RATAN PALACE, LLC VS. TOWNSHIP OF NORTH BERGEN PLANNING BOARD (L-4183-16, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4059-16T1

RATAN PALACE, LLC,

Plaintiff-Appellant,

v.

TOWNSHIP OF NORTH BERGEN
PLANNING BOARD, ROHIT GAUR
and SUMAN LATA,

Defendants-Respondents.
_______________________________

Argued August 8, 2018 – Decided August 23, 2018

Before Judges Hoffman and Currier.

On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No.
L-4183-16.

Francis A. Kirk argued the cause for appellant
(Tesser & Cohen, attorneys; Francis A. Kirk,
on the briefs).

Nylema Nabbie argued the cause for respondent
Township of North Bergen Planning Board
(Gittleman Muhlstock & Chewcaskie, LLP,
attorneys; Brian M. Chewcaskie and Nylema
Nabbie, on the brief).

Denis F. Driscoll argued the cause for
respondents Rohit Gaur and Suman Lata
(Inglesino, Webster, Wyciskala & Taylor, LLC,
 attorneys; Nicholas A. Grieco, of counsel;
Joseph M. Franck and Alyssa E. Spector, on the
brief).

PER CURIAM

Plaintiff Ratan Palace LLC appeals from the February 22, 2017

order denying its motion to file an amended complaint and the

April 19, 2017 order of final judgment denying relief and

dismissing its complaint. After a review of the contentions in

light of the record and applicable principles of law, we affirm.

Plaintiff is the owner of real property in the Township of

North Bergen (Township) on which it operates a Holiday Inn Express

Hotel. In February 2015, the Township enacted Township of North

Bergen, N.J., Code § 239-15 (Ordinance 239-15), which changed the

zoning in the Paterson Plank Road/Grand Avenue area to multifamily

residential dwelling units with studio, one-bedroom, and two-

bedroom units.

In January 2016, defendants Rohit Gaur and Suman Lata

(defendants) purchased property on Paterson Plank Road in the

newly zoned area. On April 27, 2016, the Township adopted Township

of North Bergen, N.J., Code § 292-16 (Ordinance 292-16), which

permitted hotel use only for defendants' lots, not the entire

zone. The notice of passage of the ordinance was published on May

3, 2016.

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 Defendants filed an application before defendant, Township

of North Bergen Planning Board (Board), in June 2016, seeking site

plan approval and certain variances in connection with its proposal

to build a hotel. Plaintiff was not within the required radius

to receive notice of the application and asserts it was unaware

of the August hearing. After testimony, the Board approved the

application.

The application was scheduled for a final vote for final site

plan approval at the September 6, 2016 Board meeting. Plaintiff

was present at the meeting and objected to the approval of the

application. The Board adopted Resolution 2016-21 that evening,

memorializing its earlier approval.

In October 2016, plaintiff filed a complaint in lieu of

prerogative writs against defendants and the Board, challenging

the final site plan approval, and contending Ordinance 292-16 was

impermissible "spot zoning" implemented solely to permit a use for

defendants' property not previously allowed in that zone. All

defendants answered the complaint and the parties attended a case

management conference.

Plaintiff moved to amend its complaint to add the Township

as a defendant in January 2017. The named defendants opposed the

motion, arguing any amendment would be futile because plaintiff

failed to timely challenge Ordinance 292-16. After oral argument,

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the trial judge issued a cogent written decision denying the

motion.

Under Rule 4:69-6(a)(3), an action in lieu of prerogative

writs must be commenced within forty-five days of the publication

of the notice of enactment. In considering whether to extend the

requisite time to challenge the ordinance as permitted under Rule

4:69-6(c), the judge stated plaintiff had not asserted a public

interest to justify the limited expansion of time permitted under

the rule. He also noted plaintiff had not submitted any proofs

to support its allegation that the ordinance was amended

specifically to benefit defendants. As the challenge to the

ordinance was untimely filed, the judge determined that any

amendment to add the Township as a defendant would be futile. The

motion to amend the complaint was denied.

Following a trial in April 2017, the judge determined he

could not "find any evidence in the record to conclude the Planning

Board's decision was arbitrary, capricious, or unreasonable." He

noted the expert testimony regarding parking and traffic, signage,

and proposed building materials, and concluded "[t]he application

was approved because it was in compliance with the ordinance's

permitted hotel use." As the Township was not a party to the

suit, the validity of the ordinance permitting a hotel use on

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defendants' property was not before the court. Final judgment was

entered on April 19, 2017.

On appeal, plaintiff argues the court erred in denying its

motion to amend the complaint and should have declared Ordinance

292-16 invalid because it departed from the Township's Master Plan

and was impermissible spot zoning. We disagree.

We review a judicial decision to deny a motion to amend a

pleading for an abuse of discretion. Franklin Med. Assocs. v.

Newark Pub. Sch., 362 N.J. Super. 494, 506 (App. Div. 2003)

(holding the decision on a motion to amend is "left to the sound

discretion of the trial court").

Rule 4:9-1 governs the amendment of a pleading, requiring the

leave of court or written consent for any amendment after the

filing of an Answer. Although such motions are to be "granted

liberally," the determination is "best left to the sound discretion

of the trial court in light of the factual situation existing at

the time each motion is made." Kernan v. One Washington Park

Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998) (quoting Fisher

v. Yates, 270 N.J. Super. 458, 467 (App. Div. 1994)). However,

if the amendment will result in prejudice to the non-moving party

or would otherwise be futile, the motion should be denied.

Bustamante v. Borough of Paramus, 413 N.J. Super. 276, 298 (App.

Div. 2010).

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 The passage of Ordinance 292-16 was published on May 3, 2017.

The judge properly concluded the time to challenge the ordinance

expired on June 17, 2016, forty-five days later. However,

plaintiff did not challenge the ordinance until it filed the

prerogative writ action in October and, even then, it was not

asserted against the proper party.

Rule 4:69-6(c) permits a court to enlarge the forty-five day

time period to challenge a municipal action when "it is manifest

that the interest of justice so requires." Our Supreme Court has

interpreted the rule to permit an enlargement of time in "cases

involving: (1) important novel or 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."

Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975).

Plaintiff argued to the trial judge, as he does before us,

that the action involves an important public interest. However,

plaintiff provides no further support for the statement. The only

record before the court was the transcript from the Board hearing,

provided by counsel and reviewed by the judge after oral argument

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on plaintiff's motion. The judge noted there was no "basis in the

record to establish the public interest envisioned in Rocky Hill."1

In Rocky Hill, a citizen's group challenged the planning

board's grant of an application for an age-restricted development

as well as an ordinance permitting the re-zoning of the area for

the development. Id. at 390. We affirmed the trial judge's ruling

that the challenge to the ordinance was untimely under Rule 4:69-

6. Id. at 403. We found plaintiff had not established a public

interest to warrant an enlargement of time because there were "no

public funds involved, no political upheavals, no significant

impact on density, traffic, ratables or any other interest other

than the concerns expressed by the individual plaintiffs and their

supporters." Id. at 401.

Plaintiff here seeks to distinguish Rocky Hill, asserting the

ordinance at issue in that case was a "subject of intense debate"

with extensive public hearings and consideration. In contrast,

plaintiff states, Ordinance 292-16 was a "seemingly

inconsequential amendment to a redevelopment plan encompassing

eleven lots in a community of 60,000 people . . . unlikely to be

noticed." This statement belies plaintiff's argument that the

ordinance involved any public interest, but rather supports the

1
Rocky Hill Citizens for Responsible Growth v. Planning Bd. of
the Borough of Rocky Hill, 406 N.J. Super. 384 (App. Div. 2009).

7 A-4059-16T1
conclusion that it is only the private interest of plaintiff as a

business competitor at play here.

We also find plaintiff's reliance on Willoughby v. Planning

Board of Township of Deptford, 306 N.J. Super. 266 (App. Div.

1997), unpersuasive. There, we reversed the trial court's denial

of an extension of the forty-five day period under Rule 4:69-6.

Id. at 279. We found the matter was one of public interest, as

the development of the property in accordance with the zoning

change would have a significant impact on residents of an adjoining

neighborhood and the flow of traffic on a major roadway. Id. at

277-78. Plaintiff here has not established any of those factors.

The limited expansion permitted under the rule is the

exception, and plaintiff has not demonstrated the public interest

required to meet that exception. Therefore, the trial judge

properly denied the motion to amend as futile, as any challenge

to the ordinance was time-barred.

Plaintiff next argues the trial judge should have struck down

Ordinance 292-16 on its own as impermissible spot zoning and

noncompliant with the Township's Master Plan. As discussed above,

however, without the Township as a party to the action, there can

be no challenge to the ordinance. Although plaintiff contests the

actions of the Township in passing the ordinance, it did not name

the Township as a party, therefore losing the opportunity to

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challenge the ordinance. See Jackson Holdings, LLC v. Jackson

Twp. Planning Bd., 414 N.J. Super. 342, 350 (App. Div. 2010)

(holding a "governing body must also be joined as a defendant

before a court entertains a challenge to the validity of a zoning

ordinance").

Therefore, the only issue before the trial judge was whether

the Board's decision to approve defendants' application was

arbitrary or capricious. Plaintiff presents no arguments to

support a contrary finding. The Board considered defendants'

application, which was supported by expert testimony, and

determined it complied with the ordinance's permitted use. The

trial judge's conclusion upholding the Board's decision is

supported by the credible evidence in the record.

Affirmed.

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