NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5505-06T2

A-5534-06T2

DONALD W. JOHNSON and

SAMUEL JOHNSON, JR.,

Plaintiffs-Respondents,

v.

OCEAN CITY PLANNING BOARD,

Defendant-Appellant.

________________________________________

O.C. ELITE HOMES,

Plaintiff-Respondent,

v.

OCEAN CITY PLANNING BOARD,

Defendant-Appellant.

_________________________________________

Argued via Telephone Conference

January 7, 2008 – Decided January 25, 2008

R

November 3, 2010

Resubmitted October 12, 2010 - Decided

Before Judges A. A. Rodríguez and C. S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket Nos. L-705-06, L-708-06, L-709-06 and L-72-07.

Jeffrey I. Baron argued the cause for appellant Ocean City Planning Board (Baron, Riefberg & Brennan, attorneys; Mr. Baron, of counsel; Jeffrey M. Brennan, on the briefs).

Dorothy F. McCrosson argued the cause for respondents Donald W. Johnson and Samuel Johnson, Jr., A-5505-06T2 (Taht, Stanton & McCrosson, attorneys; Ms. McCrosson, of counsel and on the briefs).

Michael A. Fusco, II, argued the cause for respondent O.C. Elite Homes, A-5534-06T2 (Mr. Fusco and Teitler & Teitler, attorneys; Avery S. Teitler and Mr. Fusco, on the briefs).

PER CURIAM

This matter is now before us on a summary remand from the Supreme Court. See Johnson v. Ocean City Planning Bd., 196 N.J. 342 (2008). The Court granted certification and directed that we reconsider the decision "in light of Amerada Hess Corp. v. Burlington Cnty. Planning Bd., 195 N.J. 616 (2008)." Ibid. Upon reconsideration, we depart from our initial decision. Thus, we affirm the Law Division's judgment and remand to the Ocean City Planning Board (Board) to issue certificates of default approval. We do not retain jurisdiction.

The issues and the factual and procedural background are set out in our previous decision, and need not be restated here. We provide the following procedural facts in order to provide a context.

In A-5505-06T2, Donald W. Johnson and Samuel Johnson (the Johnsons) sought to construct a three-story mixed-use building. They submitted an application to the Board for certain land use approvals. At the time of the application, the proposed development complied with all zoning ordinances, including those regulating parking.

In A-5534-06T2, O.C. Elite Homes (Homes) sought to construct a three-story mixed-use building. Homes submitted an application to the Board for preliminary and final plan approval with bulk-variance requests and engineering waivers. At the time Homes submitted its application, it complied with all zoning ordinances, including those regulating parking.

The Board scheduled initial hearings on both applications for July 12, 2006. However, on that date the Board tabled the applications because of the impending passage of Ordinance No. 06-20, commonly referred to as the "ZLDO Amendment," which would amend Ocean City's Zoning and Land Development Ordinance and necessarily impact the applications. The following day, the Ocean City Council (Council) passed the ZLDO Amendment, which became effective August 16, 2006. On August 15, 2006, the Board notified the Johnsons and Homes that the hearing on their applications would be held on September 6, 2006. On the scheduled date, the Board dismissed the applications with prejudice.

The Johnsons and Homes applied to the Board for default approvals pursuant to N.J.S.A. 40:55D-10.4, a section of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. The Board denied the applications. The Johnsons and Homes each filed an action in lieu of prerogative writ. In a written opinion, the judge found, pursuant to N.J.S.A. 40:55D-10.3, that the applications were complete on April 27, 2006 (Homes) and May 1, 2006 (Johnsons). The judge strictly construed the time limits set in N.J.S.A. 40:55D-61. She concluded that the Board engaged in "intentional municipal inaction"; and, its delay was "deliberate", and was, therefore arbitrary, capricious and unreasonable. The judge ordered the Board to issue certificates of default approval in accordance with the ordinance in effect on the date the applications were deemed complete.

The Board appealed. In our opinion, filed on January 25, 2008, we reversed and remanded. The Johnsons and Homes appealed to the Supreme Court. As stated above, on July 16, 2008, six months after our decision, the Court decided Amerada Hess. Supra, 195 N.J. at 616. A week later, the Court granted the Johnsons and Homes petitions for certification, summarily reversed our decision and remanded the matter to us.

In Amerada Hess, the Supreme Court emphasized that "automatic approval" statutes are to be strictly applied. The Court stated:

To summarize, in enacting the MLUL and the CPA [County Planning Act, N.J.S.A. 40:27-6.7], the Legislature has made a value judgment that expeditious land use decisions are of such benefit to the public and applicants alike that the strong remedy of automatic approval is necessary and appropriate. We held in [Manalapan Holding Co. v. Planning Bd. of Hamilton, 92 N.J. 466 (1983)] that the time frames in the land use statutes are to be strictly applied, that automatic approval is the remedy for purposeful delay, and that it is only when government inaction is unintentional or inadvertent that the time frames are subject to relaxation. We reaffirm those principles here and add that the applicant unilaterally can neither extend nor waive the time limits in the CPA, and that a planning board cannot delay beyond the statutory limits without exposing itself to automatic approval.

[Amerada Hess, supra, 195 N.J. at 644.]

As pointed out by the Board, the Court has identified "two scenarios that will satisfy the Manalapan exception" to the strict timetable in land use planning approval. Id. at 635. The Court noted:

Broadly then, our decisional law has identified at least two scenarios that will satisfy the Manalapan exception. The first is delay caused by ordinary mishaps or mistakes, such as omitting the place of a board meeting, thus invalidating a public notice, [Precision Industrial Design Co. v. Beckwith, 185 N.J. Super. 9 (App. Div.), certif. denied, 91 N.J. 545 (1982)], or misfiling an application, [D'Anna v. Planning Bd. of Washington Twp., 256 N.J. Super. 78 (App. Div.), certif. denied, 130 N.J. 18 (1992)]. The second category is delay caused by a reasonable misapprehension regarding whether there was a complete application pending before the board, for example where the board thought the application was barred by res judicata, [Allied Realty, Ltd. v. Borough of Upper Saddle River, 221 N.J. Super. 407 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988)]; where the board believed that an application failed to satisfy the MLUL checklist and thus considered it incomplete, [Eastampton Center, L.L.C. v. Planning Bd. of Eastampton, 354 N.J. Super. 171 (App. Div. 2002)], or where the board believed that consent of the property owner was necessary to perfect an application filed by a contract purchaser, [Fallone Properties, L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552 (App. Div. 2004)].

[Ibid.]

Despite the Board's assertion, we do not find that the present appeals come within either scenario. The Board tabled these completed applications because it anticipated that the ZLDO Amendment would pass in the future. In our view, there was no confusion here as to when these applications became complete. Thus, Homes was entitled to a default approval as of August 28, 2006, and the Johnsons were entitled to default approval as of August 30, 2006. The decision to table on July 12, 2006 in anticipation of an amendment to the zoning ordinance could not defeat the Johnsons's and Homes's rights to a default approval pursuant to N.J.S.A. 40:55D-10.4.