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Amerada Hess Corporation v. Burlington County Planning Board

195 N.J. 616, 951 A.2d 970 (2008)

ZONING; AUTOMATIC APPROVAL — Even though a county planning board has only thirty days to review an applicant’s plan, it can, with consent of the municipality and the applicant, have a thirty day extension, but without either consent, it must act within the initial thirty days or approval will be deemed given.

The owner of a gasoline station planned to develop an adjoining property, abutting a county road. It also wanted to modify its station and build a mini mart. Since the owner’s plans involved one-way egress onto the county road, it needed both municipal and county approval of the plans. The owner submitted its plans for informal review and had discussions with the county and the municipality regarding traffic and safety issues with respect to the plan. When the owner was unable to reach an agreement with the municipality or the county, it filed formal applications for site plan approval with each. After the owner submitted the additional documentation requested by the county and municipal planning boards, its applications were deemed complete.

The county planning board’s engineer asked the owner’s site designer for an extension of the thirty-day review period for the county to approve or reject the site plan. The county engineer claimed that it had received an extension of the review deadline, but the owner’s attorney denied agreeing to an extension. Shortly thereafter, the municipal planning board approved the owner’s site plan application pending the county planning board’s approval of the site plan. The owner, which had not received any communication from the county board over a four-month period, filed suit asking for a declaration that the county’s inaction on its site plan application triggered an automatic approval under N.J.S.A. 40:27-6.7. The lower court found that the county planning board purposefully delayed reviewing the application, and therefore it deemed the application automatically approved. Both the Appellate Division and the New Jersey Supreme Court affirmed. The Supreme Court noted that under the Municipal Land Use Law (MLUL) and the County Planning Act (CPA), the legislature adopted strict timetables for planning board review of site plan applications. Under the statute, the county planning board has thirty days to review an applicant’s plan and report back to the municipal planning board or the application will be deemed approved. The legislature recognized that the municipality has primary responsibility for site plan approval and any delays by the county in responding will bog down the process on the municipal level. The CPA allows the county planning board a single thirty-day extension with the municipality’s consent, so long as the extension was approved by the applicant. The Court noted further that the MLUL addressed a problem in the predecessor statute, where inaction by a public agency was deemed a denial and agencies could deem applications incomplete, continually request information, and stall the process indefinitely. Under the MLUL, the onus is on public agencies to act quickly or the application will be deemed approved.

In this case, the county planning board argued that it mistakenly believed that it had been given an extension to respond and that it should not have been penalized. The Court, however, found that the county board could not have reasonably believed that the owner gave it an open-ended extension to approve the site plan application because it knew or should have known that the owner did not have the power to grant it. The MLUL and CPA allow only a single thirty-day extension with the municipal planning board’s consent, which the county planning board never received. Therefore, it was unreasonable for it to believe it had an extension, and certainly not an open-ended one. Lastly, the Court found that the owner’s attempts to reach an agreement with the county planning board after the review deadline expired did not bar the owner from seeking an order granting automatic approval.

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