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South Plainfield Properties, L.P. v. Middlesex County Planning Board

372 N.J. Super. 410, 859 A.2d 463 (App. Div. 2004)

ZONING; AUTOMATIC APPROVAL—A land use board’s adopting a resolution to extend the time to consider a particular application for six months is not to be treated as an action by the board on a developer’s application such as would satisfy the 30-day statutory time limit granted to a board to consider such application.

On December 17, 2002, a developer applied for site-plan and major subdivision approval to the county planning board. A hearing was placed on the board’s agenda for February 11, 2003. Apparently as a result of informal communications between the developer and the county and the developer’s recommendation to consider an alternative component of part of its submitted plan, the developer submitted a revised application to the board on February 28, 2003. It agreed to postpone consideration to the board’s March 11 meeting. The developer then consented to a further adjournment of its application from the board’s March 11 agenda to the April 8 agenda. On April 8, however, the developer refused to consent to a further adjournment request from the board. The board then adopted a staff recommendation to “Grant a Six Month Extension to the October 14, 2003 Planning Board Meeting.” This postponed all action until October 14.

In the meantime, the developer did not formally act on its revised application. In light of the developer’s inability to get a response to its revised submission, it once again revised its application. On May 2, 2003, the developer submitted its second revised application to the county and municipal planning boards. The municipal planning board granted preliminary major site-plan and subdivision approvals on May 27, 2003, conditioned on county planning board approval. However, the county planning board took no action on the May 2 application, thus failing to meet the statutory thirty-day time limit.

The developer filed a complaint on June 16, 2003 seeking a determination that the county planning board’s failure to act on any of its applications within thirty days resulted in automatic approval. The lower court granted the developer’s motion for summary judgment, deeming the developer’s final submission as approved by the county. N.J.S.A. 40:27-6.7 requires a planning board to act on a site-plan application within thirty days. Thus, because the delay was for approximately six months, the lower court held that the planning board ignored the statute. The developer’s application was therefore automatically approved.

On appeal, the Appellate Division held that the April 8 board resolution to extend the application for six more months was not to be treated as action by the board on the developer’s application such as would satisfy the thirty day statutory time limit. It would not allow the board to use such a tactic to circumvent the statute, especially because the statue was designed to avoid precisely that type of governmental inaction. Despite the mandatory language of the statute, courts have denied automatic approval of development applications when governmental inaction was technical or inadvertent and where there was no evidence of intentional delay or inattention to the application. That was not the case here. According to the Court, there was no issue of substantial public interest that could justify an exception to the statute. For that reason, the Court affirmed the lower court’s decision that the developer’s application was automatically approved after the county planning board’s inaction.

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