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D''Anna v. Planning Board of Township of Washington

Decided: May 8, 1992.

FRANK D'ANNA, PLAINTIFF-RESPONDENT,
v.
PLANNING BOARD OF THE TOWNSHIP OF WASHINGTON, MORRIS COUNTY, NEW JERSEY, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Morris County.

Coleman, J.h. and Bilder. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.

Coleman

COLEMAN, J.H., P.J.A.D.

This is an appeal by the Planning Board of the Township of Washington (Board) from an order of the Law Division granting

preliminary approval to plaintiff's major subdivision application pursuant to the automatic approval mechanism described in the Municipal Land Use Law, N.J.S.A. 40:55D-48c. The significant issue presented in this appeal is whether the inadvertent misfiling of a revised application for a major subdivision should trigger the automatic approval provision in our Municipal Land Use Law. The trial court held that it does. We reverse.

On October 24, 1988, plaintiff, one of the owners of a 118 acre tract, submitted an application for a major preliminary subdivision of the tract into 17 residential building lots. That application was never deemed complete because plaintiff never supplied information indicated on a checklist, which had been adopted by ordinance pursuant to N.J.S.A. 40:55D-10.3. In point of fact, Carl Denzler, the Board's planner, found there were approximately 19 deficiencies at the end of October 1989. Plaintiff was notified on November 13, 1989, by Jane Casey, the Board's Clerk, that the application was incomplete.

The application for preliminary subdivision was revised; this time a 14 lot subdivision was sought. The revised application was hand delivered to the Board on December 1, 1989. The Board's Clerk, Jane Casey, was not on duty when the revised plans were submitted due to illness. The revised plans never reached the Board or any of its professionals. Plaintiff's transmittal letter submitted with the revised application stated "I trust that this shall deem the application complete." Plaintiff neither heard from nor inquired of the Board prior to the Board's April 24, 1990, letter in which Ms. Casey advised plaintiff that "[b]ecause of the inactive status of your application, it will be denied without prejudice at the May 14, 1990 meeting of the Washington Township Planning Board."

This prompted a letter from plaintiff, dated May 9, 1990, advising the Board that plaintiff had achieved "Preliminary Major Subdivision Approval by reason of the Planning Board's failure to grant or deny approval within the time period provided in N.J.S.A. 40:55D-1 et seq. " Plaintiff asserted that pursuant

to N.J.S.A. 40:55D-10.3 the application was deemed complete on January 15, 1990, and the 95 day requirement of N.J.S.A. 40:55D-48c expired on April 20, 1990.

On May 14, 1990, the Board of Health and the Township Engineer informed the Board by letter that the application was still incomplete. The Board denied the application on May 14, 1990, and on August 9, 1990, informed plaintiff that his request for a Certification of Subdivision was also denied.

Plaintiff filed a complaint in lieu of prerogative writs on September 10, 1990. Plaintiff sought an automatic approval which the Board denied. The trial court found that the Board unfortunately lost the revised plans filed with the Board on December 1, 1989. The trial court nevertheless concluded that plaintiff ...


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