SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO . A

- 4171

- 15T3

CONCERNED CITIZENS OF LIVINGSTON

,

Plaintiff

- Appellant

,

v.

TOWNSHIP OF LIVINGSTON

,

LIVINGSTON TOWNSHIP COUNCIL

,

and PLANNING BOARD OF LIVINGSTON

,

Defendants

- Respondents

,

and

SUNRISE DEVELOPMENT

, INC.

,

Defendant/ Intervenor

Respondent.

_______________________________________

Argued September 26

, 2017

– Decided

Before Judges Carroll and Leone.

On appeal from Superior Court of New Jersey

,

Law Division

, Essex County

, Docket No. L

- 2171

-

16.

Charles X. Gormally argued the cause for

appellant (Brach Eichler

, LLC

, attorneys;

Charles X. Gormally

, of counsel and on the

brief; Autumn M. McCourt

, on the briefs).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not " constitute precedent or be binding upon any court ."

A lthough 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.

June 11, 20182 A

- 4171

- 15T3 James T. Bryce argued the cause for

respondents (Murphy McKeon

, PC

, attorneys;

James T. Bryce

, on the brief).

Paul H. Schneider argued the cause for

intervenor

- respondent (Giordano

, Halleran &

Ciesla

, PC, attorneys; Paul H. Schneider

, of

counsel and on the brief; Matthew N.

Fiorovanti

, on the brief).

PER CURIAM

Pl aintiff Concerned Citizens of Livingston appeals from a May

10, 2016 order dismissing its complaint challenging the notice

given concerning zoning ordinance 22

- 2015 (Ordinance) of defendant

Township of Livingston (Township). The trial court dismissed the

complaint as untimely under Rule 4:69

- 6(a). We agree with the

court that notice was fatally deficient because the Ordinance

changed the classification of the zone

. We also agree that the

complaint was filed beyond the rule's time period. However, we

fin d the fatal notice deficiency justified an enlargement of time

under Rule 4:69

- 6(c). Accordingly, we affirm in part, reverse in

part, and remand

.

I.

Plaintiff filed a verified complaint

, stating plaintiff is a

representational plaintiff comprised of resi dents of Livingston

living within 200 feet of a particular lot (Lot) as well as

residents living beyond 200 feet who are impacted by the Ordinance

.

Plaintiff claimed that

, prior to the adoption of the Ordinance

,3 A

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the Township ' s zoning ordinances prohibited the development of an

assisted living facility on the Lot. Plaintiff alleged the

Ordinance was passed to enable intervenor Sunrise Development

,

Inc. (Sunrise) to build an assisted living facility on the Lot.

At its September 24

, 2015 meeting

, defendant Planning Board

of the Township of Livingston (Board) recommended the proposed

Ordinance to defendant Livingston Township Council (Council)

, the

Township's governing body

. The Council gave published notice of

its October 26, 2015 meeting by faxing the agenda to the West

Essex Tribune and the Star

- Ledger. The agenda stated there was a

proposed Ordinance about " Assisted Living

- Conditional Use ," and

add ed : " Purpose: Amends Township Code to allow Assisted Living

Facilities as a conditional use when certain criteria are met. "

N o other notice was given to members of the public.

On October 26

, the Council introduced the proposed Ordinance

for first reading. The Council referred the proposed Ordinance

to the Board to determine if the Ordina nce was consistent with

Livingston ' s master plan. As discussed below

, the Council on

October 29

, 2015

, gave notice only by publication that the

Ordinance would be considered for final passage on November 9

,

2015. The Council did not provide written notic e to property

owners within 200 feet of the affected zones

.4 A

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At its November 3

, 2015 meeting

, the Board considered the

Ordinance. Notice of the meeting was published in the West Essex

Tribune and posted on a bulletin board. The Board ' s agenda simply

stat ed that it was reviewing the Ordinance about " Assisted Living

- Conditional Use. " No members of the public appeared in

connection with the Board ' s review of the Ordinance. The Board

determined the Ordinance about " Assisted Living

- Conditional Use "

was c onsistent with the master plan.

On November 9

, twelve days after the Ordinance ' s introduction

in the Council

, the Council adopted the Ordinance by title only

,

without reading it publicly. No members of the public appeared

or spoke at the Council meetin g regarding the Ordinance. On

November 12

, 2015

, the Township clerk published in the West Essex

Tribune a notice simply stating th at the Ordinance had been passed

on November 9.

On February 2

, 2016

, the Board held a hearing on Sunrise's

application to build an assisted living facility on the Lot.

Sunrise concedes its proposal was designed to be consistent with

the Ordinance.

On March 31

, 2016

, plaintiff filed an action against the

Township

, the Council

, and the Board (defendants). The complaint

contained three counts

, alleging violation of: (1) the notice

requirements of N.J.S.A. 40:55D

- 62.1; (2) the prohibition on spot5 A

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- 15T3

zoning; and (3) the New Jersey Civil Rights Act (CRA)

, N.J.S.A.

10:6

- 2. The trial c ourt granted plaintiff ' s request to temporarily

restrain the Board from considering Sunrise ' s application.

The Township filed an answer , and a motion to dismiss count

three for failure to state a claim upon which relief can be granted

under Rule 4:6

- 2(e). On April 22

, 2016

, the trial court issued

an order granting Sunrise ' s motion to intervene.

On May 10

, 2016

, the trial court sua sponte dismissed the

entire complaint because it was not filed within forty

- five days

of the publication of the enacted Ordi nance. The court denied

plaintiff ' s oral motion for a stay. We denied plaintiff ' s emergent

motion seeking a stay pending appeal.

II.

Whether the complaint challenging the Ordinance should have

been dismissed as untimely depends in part on whether notice

concerning the Ordinance was deficient. Thus, we begin by

reviewing the trial court's decision that the notice was fatally

deficient.

The notice generally required is set forth in N.J.S.A. 40:49

-

2(a)

, which provides that

, after the first reading, a proposed

ordinance

shall be published in its entirety or by title

or by title and summary at least once in a

newspaper published and circulated in the6 A

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, if there be one

, and if not in

a newspaper printed in the county and

circulating in the mu nicipality

, together with

a notice of the introduction thereof

, the time

and place when and where it will be further

considered for final passage

, a clear and

concise statement prepared by the clerk of the

governing body setting forth the purpose of

the or dinance

, and the time and place when and

where a copy of the ordinance can be obtained

without cost by any member of the general

public who wants a copy of the ordinance.

A fter the first reading of the Ordinance

, the Council issued

a public notice dated October 29

, 2015

, published in the West

Essex Tribune

, which stated the Ordinance had been " introduced and

passed on first reading " on October 26

, and would be considered

for final passage on November 9

, 2015

, at 8:00 p.m. at the M&PB.

The published noti ce printed the entire Ordinance

, whose preamble

stated its purpose, and also advised that copies were available

at the clerk ' s office. This complied with N.J.S.A. 40:49

- 2(a).

However, the trial court found that under Robert James Pacilli

Homes, LLC v. Twp. of Woolwich [ Pacilli ], 394 N.J. Super. 319

(App. Div. 2007), "the notice provisions of N.J.S.A. 40:55D

- 62.1

[we]re triggered, requiring certified mail notices to property

owners within the affected zones as well as property o wners within

200 feet of t he a ffected zones." We agree.

T he Municipal Land Use Law (MLUL)

, N.J.S.A. 40:55D

- 1 to

- 163

,

imposes additional notice requirements for certain ordinances

.7 A

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N.J.S.A. 40:55D

- 62.1 "directs that all property owners within a

zoning district shall receive per sonal notice if the municipal

body seeks to change the classification or boundaries of a zoning

district." Pacilli

, 394 N.J. Super. at 329; see Grabowsky v. Twp.

of Montclair

, 221 N.J. 536, 558

- 59 (2015). The statute provides:

Notice of a hearing on an a mendment to the

zoning ordinance proposing a change to the

classification or boundaries of a zoning

district

. . . shall be given at least 10 days

prior to the hearing by the municipal clerk

to the owners of all real property as shown

on the current tax du plicates

, located

, in the

case of a classification change

, within the

district and within the State within 200 feet

in all directions of the boundaries of the

district

, and located

, in the case of a

boundary change

, in the State within 200 feet

in all dire ctions of the proposed new

boundaries of the district which is the

subject of the hearing.

. . . .

Notice shall be given to a property owner by :

(1) servin g a copy thereof on the property

owner as shown on the said current tax

duplicate

, or his agent in charge of the

property

, or (2) mailing a copy thereof by

certified mail and regular mail to the

property owner at his address as shown on the

said current tax duplicate.

[ N.J.S.A. 40:55D

- 62.1 (emphasis added).]

It is undisputed the Council did not serv e or mail a copy of

the Ordinance to all property owners within the district and within

200 feet of the district. Thus

, whether notice was adequate8 A

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depends on whether the Ordinance " propos[ed] a change to the

classification

. . . of a zoning district. " Ibid.

" We examined what the MLUL intended by a ' classification '

change in [ Pacilli ]

, recognizing that ' [u]nlike many terms found

in the MLUL

, " classification " is not defined. '" Mahwah Realty

Assocs.

, Inc. v. Twp. of Mahwah

, 430 N.J. Super. 247

, 253 (App

.

Div. 2013) (quoting Pacilli

, 394 N.J. Super. at 329). " Until the

Legislature adopts some different meaning

, we will continue to

apply

, as we apply here

, Pacilli ' s general understanding of the

term[.] " Id. at 254 (footnote omitted)

.

In Pacilli

, we rule d that " in its most general sense ,

classification refers to the use permitted in a zoning district

,

such as residential

, commercial or industrial

, as well as sub

categories within the broader uses , such as single

- family

residential and high

- density residen tial

, highway commercial and

neighborhood commercial

, and highway retail and neighborhood

retail. " 394 N.J. Super. at 330

- 31. Classification also refers

to " uses that may be permitted under certain conditions within a

generally designated category. A ch ange in any of these broad

categories and sub

- categories has the capacity to fundamentally

alter the character of a zoning district. " Id. at 331.

We also ruled in Pacilli that " classification " also

" include[s] changes to the density

, bulk and height sta ndards and9 A

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conditions applicable to designated uses ," because " changes in

bulk and density requirements within a zone can effect a

substantive change in future development within a zone without any

alteration to the label applied to the zone. " Id. at 331

- 32.

Thus

, determining " the type of notice to be provided on the

occasion of a proposed amendment to a zoning ordinance should

focus on the substantive effect of the amendment rather than the

appellation given to the zone. " Id. at 332.

In Pacilli

, we held an amendment which made " sweeping " changes

to the bulk and density requirements in two residential zoning

districts " dramatically altered the intensity of the residential

use within each zone and promised to affect the character of the

future dev elopment in both zones. " Id. at 332. We observed " the

scope of the changes

. . . is illustrated simply by focusing on

the maximum gross density per acre ," which changed from one unit

per two acres under the existing zoning laws and the ordinance ' s

" Optio n 1 " to one unit per ten acres under the ordinance ' s " Option

2. " Ibid. We ruled that change itself " effects a fundamental

alteration of the character of this zoning district. " Id. at 332.

Therefore

, " the Township Committee was required to follow the

no tice requirements of N.J.S.A. 40:55D

- 62.1 ," and as it did not

,

the ordinance was " invalid. " Id. at 333.10 A

- 4171

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As the trial court found

, the Ordinance made similarly

" sweeping changes " to the bulk and density requirements for

assisted living facilities. Before its passage , section 170

- 88.1

of the existing Township Code provided that an assisted living

facility was a permissible conditional use in any zone , with

specified exceptions. Such a facility had to have: road frontage

and direct access to one of seven r oads

, including South Orange

Avenue or Passaic Avenue; a minimum lot size of six acres; minimum

frontage width of 100 feet; minimum setbacks of 100 feet from

residential property lines and seventy

- five feet from non

residential property lines; maximum impe rvious coverage of 50%; a

maximum building height of thirty

- five feet; a maximum of twenty

units per acre; and a maximum total number of units of 5% of the

number of single

- family detached dwelling units in the Township.

The Ordinance added a new subsecti on to section 170

- 88.1 that

provided that an assisted living facility could be permitted as a

conditional use in any zone , with an increased number of

exceptions

, if it had: road frontage and direct access to South

Orange Avenue or Passaic Avenue; a minimu m lot size of three acres;

a minimum frontage width of 200 feet; minimum setbacks of twenty

five feet from both residential and non

- residential property lines

with 150 feet from any dwelling; a maximum impervious coverage of

60%; and a maximum building hei ght of thirty

- five feet or three11 A

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stories

, or forty

- seven feet or four stories plus a six

- foot

mansard if set back 100 feet; a maximum of 32.31 units per acre

.

The Ordinance also exempted affordable housing unit s from the

maximum total number of assisted living units which were limited

to 5% of the number of single

- family detached dwelling units in

the Township. The Ordinance also required: a minimum of 102 units

with thirteen affordable housing units and a maximum of 105 units

with fourteen affordable h ousing units; specific setbacks for the

principal building and gazebo; and specific requirements for

parking and landscape buffers.

We agree with the trial court ' s finding s that the Ordinance ' s

changes are sweeping in that they allow for

32.21 units pe r acre on 3 acre lots

, rather

than the 20 units per acre on 6 acre lots in

the pre

- existing ordinance. The Ordinance

removes most of the protections in place that

buffered surrounding neighbors

, and increases

the allowable building height from 35 feet to

47 feet

, all while placing the buildings in

closer proximity to roads and adjoining

properties.

The trial court explained that under the Ordinance

, " [t]he

required front yard setback changed from 100 feet to 75 feet ," and

" [r]equired rear and side setback s " changed from " 100 feet from

residential property lines " " to only 25 feet. " The court found

the Ordinance " decreases the lot size and increases the density

,

increases the building height and decreases nearly every setback12 A

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requirement. " The court conclu ded the Ordinance made " significant

changes that adversely affect the single family residential nature

of the R

- 1 zone , and thereby fundamentally alter the character of

the zoning district. " We agree.

Sunrise argues the Ordinance ' s changes are less sweep ing than

those in Pacilli

. However

, like the ordinance in Pacilli

, the

Ordinance changed minimum lot width; minimum front

, side

, and rear

setbacks; maximum impervious coverage; minimum lot size; and

maximum unit density per acre. The Ordinance also chang ed the

maximum building height

, and made other changes.

Sunrise notes " the test is not the number of changes but the

substance of the changes. " Pacilli

, 394 N.J. at 333. However

,

the Ordinance ' s changes are comparable in substance to those in

Pacilli

. For example

, the Ordinance decreased the minimum acreage

by 50%

, decreased the side and rear setbacks by 66.6%

, and

increased the maximum number of units per acre by over 61%. The

Ordinance changed by three acres the minimum lot size

, as did the

ordinanc e ' s Option 2 in Pacilli for each half unit.

Because the zoning code already conditionally permitted

assisted living facilities in the R

- 1 zone , Sunrise argues the

Ordinance did not change the uses or sub

- categories of uses. The

same was true in Pacilli

- the residential zones already permitted

homes

– but the ordinance changed " the intensity of the permitted13 A

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use. " Id. at 330. The Ordinance did the same. The total effect

of the Ordinance ' s changes allowed an assisted living facility

with 105 units on the Lot

, which was half the size of the lot

required for any assisted living facility or units under the

existing zoning code.

The trial court found the Ordinance " allow[ed] for the

construction of an assisted living facility on a lot where it

could not have previously been constructed. " The court noted the

R

- 1 zone was " designed for single

- family homes on lots not smaller

than 35

, 520 square feet ," that is

, one house per lot of at least

7.28 acres. Allowing the densely

- populated assisted living

facility in t he R

- 1 zone of seven

- acre housing lots was a

substantial change comparable to that made by Option 2 in the

ordinance in Pacilli

, which " transform[ed] a zoning district of

generous lots to one of manorial proportions. " Id. at 332.

We recognize t he change in Pacilli affected the housing lots

in the residential zones , while the change here affected a

conditional use in the R

- 1 residential zone. 1 However

, we have

already found that a change in one of many uses may constitute a

significant enough change unde r Pacilli

. In Mahwah

, we held " an

1 The Ordinance also changed the uses in other zones, including

by providing that "[a]n assisted living facility, congregate

senior living facility or nursing home " were no longer permitted

in zones R

- 5F, R

- 5G, R

- 5H, and R

- 5I.14 A

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ordinance that authorizes ' health and wellness centers ' and

' fitness and health clubs ' in two industrial zones changes the

' classification ' of those zones. " 430 N.J. Super. at 250. We

ruled " [t]he additional uses in question fundamentally alter the

industrial zoning districts " because the " proposed uses are

clearly discordant from the uses permitted in the affected

industrial zoning districts [,] " which included " public parks

,

playgrounds or athletic fields. " Id. at 2 54

- 55. The Ordinance

allowed a densely

- populated assisted living facility that was

comparably " dissimilar " to and " discordant " from the seven

- acre

per unit residential lots in the R

- 1 zone. Ibid.

Because the Ordinance worked a classification change

,

N.J. S.A. 40:55D

- 62.1 requir ed certified mail notices to property

owners within the affected zones concerning the proposed

Ordinance

. As the trial court found: " This was not done by

Livingston

, and the failure to do so would invalidate the

Ordinance. " 2

2 Plaintiff contends that the personal notice here should have

included "an identification of the affected zoning districts and

proposed boundary changes, if any, by street names, common name s

or other identifiable landmarks, and by reference to lot and block

numbers." N.J.S.A. 40:55D

- 62.1. In Mahwah

, however, we held

"N.J.S.A. 40:55D

- 62.1 requires only identification of the zoning

districts affected by the classification change. The additi onal

requirement for identification of the specific impacted properties

only applies when a change in boundaries is proposed." 430 N.J.

Super. at 250, 255

- 60.15 A

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D espite finding that required personal notice of the

Ordinance was not given to plaintiff's members

, the trial court

sua sponte dismissed plaintiff ' s complaint because it was

untimely. The court found the complaint was not filed within the

period set in Ru le 4:69

- 6(a)

, and there was no reason to enlarge

that period under Rule 4:69

- 6(c). We address each in turn.

A.

Plaintiff does not contest that its action is governed by

Rule 4:69

- 6(a)

. "N o 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

, except as provided by paragraph

(b) of this rule. " Ibid. Here

, the Ordinance was adopted on

November 9

, 2015

, and notice of its adoption was given by a

publication on November 12

, 2015.

Defendants argue that the right to review accrued on the date

of the notice. N.J.S.A. 40:49

- 2(d) provides:

Upon passage

, every ordinance

, or the title

, or the title and a summary

, together with a

notice of the date of passage or appr oval

, or

both

, shall be published at least once in a

newspaper circulating in the municipality

, if

there be one

, and if not

, in a newspaper

printed in the county and circulating in the

municipality. No other notice or procedure

with respect to the introdu ction or passage

of any ordinance shall be required.16 A

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Plaintiff argues the lack of personal notice meant that its

cause of action did not accrue upon publication and that the forty

five days never began to run. Plaintiff cites Harrison

Redevelopment Agenc y v. DeRose

, 398 N.J. Super. 361, 401 (App.

Div. 2008)

. However, DeRose concerned the question

whether a property owner who fails to

challenge a redevelopment designation

containing his or her property within forty

five days of its adoption by a municipal

governing body, pursuant to the Local

Redevelopment and Housing Law ("LRHL"),

N.J.S.A. 40A:12A

- 1 to

- 49, may still

challenge, in full or in part, the public

purpose of the taking of his or her property,

by way of a defense in an ensuing condemnation

action.

[ Id. at 367.]

In DeRose , w e held a n owner could raise such a challenge

" unless a municipality provides the property owner with

cont emporaneous written notice that" the owner's property has been

designated for redevelopment and could be acquire d against the

owner's will unless he challenge d that designation with a specified

period

. Id. at 367

- 68. "Conversely, we also h[e]ld that if the

municipality's notice does contain these constitutionally

essential components, an owner who wishes to challenge the

designation presumptively must bring an action, in lieu of

prerogative writs, within f orty

- five days of the municipality's

adoption of the designation." Id. at 368.17 A

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T h e question we faced i n DeRose is not posed here

. This case

does not concern redevelopment or condemnation

, let alone the

defenses available in condemnation

. See Milford M ill 128, LLC v.

Borough of Milford

, 400 N.J. Super. 96, 115 n.10 (App. Div. 2008)

(distinguishing DeRose ). The Ordinance did not threaten to take

the properties of plaintiff's members against their will

. See

Town of Kearny v. Disc. City of Old Bridge, Inc.

, 205 N.J. 386,

404

- 05 (2011) (distinguishing DeRose where the plaintiff was a

tenant and not the owner of the property targeted for

redevelopment). No constitutional challenge has been raised here.

See Iron Mountain Info. Mgmt., Inc. v. City of Newa rk

, 202 N.J.

74, 78 (2010) (same). Because DeRose "addressed an entirely

different question," t he trial court properly did not find DeRose

controlling. See ibid.

Thus, the right of review accrued on November 12, 2015, when

notice of the Ordinance's pas sage was published. 3 Plaintiff's

complaint was not filed until March 31, 2016. Thus, plaintiff's

action was not filed within the forty

- five day period in Rule

4:69

- 6(a).

3 Thus, this case does not resemble Trenkamp v. Burlington , 170

N.J. Super. 251 (Law Div. 1979 ), where the court found accrual was

delayed because there was "no statute requiring a public

announcement in connection with applications for or issuance of

building permits." Id. at 259.18 A

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.

Rule 4:69

- 6(c) provides that " [t] he court may enlarge the

period of time provided in paragraph (a) or (b) of this rule where

it is manifest that the interest of justice so requires. " The

trial court found it was not in the interests of justice to relax

the time limit

. The court reasoned: " Despite the fact that mailed

written notice was not provided t o individual landowners

, notice

was provided by publication

, in the same manner that all other

ordinance change notices are provided. " The court found that " was

sufficient notice to the residents of Livingston that the Ordinance

c hange was to take effect. "

However

, the notice provided after the Ordinance ' s passage

bore no resemblance to the notice that plaintiff's members were

entitled to receive. As discussed above

, N.J.S.A. 40:55D

- 62.1

required defendants to give plaintiff's m embers personal notice

by hand

- service or by both certified and regular mail that the

Ordinance was being considered for final passage. That notice was

required to state " the nature of the matter to be considered and

an identification of the affected zoni ng districts. " Ibid. Had

defendants sent plaintiff's members the October 29 notice

, they

would have received the full text of the Ordinance

, which would

have alerted them not only to the zoning districts affected

, but

also the Ordinance ' s rationale that assisted living facilities19 A

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should " be encouraged at appropriate locations by reductions in

minimum lot size requirements

, limited increases in permitted

density and building height and other bulk changes ," and to the

details of the lot size

, density

, heigh t

, setback

, and other

changes.

By contrast

, the only notice that the Ordinance had been

passed was a tiny item published on November 12

, 2015

, in the West

Essex Tribune stating that the " TOWNSHIP OF LIVINGSTON PASSED [AN]

ORDINANCE " on November 9

, 2015

, an d describing only as " ORDINANCE

NO. 22

- 2015[:] ORDINANCE OF THE TOWNSHIP OF LIVINGSTON AMENDING

CHAPTER 170 OF THE CODE OF THE TOWNSHIP OF LIVINGSTON. " That

notice gave no clue about the subject or content of the Ordinance

unless the reader knew Chapter 1 70 was the " Land Use " chapter of

the Code

, and even then the notice did not specify the section or

subsection amended. That notice published in the West Essex

Tribune provided none of the information which plaintiff's members

would have received through personal service of the October 29

notice under N.J.S.A. 40:55D

- 62.1.

These circumstances "satisfy the standards in Rule 4:69

- 6(c)

and warrant enlargement of the forty

- five

- day period because 'it

is manifest that the interest o f justice so requires. ' " See

Hopewell Valley Citizens' Grp. v. Berwind Prop. Grp. Dev. Co.

, 204

N.J. 569, 571 (2011)

. "[T]he plain language of paragraph (c)20 A

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suggests that a court has discretion to enlarge a Rule 4:69

- 6(a)

or (b) timeframe when it perceiv es a clear potential for

injustice." Id. at 578.

"Our Supreme Court has recognized that cases 'involving: (1)

important and novel constitutional questions; (2) informal or ex

parte determinations of legal questions by administrative

officials; and (3) imp ortant public rather than private interests

which require adjudication or clarification' have satisfied the

'interest of justice ' standard in Rule 4:69

- 6(c)." Mullen v.

Ippolito Corp.

, 428 N.J. Super. 85, 106 (App. Div. 2012) ( citation

omitted ) ; see In re Ordinance 23 54

- 12 of W. Orange

, 223 N.J. 589,

601 (2015)

. However, that "list of exceptions was not intended

to be exhaustive." Hopewell Valley

, 204 N.J. at 584

.

Courts have also " recognized municipal negligence as a basis

for invoking Ru le 4:69." Ibid. (citing Reilly v. Brice

, 109 N.J.

555, 557 (1988 ) ). In Reilly

, "the challenge to the council's

ratification of a four

- year $20,000 municipal consulting contract

was not brought until five months after it occurred." Id. at 580

(citing Reilly

, 109 N. J. at 557 )

. The published agenda for the

meeting did not list the contract as an agenda item

, and the

minutes of the meeting " failed to state any of the specifics of

the contract ." Reilly

, 109 N.J. at 559

- 60.21 A

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O ur Supreme Court in Reilly "attributed the blame for the

lateness of that proceeding to the negligence of the municipality "

because "' the descriptions of the proposed public action [could

have] been more specific' on the agenda of the meeting that was

published. " Hopewell Valley

, 204 N.J. at 580

- 81 (quoting Reilly

,

109 N.J. at 559

- 60 )

. The Court " h [e] ld that in the circumstances

of this case the proper exercise of discretion is to enlarge the

forty

- five day limitation to allow review of the challenged

municipal action. " Reilly

, 109 N.J. at 557

. The Court reversed

the trial court's denial of an extension

, and itself enlarged the

time

. Id. at 560

- 61.

In Reilly

, the Court noted "[p] laintiffs assert no private

interest in challenging this contract, but rather seek vindication

of the public interest. " Id. at 558. The Court acknowledged that

"[b]alanced against these public interests, however, is the

important policy of repose expressed in the forty

- five day rule."

Id. at 559. The rule " is designed to encourage parties not to

re st on their rights. In general, ignorance of the existence of

a cause of action will not prevent the running of a period of

limitations except when there has been concealment. " Id. at 559.

However, " [i] mportantly, the concealment need not be intentional

or malicious

, as evidenced by the fact [s]

. . . in Reilly [

. ] "

Hopewell Valley

, 204 N.J. at 5 80

.22 A

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Here, even if unintentional and non

- malicious, the

concealment of the nature of the Ordinance wa s at least as

significant as the conce a lment in Reilly

. As in Reilly

, the

concealment primarily occurred in the notice preceding the meeting

in which the challenged municipal action was taken

, and was

compounded by the lack of detail in the subsequent statement of

what action had been taken

. As set forth above, d efendants'

failure to mail personal notice to plaintiff's members deprived

them of the individual service of information required by N.J.S.A.

40:55D

- 69.1

, and the notice after the Ordinance 's passage gave

them little if any information. The delay in filing the complaint

here was shorter than the five

- month delay in Reilly

.

In addition to the private interests of plaintiff's members,

there are public interests at stake here. "Our courts have found

a sufficient public interest to justify an extensi on of time for

filing a prerogative writ action in a variety of circumstances,

including challenges to the validity of ordinances on the ground

that they were not adopted in conformity with the applicable

statutory requirements." Willoughby v. Planning Bd

. of Deptford

,

306 N.J. Super. 266, 277 (App. Div. 1997) (citing Reilly

, 109 N.J.

at 560

- 61). The failure to provide personal notice as required

by N.J.S.A. 40:55D

- 62.1 contravenes the public interest in

ensuring residents in a district know of their oppo rtunity to23 A

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oppose a change in its classification

. See Pacilli

, 394 N.J.

Super. at 333

. There is also a public interest in opposing spot

zoning, which is "'the use of the zoning power to benefit

particular private interests rather than the collective inte rests

of the community.'" Riya Finnegan Ltd. Liab. Co. v. Twp. Council

of S. Brunswick

, 197 N.J. 184, 195 (2008) (citation omitted).

C onsidered together, there w a s "sufficient public interest to

warrant relaxation of the forty

- five

- day filing limitation through

application of Rule 4:69

- 6(c)." Concerned Citizens of Princeton,

Inc. v. Mayor & Council of Princeton

, 370 N.J. Super. 429, 447

(App. Div. 2004) ; see DeRose

, 398 N.J. Super. 361, 418 (App. Div.

2008) (ruling an enlargement under Rule 4:69

- 6(c) was justified

by the public interest and "[t]he multiple defects of notice");

Wolf v. Shrewsbury

, 182 N.J. Super. 289, 296 (App. Div. 1981)

(reversing the denial of an enlargement where notice was

inadequate).

Sunrise cites Rocky Hill Citizen s for Responsible Growth v.

Planning Bd. of Rocky Hill

, 406 N.J. Super. 384 (App. Div. 2009 )

.

In Rocky Hill

, we upheld denial of an enlargement largely because

" the ordinance was the subject of intense debate at all times.

P ublic consideration of this or dinance was extensive, " and

"participation was subst antial" at the public hearings, which one

of the plaintiffs attended

, yet plaintiffs adopted " a ' wait and24 A

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see ' strategy " and failed to file a complaint for nearly two years.

Id. at 402

- 03. 4

Here, by contrast, the notice for the hearing on the Ordinance

was fatally deficient, no member of the public appeared in

connection with the Council's r eview of the Ordinance

, there is

no claim any member of p laintiff was aware of the Ordinance at or

near its November 2015 passage , and plaintiff filed its complaint

within five months

. Those circumstances were sufficient to justify

a n enlargement under Reilly

.

Sunrise claims plaintiff had actual knowledge of the adoption

of the Ordinance in early January 2016

. Sunrise cites the verified

complaint and certification signed by Lidia Dumytsch. She

identified herself as "an owner of property within 200 feet of the

[Lot]," "a member of " p laintiff, plaintiff's volunteer

"Secretary/Treasurer," and the "Tax Assessor for the Township of

Livingston." In the complaint and her certificat ion, she attested

s he was unaware of the Ordinance until after she received a request

a s the Tax Assessor to prepare a list of property owners who lived

within 200 feet of the Lo t for Sunrise 's application to the Board

4 In Rocky Hill , w e also noted other aspects of cases granting

enlargement were not present

, such as issues of "the constitutional

adequacy of the notice to property owners " present in DeRose , and

" significant impact on density " as in Willoughby . 406 N.J. Super.

at 400

- 01. Here, we have statutorily

- inadequate notice to property

owners and a significant impact on density.25 A

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for approval of its site plan

, when she investigated and discovered

the Council had passed the Ordinance in November 2015

.

However, Dumytsch did not state when she received the request

for the list or when her in vestigation discovered the Ordinance.

Sunrise claims that occurred in early January, and cites its site

plan application

. However, the application appears to have been

signed January 26, 2016

. N otice of Sunrise's application to all

property owners " with in 200 feet in all directions of the " Lot was

not required until "at least 10 days prior to the date of the

hearing" on the site application

, which was held on February 2

.

N.J.S.A. 40:55D

- 12

, - 12 (b)

. Even assuming Dumytsch's discovery

of the Ordinance occurred in early rather than late January, it

would not necessarily bar an enlargement for plaintiff or its

other members

.

In Rockaway Shoprite Assocs., Inc. v. City of Linden

, 424

N.J. Super. 337 (App

. Div. 2011), the city sent notice of proposed

ordinance s that was fatally defective

. Id. at 344. T he

" [ d ] efendants and intervenor nevertheless contend [ed] that because

plaintiff's representative attended the public hearing

. . . and

did not object to th e la ck of proper notice, plaintiff 'waived'

its right to challenge the ordinances on that basis. " Id. at 351.

In rejecting that argument, we cited "[ t ] he general rule

. . .

that strict compliance with statutory notice requirements is26 A

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mandatory and jurisdictional, and non

- conformity renders the

governing body's resultant action a nullity. " Id. at 352. We

also found "compelling" "'the principle that the entire public is

entitled to notice in full compliance with the governing statutory

provisions, a nd that the public's entitlement to such notice may

not be waived by those individual members of the public who

actually attend the improperly noticed hearing.'" Id. at 354

(citation omitted). "O n the issue of public notice of adopting

or amending a zoni ng ordinance, a jurisdictional defect is not

personal to a single objector but rather the right of the public,

and therefore cannot be waived by one individual. " Ibid.

If in Rockaway Shoprite the appearance at the hearing of

Shoprite's attorney and prof essional planner "who voiced no

objection to the ordinance" d id not waive Shoprite 's right to

claim lack of notice, id. at 342

, 355, then Dumytsch's post

- hearing

discovery of the fatal lack of notice here did not waive the right

of any other member of the public to seek an enlargement to claim

lack of notice

, including the persons represented by plaintiff.

Although Sunrise notes Dumytsch is plaintiff's only identified

member, Dumytsch certified that "the number of members of

[plaintiff] is currently in excess of 75 residents, [and] as each

day goes by I am being contacted by others who are learning of the27 A

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amended zoning at issue in this lawsuit and who express an interest

in joining [plaintiff]'s efforts

. "

Sunrise cites "the imputation doctrine" that " a principal is

deemed to know facts that are known to its agent ." NCP Litig. Tr.

v. KPMG LLP

, 187 N.J. 353, 366 (2006). However, i n Rockaway

Shoprite

, d espite the knowledge of Shoprite's attorney and

planner, we held Shoprite could challenge the fatally

- defective

notice to vindicate the public's " jurisdictional and non

- waivable "

right to notice of zoning amendments. 424 N.J. Super. at 355. We

are even more reluctant to wield the doctrine to prev ent plaintiff

from challenging the fatally

- defective notice here, because it is

a representational plaintiff which apparently was not in existence

when Dumytsch discovered the Ordinance

, and whose other members

learned of the Ordinance after Dumytsch did.

Rule 4:69

- 6 is " aimed at those who slumber on their rights ."

Hopewell Valley

, 204 N.J. at 579 ( quoting Schack v. Trimble

, 28

N.J. 40, 49 (1958)). We cannot say all of plaintiff's members

slumbered on their rights as the record contains no information

whe n each member

, deprived of the notice required by N.J.S.A.

40:55D

- 62.1, first learned of the Ordinance

. See id. at 585

(finding a plaintiff did not "slumber on its rights" when i t

received incorrect information from a Board employee).28 A

- 4171

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In Reilly

, our Sup reme Court rul ed : " Without delving into the

question of when plaintiffs' right to challenge the Council's

action arose (plaintiffs claim not to have learned of the matter

until early April), we are satisfied that this factual setting

properly calls for an exercise of judicial discr etion to enlarge

the time to review the action. " 109 N.J. at 560

. We similarly

do not believe we must remand to delve into when each of

plaintiff's m embers l earned of the O rdinance

, particularly as

Dumytsch certified new members had only recently joined

plaintiff's efforts

, and any timely member may be sufficient to

allow the suit to proceed

. See id. at 560

- 61 (" rather than remand

this matter for further exercise of discretion by [the trial]

court, we believe that in the interest of expedient disposition

of this matter, time should be enlarged ")

.

Moreover, t he delay here from the Nov ember 12 notice, or

Dumytsch's discovery of the Ordinance sometime in January, to the

March 31 filing of plaintiff's complaint wa s less than the five

month delay in Reilly

. Id. at 557, 561

. The trial court cited

the Law Division's statement in Trenkamp that courts should "i n

no circumstance enlarge the time period on this ground beyond 45

days from the time at which plaintiff knew or should have known

of the cause of actio n. " 170 N.J. Super. at 265. However, we

have since held that where the public interest is involved, " the29 A

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court may grant even a very substantial enlargement of the time

in order to afford affected parties an opportunity to challenge

the allege d unlawful governmental action." Willoughby

, 306 N.J.

Super. at 276

- 77 ( citing enlarg e ments of several years )

. In any

event, Dumytsch's certification and the lack of the required

personal notice indicates some of plaintiff's members neither knew

nor should have kno wn of the Ordinance until within forty

- five

days of the filing of the complaint.

"[T] he determination to enlarge a t imeframe under [ Rule 4:69

-

6] (c) [i]s an 'exercise of judicial discretion.' " Hopewell Valley

,

204 N.J. at 578 (reversing the denial of an enlargement) ( quoting

Reilly

, 109 N.J. at 560 (same) ). We review the trial court's

decision for abuse of discretion. Willoughby

, 306 N.J. Super. at

273 (reversing the denial of an enlargement)

. We must hew to that

standard of review.

Applying that standard

, a s our Supreme Court did in Reilly

,

we reverse the dismissal of plaintiff's complaint as untimely

because we are convinced "t hat this factual setting properly calls

for an exercise of judicial discretion to enlarge the ti me to

review the action." 109 N.J. at 559

- 60. " The MLUL ensures that

the public has a chance to be heard

. . . by imposing notice

requirements. " Twp. of Stafford v. Stafford Twp. Zoning Bd. of

Adjustment

, 154 N.J. 62, 70 (1998)

. " The Legislature's choice to30 A

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compel notice to property owners within a 200

- foot radius provides

an objective measure of a neighboring property owner's interest

in a zoning dispute. " Grabowsky

, 221 N.J. at 559. Given t he

denial to plaintiff's members of the personal notice of the

Ordinance required by N.J.S.A. 40:55D

- 69.1

, " the interest of

justice " requires they have an opportunity to challenge the

Ordinance. R. 4:69

- 6(c). Accordingly, we reverse the dismissal

of plaintiff' s complaint as untimely.

IV.

The zoning power "must be exercised in strict conformity with

the delegating enactment

— the MLUL." Nuckel v. Borough of Little

Ferry Planning Bd.

, 208 N.J. 95, 101 (2011)

. Our Supreme Court

has rule d "'[t]he giving of statutory notice of hearing is a

ju risdictional requirement, and unless notice is given as required

by statute the board lacks power to hear or consider an

application. ' " Twp. of Stafford

, 154 N.J. at 79 ( citation

omitted). "Non

- compliance with the personal notice requirements

of N.J.S. 4 0:55D

- 62.1 re nders an amendment invalid. " Cox & Koenig,

New Jersey Zoning & Land Us e Administration

, § 10

- 2.3 at 159 (2018)

(citing Pacilli

, 394 N.J. Super. at 333 )

. Thus, we declare the

Ordinance is invalid.

P laintiff also appeals the trial court's dismissal of its

count alleging a violation of the C RA

. Although the invalidation31 A

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of the Ordinance may remove the need to further litigate that

claim, plaintiff's CRA count also seeks attorney's fees and costs

under N.J.S.A. 10:6

- 2 (f). Out of an abundanc e of caution, we

review the dismissal of the CRA count

.

The trial court dismissed the CRA count for failure to state

a claim. "[W]e apply a plenary standard of review from a trial

court's decision to grant a motion to dismiss pursuant to Rule

4:6

- 2(e). " Rezem Family Assocs., LP v. Borough of Millstone

, 423

N.J. Super. 103, 114 (App. Div. 2011). We affirm the dismissal

of the CRA count substantially for the reasons set forth in the

court's May 10, 2016 statement of reasons. See id. at 11 3

- 15 ; see

also Nostrame v. Santiago

, 213 N.J. 109, 128 (2013)

.

M uch time has passed since enactment of the Ordinance in

November 2015. We have almost no information on subsequent

developments. We remand to the trial court to determine wh at

further proceedings and rel ief are needed under plaintiff's

complaint

.

Affirmed in part, re versed in part, and remanded. W e do not

retain jurisdiction.