Posted by: Patricia Salkin | August 30, 2008

Delay by County Planning Board in Acting on Application Not Excusable

The New Jersey Supreme Court ruled a county planning board’s failure to act upon a complete site plan application within the statutory time limit triggered the law’s automatic approval provision.  The court rejected the board’s contention that the applicant had granted it an open-ended extension of time to act. Hess operates a gas station on County Route 541 in Burlington Township. It planned to expand the gas station and add a mini-mart. Because its plans included an exit-only driveway onto the county road, it needed both county and township approvals. When Hess’s engineer met with the county board’s engineers in February 2003, they informed him the county would not

be able to make any recommendations about the driveway for three to six months because it was in the process of conducting a traffic study of the road.

                          

The engineers met again in February 2004, but the county did not respond to Hess’s proposal until August, when it suggested submitting an application for informal review. By Oct. 18, with the county still saying it was anticipating making major changes to the road, but had not decided on a final design, Hess decided to go ahead with formal applications to both the township and county boards. The county board deemed Hess’s application complete Aug. 10, 2005, and the municipal application was deemed complete Aug. 23. The township board approved the application Oct. 13. During this time, the county board’s engineers were still raising objections to Hess’s plan. The board’s principal engineer claimed that in a telephone conversation early in September, Hess’s lawyer granted an extension of the review period until 30 days after he received plans revised in accordance with his comments. Hess’s lawyer denied she granted any such extension. The county board took no formal action on the application. In February 2006, Hess sued for a declaration that the county board’s failure to act had triggered automatic approval under state law. The trial court granted Hess’s motion for summary judgment, and the Appellate Division affirmed. 

 

The Supreme Court reviewed the genesis of the automatic approval process in New Jersey, noting that the legislature over time has created a statutory scheme the aim of which is to ensure speedy land-use decisions and protect against the “lassitude and indolence” that had become customary among local boards. To that end, state law provides that where a site plan requires both municipal and county approval, the county planning board has 30 days to approve or disapprove the plan and report to the appropriate municipal body.  This time may be extended an additional 30 days by

agreement between the county board and the municipal authority, with the consent of the applicant. The courts have ruled the statutory deadlines to act must be observed strictly, with only two exceptions: delay caused by ordinary mishaps or mistakes, or delay caused by a reasonable misunderstanding whether the application pending before the board was complete, the court said. Those scenarios may not cover the entire conceivable universe of excusable delay, but it has been clear for 25 years that a claim of confusion over the applicablity and operation of the time limits within the automatic approval statutes themselves is not excusable.

 

The court rejected the county board’s contention that it had received an extension from Hess’s counsel, pointing out that it would have had to get the township’s consent to comply with the statute. An applicant has no power to extend the time limits without municipal approval. Because the board did not request an extension from the township, and Hess could not unilaterally grant an extension, there was no support for the board’s argument that it had received a valid time extension. The court also rejected the board’s argument that it could delay a decision until it examined all the information it deemed relevant. State law authorizes planning boards to request additional information from

an applicant but makes it clear that seeking such information has no bearing on the application’s completeness, the court said. Once an application is deemed complete, the board must act within 30 days regardless of any additional information it seeks or revisions it requests. The board could reject an application because information was not forthcoming, but it did not have the option of doing nothing.

 

Amerada Hess Corp. v. Burlington County Planning Board, 195 N.J. 616, 951 A.2d 970

(7/16/2008).

 

Thanks to James Lawlor, Esq. of the Land Use Legal Report for permission to abstract his review of this case in the July 31, 2008 issue of the Land Use Legal Report.  For information about the bi-monthly newsletter, contact Jim Lawlor at landlaw@verizon.net.

 


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