Case Law Summaries

Omnipoint Communications, Inc. v. Board of Adjustment of Township of Marlboro

• Opinion Date: May 15, 2001
• Real Property Law
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ZONING—The remedy for a land use applicant whose application is not voted upon within the statutory period is to apply to the court in a summary manner for an order compelling the board to reduce its findings to writing.

An application was filed with a municipal zoning board for approvals needed to build a monopole. The first public hearing on the matter took place seven months later. The next public hearing took place three months after that, followed by a third meeting two months later. At the end of the third meeting, the board sought consent from the applicant to carry the matter for at least another month, and the applicant refused. The board then denied the use variance application. The applicant sought relief in the Law Division, arguing, inter alia, that the board failed to act on the application within the 120 day time frame required by N.J.S. 40:55D-73. The lower court held in favor of the board. The Appellate Division upheld the lower court’s decision because the statute specifies the time period to be 120 days “or within such time as to be consented to by the application ... .” According to the Court, the applicant had consented to the time extension. The applicant also complained that the board unreasonably scheduled its application as the last item on each meeting agenda. “The Board justified this practice because it found it more appropriate to put the needs of [its] taxpayers before those of the applicant.” The Appellate Division was concerned with the potential for abuse, pointing out that although boards are permitted, by statute, to make all rules governing their hearings, boards owe all applicants, whether they be property owners or not, a duty to act expeditiously. It recognized that “an undue delay may very well become a de facto denial of a meritorious application.” On the other hand, the Court held that the remedy for an applicant whose application is not voted upon within the statutory period “is to apply to the court in a summary manner for an order compelling the board to reduce its findings to writing, with costs assessed against the municipality.”

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