an administrative official in conjunction with this action. In fact, the plaintiff here was present at the hearings regarding the adoption of this variance. And three, this matter involves a private issue between neighbors and not one of public importance which would allow the Court to enlarge the time for the filing of the complaint.

On appeal, plaintiff argues that the time within which he was required to file a prerogative writ action challenging the variance did not begin to run on July 26, 2002, when defendants published notice of the Board's approval, because the final language of the Board's resolution was not drafted until a later date. Plaintiff also argues that defendants are estopped from relying upon their own publication of notice of the approval to trigger the time for filing a prerogative writ action because they failed to respond to Slimak's August 5th letter notifying them that he planned to publish notice on August 9, 2002.

We conclude that the notice of the Board's approval of the variance that defendants published on July 26, 2002, was valid, and therefore the time for bringing an action to challenge the approval began to run on that date. However, we also conclude that under all the circumstances of this case, including defendants' failure to respond to Slimak's August 5, 2002 letter notifying them that notice of the approval of their application would be published on August 9, 2002, "it is manifest that the interest of justice ... requires" a *1284 three-day enlargement under Rule 4:69-6(c) of plaintiff's time for filing this action.

I

The time for filing an action in lieu of prerogative writs to challenge the grant or denial of a land use application is governed by Rule 4:69-6(b)(3), which states in pertinent part:

No action in lieu of prerogative writs shall be commenced ... to review a determination of a ... board of adjustment...

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dariusz Czyzewski v. Planning Board of the City of Garfield
New Jersey Superior Court App Division, 2025
Debra Suzette Grimm v. Wall Township Zoning Board of Adjustment
New Jersey Superior Court App Division, 2023
Save Camden Pub. Sch. v. Camden City Bd. of Educ.
186 A.3d 304 (New Jersey Superior Court App Division, 2018)
Mullen v. Ippolito Corp.
50 A.3d 673 (New Jersey Superior Court App Division, 2012)
Gregory v. Borough of Avalon
917 A.2d 796 (New Jersey Superior Court App Division, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
845 A.2d 1281, 368 N.J. Super. 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-thoft-njsuperctappdiv-2004.