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a-41-07.doc.html

Original MSWord Version This case can also be found at 195 N.J. 616.
SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Amerada Hess Corporation n/k/a Hess Corporation v. Burlington County Planning Board (A-41-07) Argued April 8, 2008 -- Decided July 16, 2008 LONG, J., writing for a unanimous Court. The issue in this appeal is the meaning of N.J.S.A. 40:27-6.7, a provision of the County Planning Act that directs that a completed land use application is automatically deemed approved if the county planning board fails to take official action within thirty days, or within sixty days if both the municipal planning board and the applicant consent. Hess Corporation owns a gasoline station on County Route 541 in Burlington Township. Hess planned to develop an adjoining parcel, which abuts Burlington Bypass, to modify the station and build a minimart. Because Hess's plan included a one-way egress onto the Bypass, which is a county road, Hess needed to obtain county and municipal approval.

2 From February 2003 through August 2004, Hess had discussions with engineers from the Burlington County Planning Board (County Board) regarding Hess's plan and the proposed Bypass egress. The engineer's office indicated it would not be able to make recommendations regarding the plan because the County was in the process of conducting a traffic and safety study of the Route 541 corridor. In September 2004, Hess submitted an application for informal review. In October, the County Board's principal engineer, John Engle, reiterated that the County anticipated making major changes in the area but was not sure what the final design would be at that point.
With no agreement in sight, Hess decided to finalize its site plan. In July 2005, Hess filed formal applications with the County Board and with the Burlington Township Planning Board (Township Board). The applications included the plans for a one-way egress onto the Bypass. After Hess provided additional information at the request of the boards, its applications to the County Board and Township Board were deemed complete on August 10 and August 23, respectively.

2 On September 1, 2005, Engle contacted Thomas Pugsley, a site designer for Hess, and provided technical review comments on the application. The engineer's office took issue with many aspects of the site plan, and Engle stated that his office intended to recommend to the review committee that it disapprove the application. Engle also asked for an extension of the review period, which was to expire on September 12, to perform a more complete analysis of the proposal. Pugsley notified Engle that he would relay the request to Hess's counsel. On September 6, Engle sent a letter to Hess memorializing his review comments. Hess's counsel, Donna Jennings, called Engle the next day and requested that the engineer's office delay submitting its comments to the review committee until after Hess appeared before the Township Board. Jennings asserted she did not grant an extension of time for the County Board to act on Hess's application. Engle, however, claimed Jennings had granted an extension until thirty days after the receipt of revised plans. 2 On September 16, 2005, the Township Board held a public hearing on Hess's proposal. The Township Board's traffic consultant expressed concerns about the safety of the Bypass access. In response, Hess submitted a supplemental traffic report, concluding that the Bypass access was safe. Hess simultaneously sent that information to the county engineer's office. At a second public hearing on October 13, the Township Board's traffic consultant agreed that the proposed access was safe. During that hearing, the Township Board asked about the status of Hess's county application. Jennings did not inform the Township Board of the County Board engineer's review comments, but said
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"they were working on it" with the County Board. The Township Board approved Hess's application pending County Board approval. On December 15, 2005, the Township Board adopted a written resolution memorializing its approval. 2 On December 13, 2005, Hess wrote to Engle, reiterating that the Bypass access was safe as designed, and asking the County Board to contact Hess if it needed additional information. According to Engle, the County Board viewed the letter as confirmation of Jennings's grant of an extension of the application review period, and it awaited a revised plan. Three months later, on February 8, 2006, the County Board sent Hess a letter, again stating it did not favor the proposed Bypass access. The letter did not mention that the County Board was expecting revised plans.
Having obtained no formal action by the County Board on its application, which was deemed complete on August 10, 2005, and having received no communication from the County Board between September 7, 2005, and February 8, 2006, Hess filed an action in lieu of prerogative writs on February 15, 2006. The complaint sought a declaration that the County Board's inaction had triggered automatic approval of its application under N.J.S.A. 40:27-6.7. The trial court granted summary judgment in favor of Hess, concluding that the County Board purposefully delayed reviewing the application, and that automatic approval was warranted under the statute. The Appellate Division affirmed, adding that a public safety exception was not implicated because the Township Board already deemed the site plan safe. The Supreme Court granted the County Board's petition for certification. 192 N.J. 479 (2007). HELD: If a county planning board fails to render a timely decision on a completed land use application within the timetable set forth in the County Planning Act (CPA), N.J.S.A. 40:27-6.7, the application is subject to automatic approval unless the board can establish that the delay was inadvertent or unintentional. 1. The Municipal Land Use Law (MLUL) outlines the procedural steps for municipalities to effectuate land development in a manner that best serves the public health, safety and general welfare. If a county has chosen to interject itself into the planning procedure by creating a planning board under the CPA, an applicant must submit its proposal to the county board for review of the potential impact on county resources, limited to questions of traffic and drainage. (pp. 13-14) 2. Within the MLUL and the CPA, the Legislature has included several strict timetables for approval decisions. Unless an extension has been granted, failure to act within the statutory time period "shall" result in an automatic approval of the application. Specifically, N.J.S.A. 40:27-6.7 provides that if the county planning board fails to report to the municipal approving authority within thirty days from the receipt of a site plan, the site plan "shall be deemed to have been approved by the county planning board." The short time frame for the county board to act recognizes that the municipality has the primary responsibility for approval and county delay will impact that process. For that reason, the CPA provides that a single thirty-day extension can be granted only with the municipality's consent, approved by the applicant. (pp. 15-16) 3. Under the predecessor to the MLUL, when a planning board failed to act within the statutory timetable, the inaction had the effect of a denial. Also, because the term "completed application" was not defined, public agencies could deem applications incomplete and perpetually seek more information. To pressure boards to act quickly, the Legislature converted the failure to decide from an automatic denial to an automatic grant, and prescribed when an application is deemed complete. Thus, between statutory time limits, rules governing when an application is complete, and automatic approval provisions, the Legislature has created a seamless scheme to assure speedy land use decisions. (pp. 16-18) 4. The seminal decision on the issue of automatic approval in the land use field is Manalapan Holding Co. v. Planning Board of Hamilton, 92 N.J. 466 (1983). In Manalapan, the Court held that a municipality's decision to defer action while awaiting county approval cannot serve unilaterally to extend the statutory time period for municipal action. The Court ruled against automatic approval, however, because the delay was unintentional. In Manalapan, the township board had relied on a reasonable, although incorrect, interpretation of the statutes, mistakenly believing it was not required to consider an application until the county board had acted. The Court made clear that in future cases, public entities could no longer claim confusion over the operation of the strict timetables in land use planning approval statutes. (pp. 19-21) 5. In subsequent Appellate Division decisions, at least two scenarios have been identified that will satisfy the Manalapan exception to automatic approval. The first is delay caused by ordinary mishaps or mistakes, such as omitting the place of a board meeting in a public notice, thus voiding the formal disapproval of an application; or a clerk's innocent misfiling of an application. The second category is delay caused by a reasonable misapprehension regarding whether there was a complete application before the board, such as where the board thought the application was barred by res judicata, or where it believed that the property owner's consent was necessary to perfect an application filed by a contract purchaser. (pp. 21-26) 6. After Manalapan, excusable delay does not include a claim of confusion over the applicability and operation of the time limits within the automatic approval statutes. In the absence of mistake, inadvertence, or other unintentional delay, courts should have no reluctance in affirming the automatic approval remedy. The Legislature has made the policy judgment that timely disposition is of great institutional value and automatic approval is the proper remedy for delay. When an application is deemed complete, the clock begins to run. Where a board fails to act within the statutory limits, even for what it considers "good" reasons, the statute is violated and automatic approval comes into play. Only where the board establishes that its delay was inadvertent or unintentional can its conduct be excused. (pp. 26-29)

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7. Here, to comport with N.J.S.A. 40:27-6.7, the County Board had to act within thirty days of August 10 (the date it deemed Hess's application complete) or within thirty days of September 12, if an extension from the municipality and Hess was obtained. Because the County Board did not request an extension from the municipality and because Hess could not unilaterally extend the time for County Board action, the Board did not obtain a statutorily-compliant extension. (pp. 29-31) 8. The County Board was entitled to seek information and revisions from Hess after the application was deemed complete, but it was still required to act within the statutory timetable. If the materials were not forthcoming, the application could have been granted without them or denied for lack of them. Doing nothing was not an option. (pp. 31-33) 9. The County Board could not reasonably have believed that Hess had given it an open-ended extension because it knew or should have known that under the statute, Hess lacked the power to grant such an extension. This case does not involve the reasonable misapprehension category of inadvertence under Manalapan. Hess's continued dealings with the County Board after the expiration date, in the hope of reaching d

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