Opinion
DOCKET NO. A-3694-10T3
04-02-2013
PRESIDENTIAL ESTATES HOME OWNERS ASSOCIATION, Plaintiff-Appellant, v. THE TOWNSHIP OF LAKEWOOD, in the County of Ocean, New Jersey, WIRELESS EDGE CONSULTANTS, LLC, and T-MOBILE, USA, INC., Defendants-Respondents.
Larry S. Loigman argued the cause for appellant. Michael M. DiCicco argued the cause for respondent Township of Lakewood (Bathgate, Wegener & Wolf, P.C., attorneys; Mr. DiCicco, on the brief). Christopher John Stracco argued the cause for respondent Wireless Edge Consultants, LLC (Day Pitney L.L.P., attorneys; Mr. Stracco and Karen Alfieri Hefner, on the brief). Gregory J. Czura argued the cause for respondent T-Mobile, USA, Inc.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Harris, and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-4328-10.
Larry S. Loigman argued the cause for appellant.
Michael M. DiCicco argued the cause for respondent Township of Lakewood (Bathgate, Wegener & Wolf, P.C., attorneys; Mr. DiCicco, on the brief).
Christopher John Stracco argued the cause for respondent Wireless Edge Consultants, LLC (Day Pitney L.L.P., attorneys; Mr. Stracco and Karen Alfieri Hefner, on the brief).
Gregory J. Czura argued the cause for respondent T-Mobile, USA, Inc. PER CURIAM
Plaintiff Presidential Estates Home Owners Association represents a residential condominium community consisting of ninety-three individual unit owners. The condominiums are located in Lakewood Township, Ocean County, bordering U.S. Highway 9. Plaintiff filed an action in lieu of prerogative writs on November 23, 2010, in the Law Division against the Township of Lakewood ("Township") and Wireless Edge Westchester Group, LLC ("WEWG"), improperly pled as Wireless Edge Consultants, LLC ("WEC"), challenging the construction and operation of a cellular tower located adjacent to its property. Plaintiff filed an amended complaint on December 3, 2010, joining T-Mobile Northeast, LLC ("T-Mobile"), improperly pled as T-Mobile, USA, Inc., as a necessary party defendant.
Plaintiff sought to enjoin defendants from constructing and operating the cellular tower at the selected site and a judicial decree voiding the lease entered into between the Township and WEC that permitted WEWG and T-Mobile, for-profit entities, to operate a cellular tower on property owned by the Township. After joinder of issue and considering the arguments of counsel, the Law Division granted defendants' motions for summary judgment and dismissed plaintiff's complaint as untimely pursuant to Rule 4:69-6. Plaintiff now appeals arguing the Law Division erred in its ruling. We disagree and affirm.
Given the basis for the trial court's ruling, we will recite the salient facts in strict chronological fashion, focusing, when necessary, on the key events that should have given notice to any reasonable member of plaintiff's community of the need to take timely legal action to challenge the cellular tower.
I
WEC is in the business of designing, developing, and managing wireless telecommunication facilities. T-Mobile is a federally licensed telecommunications carrier. On January 19, 2006, the Township introduced an ordinance authorizing the construction of wireless telecommunications towers and antennas on its property. The ordinance was adopted on February 9, 2006.
On August 28, 2008, the Township published in the Asbury Park Press a Request for Proposal (RFP) soliciting bids to lease municipal property for the purpose of constructing and operating a cellular communications tower and related equipment. WEC responded to the RFP in September 2008. The Township awarded the lease to WEC, memorializing the action taken in a resolution adopted on November 20, 2008. The Township and WEC executed a Wireless Telecommunications Facility Lease Agreement on December 8, 2008.
Pursuant to section 6(d) of the lease, a portion of the cellular tower was reserved to the Township to install, at its own expense, antennas for municipal use. In a letter dated December 9, 2008, the Township's Municipal Manager advised WEC that several municipal departments had expressed an interest in utilizing the "municipal antenna at the top of the pole at the outset of the project." The Manager also noted that according to the Township attorney, "only a courtesy review by the Planning Board is needed since this use is permitted on Township owned property and has received Township Committee approval." In accordance with section 6(a)(ii) of the lease, WEC assigned its possessory interest on October 19, 2009, to WEWG.
On March 2, 2010, the Township's Planning Board conducted a so-called "courtesy review" of the site plan submitted by WEWG. The minutes of the Planning Board's meeting reflect WEWG as the "Applicant." Despite this designation, the minutes indicate that the Township attorney "appeared on behalf of the Township of Lakewood, who owns the property" to argue in favor of the application. The Township attorney introduced and called as a witness John Arthur, a principal of WEWG.
At the end of this courtesy review, the Planning Board adopted a resolution dated March 17, 2010, in favor of the application. On March 20, 2010, notice of the Planning Board's action, denoted "Notice of Determination," was published in the Asbury Park Press. The Township issued the building permit for the facility to WEWG on June 28, 2010. The construction of the cellular tower began on August 4, 2010, and was completed on September 10, 2010. On this same date of completion WEWG sent a letter to the Township officially acknowledging the commencement of the lease and included the first rental payment.
On October 14, 2010, T-Mobile applied for a building permit to install telecommunications equipment and associated devices on the tower. The Township issued the permit on November 15, 2010. T-Mobile completed the installation of its equipment, including the cellular antennae and landline phone connection, on November 24, 2010.
II
Based on a certification submitted by plaintiff's president, Shlomo Chaitovsky, on the date set by the court for oral argument on defendants' motions for summary judgment, the motion judge found "that on September 11, 2010 the residents noticed a structure being erected in a nearby baseball field,and we assumed it to be temporary lighting and equipment that would come down shortly." Although the judge immediately noted that certain parts of the certification relied on hearsay evidence, he nevertheless considered this otherwise inadmissible evidence for the limited purpose of establishing when the residents made "the physical observations of the tower in question."
The judge inferred and noted that the reference to the "baseball field" referred to "the John F. Patrick Recreation Complex located in the area" of plaintiff's property.
Plaintiff filed its verified complaint in lieu of prerogative writs on November 23, 2010. The issue of notice is obliquely addressed in paragraphs 2 through 5 of the complaint:
2. Within the last few days, residents of the Presidential Estates observed the construction of a large structure in the John F. Patrick Recreation Complex, a facility adjoining the development.
3. Upon inquiry, residents were able to ascertain that the structure was to be a tower for the transmission of cellular telephone signals.
4. Further inquiry disclosed that, on November 20, 2008, the Township Committee of the Township of Lakewood had purported to adopt resolution #2008-406, "Awarding a Lease to [WEC] for a Wireless Telecommunications Facility at the John F. Patrick Recreation Complex."
5. The resolution described a "request for proposals" procedure and authorized the execution of a lease agreement between [Township] and [WEC].
[(Emphasis added).]
Based on this undisputed record, Judge Vincent J. Grasso granted defendants' motions for summary judgment because the complaint filed by plaintiff far exceeded the forty-five-day deadline proscribed by Rule 4:69-6 in which to challenge municipal action in the Superior Court by way of an action in lieu of prerogative writs. In particular, the rule provides in pertinent part:
(a) General Limitation. No 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 . . . .
. . . .
(c) Enlargement. The court may enlarge the period of time provided in paragraph (a) . . . where it is manifest that the interest of justice so requires.
The reference in paragraph (c) that "[t]he court may enlarge the period of time" has been construed by our Supreme Court as conferring discretionary authority upon the trial court. Hopewell Valley Citizens' Grp., Inc. v. Berwind Prop. Grp. Dev. Co., 204 N.J. 569, 577-78 (2011) (emphasis added) (citing Wiese v. Dedhia, 188 N.J. 587, 592 (2006)). Writing for the Court in Hopewell Valley, Justice Long emphasized that the reference to manifest injustice in the rule required the plaintiff "to show plainly or make palpably evident or certain by showing or displaying" that he or she will endure injustice if the time restrictions of the rule are not relaxed. Id. at 578 (citations omitted).
Thus, the 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) important public rather than private interests which require adjudication or clarification" satisfy the "interest of justice" standard of Rule 4:69-6(c). Borough of Princeton v. Bd. of Chosen Freeholders, 169 N.J. 135, 152 (2001) (quoting Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975)).
Here, plaintiff's counsel implicitly conceded at oral argument before Judge Grasso that plaintiff's complaint was filed outside of the forty-five-day time limit under Rule 4:69-6(a). In fact, plaintiff's counsel's argument before Judge Grasso was based on the need to enlarge or relax the time restrictions because this case warranted the relief afforded under Rule 4:69-6(c). Specifically, citing Hopewell Valley, 204 N.J. 569, and Cohen v. Thoft, 368 N.J. Super. 338, 345-47 (App. Div. 2004), plaintiff's counsel argued that his client was entitled to relief because of lack of adequate notice by defendants of the nature of the project.
Specifically, concerning the so-called "courtesy review" of the cellular tower conducted by the Township's Planning Board, plaintiff's counsel categorized the notice published of the results of the meeting as "obscure" and defective because it was not mailed to individual property owners residing within a certain proximity of the tower.
Relying on Hills of Troy Neighborhood Ass'n v. Township of Parsippany-Troy Hills, 392 N.J. Super. 593 (Law Div. 2005), defendants' counsel argued they did not need to obtain a formal site plan approval to construct a tower. In Hills of Troy, the Law Division considered "the extent to which a municipality is exempt from its own zoning approval ordinances, the reasonable exercise of such authority and, to the extent so exempt, the novel question of whether private telecommunications companies may share in that exemption by co-locating on a communications tower on municipal property." Id. at 597.
Relying on Thornton v. Village of Ridgewood, 17 N.J. 499 (1955); Rutgers v. Piluso, 60 N.J. 142 (1972); and Mayor and Council of Kearny v. Clark, 213 N.J. Super. 152 (App. Div. 1986); the Law Division in Hills of Troy held that a municipality had authority to construct a communications tower at its police headquarters without obtaining zoning approvals. Hills of Troy, supra, 392 N.J. Super. at 600-04. Without direct statutory support under Article 7 of the Municipal Land Use Law, N.J.S.A. 40:55D-60, which sets out the powers conferred by the Legislature to local planning boards, the Law Division in Hills of Troy reasoned that a municipality was only required to submit its construction plans to the planning board for review to ensure they were reasonable and that the public had a right to notice and public comment on the plans. Id. at 603-04. The court further held that private entities that joined in the use of a municipally-owned communications tower were also exempt from zoning regulations, as long as the public interest outweighed the private benefit. Id. at 608-09.
The legal analysis and ultimate conclusion reached by the Law Division in Hills of Troy has not been directly sanctioned by this court in a published opinion or otherwise addressed by the Supreme Court. Because we are not required to determine whether the approach endorsed by the trial court in Hills of Troy is legally viable to decide this appeal, we specifically decline to do so. Stated more directly, our decision here does not constitute an endorsement or repudiation of the so-called "courtesy review" practice.
Here, Judge Grasso applied well-settled principles of law concerning actions in lieu of prerogative writs and held that plaintiff had not come forward with a sufficient reason to enlarge the time restrictions under Rule 4:69-6(c). We are in complete agreement with him on this basis and affirm. As Judge Grasso noted:
This is not an instance where there was any deception or sub rosa conduct . . . [in] the public actions, which at all times material in the [c]ourt's view were transparent and above board and again, as noted, conducted pursuant to the applicable notice and statutory regulations.
The [c]ourt finds that applying the rule, the case law which has interpreted the rule with respect to the enlargement does not warrant an enlargement of Rule 4:69-6 under the circumstances of this case and therefore the motion to dismiss the complaint as untimely will be granted.
Sub rosa, a Latin phrase meaning "under the rose," refers to the confidentiality or covertness of an object. Black's Law Dictionary 1564 (9th deluxe ed. 2009).
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We affirm substantially for the reasons expressed by Judge Grasso in the oral opinion delivered from the bench on February 22, 2011. R. 2:11-3(e)(1)(A).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION