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Star Enterprise v. Wilder

Decided: November 23, 1993.

STAR ENTERPRISE, A NEW YORK GENERAL PARTNERSHIP, PLAINTIFF-APPELLANT,
v.
CHRISTINA WILDER, AS CLERK OF THE TOWNSHIP OF HAMILTON, AND ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF HAMILTON, MERCER COUNTY, A MUNICIPAL AGENCY, DEFENDANTS-RESPONDENTS



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

Michels and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

On or about January 24, 1992, plaintiff filed an application with defendant Hamilton Township Zoning Board of Adjustment ("Board") seeking various use variances, bulk variances and preliminary site plan approval to refurbish an existing Texaco Service Station, including the "installation of a free-standing canopy over new dispenser islands, multi-product dispensers and kiosk, free-standing accessory car wash and underground storage tanks." On February 19, 1992, the Board determined that plaintiff's application was complete; however, it did not begin the hearing on plaintiff's application until five months later, on July 14, 1992. By letter dated June 12, 1992, plaintiff's counsel consented to "extend the time within which the Zoning Board of Adjustment must grant approval in this matter to July 31, 1992." The Board spent its entire session on July 14, 1992, receiving testimony relating to plaintiff's application, but was unable to complete the hearing on that occasion. The Board therefore adjourned the matter, with plaintiff's apparent acquiescence, until its August 11, 1992 meeting. However, the Board failed to request an additional extension of time within which to act beyond the July 31, 1992 date to which plaintiff had previously consented.

Plaintiff appeared at the August 11th hearing date, apparently prepared to proceed. But only six members of the Board were present, and the approval of plaintiff's application, which included use variances, required an affirmative vote of a "super-majority" of five Board members. Ostensibly because of this circumstance, plaintiff requested the Board to adjourn the matter until its September meeting.

However, on the very next day, August 12, 1992, plaintiff gave notice to the Township Clerk, the Board's Secretary, all known objectors, and all property owners within 200 feet of its property, that it was claiming an automatic approval pursuant to N.J.S.A.

40:55D-76(c). The Board's attorney subsequently informed plaintiff that he had "instructed . . . the administrative officer of the Township not [to] issue a Certificate of Approval of the application based upon the failure of the Board to act in a timely manner," and that plaintiff's application "has been scheduled for a September hearing, and appropriate action will be taken by the Board at that point."

Plaintiff failed to attend the September 8th meeting, but the Board nevertheless completed its hearing and voted to deny plaintiff's application. The Board's action was memorialized on October 13, 1992 by a resolution containing findings of fact and Conclusions of law.

Plaintiff then filed this prerogative writ action claiming that its application had been automatically approved. The trial court rejected plaintiff's claim and granted the Board summary judgment. In addition, the court remanded the matter to the Board "for expedited completion of the hearings," upon plaintiff's notification to the Board of its desire to supplement the record. The parties advised us at oral argument that plaintiff chose not to avail itself of this opportunity.

Plaintiff's claim that its development application was automatically approved is based upon N.J.S.A. 40:55D-76(c), which provides in pertinent part:

Whenever an application for development requests relief pursuant to subsection b. of this section, the board of adjustment shall grant or deny approval of the application within 120 days after submission by a developer of a completed application to the administrative officer or within such further time as may be consented to by the applicant . . . . Failure of the board of adjustment to act within the period prescribed shall constitute approval of the application, and a certificate of the administrative officer as to the failure of the board of adjustment to act shall be issued on request of the applicant, and it shall be sufficient in lieu of the written endorsement or other evidence of approval herein required, and shall be so accepted by the county recording officer for purposes of filing subdivision plats.

Our courts have repeatedly indicated that such automatic approval provisions "should be applied with caution." King v. New Jersey Racing Comm'n, 103 N.J. 412, 422, 511 A.2d 615 (1986) (quoting ...


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