When it comes to challenges of municipal actions by way of actions in lieu of prerogative writs, there has long been tension between two firmly established judicial principles: (1) the important policy of repose for municipal actions; and (2) the judicial preference to determine actions on their merits. To timely challenge a municipal action, Rule 4:69-6(b)(3) requires objectors to file suit within 45 days of the action, which, in the context of a site plan approval, is the date of publication of the resolution memorializing the approval. In conjunction with the timing requirement, a party challenging a municipal action must also name the applicant as an indispensable party. In theory, these strict pleading standards should ensure a level of finality to municipal decisions that applicants—like developers—can rely upon. In practice, however, developers have faced uncertainty when objector-plaintiffs either fail to timely name the developer as a necessary party or the objector-plaintiffs otherwise seek to enlarge the 45-day time period under the somewhat amorphous "interest of justice" standard under Rule 4:69-6(c). The result has been that developers are seemingly unable to rely upon a violation of the statute of limitations as a steadfast basis for denial of an out-of-time action, even when the developer is not timely named as a party to the suit. Fortunately, a recent unpublished Appellate Division decision, 53-55 E. Kinney v. The City of Newark Central Planning Board, Docket No. A-4022-21 (App. Div. Dec. 26, 2023), has given developers some hope.

The tension between ensuring finality of municipal action and flexibility permitting a merits-based determination was front and center in the Kinney case. The notable twist was that the objector-plaintiffs did timely file their challenge to development approvals, but without naming the developer as a defendant.

In Kinney, the objector-plaintiffs timely filed an action in lieu of prerogative writs challenging the board's approval of developer AC and J Restoration Group Corporation's (ACJ) application for preliminary and final site plan approval. For reasons that are not made clear in the opinion, objector-plaintiffs did not include ACJ as a named party to the action, even though objector-plaintiffs knew of ACJ's identity and even sent a copy of the pleading to ACJ's attorneys after it was served on the board.