Casser v. Knowlton Tp., 441 N.J. Super. 353 (App. Div. 2015). Two consolidated cases, three Law Division judges who had pieces of these matters, and a lengthy and convoluted procedural history, including a prior appeal, were some of the key features of this relatively rare published per curiam ruling. Without getting into all the twists and turns, plaintiff, who represented herself in the Appellate Division, filed two different cases. The first, filed in 2010, involved her challenge to approvals that the Knowlton Township Planning Board had granted to her in 2007. The second was her 2013 complaint that attacked approvals granted to two other landowners and asserted that the municipal zoning ordinance was invalid. In a section of the opinion that the panel (Judges Reisner, Haas, and Higbee) directed be omitted from the published decision, the panel remanded the second matter for further proceedings. The published part of the opinion concerned the 2010 case.
Plaintiff, an attorney and a former member of the Township’s Zoning Board, owned a property of about 100 acres in a farmland preservation zone. She sought to develop homes on that property. The zoning ordinance required that development on properties of 50 acres or more be clustered, and that open space be provided and deed restrictions on development be put in place so that the open space would not later disappear. Plaintiff got development approvals in 2007, including variances from the clustering requirement, but the approvals still required certain deed restrictions to secure open space.
In 2010, plaintiff decided to attack the approvals. She contended that “Township officials had illegally sought to preserve open space in the Township at the sole expense of large landowners,” and that this discrimination violated the New Jersey Constitution and constituted an unlawful taking. She also asserted violations of the New Jersey Civil Rights Act, a RICO claim, and other theories. But Rule 4:69-6 required her to have filed an action in lieu of prerogative writ within 45 days, absent any interests of justice that would justify relaxing that limitations period. Ultimately, plaintiff’s case was dismissed as untimely. The Law Division concluded that her “unjustified failure to challenge the land use approvals in a prerogative writ action” barred her attempt to bring constitutional and statutory challenges to the approvals three years later.
On appeal, the Appellate Division applied the de novo standard of review and affirmed the result below. Though there were multiple reasons for that ruling, the key basis for the affirmance was the fact that plaintiff could not “circumvent the procedural barriers to her 2010 Law Division action by re-characterizing this litigation as a facial challenge to the [zoning] ordinance” and seeking money damages for purported constitutional and statutory violations. Relying primarily on Rezem Family Associates, LP v. Millstone Bor., 423 N.J. Super. 103 (App. Div. 2011), the panel concluded that plaintiff’s claims here were “barred by the plaintiff’s failure to pursue local administrative remedies followed by an action in lieu of prerogative writs.”
The panel went on to reject any notion that exhaustion of those remedies was “futile” because of the passage of time. “Plaintiff may not circumvent the exhaustion requirement by waiting until it is years too late to file a prerogative writ action, and then claiming that she need not exhaust remedies because that action is time-barred. Allowing her to proceed in that fashion would make a mockery of the exhaustion doctrine, and would defeat the important policy of repose expressed in the forty-five day time limit set by Rule 4:69-6(a).”
Finally, for various reasons, there were no “interests of justice” that warranted relaxing the 45 day time limit for filing. As a result, the dismissal of plaintiff’s complaint was upheld.