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Sprint Spectrum, L.P. v. Zoning Board of Adjustment of Township of Green Brook

2002 WL 31875519 (N.J. Super. Law Div. 2002)

ZONING; AUTOMATIC APPROVAL— Where there is no bad faith on the part of a land use board and an applicant can arguably be charged with contributing to the delay or unreasonably refusing to consent to a time extension, a court will not order automatic approval of a variance application under the 120 day rule because such approvals must be applied with caution.

A telecommunications company applied for a use variance to install an antenna within a zone that did not permit transmission towers. At that same time, its attorneys filed a similar application for a competitor. The competitor’s application was heard first and protracted proceedings ensued. Rather coincidently, or as a consequence, the zoning board did not schedule this particular application for review until shortly before the end of the 120 day period within which a land use board must act on a complete application. According to statute, if a board does not act on a completed application within 120 days, then the application must be approved automatically.

When the application reached the board about two weeks before the deadline, the applicant was told that there would not be enough time to complete the hearing process and the applicant was asked to consent to an extension of the 120 day rule. The applicant refused. In later proceedings, the applicant claimed that its refusal was based upon its knowledge that this particular board was conducting protracted hearings over the very similar parallel application filed by its competitor. In response to the applicant refusing to consent to an extension, the board denied the application.

The applicant then sued in the Superior Court contending, “that the denial of its application without a hearing was arbitrary, capricious and unreasonable.” It also contended that “even though the time remaining prior to the expiration of the statutory time frame was limited, the [zoning board] could have scheduled a special meeting… .” What the applicant was seeking from the Court was an order reversing the action of the zoning board and granting all of the approvals sought. It contended that if the Court refused to grant relief on this set of facts, “the 120 day time frame mandated by the statute [would] become a nullity.”

The zoning board vigorously opposed the relief sought. It pointed out that when the telecommunications company filed its application, there were four possible regular meetings of the board before the 120 day deadline. It also pointed out that the applicant’s counsel, in his representation of the competitor as well, had utilized all of the available meeting time on three of the four dates. In essence, the zoning board contended that it was the attorney for the applicant, “in reality, who created a timing crisis, and contend[ed] that the suggestion by counsel for [the applicant] that an application of this complexity could have been heard in a single meeting or, by extension that the companion [competitor’s] application could have been decided more quickly than it was [was] unrealistic and, in the end, irrelevant.” Moreover, the zoning board argued that the automatic approval statute was “intended to apply only to extreme situations where an applicant has suffered from unfair treatment.”

The Court was reluctant to order automatic approval. It looked to the only reported decision it could find and that decision said that the “statutory provisions which call for an automatic approval must be ‘applied with caution.’” Failing to do so, would deprive a municipality of the exercise of its legitimate regulatory role, “for essentially procedural failings.” It also looked to a Supreme Court case which confronted with the automatic land use approval rule, stated that “the appropriate dispossession of [the] appeal is to require that the public hearing on plaintiff’s application for preliminary subdivision approval be held forthwith.”

The purpose of the automatic approval provision “is protection of the applicant from ‘municipal inaction and inattention.’” Here, there was “no suggestion in the record that the Board was inattentive or that it failed to act for no reason.” The Court was unwilling to speculate as to whether the problem was caused by the board’s inability to hear the application at an early time or by the applicant’s refusal to consent to an extension. On the other hand, the Court found that there was nothing arbitrary or unreasonable in the board’s decision. Nonetheless, it was “mindful of the admonition of our Supreme Court that the appropriate course is to require that public hearings be held forthwith.” As a result, in an attempt to balance the interests, it ordered that the decision of the zoning board be vacated and that the matter be remanded “for a hearing and decision on the merits to be completed within 120 days of the date of the order to be entered.”

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