Newark Adams Associates, LLC v. the Central Planning Board

• Court: New Jersey Superior Court Appellate Division
• Decided: June 11, 2026
• Docket: A-2440-24
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2440-24

NEWARK ADAMS ASSOCIATES, LLC,

Plaintiff-Appellant,

v.

THE CENTRAL PLANNING BOARD, CITY OF NEWARK, THE MUNICIPAL COUNCIL, CITY OF NEWARK, SUMO ENTERPRISES, INC., UNDERGROUND UTILITIES CORP., a/k/a UNDERGROUND UTILITIES, INC., and SUMO PRIME NEWARK CORP., a/k/a SUMO PRIME CORP.,

Defendants-Respondents. ____________________________

Submitted March 26, 2026 ‒ Decided June 11, 2026

Before Judges Bishop-Thompson and Puglisi.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1854-23. Cole Schotz PC, attorneys for appellant (Lauren M. Manduke, Elizabeth A. Carbone, and Amber D. Morrison, of counsel and on the briefs).

Michael A. Armstrong & Associates, LLC, attorneys for respondent City of Newark Municipal Council (Morrison Kent Fairbairn and Cristal Holmes-Bowie, on the brief).

Hill Wallack LLP, attorneys for respondents Sumo Enterprises, Inc., Underground Utilities Corp., and Sumo Prime Newark Corp. (Eric I. Abraham, of counsel and on the brief; Henry T. Chou and Hana Jeong Pak, on the brief).

Daniel F. Becht, attorney for respondent The Central Planning Board, City of Newark, join in the brief of respondents Sumo Enterprises, Inc. and Underground Utilities Corp.

PER CURIAM

This is the third complaint in lieu of prerogative writs and second appeal

by plaintiff Newark Adams Associates, LLC, challenging a proposed

development at 85-101, and 103 Jackson Street in Newark. The complaint

contests defendant the Newark Municipal Council's (Municipal Council)

adoption of an ordinance, which included a redevelopment plan. The trial court

granted defendants Sumo Enterprises, Inc. (Sumo), Underground Utilities, Corp.

(UUC), Sumo Prime Newark Corp. (Sumo Prime) (collectively, developer

defendants), the Municipal Council, and the Newark Central Planning Board's

A-2440-24 2 (CPB) motions to dismiss plaintiff's complaint under Rule 4:6-2(e) as time-

barred. For the following reasons, we affirm.

I.

The parties are familiar with the litigation history; therefore, we set forth

only the facts relevant to this appeal. Since 1986, plaintiff has owned Newark

Adams Center, a commercial retail shopping center, located at 64-88 Adams

Street in the Ironbound District of Newark. UUC owns the property at 85-101

Jackson Street, and Sumo Prime owns the property at 103 Jackson Street. Their

properties are used as a combined fifty-five-space surface-level parking lot,

which abuts the rear of Newark Adams Center.

In 2004, the Municipal Council adopted amendments to the Amended

Jackson-Downing Redevelopment Plan. On September 15, 2004, the Municipal

Council adopted Resolution 7RBU-091504, which authorized an Agreement for

the Sale of Land and Redevelopment of Jackson-Downing (2004 Agreement).

Under this agreement, UUC would purchase the Jackson Street property from

Newark for development in accordance with the Jackson-Downing

Redevelopment Plan.

On February 4, 2015, the Municipal Council passed Ordinance 6PSF-C,

repealing the 2004 Jackson-Downing Redevelopment Plan, along with over 100

other redevelopment plans. Three years later, the Municipal Council authorized

A-2440-24 3 CPB to conduct a preliminary investigation to determine whether the developer

defendants' Jackson Street property, among other properties, constituted an area

in need of redevelopment. After a public hearing on June 11, 2018, the CPB

recommended the parcels included in the proposed Jackson and Ferry

Redevelopment Plan (2020 Redevelopment Plan) be designated as an area in

need of redevelopment. On December 5, 2018, the Municipal Council adopted

Resolution 7R2-D, designating specific areas, including 85-101, and 103

Jackson Street, as a non-condemnation area in need of development.

After reviewing the proposed 2020 Redevelopment Plan in August 2020,

the CPB recommended its adoption. This plan identified Jackson Street as one

of the affected blocks and stated, "[t]he [2020 Redevelopment] Plan envisions

the construction of . . . mixed-use or multi-family residential development" in

the Ironbound because of its "strong housing demand," which is "along the Ferry

Street commercial corridor and within walking distance of Newark Penn

Station."

Due to the COVID-19 pandemic, municipal meetings were held virtually.

On November 10, 2020, the Municipal Council published notice in the Star

Ledger of the planned adoption of the 2020 Redevelopment Plan, dated April

2020, at its scheduled meeting on November 18, 2020. At the November 18

A-2440-24 4 meeting, the Municipal Council passed Ordinance 6PSF-G (2020 Ordinance

adopting the 2020 Redevelopment Plan) and superseded the prior zoning.

In July 2021, UUC and Sumo Prime applied to the CPB for preliminary

and final site plan approval to construct a seven-story commercial and

residential building pursuant to the 2020 Redevelopment Plan. The CPB's notice

of hearing to property owners, dated November 18, 2021, informed them of the

December 6, 2021 virtual meeting concerning developer defendants' application.

The agenda for the meeting identified the address as "85-103 Jackson Street,"

described the site plan as a "[seven]-story mixed-use building with 108 units and

[five] retail spaces," and listed the applicant/owner as "[Sumo], [Sumo Prime],

and [UUC]." The CPB published notice on November 24, 2021 of the scheduled

board hearing.

Plaintiff filed a written objection to the developer defendants' application

with the CPB. On January 24, 2022, the CPB held a hearing to review the

preliminary and final site applications for the property. During the hearing,

multiple members of the public voiced concern regarding traffic, density, and

lack of community meetings prior to the application. Additionally, plaintiff's

counsel objected to the application, raising issues related to the distance from

Ferry Street, the rear setback and its impact on plaintiff's rear fire doors, and the

alleged violation of the 2004 Agreement between the developer defendants and

A-2440-24 5 Newark limiting the development of Jackson Street to a parking garage. After

the public hearing, the CPB voted to approve the site plan application. The

developer defendants' site plan application was formally approved by resolution

on February 7, 2022.

In March 2022, plaintiff filed the first complaint in lieu of prerogative

writs in the Chancery Division against UUC, Sumo, and CPB, challenging the

CPB's approval of Sumo and UUC's site plan application. The next month,

plaintiff filed a second prerogative writs complaint in lieu of prerogative writs

against UUC, Sumo, and Newark, seeking to compel Sumo and UUC to

construct a five-story garage on their property pursuant to the 2004 Agreement

between UUC and Newark, and asserting the 2020 Redevelopment Plan was

void. We affirmed the grant of summary judgment in favor of defendants and

the dismissal of plaintiff's complaint. Newark Adams Assocs., LLC v. Sumo

Enters., Inc., No. A-3685-22 (App. Div. Apr. 9, 2025) (slip op. at 17).

On March 20, 2023, plaintiff filed a third complaint in lieu of prerogative

writs, challenging both the public notice and the adoption of the 2020

Redevelopment Plan at the November 18, 2020 council meeting. Plaintiff

sought a declaratory judgment asserting the CPB and the Municipal Council

lacked jurisdiction under N.J.S.A. 40:49-2; the Local Redevelopment and

Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -89; and the Municipal Land Use

A-2440-24 6 Law (MLUL), N.J.S.A. 40:55D-1 to -171. It argued multiple versions of the

2020 Ordinance circulated among the CPB and Municipal Council, rendering it

void, as well as arbitrary, capricious, and unreasonable. The complaint also

sought to enjoin the construction on Jackson Street.

Plaintiff also asserted claims of civil conspiracy, illegal spot zoning, and

contract zoning against all defendants. It alleged ultra vires actions and failures

to comply with N.J.S.A. 40:49-2 and N.J.S.A. 40:12A-7(d) against the CPB and

Municipal Council.

CPB and the developer defendants answered plaintiff's complaint. The

Municipal Council moved to dismiss the complaint pursuant to Rule 4:6-2(e),

arguing it was untimely under Rule 4:69-6 and the Municipal Council cannot be

named as a party in litigation. The CPB joined in this motion. Subsequently,

the developer defendants also moved to dismiss the complaint, contending it was

time-barred under Rule 4:69-6(a), and the trial court should not grant an

enlargement of time under Rule 4:69-6(c). Plaintiff opposed both motions to

dismiss.

The trial court dismissed plaintiff's complaint with prejudice for failure to

state a claim under Rule 4:6-2(e). In a detailed written opinion, the court

explained plaintiff filed the March 2023 action in lieu of prerogative writs well

beyond forty-five days after the 2020 Ordinance passed. Specifically, the 2020

A-2440-24 7 Ordinance was adopted on November 18, 2020, and the complaint was filed on

March 20, 2023. In doing so, the court rejected plaintiff's argument the

Municipal Council's alleged improper notice made the 2020 Ordinance void and

thus not subject to the forty-five-day deadline. Rather, Rule 4:69-6(a) applies

to procedural and substantive challenges alike and thus applied in this instance.

The court also declined to enlarge the filing deadline. In analyzing the

application of Rule 4:69-6(c), the court determined none of the three exceptions

recognized in Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975)

applied. It explained the matter did not involve: "(1) important and novel

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." Ibid. (italicization

removed).

The court also rejected plaintiff's explanations for the significant delay in

filing the complaint. It observed plaintiff's Open Public Records Act (OPRA),

N.J.S.A. 47:1A-1 to -13, and discovery requests from the prior actions were not

initiated until after the forty-five-day period following the adoption of the 2020

Ordinance had already expired. The court found this delay prejudiced

defendants, who "operated . . . under the belief the [2020] Redevelopment Plan

was valid." Additionally, the court concluded an extension of the filing deadline

A-2440-24 8 was not justified, as plaintiff was not pursuing a matter of public interest; but

rather a private interest related to its own commercial property.

II.

Plaintiff contends the trial court erred in finding its complaint is governed

by Rule 4:69-6(a) and therefore had to be filed within forty-five days of the

adoption of the 2020 Redevelopment Plan. It maintains its complaint is not

time-barred because it challenges the 2020 Redevelopment Plan on

jurisdictional grounds. Alternatively, plaintiff argues even if the forty-five-day

deadline applies, the filing period should be enlarged under Rule 4:69-6(c)

because its challenge to the 2020 Ordinance serves the public interest.

We review orders granting a motion to dismiss for failure to state a claim

under Rule 4:6-2(e) de novo. Pace v. Hamilton Cove, 258 N.J. 82, 95-96 (2024).

Accordingly, "we 'owe[] no deference to the trial court's legal conclusions.'"

Borough of Caldwell v. Cozzarelli Cirminiello Architects, LLC, 482 N.J. Super.

492, 498 (App. Div. 2025) (alteration in original) (quoting Dimitrakopoulos v.

Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108

(2019)). Our review is "limited to examining the legal sufficiency of the facts

alleged on the face of the complaint." Est. of Campbell v. Woodcliff Health &

Rehab. Ctr., 479 N.J. Super. 64, 70-71 (App. Div. 2024) (quoting Printing Mart-

Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)).

A-2440-24 9 III.

We first address plaintiff's argument its prerogative writs complaint was

timely. Plaintiff renews its contention the 2020 Jackson and Ferry

Redevelopment Plan was not properly adopted because the Municipal Council

failed to provide adequate notice and could not specify which version of the plan

was presented at the first and second public readings, or to the CPB and the

Municipal Council for approval. It asserts these procedural deficiencies

"strip[ped]" the Municipal Council of jurisdiction, thereby rendering the forty-

five-day filing deadline inapplicable.

It is well established an action in lieu of prerogative writs must be filed

within "forty-five days 'after the accrual of the right to the review, hearing[,] or

relief claimed.'" Hopewell Valley Citizens' Grp., Inc. v. Berwind Prop. Grp.

Dev. Co., 204 N.J. 569, 577 (2011) (quoting R. 4:69-6(a)). "The right to review

a zoning ordinance . . . begins upon publication of a notice after its adoption on

second reading." Gonzalez v. Twp. of W. Windsor, 483 N.J. Super. 600, 621

(App. Div. 2025) (quoting Faulhaber v. Twp. Comm. of Howell, 274 N.J. Super.

83, 90 (Law Div. 1994)); R. 4:69-6(b)(3). The date of final publication of the

ordinance triggers the "accrual period" under Rule 4:69-6. Gonzalez, 483 N.J.

Super. at 621 (citing In re Ordinance 2354-12 of W. Orange v. Twp. of W.

Orange, 223 N.J. 589, 592 (2015)). These Rules are "aimed at those who

A-2440-24 10 slumber on their rights." Tri-State Ship Repair & Dry Dock Co. v. City of Perth

Amboy, 349 N.J. Super. 418, 423 (App. Div. 2002) (quoting Washington Twp.

Zoning Bd. v. Plan. Bd., 217 N.J. Super. 215, 225 (App. Div. 1987)).

Guided by these legal principles, we decline to disturb the trial court's

order. Plaintiff does not contend the Municipal Council failed to meet the

procedural requirements of N.J.S.A. 40:49-2(a) and N.J.S.A. 40A:12A-7(c).

Instead, plaintiff argues the Municipal Council's notice was "defective" because

it could not confirm whether the version of the 2020 Redevelopment Plan dated

April 2020 or August 2020—which had been circulated—was actually presented

to the CPB, the Municipal Council, or made available to the public for

inspection.

We are unpersuaded by plaintiff's argument the public notice was

"inherently flawed," and this alleged flaw deprived the Municipal Council of

jurisdiction to adopt the redevelopment plan, thereby making the forty -five-day

statutory deadline inapplicable. The record shows the August 2020 date

referenced in the CPB resolution was a typographical error indicating the date

the CPB reviewed the redevelopment plan. The CPB resolution, the municipal

ordinance, and the cover pages of the redevelopment plan consistently reflect

the correct date of April 2020. We discern no material or substantial difference

in the 2020 Redevelopment Plan.

A-2440-24 11 "Rule 4:69-6 makes no distinction between procedural and substantive

challenges and neither have the courts." Southport Dev. Grp., Inc. v. Twp. of

Wall, 310 N.J. Super. 548, 554 (App. Div. 1998) (citation reformatted). Here,

the forty-five-day period began to run when the Municipal Council published

notice in the newspaper on November 10, 2020. Under Rule 4:69-6(b)(3),

plaintiff was required to file its complaint no later than December 25, 2020, but

failed to do so. Instead, the complaint was filed on March 20, 2023—860 days

after the deadline. Accordingly, the trial court properly determined the

complaint was untimely.

We conclude the trial court properly exercised its discretion in declining

to enlarge the forty-five-day time limitation in the "interests of justice."

Borough of Princeton v. Bd. of Chosen Freeholders of Mercer, 169 N.J. 135,

152 (2001). Courts may enlarge the time only "where it is manifest that the

interest of justice so requires" under Rule 4:69-6(c). Contrary to plaintiff's

assertions, its complaint does not implicate "important public rather than private

interests which require adjudication or clarification." Hopewell Valley, 204 N.J.

at 579-80 (quoting Brunetti, 68 N.J. at 586). The record shows plaintiff is

pursuing a private interest, rather than the public interest it cites—such as

concerns about traffic, density, and the ordinance adoption process. Plaintiff's

private interest and the significant 860-day delay do not outweigh "the important

A-2440-24 12 policy of repose expressed in the forty-five[-]day [Rule]." Hopewell, 204 N.J.

at 580 (quoting Reilly v. Brice, 109 N.J. 555, 559 (1988)).

Therefore, we discern no abuse of discretion by the trial court in

dismissing plaintiff's complaint and declining to enlarge the filing timeframe.

Newark Morning Ledger Co. v. N.J. Sports & Exposition Auth., 423 N.J. Super.

140, 158-59 (App. Div. 2011). To the extent we have not addressed any of

plaintiff's remaining arguments, they lack sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-2440-24 13