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Breeders Walk, L.L.C. v. Jackson Township Planning Board

A-4924-04T3 (N.J. Super App. Div. 2006) (Unpublished)

ZONING; APPROVALS —A planning board takes arbitrary and capricious action when it fails to grant an applicant developer’s counsel, who was judicially obligated to appear before a different planning board on the scheduled hearing date, a reasonable postponement to hear an approval extension application on the merits and requires his unprepared associate counsel to proceed.

A developer had received preliminary and final approval to subdivide property from a municipal’s planning board (Board) by resolution. The approval was contingent upon the developer obtaining necessary utility approvals within a two year period. After approximately one and one half years within this period, the developer applied for an extension to satisfy this contingency. The application for extension was deemed complete. However, the hearing of the matter was carried over several times over the course of fifteen months. Five days prior to the hearing in question, primary counsel for the developer requested by facsimile to the Board’s counsel a postponement of the hearing on the extension application, indicating that he was to appear before another planning board on the same date in a court-remanded matter. Counsel for the Board replied that only the Board could rule on this request for an adjournment. On the hearing date, an associate of primary counsel, who could not present or address any of the substantive issues of the developer’s extension application, appeared before the Board on the hearing date and again requested an adjournment. The Board advised the associate to either withdraw the application or continue. The associate withdrew the application and advised the board that the application would be re-filed so to be properly addressed at a future hearing. The application was re-filed approximately four months later but was rejected by the Board as the Board interpreted the earlier withdrawal to include the original preliminary and final major subdivision approvals. The developer filed for emergent relief in the lower court five months after notice of this rejection, seeking an order requiring the Board to consider its extension application.

In the interest of justice, the lower court permitted this filing as in time. The Court held that the associate attorney intended to withdraw only the application for an extension for subdivision approval, and so reversed the determination of the Board. The Court ordered that the developer make application to the Board for all necessary extensions of the subdivision approval and the Board grant such extensions upon a showing of continued good faith efforts by the developer to satisfy all the conditions of its subdivision approval. The Board appealed this order.

The Appellate Division affirmed the order of the lower court and found no reversible error on its part. Moreover, the Appellate Division found that the Board acted arbitrarily and capriciously when it failed to grant an adjournment so to allow the developer’s primary attorney to properly present the merits of the extension application and required the associate attorney to either proceed or withdraw the application.

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