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N.J.S.A. 40A:12A-1 to -73, and his challenge to the Township's subsequent adoption of a redevelopment
plan. We agree with the trial judge that the challenge to the redevelopment designation was untimely and
the challenge to the redevelopment plan was without merit. Accordingly, we affirm.1 "> Original
Wordprocessor Version
(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0981-09T2
KEVIN CHAMBERS,
Plaintiff-Appellant/
Cross-Respondent,
v.
THE TOWNSHIP OF NEPTUNE and
TOWNSHIP COMMITTEE OF THE
TOWNSHIP OF NEPTUNE,
Defendants-Respondents/
Cross-Appellants.
October 5, 2010
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Argued September 20, 2010 - Decided
Before Judges Lisa, Reisner and Sabatino.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth
County, L-2210-08.
Ronald S. Gasiorowski argued the cause for appellant/cross-respondent
(Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski and Christie A.
Gasiorowski, on the briefs).
Gene J. Anthony argued the cause for respondents/cross-appellants.
PER CURIAM
Plaintiff Kevin Chambers appeals from a Law Division order dated September 16, 2009, dismissing his
challenge to Neptune Township's designation of approximately five acres of land as being in need of
redevelopment pursuant to the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -73,
and his challenge to the Township's subsequent adoption of a redevelopment plan. We agree with the trial
judge that the challenge to the redevelopment designation was untimely and the challenge to the
redevelopment plan was without merit. Accordingly, we affirm.1
I
After Planning Board hearings, followed by the Board's positive recommendation, Neptune Township
(Neptune or the Township) adopted Resolution 07-310 on June 11, 2007, designating the northern portion
of the Township's Ocean Grove section as in need of redevelopment. Although Chambers participated as an
objector at the Board hearings, he did not promptly challenge the 2007 Resolution after its adoption. On
March 24, 2008, following additional public input on the manner in which the area should be developed,
Neptune enacted Ordinance 08-08, adopting a redevelopment plan for the area. Chambers filed this action
in lieu of prerogative writs on May 8, 2008, challenging both the 2007 Resolution and the 2008 Ordinance.
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The Township, and an intervenor known as WAVE2 , defended both enactments on the merits but also
contended that Chambers' challenge to the 2007 Resolution was untimely.
In a written opinion dated August 31, 2009, the trial judge expressed concern that the timeliness
issue had not been included in the pre-trial order. However, he addressed the substance of the issue and
concluded that the challenge to the Resolution was untimely, because it was not filed within forty-five days
after the adoption of the Resolution, as required by Rule 4:69-6(b)(3). See also N.J.S.A. 40A:12A-6(7).
The judge also addressed the merits of plaintiff's claims. He rejected Chambers' contention that the
Township had premised the 2007 Resolution solely on a finding that the land was underutilized, under
N.J.S.A. 40A:12A-5(e), a criterion our Supreme Court disapproved in Gallenthin Realty Dev., Inc. v. Borough
of Plainsboro, 191 N.J. 344, 366-69 (2007). The judge concluded that the Township did not exclusively rely
on N.J.S.A. 40A:12A-5(e) and had substantiated valid reasons for each portion of the property based on
subsections other than 5(e). The judge also concluded that the 5.37-acre area was not too small to be
designated as in need of redevelopment and that the designation was not spot zoning.
The judge further found that, during the hearing on the redevelopment designation, the Planning
Board was not arbitrary in denying two objectors' application for an adjournment to present live testimony
from an expert whose report they had submitted. However, he also concluded that Chambers had no
standing to raise this issue, because he was not one of those objectors seeking to present the expert and
he did not object to the Board's action at the time. Regarding the 2008 adoption of the redevelopment plan,
the judge found that the Ordinance adequately explained any inconsistencies with the Township's Master
Plan, as required by N.J.S.A. 40A:12A-7(d).
II
At oral argument of this appeal, Chambers' counsel confirmed that he makes no claim of eminent domain
abuse, conceding that under the redevelopment plan the Township will not engage in condemnation of any
property in the redevelopment area. However, Chambers contends that the redevelopment plan
inappropriately permits the Ocean Grove Camp Meeting Association, which owns a substantial amount of
the land in the redevelopment area, to develop its property with higher density housing than the local
zoning ordinance would allow. In that context, he contends that the 2008 Ordinance did not adequately
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explain why the redevelopment plan was at variance with the Township's Master Plan.
In challenging the 2007 Resolution designating the area as in need of redevelopment, Chambers
once again contends that the designation was based on alleged underutilization of the land, under N.J.S.A.
40A:12A-5(e), contrary to the holding in Gallenthin Realty, supra, 191 N.J. 366-69. Procedurally, he
contends that the 2007 Resolution was not subject to challenge, and hence the forty-five day time limit did
not start to run, until the redevelopment plan was adopted by Ordinance in 2008. We address the
timeliness issue first.
In this case the Township pled the timeliness issue in its answer, the intervener specifically asked that the
issue be included in the pre-trial order, and the time limitation issue was briefed and argued by all parties
without objection. Therefore, the issue was tried by consent and the pre-trial order should have been
deemed amended pursuant to Rule 4:9-2. See Nester v. O'Donnell, 301 N.J. Super. 198, 208-09 (App. Div.
1997). We understand the trial judge's reasonable concern with avoiding trial by ambush and maintaining
the court's control over the trial schedule, and thus his emphasis on including all issues to be tried in the
pre-trial order. Anticipating that this case would result in an appeal, however, the judge wisely issued an
order addressing both the timeliness issue and the merits of plaintiff's challenge to the Resolution.
We agree with the trial judge that Chambers was aware of the 2007 Resolution when it was adopted
and was obligated to challenge the adoption of the Resolution within the forty-five day time limit set by
Rule 4:69-6(b)(3). See Concerned Citizens of Princeton, Inc. v. Mayor of Princeton, 370 N.J. Super. 429,
446-47 (App. Div.), certif. denied, 184 N.J. 139 (2004). That relatively short time limit reflects the
importance of certainty in the municipal planning and land use process. Id. at 446; Washington Twp. Zoning
Bd. of Adjustment v. Washington Twp. Planning Bd., 217 N.J. Super. 215, 225 (App. Div.), certif. denied,
108 N.J. 218 (1987). Pertinent here, to obtain an extension or waiver of the time limit, the challenger must
show that the case raises a substantial constitutional issue or other substantial issue affecting the public
interest. See R. 4:69-6(c)(permitting enlargement of the time limit "where it is manifest that the interest of
justice so requires"); Concerned Citizens, supra, 370 N.J. Super. at 447.
This case essentially presents a policy disagreement between Chambers and the Township over the
most appropriate way to develop the approximately five-acre parcel.3 Chambers does not own property in
the redevelopment area. There is no claim of eminent domain abuse, lack of notice of a plan involving
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condemnation, or other constitutional issue relating to the designation. Consequently, the due process
concerns addressed in Harrison Redevelopment Agency v. DeRose, 398 N.J. Super. 361 (App. Div.), certif.
denied, 196 N.J. 87 (2008), are not at issue here. See id. at 413. No other objectors joined in Chambers'
lawsuit and, unlike Concerned Citizens, supra, there is no evidence that Chambers represents a large
constituency. The record before us does not demonstrate the type of substantial public interest that would
warrant waiving the forty-five day time limit. See Rocky Hill Citizens For Responsible Growth v. Planning Bd.
of Rocky Hill, 406 N.J. Super. 384, 401 (App. Div. 2009).
We find no merit in Chambers' argument that as a matter of law the forty-five day time limit to
challenge an "in need of redevelopment" designation does not start to run until a municipality adopts a
redevelopment plan for the designated area. Chambers cites no case law in support of that proposition, and
it is contrary to the language and purpose of the LHRL. See N.J.S.A. 40A:12A-6(7) (setting forty-five day
time limit to challenge blight designation under certain circumstances); Harrison Redevelopment Agency,
supra, 398 N.J. Super. at 399, 413-14; Concerned Citizens, supra, 370 N.J. Super. at 446-47. Adopting
Chambers' interpretation as a general rule would undermine the ability of municipalities to engage in
redevelopment planning. The challenge to the 2007 Resolution was properly dismissed as untimely, and we
will not address the underlying merits of that challenge.4
We turn next to the 2008 adoption of the redevelopment plan, as to which Chambers filed a timely
challenge. We find his challenge without merit, substantially for the reasons stated by the trial judge.
Chambers' appellate contentions do not warrant further discussion here, beyond the following comments.
See R. 2:11-3(e)(1)(E).
The plan was adopted in conformity with the LHRL, which provides in pertinent part:
All provisions of the redevelopment plan shall be either substantially consistent
with the municipal master plan or designed to effectuate the master plan; but
the municipal governing body may adopt a redevelopment plan which is
inconsistent with or not designed to effectuate the master plan by affirmative
vote of a majority of its full authorized membership with the reasons for so
acting set forth in the redevelopment plan.
[N.J.S.A. 40A:12A-7(d).]
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The Ordinance adopting the plan was approved by the requisite majority of the Township Committee.
Moreover, contrary to Chambers' contention, the Redevelopment Plan and the Ordinance adopting it
provide detailed reasons to depart from the Master Plan. The very limited quotations cited in Chambers'
brief do not fairly reflect the extensive findings set forth in the Ordinance. Given the deferential standard to
which we, and the trial judge, must adhere in reviewing the Township's decision, we find no basis to
overturn the Ordinance. See Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1968).
Affirmed.
1 Our decision also resolves the Township's protective cross-appeal, which was limited to its right to pursue
the timeliness issue.
2 "WAVE" is an acronym for Wesley Atlantic Village Enterprises, a prospective redeveloper.
3 At the Planning Board hearings on the designation, virtually all members of the public who commented
either for or against the proposal agreed that the area was neglected, deteriorated and in need of some
form of development. They disagreed about the most appropriate way to foster development. Anticipating a
dispute over the eventual redevelopment plan, they also disagreed over the density with which the area
should be developed.
4 We agree with the trial judge that Chambers lacked standing to challenge the Planning Board's decision
denying a request from two other objectors to adjourn the hearing to permit additional expert testimony.
Those objectors did not join in Chambers' lawsuit. Since Chambers was not the proponent of the expert
testimony and did not join in the adjournment request, Chambers was not entitled to pursue the issue in
the Law Division or on this appeal. See Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 391 (1997);
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
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