On appeal from the Superior Court, Law Division, Mercer County.
Matthews, Pressler and Petrella. The opinion of the majority was delivered by Pressler, J.A.D. Petrella, J.A.D. (dissenting).
This is an action in lieu of prerogative writs. Defendant Planning Board of Township of Hamilton appeals from a summary judgment declaring the preliminary subdivision application filed by plaintiff Manalapan Holding Co., Inc. (developer) approved pursuant to N.J.S.A. 40:55D-48(c). The issue raised by this appeal raises important questions concerning the construction of that statute and its relationship to N.J.S.A. 40:27-6.3.
Plaintiff is a land developer owning a parcel of land some 45 acres in size in Hamilton Township, which it proposes to develop for single-family residential use. In April 1980 it submitted a sketch plat to the township's land use coordinator, who referred it for review and classification to the township's Development Review Advisory Board (DRAB). DRAB, a committee established by the township's land development ordinances, consisted of five voting members, three of whom are members of the planning board and two are members of the board of adjustment. In addition, those municipal officials whose duties implicate land development are designated as nonvoting members of DRAB. These officials include the township engineer, planner, health officer, land use coordinator, construction official, environmental commission chairman and administrative officer. The functions assigned to DRAB by the ordinance include review of development applications for compliance with ordinance provisions, recommendation for classification of all applications, determination of required planning board and board of adjustment action, discussion with applicants of the technical aspects of the proposed plat, and recommendation of ultimate action to the planning board and board of adjustment.
DRAB considered plaintiff's sketch plat on April 23, 1980 and classified the proposed development as a major subdivision. The minutes of that meeting further indicate DRAB's view of the general acceptability of the plan subject, however, to some specific recommendations regarding sewering and road alignments and locations. It was further then noted that county approval would be required for the proposed storm drainage detention basin.
Plaintiff proceeded accordingly and on June 30, 1980 submitted its formal application for preliminary major subdivision approval to the planning board, which in turn referred it to DRAB. On July 23, 1980 DRAB considered the application, together with memoranda thereon submitted by the engineering and planning departments, and voted unanimously to deem the application complete and to forward it to the planning board for public hearing and consequent action. The minutes of that meeting of DRAB also note the necessity for ultimate county approval of the retention basin as well as sewer capacity approval from the sewer department. It further appears that plaintiff, on the same day it submitted its application to the planning board, also submitted appropriate applications to the Mercer County Planning Board and the New Jersey Division of Water Pollution Control.
The planning board scheduled a public hearing on the application for August 7, 1980. Plaintiff's representatives were present at that meeting and ready to proceed. There were, however, a number of other items on the board's agenda, and in view of its policy of adjourning at 11:30 p.m., it became evident that consideration of this application would not be reached. Accordingly, plaintiff's representative asked that the matter be carried to the next planning board meeting and that it then be accorded a preference status on the agenda. The next scheduled hearing of the planning board was September 11, 1980. Prior to this date, however, the county planning board had apparently advised the township's land use coordinator that while it generally approved the preliminary subdivision application, it nevertheless
was insisting upon provision of an on-site storm water detention facility, and accordingly it had approved the application subject to that requirement. The county board further advised that it would not grant final approval until it had reviewed and approved the plans and calculations for such a facility.
Apparently as a result of this advisory statement from the county planning board, the township planning board decided not to go forward with the scheduled September 11 hearing. While the record is not altogether clear as to how that decision was reached and communicated, the minutes of the planning board for that meeting make clear that the cancellation of the hearing on the application had preceded the convening of the meeting, and the certification of plaintiff's general counsel and vice-president submitted to the trial court alleges that
Representatives of the Township had previously informed us of their policy of not proceeding with applications for development until such time as county approval had been received. Presumably in accordance with that policy, representatives of the Township Planning Board contacted me and informed me that the application would not be heard at the September 11, 1980, planning board meeting. Our application for development was in fact taken off the agenda.
On October 7, 1980 plaintiff submitted to the planning board a revision of the plan which accorded with the county planning board requirements and with some apparently routine recommendations previously made by the land use coordinator respecting corner lot lines and storm sewer alignment. The planning board's next regular meeting was October 16, 1980. Although hearing on plaintiff's application had not been scheduled for this meeting, a resolution was then adopted fixing October 30, 1980 as the date of a special meeting for hearing thereon. On October 24, 1980 the planning board secretary, on instruction from the land use coordinator, telephoned plaintiff's representative requesting consent to an extension of the statutory time period. Such consent was not, however, given. Plaintiff then delivered a letter to the planning board on October 30, 1980, advising that the 95-day time period prescribed by N.J.S.A. 40:55D-48(c) had expired on October 26, 1980, and accordingly its application was required to be deemed approved. The letter further pointed out that
The plans have been reviewed by your professional staff and has received favorable review. Therefore we do not feel that approval of these plans is detrimental to the Township and will not cause any harm to the public. We look forward to proceeding toward final approval at a later date.
The response of the planning board was to adopt a resolution at the October 30, 1980 meeting providing that "no plans for final approval will be accepted unless and until they provide us with the information requested and unless and until they submit themselves to a public hearing for preliminary approval." Accordingly, plaintiff instituted this action seeking a declaration of its rights pursuant to N.J.S.A. 40:55D-48(c). The trial court ultimately determined on summary judgment motion that the statutory time period had expired and hence that plaintiff's preliminary subdivision application was entitled to be deemed approved. The planning board appeals.
The sole question before us is whether the trial judge properly determined that the statutory 95-day period had expired prior to October 30, 1980. We are satisfied that this determination was correct.
N.J.S.A. 40:55D-48 governs the procedure for preliminary major subdivision approval. Subparagraph (a), after requiring the local ordinance to state with reasonable specificity the information required to be submitted by a developer on his subdivision application, then requires that
If the application for development is found to be incomplete, the developer shall be notified in writing of the deficiencies therein by the board or the board's designee for the determination of completeness within 45 days of submission of such application or it shall be deemed to be properly submitted.
Subparagraph (b) of N.J.S.A. 40:55D-48 requires the submission of an amended application and a new proceeding in the event the planning board, after public hearing, requires substantial amendment in the layout of improvements. It further stipulates that if the proposed subdivision complies with the local ordinance and the applicable provisions of state statute, the planning board is obliged to grant preliminary subdivision approval. Finally, subparagraph (c) provides, in relevant part, that
Upon the submission of a complete application for a subdivision of more than 10 lots, the planning board shall grant or deny preliminary approval within 95 days of the date of such submission or within such further time as may be consented to by the developer. Otherwise, the planning board shall be deemed to have granted preliminary approval to the subdivision.
Finally, the definitional section of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. , defines a "complete application" as
We are persuaded that pursuant to this statutory scheme, plaintiff's application must be deemed to have been complete no later than July 23, 1980. Not only was plaintiff never advised of any deficiencies in its application vis-a-vis local ordinance requirements but it was expressly advised on July 23, 1980 by the "Board's designee for the determination of completeness" that its application was complete. Consequently, the 95-day period expired on October 26, 1980. Since the planning board had taken no action by that date, the statutory approval mechanism was triggered. See N.J.S.A. 40:55D-10(g). And see Gridco, Inc. v. Hillside Tp. Zoning Bd. , 167 N.J. Super. 348, 352-353 (Law Div.1979); Aurentz v. Little Egg Harbor Tp. Planning Bd. , 171 N.J. Super. 135 (Law Div.1979).
It is the planning board's contention that the application could not be deemed complete until plaintiff had acquired county planning board approval of its storm water detention facility. In our view, this argument misconceives the relationship between municipal and county land development functions. As we
read N.J.S.A. 40:55D-48(a) in the light of the definitional provision above quoted, we conclude that the completeness of a municipal land development application must be measured by the requirements of local ordinance. We are aware that in respect of particular land developments, approval by other governmental agencies may be required in respect of specific aspects of the project at some point in the planning or construction stage. But these are aspects of the project over which those other governmental agencies have jurisdiction and that jurisdiction, while complementary to municipal jurisdiction, may nevertheless not be indirectly abrogated by the municipality in its preliminary subdivision procedures. We do not address the question of whether a municipality could provide in its subdivision ordinance that a subdivision application will not be deemed complete until the developer submits those other required governmental approvals which are relevant to that planning stage of the project. The simple fact here remains that this township's ordinance did not so require, and it is only information required by the ordinance that can be insisted upon for a completeness determination.
The planning board further argues that the time provisions prescribed by N.J.S.A. 40:55D-48(c) must be regarded as modified by the earlier legislative enactment of N.J.S.A. 40:27-6.3. That section provides in relevant part that
Each subdivision application shall be submitted to the county planning board for review and, where required, approval prior to approval by the local municipal approving authority. County approval of any subdivision application affecting county road or drainage facilities shall be limited by and based upon the rules, regulations and standards established by and duly set forth in a resolution adopted by the board of chosen freeholders. The municipal approval authority shall either defer taking final action on a subdivision application until receipt of the county planning board report thereon or approve the subdivision application subject to its timely receipt of a favorable report thereon by the county planning board.
We are, however, satisfied that the deferral option accorded to a municipality by this provision pending required county planning board approval has itself been implicitly repealed by the Municipal Land Use Law.
We note first that N.J.S.A. 40:55D-37(c) provides that "the municipal planning board shall condition any approval that it grants upon timely receipt of a favorable report on the application by the county planning board or approval by the county ...