On appeal from the Superior Court, Appellate Division, whose opinion is reported at 184 N.J. Super. 99 (1982).
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock and O'Hern. For affirmance -- None. The Opinion of the Court was delivered by Handler, J.
[92 NJ Page 468] This case focuses on the automatic approval provisions contained in the Municipal Land Use Law (MLUL) relating to preliminary approval of subdivision plans. The MLUL requires that a municipality act upon an application for preliminary subdivision approval within 95 days or the application will be approved automatically, N.J.S.A. 40:55D-48 c. At the center of this controversy is how this provision of the MLUL detailing procedures for municipal approval, N.J.S.A. 40:55D-48 c, interrelates with the statutory provisions requiring county approval of preliminary subdivision applications, N.J.S.A. 40:27-6.1 to -6.13. At issue is whether the municipality may extend the 95-day statutory period by deferring action on the application
until it receives notice of county approval under N.J.S.A. 40:27-6.3. Also at issue in this case is whether, under the circumstances reflected in the record of the proceedings before the municipality, the statutory 95-day period was validly extended so as to avoid the automatic approval of the preliminary subdivision application.
We now hold that a municipality must act upon a preliminary subdivision application within the 95-day statutory period and may not unilaterally extend that period by deferring its consideration of the application while awaiting county approval. We further hold that the developer in this case did not consent to an extension of the 95-day statutory period for municipal review. Nevertheless, in an exercise of our original jurisdiction, we find, in view of all the circumstances of the case relating particularly to the misapprehension of the parties concerning statutory requirements, that plaintiff's application should not be automatically approved and that it be scheduled promptly for a public hearing.
The plaintiff, Manalapan Holding Company, is the owner of a 45-acre parcel in the Township of Hamilton. It sought to construct a major residential development on this land by subdividing 23.65 acres of the parcel into 67 building lots.
On June 30, 1980 the developer began the formal governmental approval process with the submission of an application for preliminary major subdivision approval to the Township of Hamilton and the Mercer County Planning Board. Under the Municipal Land Use Law (MLUL), both municipal and county approval are necessary. N.J.S.A. 40:55D-37; N.J.S.A. 40:27-6.3. However, county review of the application is limited to the effect of the subdivision on county roads and drainage facilities. N.J.S.A. 40:27-6.2.
The Township of Hamilton initially referred the application to its Development Review Advisory Board (DRAB) which, under
the municipal ordinance, Hamilton Code § 160-802(B)(1), had the duty to "[r]eview all applications for development for compliance with the applicable ordinance provisions." Consistent with its understanding of the duty, the DRAB reviewed the application for completeness. At its July 23, 1980 meeting, the DRAB heard from the Township's Planning and Engineering Departments which expressed a major concern over the sewerage of the development. The Township's counsel also informed the developer of the Township's policy that county approval was required prior to consideration of any application by the Township Planning Board. The DRAB determined that the application was complete and forwarded the application with the comments of the Planning and Engineering Departments to the Township Planning Board. These comments and recommendations specifically referred to sewer capacity and the possible necessity of a detention basin and noted further that county approval would be required.
The County completed its own review of the application and, on August 1, 1980, informed the Township and the developer that an on-site stormwater detention facility would be required. On August 5, 1980 the developer requested that the County reconsider its decision to require a detention basin.
Coincidental with the County's action upon the application, the Township's Planning Board scheduled a public hearing on the application for the evening of August 7. At the beginning of the meeting, the attorney for the developer requested that the hearing on the application be postponed until the next scheduled meeting, which was to take place in September. The request was granted.
On September 10, 1980, which was prior to the scheduled September meeting of the Township Planning Board, the County acted upon plaintiff's request for reconsideration of its requirement that a stormwater detention facility be provided. It declined to alter this requirement and affirmed its earlier decision. It approved the preliminary major subdivision application contingent upon provision of the stormwater detention facility.
The Planning Board, which had re-scheduled the public hearing on the application for its September 11, 1980 meeting, removed the item from its agenda prior to the convening of the meeting. Although the reasons for this action are not contained in the record, the Township apparently delayed the hearing in accordance with its policy to consider only applications with county approval. The county approval of plaintiff's application had apparently not been received at the time the Township Planning Board's agenda for the September 11 meeting was finalized.
Thereafter, in order to meet the requirements for a stormwater detention facility imposed by the County, plaintiff submitted a revised application to the Township and the County on October 7, 1980. The Planning Board's next regular meeting was held on October 16. However, the Planning Board did not conduct a public hearing on plaintiff's application at that meeting. Instead, at that meeting it called a special meeting for October 30 at which the public hearing on plaintiff's application would be conducted.
On October 24, 1980 the Planning Board secretary called the developer's attorney requesting that the developer consent to an extension of the 95-day statutory period within which the municipality must act on a preliminary subdivision application, failing which the application would be approved automatically. Viewing July 23 as the date on which the application was deemed complete, the 95-day period would expire on October 26, four days before the scheduled October 30 public hearing. The developer did not grant the extension or attend the October 30 hearing. Rather, in a letter that was hand-delivered to the Planning Board on the afternoon of October 30, it claimed that the statutory 95-day period ...