Abella v. Township of Millburn Planning Board

A-5338-96T5 (N.J. Super. App. Div. 1998) (Unpublished)
  • Opinion Date: October 6, 1998

ZONING; ATTORNEYS FEES—Although litigants aggrieved by the failure of a planning board to take action may be entitled to attorneys fees, those affected by a technically incorrect planning board action are not.

A lower court assessed counsel fees against a municipal planning board. The award arose from a property owner’s application for a six-lot subdivision. No variances were sought, but the property owner requested a waiver of prescribed elements of the environmental impact statement required by local ordinance. The planning board’s rules and regulations allowed an applicant to seek such a waiver. The board conducted extensive hearings on the application and protestors vigorously participated in the hearings. A tie vote ensued and, pursuant to the applicable municipal ordinance, such a vote constituted a denial. When the board then adopted its resolution, it approved the subdivision but did not grant a waiver of the environmental impact statement requirements. The protestors then appealed, contending that the resolution should have denied the entire application because a tie vote constitutes a denial. The lower court ruled in favor of the protestors, but eventually the planning board held another hearing at which it voted to grant the subdivision application with certain conditions. In a subsequent related application to the Court, the protestors sought, and were awarded, attorney’s fees as a statutory sanction.

A statute permits the Superior Court to compel municipal agencies to comply with state law “[i]f the municipal agency fails to adopt a resolution or memorializing resolution.” The statutory language clearly evidences an intent to authorize counsel fees only where there is a failure of the municipal agency to reduce its decision to writing, not when the agency adopts a resolution that is later determined to be procedurally or substantively incorrect. For that reason, the Appellate Division reversed the lower court’s award of attorney’s fees. A technically incorrect action on the part of a planning board is not the same as planning board inaction. Consequently, the statutory sanction was inappropriate in this case.