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Johnson v. Ocean City Planning Board

2010 WL 5395768 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; AUTOMATIC APPROVAL —If there is no confusion as to when a land use application became complete and a land use board tables the complete application because it anticipates a zoning change in the future, the applicant is entitled to automatic approval because automatic approval is the remedy for purposeful delay by a land use board and it is only when government inaction is unintentional or inadvertent that the time frames are subject to relaxation.

A developer sought to construct a three-story mixed-use building and needed preliminary and final site plan approval. It made certain bulk-variance requests and also made requests for engineering waivers. At the time that the developer “submitted its application, it complied with all zoning ordinances, including those regulating parking.” The planning board scheduled initial hearings on both applications, but when it became aware of the impending passage of a zoning ordinance that would impact the applications, it rescheduled the hearings. The very next day, the municipality adopted the zoning amendments and they became effective. The day after the amendment became effective, the zoning board notified the applicant that the hearings would be held three weeks later. On that rescheduled hearing date, “the Board dismissed the applications with prejudice.”

The developer then applied to the planning board for default approvals based on the board’s failure to have acted within the requisite period following the developer’s submission of a complete application to the board. The board denied the applications, but a lower court, “strictly constru[ing] the time limit set in N.J.S.A. 40:55D-61,” and also “concluded that the Board engaged in ‘intentional municipal inaction’; and, its delay was ‘deliberate’, and was, therefore, arbitrary, capricious and unreasonable.” On that basis, it granted the approvals. The board appealed and the Appellate Division reversed and remanded. Then, the developer appealed to the New Jersey Supreme Court. That Court summarily reversed the Appellate Division’s decision and remanded the matter back to the Appellate Division. In the interim, the New Jersey Supreme Court ruled in Amerada Hess Corp. v. Burlington Cnty. Planning Bd., 195 N.J. 616 (2008) that “‘automatic approval’ statutes are to be strictly applied.” In the opinion of the Supreme Court issued in that case, it said “that time lines in the land use statutes are to be strictly applied, that automatic approval is the remedy for purposeful delay, and that it is only when government inaction is unintentional or inadvertent that the time frames are subject to relaxation.”

The Appellate Division, on the remand, considered the planning board’s argument that the Supreme Court had “identified ‘two scenarios that [would] satisfy the Manalapan exception’ to the strict timetable in land use planning approval.” The first such exception “is delay caused by ordinary mishaps or mistakes, such as omitting the place of a board meeting, thus invalidating a public notice, ..., or misfiling an application.” The second category “is delay caused by a reasonable misapprehension regarding whether there was a complete application pending before the board, for example, where the board thought that the application was barred by res judicata, ..., where the board believed that an application failed to satisfy the [Municipal Land Use Law] checklist and thus considered it incomplete, ..., or where the board believed that consent of the property owner was necessary to perfect an application filed by a contract purchaser.”

The Appellate Division rejected the planning board’s assertions, finding that its appeal came within neither scenario. According to the Court, the planning board “tabled these completed applications because it anticipated that the [zoning change amendment] would pass in the future.” The Court found no confusion as to when the developer’s applications became complete. Thus, the developer was entitled to a default approval at the end of the automatic approval period notwithstanding that that date fell between the time the board decided to table the application in anticipation of the zoning amendment and the rescheduled hearing date.


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