Gregory v. Borough of Avalon

In Gregory v. Borough of Avalon, recently approved for publication, the Appellate Division evaluated the legality of extending the period of limitations under Rule 4:69-6(a) for challenging resolutions of a municipal governing body that are closely related to a subsequent resolution of a municipal board that was challenged in a timely manner in the same action.  The Court answered this question in the affirmative based upon the unique set of circumstances involved in the case.

Specifically, the owner of a beachfront motel seeking preliminary and final major site plan and variance approval to expand its facilities, prior to the municipal board’s hearing on the matter, obtained permission to maintain these encroachments certain encroachments in the street right-of-way and over public dunes, which the governing body gave in the form of written agreements and authorized by resolution.  In partial reliance upon these encroachment continuation agreements, the municipal board granted the owner’s site plan application and request for variance relief.  Following the municipal board’s memorialization of these approvals by resolution, several objectors asked the municipal board to reconsider its decision based upon assertions supported by a transcript of testimony given in a prior proceeding that the owner had made misrepresentations to the municipal board on the aforesaid application.  Soon thereafter, the objectors filed an action in lieu of prerogative writs challenging both the validity of the municipal board’s action and, although out of time, the governing body’s resolutions.  In light of the pending litigation, the municipal board did not rule upon the objectors’ request for reconsideration.  The trial court dismissed the objectors’ challenge to the resolutions of the municipal governing body as untimely and upheld the municipal board’s resolution granting site plan and variance approvals without considering the objectors’ supplemental evidence.

In deciding the pivotal issue of the appropriateness of enlarging the time to appeal the resolutions of the municipal governing body, the Court first recognized the public interests involved in authorizing “a private property owner to encroach upon a public beach area or property dedicated to a street right-of-way” and the significance of “the issues presented by plaintiffs’ challenge to the resolutions,” namely whether the municipal governing body could legally authorize the parking and dune agreements only by ordinance.  Moreover, the Court found that the “close relationship between the . . . governing body’s resolutions authorizing the parking and dune agreements and the [b]oard’s resolution granting the land use approvals” further supported its decision in this regard.

Following its determination on the timeliness of the objectors’ appeal, the Court remanded the portion of the matter relating to the resolutions of the municipal governing body to the trial court “for a determination on the merits of plaintiffs’ challenge to the parking and dune agreements[,]”  and ordered the municipal board to reconsider the owner’s application for development “[i]n light of the court’s disposition of the challenge to the agreements and the evidential materials plaintiffs submitted in support of their application for reconsideration.”