JOHN COLLINS VS. RARITAN TOWNSHIP (L-0271-19, HUNTERDON COUNTY AND STATEWIDE)

J
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0997-19

JOHN COLLINS and
ANIMAL PROTECTION
LEAGUE OF NEW JERSEY,

         Plaintiffs-Appellants,

v.

RARITAN TOWNSHIP,
JEFF KUHL, in his capacity
as Mayor of Raritan Township,
LOU REINER, KAREN GILBERT,
GARY HAZARD, and MICHAEL
MANGIN, in their capacities as
Raritan Township Committee
Members,

         Defendants-Respondents.


                   Argued November 12, 2020 - Decided May 11, 2021

                   Before Judges Accurso and Vernoia.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hunterdon County, Docket No. L-0271-19.

                   Doris Lin argued the cause for appellants.
            Joseph V. Sordillo argued the cause for respondents
            (DiFrancesco, Bateman, Kunzman, Davis, Lehrer &
            Flaum, PC, attorneys; Joseph V. Sordillo, of counsel
            and on the brief).

PER CURIAM

      Plaintiffs John Collins and the Animal Protection League of New Jersey

appeal from a final order dismissing their complaint in lieu of prerogative writs

against defendant Raritan Township and its Township Committee as time-

barred. Because we agree the complaint is time-barred, we affirm.

      On March 19, 2019, defendant Raritan Township adopted two resolutions,

numbers 19-79 and 19-80, awarding four licenses, following public bid, for the

bow hunting of deer on several municipally-owned properties, including Urbach

Farm, which borders plaintiff John Collins' home. The licenses were for a two-

year period running from May 1, 2019 to April 30, 2021, and were executed on

different dates between March 27 and April 24, 2019. On July 1, 2019, Collins

and the Animal Protection League of New Jersey filed an action in lieu of

prerogative writs to invalidate the resolutions and void the licenses.

      Collins claimed the terrain of Urbach Farm forced hunters close to other

properties, and that hunting there had resulted in his house being hit with

shotgun slugs in the past. After bow hunting began under the Township-issued

licenses, he had heavy equipment stolen from his property, found hunters had

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illegally cut down trees and built trails on the Township's land, and that a deer

feeder and a hunting stand had been placed dangerously close to his property in

a farm field where local residents often walked with dogs. Plaintiffs claimed

defendants' actions in licensing hunting on Urbach Farm endangered public

safety; that the purported need to cull the deer population was not supported by

any data and was, thereby, arbitrary and capricious; and that the award of

hunting licenses to the highest bidder violated the public trust.

        Defendants Raritan Township, its mayor and committee members filed a

motion to dismiss with prejudice pursuant to Rule 4:6-2(e), contending

plaintiffs' complaint was time-barred under Rule 4:69-6(a), because it was filed

beyond the forty-five-day limitations period for challenging municipal action.

Specifically, defendants claimed plaintiffs' complaint was filed 104 days after

adoption of the challenged resolutions. Plaintiffs, conceding their complaint

was filed beyond the forty-five-day limitations period due to a misunderstanding

by their counsel about when the resolutions would be considered by the

Township Committee,1 filed a cross-motion to enlarge the time for filing in the

public interest pursuant to Rule 4:69-6(c). See Brunetti v. Borough of New

Milford, 

68 N.J. 576

, 586-87 (1975).


1
    Plaintiffs do not contend the mix-up was the Township's fault.
                                                                          A-0997-19
                                        3
          The trial judge granted defendants' motion to dismiss the complaint with

prejudice as untimely and denied plaintiffs' cross-motion, finding plaintiffs'

complaint did not implicate the public interest, and plaintiffs were not otherwise

entitled to relief in the interest of justice. See Cohen v. Thoft, 

368 N.J. Super.

338

, 345-47 (App. Div. 2004). Plaintiffs appeal, contending the trial court erred

in finding their complaint untimely; in granting defendant's motion to dismiss;

and, in the event the complaint was untimely, in failing to enlarge the time for

filing.

          At oral argument before us, defendants' counsel advised that the Township

had weeks earlier permanently terminated the license of the club authorized to

hunt Urbach Farm based on violations of the license agreement, including failure

to pay the full amount of the license fee and violations of that section of the

agreement prohibiting the cutting of trees and construction of trails.         The

Township specifically noted the club's use of all-terrain vehicles on the property,

for which the licensee had been previously cited by the Township's police

department. The hunting club was ordered to remove any deer stands or other

equipment from the property.

          We review the grant of a motion to dismiss a complaint de novo, using the

same standard that governs the trial court. Smerling v. Harrah's Ent. Inc., 389


                                                                            A-0997-19
                                          

4
N.J. Super. 181

, 186 (App. Div. 2006); Seidenberg v. Summit Bank, 348 N.J.

Super. 243, 250 (App. Div. 2002). Our inquiry is thus limited to determining

"the legal sufficiency of the facts alleged on the face of the complaint." Printing

Mart-Morristown v. Sharp Elecs. Corp., 

116 N.J. 739

, 746 (1989).

      Rule 4:69-6 controls the time limitations for filing an action in lieu of

prerogative writs. Subsection (a), titled "General Limitation," provides that

"[n]o 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, except as

provided by paragraph (b) of this rule." R. 4:69-6(a). While subsection (a) of

the rule does not generally define accrual, leaving the question to the substantive

law, Harrison Redevelopment Agency v. DeRose, 

398 N.J. Super. 361

, 401

(App. Div. 2008), subsection (b), titled "Particular Actions," establishes when

the forty-five-day period commences for several specific types of challenges to

municipal action, see Meglino v. Twp. Comm. of Eagleswood Twp., 197 N.J.

Super. 296, 302 (App. Div. 1984), rev'd on other grounds, 

103 N.J. 144

(1986);

R. 4:69-6(b)(1)-(11).

      As the Supreme Court has explained, "[s]ubsection (a) acknowledges a

general limitations period of forty-five days," and "[s]ubsection (b) qualifies that

broad limitation, detailing eleven specific exceptions to the general rule, the


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                                         5
applicability of which are determined based on the nature or context of the

challenge." Hopewell Valley Citizens' Grp., Inc. v. Berwind Prop. Grp. Dev.

Co., 

204 N.J. 569

, 580 (2011). Subsection (c) of the rule permits a court to

"enlarge the period of time provided in paragraph (a) or (b) . . . where it is

manifest that the interest of justice so requires." R. 4:69-6(c).

      There is no dispute that the resolutions plaintiffs challenge in their

complaint were adopted by the Township Committee on March 19, 2019.

Although plaintiffs initially conceded the complaint was out-of-time because it

was filed 104 days after that date, they subsequently orally argued to the trial

court, and contend on appeal, that their complaint was timely because it was

filed exactly forty-five days after the Township responded to an OPRA request

for the executed contracts, relying on Hopewell Valley. We reject that argument

for three reasons.

      First, plaintiffs did not file the OPRA request seeking the executed

contracts for the 2019-2020 hunting season. According to them, it was filed by

a "sometimes volunteer[] for" plaintiff Animal Protection League "conducting

her own independent investigation into the Raritan deer hunt." In addition to

the executed contracts, the requestor sought the "Raritan Deer Harvest Report

for the 2018-2019 deer hunting season," including "days afield, harvest quota


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                                        6
and the number of antlerless, antlered and fetuses killed during the 2018-2019

deer hunting season for each hunting club and private hunters," and the "Final

Deer Management Annual Report for the 2018-2019 deer hunting season." We

fail to see how the Township's response to an OPRA request lodged by someone

else tolled plaintiffs' time to challenge the resolutions authorizing the deer hunt

under Rule 4:69-6(a).

      Second, Hopewell Valley involved an objector's challenge to a land use

approval granted by the planning 

board. 204 N.J. at 571

. There, the Borough

inadvertently misled an objector wishing to file an action in lieu of prerogative

writs by failing to advise that the developer had published the notice of approval

required by statute almost a week before the Planning Board published its own

notice.   Because Rule 4:69-6(b)(3) requires a prerogative writs action

challenging a land use approval to be filed "within forty-five days of the first

notice published," the objector's reliance on the Board's advice resulted in a late-

filed complaint.

Id. at 577.

      This case does not involve a challenge to a land use approval under

subsection (b)(3). It is controlled by subsection (a) of Rule 4:69-6, not (b) as in

Hopewell Valley.      Neither the Township nor the hunting clubs had any

obligation to publish notice of the execution of the license agreements, and


                                                                             A-0997-19
                                         7
plaintiffs do not contend there was any flaw in the procedure surrounding notice

of the Township's adoption of the resolutions they challenge.2 Hopewell Valley,

a planning board case, does not control plaintiffs' challenge to resolutions passed

by the Township Committee authorizing a deer hunt on municipal lands and

awarding licenses to the highest bidder.

      Third, the Court in Hopewell Valley held the complaint by the plaintiff

there was untimely. The Court found the complaint in that case, like this one,

was filed beyond the forty-five-day period permitted by Rule 4:69-6. Hopewell

Valley, 204 N.J. at 577

. The case provides no assistance to plaintiffs in their

argument that their complaint was timely filed.          We accordingly turn to

plaintiffs' argument that the court erred in finding enlargement of the forty-five-

day limitations period unwarranted.

      Plaintiffs contend the court erred in denying their motion to enlarge the

time for filing because "[t]he violations of Collins' rights and the public's rights

have been continuing and serious." We disagree.




2
  Even if plaintiffs' claims accrued on execution of the licenses, instead of
passage of the resolutions, a proposition of which we are not convinced, their
complaint would still be untimely, because it was filed sixty-eight days after
execution of the last license agreement.
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                                         8
      As to Collins, plaintiffs do not dispute that the Township ended hunting

on Urbach Farm adjoining his property more than six months ago. Collins is

thus not subject to any continuing harm from the Township's actions. Neither

is the public harmed in any continuous fashion by licenses that permitted hunting

for a two-year term that ends April 30, 2021. We agree with the trial court that

plaintiffs have simply not been subject to the sort of continuing violation the

Court has recognized would warrant enlargement of the forty-five-day

limitations period under Rule 4:69-6(c) by the Township's authorization of these

license agreements. See Borough of Princeton v. Bd. of Chosen Freeholders of

Cnty. of Mercer, 

169 N.J. 135

, 153 (2001) (enlarging the period to challenge

municipal solid waste contracts exceeding the maximum duration allowed by

the Local Public Contracts Law by ten and fourteen years).

      Because plaintiffs are suffering no continuous violation by these limited -

term leases and they cannot show they were in anyway misled by the Township

as to the accrual of their cause of action as was the objector in Hopewell Valley,

enlargement of the forty-five-day period was not warranted in the "interest of

justice" under Rule 4:69-6(c).




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                                        9
      Plaintiffs remaining arguments are without sufficient merit to warrant

discussion in a written opinion. 3 See R. 2:11-3(e)(1)(E).

      Affirmed.




3
   We agree with plaintiffs the trial court erred in citing an unpublished case in
its written statement of reasons. Although we are confident the court understood
"[n]o unpublished opinion shall constitute precedent or be binding u pon any
court," Rule 1:36-3 further states that "except to the extent required by res
judicata, collateral estoppel, the single controversy doctrine or any other similar
principle of law, no unpublished opinion shall be cited by any court." Nothing
prevents a court "from acknowledging the persuasiveness of a reasoned decision
on analogous facts," but it may not be cited by the judge. Sauter v. Colts Neck
Volunteer Fire Co. No. 2, 

451 N.J. Super. 581

, 600 (App. Div. 2017). Because
the court made clear it was not bound by our unpublished case, we find the error
harmless.
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                                       10

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