Hopewell Valley Citizens Group v. Berwind, 204 N.J. 569 (2011). This was a case focused on whether a citizens group that objected to a development had timely filed a prerogative writ appeal. A 6-1 majority of the Supreme Court, speaking through Justice Long, held that the normal 45-day prerogative writ appeal period under Rule 4:69-6(b)(3), which runs from the publication of notice of a resolution memorializing the development approval, should have been extended for six days, in “the interest of justice,” under Rule 4:69-6(c). That decision reversed the rulings of both the Appellate Division and the Law Division below.
The key basis for that ruling was that a representative of the group had contacted the Planning Board Secretary to find out when a notice had been published, and was told that the Board had published notice on October 2, 2008. The citizens group therefore believed that the deadline to file their prerogative writ appeal was November 17, 2008. They filed on that deadline date. In fact, the developer had previously published notice on September 27, 2008, which the Board Secretary knew but inadvertently did not tell the representative of the citizens group. That made the complaint untimely absent an “interest of justice” extension. Finding that Cohen v. Thoft, 368 N.J. Super. 338 (App. Div. 2004), which involved somewhat comparable facts, to be “the paradigm for this case,” the majority relaxed the 45-day time limit.
The dissenting vote came from Justice Rivera-Soto. We all recall that in Henry v New Jersey Dep’t of Human Services, ___ N.J. ___ (2010), and Johnson v. Johnson, ___ N.J. ___ (2010), Justice Rivera-Soto announced that he would abstain from voting in any case in which the temporarily assigned presiding judge of the Appellate Division, Judge Edwin Stern, participated. In Hopewell Valley Citizens, Justice Rivera-Soto explained that he had reflected further, and that he would now “cast a substantive vote in every case in which [Judge Stern] participates except for those in which the temporarily assigned judge casts a vote that affects the outcome of the case.” That would mean that he will now vote on most cases.
But suppose there is a 3-3 tie aside from Justice Rivera-Soto’s vote. If Justice Rivera-Soto disagreed with Judge Stern in that scenario, that would yield four votes for Justice Rivera-Soto’s position, Judge Stern’s vote would not affect the outcome, and Justice Rivera-Soto could vote. But if Justice Rivera-Soto agreed with Judge Stern, Judge Stern’s vote (like any of the other three votes in this hypothetical) would be dispositive, and Justice Rivera-Soto would not vote. Thus, in close cases, as long as Justice Rivera-Soto and Judge Stern disagree, the litigants and the public will have the benefit of seven votes on the Supreme Court, a curious outcome.
On the merits, Justice Rivera-Soto believed that the two lower courts correctly barred the suit. He considered that N.J.S.A. 40:55D-10.1, which states that the time for appeal from a decision of a municipal agency “shall run from the first publication of the decision, whether arranged by the municipality or the applicant,” was dispositive. Justice Rivera-Soto suggested that the plaintiff “would have been fully informed if it had exercised the obvious due diligence” of contacting both the municipality and the developer to inquire about the publication of notice. As a matter of prudent practice, that is good advice for practitioners who handle prerogative writ appeals.