On appeal from the Superior Court, Law Division, Passaic County.
Matthews, Pressler and Petrella. The opinion of the court was delivered by Pressler, J.A.D.
This appeal requires us to reconcile the competing policies of the Open Public Meetings Act, N.J.S.A. 10:4-6, et seq., and those provisions of the Municipal Land Use Law, N.J.S.A. 40:55D-1, et seq., which mandate automatic site plan approval by a local planning board upon its failure to act within the time periods prescribed by N.J.S.A. 40:55D-10(g) and 40:55D-50.
Plaintiff Precision Industrial Design Company, Inc. is the owner of a parcel of land in Pompton Lakes, which it proposes to develop as an industrial park, a use permitted by the zoning ordinance. Apparently its plans require neither subdivision nor variance relief of any kind but do require site plan approval from the Pompton Lakes Planning Board. It accordingly submitted an application for site plan approval which was stipulated by the Planning Board to have been complete as of October 21, 1980.
The Planning Board conducted hearings on the application on October 21, November 18, and December 2, 1980. At the December 2 meeting, a resolution was read by the Planning Board's attorney. The resolution recited the Planning Board's consideration of the application and denied approval thereof for the reasons, among others, that the provisions for sewage removal and drainage were inadequate and the projected traffic over high pressure gas lines would constitute a danger to neighboring homes. A roll call vote on the resolution was then taken, 7 members voting in favor, 2 against and one abstaining.
It appears that pursuant to the Planning Board's customary practice, the reading of the resolution and the roll-call vote were sound-recorded for the purpose of subsequent transcription. The resolution thus transcribed was then circulated to the Planning Board members for their confirmation thereof at its next meeting. The next meeting had been scheduled for December 23, 1980, but was cancelled and rescheduled for January 6, 1981. A notice of the holding of the January 6 meeting for purposes both of Planning Board reorganization and for the
taking of "formal action" on the denial of plaintiff's site plan application was, in accordance with N.J.S.A. 10:4-8, timely posted, delivered to two newspapers, and filed with the clerk of the municipality. The notice, however, and obviously inadvertently, neglected to state the place of the meeting or the hour of its convening. When the meeting of January 6 was convened there was a failure to comply with that provision of N.J.S.A. 10:4-10(a) requiring that a statement be made for the minutes affirming that statutory notice of the meeting had been provided.
The January 6, 1981 meeting nevertheless proceeded and it does not appear that there was then any awareness by the Planning Board of the notice deficiency. The resolution read and recorded at the December 2, 1980 meeting had been reduced to writing and was adopted with one change, namely, the original statement concerning traffic over high pressure gas lines was modified to provide not that it would endanger neighboring homes but that it might so do.
Plaintiff instituted this action by complaint filed on February 18, 1981. It was its contention that the action taken by the Planning Board at the January 6 meeting was null and void by reason of the technical non-compliances with the Open Public Meeting Law above set forth. Since the time periods prescribed by N.J.S.A. 40:55D-10(g) and 40:55D-50 were contended to have therefore expired without any valid action being taken by the Planning Board on the site plan application, plaintiff demanded judgment deeming its application to be approved pursuant to the automatic approval sections of the Municipal Land Use Law. The Planning Board's practical response to the institution of the action was to hold a corrective meeting on April 21, 1981, at which, pursuant to N.J.S.A. 10:4-15(a), a confirmatory and ratifying resolution was passed readopting the resolution of January 6.
Thereafter the parties moved and cross-moved for summary judgment. The trial court denied the Planning Board's motion
for summary judgment dismissing the complaint and granted the motion of the plaintiff for judgment declaring its site plan application "automatically" approved. It was the judge's view that the January 6 resolution was void because of noncompliance with the Open Public Meetings Law. He further reasoned that since the time for action prescribed by the Municipal Land Use Act had expired prior to the Planning Board's attempted remedial and corrective action, that action was ineffective ...