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Johnson v. Ocean City Planning Board

A-5505-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; AUTOMATIC APPROVAL — Where a land use board’s delay in reviewing an application is only de minimis and bespeaks only inadvertence, ignorance or misunderstanding as to the operation and mechanics of the automatic approval statute, default approval of the application will not be granted.

Two complete, compliant applications for land use approvals from two unrelated applicants were tabled for hearings by a planning board because of the impending expected passage of an amendment to the municipality’s zoning and land ordinance with respect to parking requirements. After the amendment was adopted, the applications were heard by the planning board and dismissed with prejudice. The applicants then applied to the board for default approvals and also filed for relief in court.

The lower court granted default approvals of the preliminary and final site plan, finding that the board had engaged in intentional municipal inaction and deliberate delay in hearing the applications.

On appeal, the Appellate Division consolidated the matters and reversed, finding that the lower court erred by holding the applications were entitled to certificates of default approval. The Court noted that under the Municipal Land Use Law, though a land use board’s inaction can trigger automatic approval, a court should only impose the automatic approval remedy to address present and prevent future bad faith, sharp practice, or overreaching or dilatory conduct by a municipal body. It believed that the remedy should not be available for technical or inadvertent inaction where there is no evidence of intentional delay or inattention to an application. Here, the Court noted that the board had tabled the applications to await the outcome of the zoning ordinance amendment which, if passed, would have had a great effect on each application. As such, the Court concluded that it was erroneous for the lower court to find bad faith when the delay was only eight business days for one applicant and six for the other. It found that this short delay was de minimis and bespoke only inadvertence, ignorance or misunderstanding as to the operation and mechanics of the automatic approval statute. Specifically, the Court found that the board could have scheduled the hearing for a week earlier, and so committed a technical error – not worthy of the drastic remedy of default approval. The Court, however, found that the board, though correct in dismissing the applications, should have done so without prejudice. Therefore, the Court remanded the applications to the board for reconsideration in light of the ordinances in effect at the time of its decision.


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