An Easy Statute of Limitations Case for the Supreme Court

In re Petition for Referendum to Repeal Ordinance 2354-12 of West Orange Tp., 223 N.J. 589 (2015).  This appeal involved the timeliness of a challenge to a bond ordinance for redevelopment work that was adopted by the Township of West Orange.  Rule 4:69-6(b)(11) requires that actions in lieu of prerogative writ that challenge the adoption of an ordinance authorizing the issuance of notes or bonds be filed within twenty days “from the date of the first publication thereof following final passage.”  Rule 4:69-6(c) allows that twenty day period to be extended “where it is manifest that the interest of justice so requires.”  That provision applies to all eleven types of prerogative writ actions identified in Rule 4:69-6(a) and (b), not just to bond ordinances.  However, a statute, N.J.S.A. 40A:2-49, creates a conclusive presumption in favor of bond ordinances after the same twenty day period as Rule 4:69-6(b)(11).

After unsuccessfully (due to insufficient signatures, and because another statute, the Local Housing and Redevelopment Law, N.J.S.A. 40A:12A-28, precluded a referendum on bond ordinances) trying to petition for a referendum on the ordinance, plaintiffs filed an action in lieu of prerogative writ 53 days after the first publication.  The Law Division ruled that the complaint was untimely as outside the twenty-day limitation period.  The Appellate Division affirmed.  The Supreme Court granted review and, applying the de novo standard of review, affirmed in an opinion by Justice Albin.

Justice Albin noted that the Rule 4:69-6(c) “interest of justice” provision normally applies to extend the time for cases involving “important public rather than private interests which require adjudication or clarification.”  But this bond ordinance case “present[ed] distinctive concerns” because N.J.S.A. 40A:2-49 “confers on a bond ordinance both a conclusive presumption of validity and protection from legal attack after the twenty-day limitation period.”  The exception to the twenty day period in Rule 4:69-6(c) had to “give way to the plain and common-sense meaning and purpose of N.J.S.A. 40A:2-49.”  Only “in the most extraordinary of circumstances,” which were “difficult to envision,” could a court entertain a request to extend the twenty day period for a bond ordinance challenge.

Nor did plaintiffs’ failed attempts to get a referendum toll the twenty day period.  The Local Housing and Redevelopment Law plainly barred the referendum request.  Allowing tolling in this way would wrongly circumvent N.J.S.A. 40A:2-49 and Rule 4:69-6(b)(11), which set up the twenty day limitation.

Sometimes it is challenging to determine whether the interests of justice should permit relaxation of the time limitations contained in Rule 4:69.  Here, however, the fact that the Legislature embodied the twenty day window in a statute, in essentially absolute terms, made the Court’s decision easy.