05-05-08* State of New Jersey vs. William Schadewald
1. A defendant convicted of a second or subsequent
offense of driving while intoxicated (DWI), N.J.S.A. 39:4-50,
who seeks a step-down in sentence on the ground that one or more
of the prior convictions were uncounseled, pursuant to State v.
Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429,
112 L. Ed. 2d 413 (1990), must first petition for postconviction
relief (PCR) in the municipal court in which the
prior uncounseled conviction occurred.
2. The PCR proceedings in municipal court are governed by
Rule 7:10-2(f) and (g). [*Approved for Publication date]
05-01-08 Milford Mill 128, LLC v. Borough of Milford and the Borough
of Milford Joint Planning Board and Zoning Board of
The Borough of Milford in March 2004 designated 70 acres of
a defunct paper mill as an area in need of redevelopment under
the Local Redevelopment and Housing Law ("LRHL"), N.J.S.A.
40A:12A-1 to -49. In January 2006 the Borough adopted a
Redevelopment Plan for the site, calling for a mix of commercial
and residential uses and substantial areas set aside for open
space and wetlands. Among other things, the Plan requires that
a party seeking to develop the site must first obtain from the
Borough Council a determination of consistency with the Plan
before submitting its proposal to the Joint Planning Board and
Board of Adjustment ("the Joint Board").
Plaintiff, a contract purchaser, seeks to develop the site
with markedly higher densities and more expansive uses than
those called for under the Redevelopment Plan. Plaintiff sought
use variances that would allow it to build units at more than
sixteen times the area's permitted residential density, and
which would nearly double the Borough's entire population. When
the Joint Board declined to act on the variance application,
plaintiff in February 2007 filed an action in lieu of
prerogative writs, alleging various constitutional and statutory
claims. The Law Division dismissed plaintiff's complaint.
We affirm the Law Division's dismissal because, pursuant to
the Redevelopment Plan, plaintiff must obtain a consistency
finding from the Borough Council as a precondition of having its
development project considered by the Joint Board. The
situation here is distinguishable from that in Weeden v. City
Council of Trenton, 391 N.J. Super. 214 (App. Div.), certif.
denied, 192 N.J. 73 (2007), because plaintiff's proposal is not
a "minor exception" to the Redevelopment Plan, but rather an
attempt to rezone, de facto, the entire redevelopment area.
We also sustain the trial court's finding that plaintiff's
lawsuit challenging the merits of the Plan, more than two years
after its adoption, is untimely under Rule 4:69-6(a). However,
as the trial court's order contemplates, the dismissal of the
present action is without prejudice to future proceedings. Such
proceedings may include a potential inverse condemnation action
if the existing Plan ultimately deprives plaintiff, or the title
owner, of all economically beneficial uses of the property.