                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-1815-13T4
                                                 A-2127-14T4




CLAUDIA CASSER,
                                         APPROVED FOR PUBLICATION
      Plaintiff-Appellant,                     July 7, 2015

v.                                         APPELLATE DIVISION

TOWNSHIP OF KNOWLTON, MAYOR AND
COMMITTEE FOR KNOWLTON, individually
and in their official capacities,
TOWNSHIP OF KNOWLTON PLANNING BOARD,
MEMBERS OF THE TOWNSHIP OF KNOWLTON
PLANNING BOARD, individually and in
their official capacities, RENE MATHEZ,
DAVID A. SMITH, RONALD C. FARBER,
SCOTT ODORIZZI, CLAYTON TAYLOR, MICHAEL
TIRONI, HAL BROMM, GEORGE JAMES,
CARLA CONSTANTINO, MASER CONSULTING,
P.A., JOSEPH J. LAYTON, MARK J. HONTZ
and TED RODMAN,

      Defendants-Respondents,

and

KATHY CUNTALA, JOHN ANDERSON,
PETER PAGLIA and VIVIAN PAGLIA,

     Defendants.
__________________________________
CLAUDIA CASSER,

      Plaintiff-Appellant,

v.

TOWNSHIP OF KNOWLTON, MAYOR AND
COMMITTEE FOR THE TOWNSHIP OF
KNOWLTON, individually and in
their official capacities,
TOWNSHIP OF KNOWLTON PLANNING
BOARD, MEMBERS OF THE TOWNSHIP OF
KNOWLTON PLANNING BOARD, individually
and in their official capacities,
RENE MATHEZ, DAVID A. SMITH,
RONALD C. FARBER, FRANK VAN HORN,
GEORGE JAMES, CLAYTON TAYLOR,
MICHAEL TIRONI, DALE GLYNN,
HAL BROMM and HOWARD COWELL,

      Defendants-Respondents,

and

MARK J. HONTZ, ROGER THOMAS,
RICHARD P. CUSHING, HEYER, GRUEL
& ASSOCIATES, P.A., FRED HEYER and
PAUL N. RICCI,

     Defendants.
__________________________________

          Submitted May 12, 2015 - Decided July 7, 2015

          Before Judges Reisner, Haas and Higbee.

          On appeal from the Superior Court of New
          Jersey, Law Division, Warren County, Docket
          Nos. L-125-10, L-151-13, and L-203-14, and
          Somerset County, Docket No. L-248-13.

          Claudia Casser, appellant pro se.




                                2                         A-1815-13T4
            Robert    J.    Greenbaum,    attorney    for
            respondents in      A-1815-13 and A-2127-14
            Township of Knowlton, Mayor and Committee
            for Knowlton, Township of Knowlton Planning
            Board, Members of the Township of Knowlton
            Planning Board, Rene Mathez, David A. Smith,
            Ronald C. Farber, Clayton Taylor, Michael
            Tironi,   Hal  Bromm,    and  George   James;
            respondents in A-1815-13 Scott Odorizzi and
            Carla Constantino; and respondents in A-
            2127-14 Frank Van Horn, Dale Glynn and
            Howard Cowell.

            Thompson    Becker   &   Bothwell,   L.L.C.,
            attorneys for respondents in A-1815-13 Maser
            Consulting,   P.A.  and   Joseph  J.  Layton
            (Joseph T. Ciampoli, on the brief).

            McElroy, Deutsch, Mulvaney & Carpenter, LLP,
            attorneys for respondent in A-1815-13 Mark
            J. Hontz (Craig J. Smith, on the brief).

            Law Offices of Joseph Carolan, attorneys for
            respondent in A-1815-13 Ted Rodman (Mr.
            Carolan and George H. Sly, Jr., on the
            brief).

            The opinion of the court was delivered by

SUSAN L. REISNER, P.J.A.D.

    We     have   consolidated   two       appeals   for   purposes   of   this

opinion.     Appeal A-2127-14 concerns a 2010 complaint in which

plaintiff    Claudia   Casser    sought,       on    various   theories,     to

challenge land use approvals that the Knowlton Township Planning

Board issued to her in 2007.           Appeal A-1815-13 (the companion

appeal) concerns a complaint plaintiff filed on April 18, 2013,

challenging land use approvals issued to two other landowners

and challenging the validity of the local zoning ordinance.



                                       3                              A-1815-13T4
       We affirm in A-2127-14.             We conclude that a party may not

circumvent the exhaustion doctrine by waiting until it is too

late to file the predicate action required for exhaustion, and

then claiming that exhaustion would be "futile" because that

action is time-barred.              In A-1815-13, we remand to the trial

court for further proceedings consistent with this opinion.

               [At the direction of the court, Section I
               has been omitted from the published version
               of the opinion.]


                                            II

       Plaintiff's       land     use   application     concerned    approximately

100    acres      of     land     located        in   the   Township's      farmland

preservation zone.          In general, the zone permitted construction

of    houses    on     ten-acre    lots.        However,    the   zoning   ordinance

required that, on tracts of fifty acres or more, residences must

be clustered, leaving at least fifty percent of the total land

area as "open space."               The latter term was defined as land

"restricted to agriculture," open space restricted to use by

residents of the development of which the open space was a part;

or public open space.             Instead of clustering the development on

her land, plaintiff proposed to subdivide the land into three

"farmettes" (small horse farms) of between eight and ten acres

each, with a house on each farmette, plus one approximately




                                            4                               A-1815-13T4
seventy-acre remainder parcel on which she proposed to maintain

an existing house.

      Plaintiff proposed to sell to the State the development

rights on most of the remainder parcel, so that it would be

permanently        preserved   for    farmland   use.       However,   she    was

unwilling to agree to deed restrict the remainder parcel as part

of the variance application, since that would defeat her ability

to   sell    the    development      rights.     Instead,    she   proposed   to

satisfy     the    open   space   requirement    by   aggregating   contiguous

portions of land on the three farmettes and deed-restricting the

farmettes for agricultural use.1

      The Board conducted six days of public hearings on the

variance application.          Plaintiff, an attorney who previously sat

on the Township Zoning Board, represented herself at most of the

hearings.     During the hearings, the application was modified so

that plaintiff would create two relatively small farmettes of

eight or nine acres each, one farmette of twenty-five acres, and

a remainder parcel of fifty-seven acres.                A portion of each of


1
  In the context of this application, the term "open space"
clearly did not refer to publicly accessible space such as a
public park or other recreation facility.        See N.J. Shore
Builders Ass'n v. Twp. of Jackson, 401 N.J. Super. 152, 155-56
(App. Div. 2008), aff'd o.b., 199 N.J. 449 (2009). Rather, as
plaintiff herself acknowledges in her brief, the term referred
to agricultural easements designed to ensure that the land would
continue to be used for agricultural purposes.



                                         5                             A-1815-13T4
the four lots was to be deed restricted for agricultural use,

with a total of 49.971 acres in all to be deed restricted.

Plaintiff would be entitled to develop the approximately 100-

acre    tract       with    a     maximum       of    ten    new     houses,    while       also

maintaining the existing house.                      On October 23, 2007, the Board

granted all of the requested variances, including relief from

the clustering requirement.

       As    part    of     the    approvals,         the    Board    required       that    the

farmettes be deed-restricted against further subdivision, and

the remainder lot be deed restricted against further subdivision

resulting in more than seven resulting lots, or fewer than seven

if the ordinance allowed fewer lots at the time of the future

subdivision.          Those       conditions          were   required     by    the    zoning

ordinance.2         In other words, plaintiff would be held to the

representations she made at the time of the application, on

which       the     Board       relied      in       granting      the   variances.          The

restrictions         ensured         that        neither      plaintiff        nor     future

purchasers        could      later       seek        variances     for   more     intensive

development of the land.                 As required by the zoning ordinance,


2
  The ordinance provided that: "The maximum tract density shall
be established at the time of the initial application for
development of a tract.   This density shall not be exceeded in
subsequent subdivisions.      All lots shall include a deed
restriction against further subdivision."    Knowlton Twp. Land
Dev. Ordinance § 11-297(D)(4).



                                                 6                                    A-1815-13T4
the    terms    of    the   variance     approvals       also    ensured      that    the

designated portions of the land would continue to be used for

agricultural          purposes,     as           plaintiff's        application       had

represented they would be.             Knowlton Twp. Zoning Ordinance § 11-

297 (C)(12)(a)(4).

       Plaintiff did not file a complaint in lieu of prerogative

writs challenging the October 23, 2007 resolution within forty-

five days, as required by Rule 4:69-6(a).                       Instead she waited

almost three years before asserting assorted claims aimed at

undoing the resolution.           On January 28, 2010, plaintiff wrote a

letter to the Knowlton Township Committee, claiming that she was

unable to sell the subdivided lots due to the real estate crash

of 2008.       Plaintiff also alleged that she only recently "came

across" a June 25, 2009 opinion of the New Jersey Supreme Court,

holding that municipalities had no authority to require public

open    space     set-asides      as     a       condition     of    granting      minor

subdivision approvals.            See N.J. Shore Builders Ass'n, supra,

199 N.J. at 452, aff'g o.b., 401 N.J. Super. 152 (App. Div.

2008).3        Plaintiff     contended       that     the    2007     Planning     Board

resolution      was    ultra   vires     and       demanded     that    the   Township


3
  Plaintiff, an attorney and former zoning board member, did not
mention the Appellate Division's published opinion issued on
June 23, 2008.




                                             7                                  A-1815-13T4
compensate her "for the 50 acres the Planning Board illegally

required [her] to set aside as Open Space."

     On March 5, 2010, plaintiff filed a complaint against the

Township, its mayor and Township Committee, the Planning Board,

and various other municipal officials.                 Among other things, she

contended that the Township had repeatedly "down-zoned" the area

in   which    her   land   was    located,       until    finally     the    zoning

permitted one house per ten acres.               She claimed that, when the

Township adopted the 2003 zoning ordinance that governed her

eventual     variance   application,       she   did     not   realize   that     the

ordinance required set-asides of open space as a condition of

subdividing tracts larger than fifty acres.4                   She also contended

that she only recently learned, through requests under the Open

Public Records Act (OPRA), that between 1993 and 2004, several

other landowners in the Township had been granted subdivision

approval     without    being   required    to    set    aside    land   for    open

space.

     Plaintiff      contended,    under     various      legal    theories,     that

Township officials had illegally sought to preserve open space

in the Township at the sole expense of large landowners, who

4
  However, plaintiff's appendix contains the minutes of the
public hearing at which the Township considered the 2003
ordinance; as plaintiff admits, she appeared at that hearing and
testified against the proposed ordinance.




                                       8                                    A-1815-13T4
were required to contribute some of their land for preservation

as    a    condition    of       being    able     to     develop   their     property.

Plaintiff        alleged     that       the    Township's     actions       constituted

unlawful discrimination under the New Jersey Constitution and

the New Jersey Civil Rights Act and an unconstitutional taking

of private property.

          Plaintiff also asserted that the defendants discriminated

against her on the basis of her gender and her religion,5 and

retaliated against her for voting against "the 'old boys'" when

she   was    a    member    of    the     Township's      Zoning    Board.      Lastly,

plaintiff        asserted    a    civil       Racketeer    Influenced   and    Corrupt

Organizations Act (RICO) claim against defendants, alleging that

they illegally used their power to deprive her and others of

their rights while seeking to benefit their own property values

and granting favorable treatment to other landowners, and that

they fraudulently concealed their activity by failing to provide

her with information in response to her OPRA requests.




5
  Plaintiff's reply brief clarified that she has abandoned those
claims.




                                               9                               A-1815-13T4
      On those theories, she asked the court to set aside the

conditions of the 2007 resolution or require the Township to

compensate her.6

                                       III

      The case was assigned, in succession, to three different

Law Division judges.       On May 5, 2011, the first judge entered an

order   dismissing     almost   all   of     plaintiff's     claims   against    a

group of professionals who provided legal or consulting services

to the Board.         The only claim not dismissed concerned a count

for fraudulent concealment of evidence which the court found

could not be decided on a motion to dismiss.                     All of those

entities     and   individuals        later       reached    settlements    with

plaintiff and were dismissed from the case.

      The Township, its officials and employees, and the Board

and   its   members    (collectively,       the   Township   defendants)    then

moved for summary judgment as to all claims except fraudulent

6
  In a proposed amended complaint, and in her appellate brief,
plaintiff admitted that she had sold the twenty-five acre
parcel, which was one of the three subdivided farmettes; she
contended that, as to those acres, a rescission of the variance
conditions would not provide relief.    In her proposed amended
complaint, she asked for damages instead, without stating the
sale price she obtained or how that price compared to what she
claimed the State might have paid had she sold the development
rights to the same land. Elsewhere in her pleadings, plaintiff
contended that before applying for the variances, she offered to
sell the development rights to the State for $10,000 per acre,
but the State only offered about $6500 per acre and she
therefore refused to sell.



                                       10                               A-1815-13T4
concealment.    In an oral opinion issued on August 31, 2011, the

first judge dismissed counts five, six, seven, ten and twelve

against the Township defendants without prejudice.7                   Relying on

Rezem Family Associates, LP v. Borough of Millstone, 423 N.J.

Super. 103 (App. Div.), certif. denied, 208 N.J. 368 (2011), the

judge     reasoned      that   plaintiff         had    failed    to     exhaust

administrative and judicial remedies.                  The court also denied

without prejudice plaintiff's cross-motion for summary judgment

with respect to the variance conditions, because plaintiff had

failed to challenge those conditions in an action in lieu of

prerogative writs.        On May 25, 2012, the first judge denied

another summary judgment motion filed by defendants, largely on

procedural    grounds    and   because     the    parties'     briefs    did   not

adequately address certain issues.                In particular, the judge

noted that certain counts of the complaint might be construed as

actions in lieu of prerogative writs, but the briefs did not

address     whether   they     were   untimely         under   Rule     4:69-6(c)

(permitting enlargement of the time limit in the interests of

justice).


7
   These    counts   set    forth   the  following  claims:   five
(discriminatory application of ordinance), six (disproportionate
burden   on    owners    of    certain  lots),   seven   (unlawful
discrimination against a protected class), ten (New Jersey Civil
Rights Act) and twelve (New Jersey RICO).




                                      11                                 A-1815-13T4
       The first judge subsequently recused herself and the case

was transferred from Warren County to Somerset County, where it

was assigned to a second judge.                  The Township defendants then

filed another summary judgment motion.                   The motion was supported

by     an   expert      report    from      Charles      McGroarty,          a    licensed

professional planner, who explained in detail that the Board's

resolution did not deprive plaintiff of the use of her property,

because she retained the right to build ten houses on the land,

in addition to the existing farmhouse.

       The expert also reviewed and analyzed each of the land use

applications in which plaintiff claimed other landowners were

treated more favorably.                McGroarty explained that, contrary to

plaintiff's      assertions,       in     all   but     two    or    three       cases   the

applicants in fact set aside large amounts of their land for

agricultural          preservation.       Plaintiff           opposed     the      summary

judgment motion, without filing an expert report.                                 She also

filed a motion to amend her complaint, seeking to add a claim in

lieu of prerogative writs, and to re-plead the civil rights and

RICO    claims    that      the    first        judge    had        dismissed      without

prejudice.

       On April 12, 2013, the second judge issued an order denying

the    motion    to    amend     the    complaint       and    granting      defendants'

summary judgment motion as to counts one through four, eight,




                                           12                                      A-1815-13T4
nine, and eleven.8             The order mistakenly noted that the first

judge had dismissed all of the remaining counts on May 25, 2012;

in     fact,     the   first      judge     did    not       dismiss   the    fraudulent

concealment count.

       In   a    detailed    thirteen-page         written       opinion,     the    second

judge denied plaintiff's motion to file an action in lieu of

prerogative       writs.       He    concluded        that     under   Rule   4:69-6(a),

plaintiff was required to file such an action within forty-five

days     after     the     date     of    the     Board's       resolution     in      2007.

Answering the question left open by the first judge, the second

judge found that plaintiff did not establish any grounds to

relax the time limit in the interests of justice, pursuant to

Rule 4:69-6(c).          He also considered that discovery had ended and

the case was scheduled for trial on June 3, 2013.

       The second judge found no merit in plaintiff's claim that,

merely by attempting to now plead her prerogative writ claim,

however         untimely    it      might       be,      she    had    exhausted          her


8
  The counts are as follows: count one (exceeding the authority
of the Municipal Land Use Law), count two (failure to proceed
under N.J.S.A. 40:55D-44), count three (equitable estoppel or
injunction), count four (request for declaratory judgment and
reformation of Board resolution), count eight (improper taking
without just compensation), count nine (inverse condemnation)
and count eleven (reformation of irregularly configured lot
boundaries).




                                            13                                      A-1815-13T4
administrative remedies and should be permitted to re-plead her

civil rights claims.      Relying on Rezem, supra, 423 N.J. Super.

at 116-17, and 41 Maple Associates v. Common Council of Summit,

276 N.J. Super. 613, 619-20 (App. Div. 1994), the judge reasoned

that "[b]ecause Plaintiff did not file a timely prerogative writ

action, she failed to exhaust her administrative remedies, and

is now precluded from bringing her civil rights claims."

     Addressing the summary judgment motion, the judge concluded

that plaintiff waived her claims under counts one, two, three,

four and eleven of her existing complaint when she failed to

file a timely prerogative writ action.              Relying on Rezem, the

judge further concluded that plaintiff's unjustified failure to

challenge the land use approvals in a prerogative writ action

likewise     barred   her    from        pursuing      her   takings     and

inverse    condemnation   claims.        The   judge   denied   plaintiff's

reconsideration motion on May 28 2013, for reasons set forth in

an accompanying statement of reasons.

     As previously noted, plaintiff appealed and we remanded the

case to the trial court for the limited purpose of considering

the fraudulent concealment claim.              On remand, that issue was

decided by a third judge,9 who denied plaintiff's motion to amend


9
   The third judge had previously considered and dismissed
plaintiff's complaint in the second action she filed against
                                                  (continued)


                                    14                             A-1815-13T4
her   complaint,      granted     defendants'      summary     judgment       motion,

dismissed the fraudulent concealment claim, and dismissed the

complaint against all then-remaining defendants.10

      In    a    written     statement    of     reasons,      the    third       judge

considered      and   rejected     plaintiff's      argument    that       she    could

assert an independent cause of action for the tort of fraudulent

concealment of evidence.           Relying on Rosenblit v. Zimmerman, 166

N.J. 391, 406-07 (2001), the judge reasoned that plaintiff had

the documents before she filed the 2010 litigation. He found

that she could not "show that she was damaged in the underlying

litigation by having to rely on an evidential record that did

not contain the evidence defendant concealed."                       He also found

that that plaintiff could not show that defendants acted with

"intent to withhold evidence" when they gave her "access                             to

municipal       vaults     that   contained      the   entirety       of    Knowlton

Township's       records."        The    judge     further      concluded          that

plaintiff's      proposed     amended     complaint     would        not   cure     the

fundamental defects in her claim.                The judge denied plaintiff's




(continued)
most of the same defendants.    That dismissal is the subject of
plaintiff's appeal in A-1815-13.
10
  In adding a paragraph dismissing the complaint, the judge left
no doubt that the trial court litigation was over and the case
was ripe for appeal. Clearly, the dismissal was with prejudice.



                                         15                                  A-1815-13T4
reconsideration motion on November 12, 2014, finding that her

motion presented "no new evidence" and "no new arguments."

                                         IV

    Plaintiff       then    filed   an        appeal    (A-2127-14)      from   the

November 12, 2104 order and the various interlocutory orders

that preceded it.          Our review of the Law Division's summary

judgment orders is de novo, employing the same standard used by

the trial court.         See Bhagat v. Bhagat, 217 N.J. 22, 38 (2014);

Brill   v.    Guardian    Life   Ins.    Co.    of   Am.,   142   N.J.   520,   540

(1995).      Likewise, we owe no deference to a trial court's legal

interpretations.         D'Agostino v. Maldonado, 216 N.J. 168, 182-83

(2013).      We   review     a   trial        court's    decision     denying      a

reconsideration motion for abuse of discretion.                     Cummings v.

Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).                    We apply the

same standard to the trial court's decision of a motion for

leave to amend a complaint.         See Franklin Med. Assocs. v. Newark

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

    On this appeal, plaintiff contends that the 2003 ordinance

should have been declared unlawful on its face.                       She argues

that, if the ordinance were declared void, her "fact-intensive

'taking' Counts 8 and 9 disappear from the case."                   Her argument

fails for several reasons.




                                         16                               A-1815-13T4
       First, as plaintiff acknowledges, on August 7, 2013, the

Governor signed legislation that expanded municipal authority to

enact      ordinances     concerning          clustered             development      and     the

preservation of open space.                  L. 2013, c. 106.                Also, in 2013,

the Township amended the farmland preservation chapter of its

zoning ordinance.          Among other things, the ordinance no longer

requires     clustering      as    a    condition             for    minor       subdivisions.

Consequently,      the     2003    zoning         ordinance           is    no     longer     the

Township's     most      current    applicable            zoning       ordinance,          and   a

facial challenge to the 2003 ordinance would now be moot.                                     See

Khodara Envtl., Inc. v. Beckman, 237 F.3d 186, 194 (3d Cir.

2001).

       Second, plaintiff cannot circumvent the procedural barriers

to   her    2010   Law    Division       action          by    re-characterizing             this

litigation as a facial challenge to the 2003 ordinance.                                       The

2010    litigation      sought     relief         from    the       terms     of    the     Board

resolution granting her the variances.                         In the alternative, she

sought     money   damages.            The    second          trial        judge    held     that

plaintiff was not entitled to either form of relief, on any of

her assorted legal theories, because she failed to file a timely

action in lieu of prerogative writs and that failure barred her

from    pursuing   her     other    causes        of     action.           That    ruling     was




                                             17                                       A-1815-13T4
eminently correct, for the reasons stated by the judge in his

written opinion.

    In particular, we agree with the trial court that Rezem

controls this case.      In Rezem, the former owner of a large tract

of land sued Millstone Borough and its land use board, claiming

that the defendants violated the plaintiff's civil rights by

making    false    statements,    fraudulent      claims      and   factual

misstatements in an effort to keep the plaintiff's land as open

space.    Rezem, supra, 423 N.J. Super. at 108.          After reciting a

litany of alleged bad faith conduct by assorted public agencies,

the plaintiff alleged that it was forced to sell the land to

Somerset County at a much lower price than various potential

developers would have paid.      Id. at 111-12.

    The    plaintiff's    complaint     was   similar   to   Casser's   2010

filing:

           The eight counts of plaintiff's complaint
           alleged: (count one) substantive due process
           violations under 42 U.S.C. § 1983; (count
           two)   §   1983    conspiracy;   (count  three)
           temporary regulatory takings; (count four)
           substantive due process violations under the
           New Jersey Civil Rights Act, N.J.S.A. 10:6-1
           and -2; (count five) negligence by the Van
           Dyke defendants; (count six) intentional
           tort by the Van Dyke defendants; (count
           seven) conspiracy; and (count eight) civil
           racketeering in violation of the New Jersey
           Civil    Racketeer    Influenced   and  Corrupt
           Organizations Act (NJRICO), N.J.S.A. 2C:41-1
           to -6.




                                   18                               A-1815-13T4
            [Id. at 108.]

       The trial court dismissed the complaint, and the plaintiff

appealed.    Id.   at   109.      Without     deciding   whether     any   of    the

defendants'      alleged       actions    were    sufficiently       conscience-

shocking to support a cause of action under § 1983 or the State

Civil Rights Act, we agreed with the trial court "that Rezem's

complaint must be dismissed because it contains no allegation

that    Rezem,     or   potential        developers,     exhausted     available

administrative and judicial remedies, or sought a final decision

on any application for a zoning change or development of the

land, before plaintiff filed this civil rights lawsuit."                    Id. at

116 (emphasis added).

       In reaching that conclusion, we relied on a string of prior

cases, including 41 Maple Associates, supra, which held that the

plaintiff's inverse condemnation and § 1983 claims were "not

ripe for adjudication without a showing that the plaintiffs had

attempted to remedy the deprivation of their land use rights

through     available    administrative        and   judicial      proceedings."

Rezem, supra, 423 N.J. Super. at 116 (citing 41 Maple Assocs.,

supra, 276 N.J. Super. at 619-20); see also OFP, LLC. v. State,

395 N.J. Super. 571 (App. Div. 2007), aff'd o.b., 197 N.J. 418

(2008); House of Fire Christian Church v. Zoning Bd. of Adj. of

Clifton, 379 N.J. Super. 526 (App. Div. 2005).




                                         19                                A-1815-13T4
    In      Rezem,    we    concluded      that,     by   whatever     theory   the

plaintiff     asserted      its    claims,     they       were   barred   by    the

plaintiff's       failure   to    pursue     local    administrative      remedies

followed by an action in lieu of prerogative writs:

                 Whether we describe the applicable
            principle   as    exhaustion    of   remedies,
            ripeness of the claim, or the "finality
            rule," as defendants characterize it, we
            hold   that   plaintiff's    substantive   due
            process claims in a land use case require a
            showing either that plaintiff has obtained a
            final   decision    under    available   state
            procedures or that such an attempt would
            have been futile.

                   . . . .

                 In the absence of any attempt to make
            use of available procedures and remedies,
            Rezem's complaint improperly converts a
            zoning case into civil rights litigation.
            We reject that effort and affirm the trial
            court's dismissal of Rezem's § 1983 and
            State civil rights claims for lack of
            ripeness or of finality of defendants'
            zoning and planning decisions.

            [Rezem, supra, 423 N.J. Super. at 118-20.]

    Rezem is on point here.             Contrary to plaintiff's argument,

Rezem did not establish a new principle of law, and there is no

reason to apply the case prospectively only.                     We also find no

merit in plaintiff's claim that a prerogative writ remedy is

"futile"     or    "unavailable"     for      purposes      of   the    exhaustion

doctrine.




                                        20                                A-1815-13T4
      The problem plaintiff faces here is of her own making. She

is an attorney and a former zoning board member.               If she wanted

to   challenge   the   terms   of   the   variance   granted    her   by    the

Planning Board, she had forty-five days in which to file an

action in lieu of prerogative writs.           She makes no claim here

that she was unaware of the deadline set by Rule 4:69-6(a).

Instead she waited three years to file this lawsuit, and her

complaint would have been untimely even if one or more of the

counts were deemed as a prerogative writ challenge. Her proposed

amended complaint was even more untimely.

      Plaintiff may not circumvent the exhaustion requirement by

waiting until it is years too late to file a prerogative writ

action, and then claiming that she need not exhaust remedies

because that action is time-barred.          Allowing her to proceed in

that fashion would make a mockery of the exhaustion doctrine,

and would defeat "the important policy of repose expressed in

the forty-five day" time limit set by Rule 4:69-6(a).                    Rocky

Hill Citizens for Responsible Growth v. Planning Bd. of Rocky

Hill, 406 N.J. Super. 384, 398 (App. Div. 2009) (citation and

internal quotation marks omitted).           Indeed, "[b]ecause of the

importance of stability and finality to public actions, courts

do not routinely grant an enlargement of time to file an action

in lieu of prerogative writs," and "[t]he longer a party waits




                                     21                               A-1815-13T4
to   mount   its   challenge,      the   less   it   may    be    entitled     to   an

enlargement."      Tri-State Ship Repair & Dry Dock Co. v. City of

Perth Amboy, 349 N.J. Super. 418, 423-24 (App. Div.) (citations

omitted), certif. denied, 174 N.J. 189 (2002).

      Further, we agree with the trial court that the interests

of justice do not warrant relaxing the forty-five day time limit

under Rule 4:69-6(c).         The record reflects that plaintiff was

not deprived of the right to develop or sell her land.                        To the

contrary, she owned about 100 acres of land subject to ten-acre

zoning; the Board's decision safeguarded her right to subdivide

the land and build ten houses.            She has already sold the twenty-

five acre subdivided lot.          The fact that the variance terms may

have prevented her from also selling development rights to the

State does not give rise to a takings cause of action.                              See

Pheasant     Bridge   Corp.   v.   Twp.   of    Warren,     169    N.J.   282,      298

(2001) (noting, in a zoning context, that "neither diminution of

land value itself nor impairment of the marketability of land

alone constitutes a taking"), cert. denied, 535 U.S. 1077, 122

S. Ct. 1959, 152 L. Ed. 2d 1020 (2002).                    Finally, defendants'

expert report thoroughly debunked plaintiff's theory that many

other landowners were treated more favorably than she was.




                                         22                                  A-1815-13T4
    Plaintiff's additional arguments on this appeal are without

sufficient merit to warrant discussion in a written opinion.      R.

2:11-3(e)(1)(E).   We affirm the orders on appeal in A-2127-14.

         [At the direction of the court, Section V
         has been omitted from the published version
         of the opinion.]


    Affirmed in A-2127-14.     Remanded in A-1815-13.   We do not

retain jurisdiction.




                                23                        A-1815-13T4
