The opinion of the court was delivered by: Winkelstein
Defendant GNOC t/a The Grand (the Grand) applied to the Atlantic City Planning Board (the Board) for preliminary and final site plan approval for an expansion (the project) of defendant's hotel. Phase I of the project received approval from the Board on March 1, 1995. On July 19, 1995, a public hearing was held and the Grand's Phase II application was approved. The project included the construction of a new 750 seat theater, plus the addition of a 14 story, 308 room hotel tower, to be joined with the Grand's existing 23 story tower. The project was deficient by 202 parking spaces and a variance was required and granted. It is also asserted that a variance was necessary for the orientation of the new tower, but none was sought by the Grand nor required by the Board.
Plaintiffs in this consolidated action are objecting to the project. They filed complaints in lieu of prerogative writs alleging that the Board's decision granting the variance for the parking deficiency and failure to require a variance for the orientation of the building was arbitrary, capricious and unreasonable. The Grand filed an answer setting forth separate and affirmative defenses which included a claim that the complaints were not timely filed. The Grand now moves to dismiss the complaints on the grounds that plaintiffs failed to file within 45 days as is required by R. 4:69-6. The procedural history follows.
The Board held a hearing on July 19, 1995 and granted defendant's application for preliminary and final site plan approval, subdivision approval and variance relief for Phase II. A notice of the decision was published by the Grand in the Press of Atlantic City, (the Press), a newspaper of general circulation in the municipality, on July 26, 1995. A memorializing resolution was adopted by the Board on August 16, 1995. A record of the decision was placed on file in the Board's administrative office on August 18, 1995. A second publication in the Press, this one prepared by the Board, appeared on August 20, 1995. Plaintiff Island Club Home Owners Association (Island Club) filed its complaint attacking the decision on September 21, 1995. Plaintiff Frances Ginnetti (Ginnetti) filed her complaint on October 2, 1995.
Pursuant to R. 4:69-6(b) an action in lieu of prerogative writs shall be commenced no later than 45 days from the publication of a notice in the official newspaper of the municipality or in a newspaper of general circulation in the municipality. The time to file an appeal from a decision of a municipal agency runs from the first publication of the decision regardless of whether arranged by the municipality or the applicant. N.J.S.A. 40:55D-10(i).
N.J.S.A. 40:55D-10(g) sets forth the statutory framework to be followed by the municipal agency when rendering findings and Conclusions and providing notice of same to the public and interested parties. A municipal agency must include findings of fact and Conclusions supporting its decision. N.J.S.A. 40:55D-10(g). Medici v. BPR Co., 107 N.J. 1, 23, 526 A.2d 109 (1987). The agency shall include the findings of fact and Conclusions of each decision by drafting a resolution no later than 45 days after the meeting is held. N.J.S.A. 40:55D-10(g) Subsection (g)(2) states that the date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings and publications.
Thus, the first step in adopting the resolution occurs at the meeting of a board when a vote on the application is taken. N.J.S.A. 40:55D-10(g)(1). After a board votes, a memorializing resolution is necessary within the next 45 days. N.J.S.A. 40:55D-10(g)(2). The memorializing resolution may be adopted by a majority of the members present at the meeting at which the original resolution was passed. Id. The vote on the memorializing resolution shall
be deemed to be a memorialization of the action of the municipal agency and not to be an action of the municipal agency; however, the date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings and publications required by subsections (h) and (i) of this section.
If the municipal agency fails to adopt either the original or memorializing resolution, any interested party may apply to the court for an order compelling same. Id.
A copy of the decision is then to be mailed to the applicant within 10 days and a copy is to be filed by the municipal agency in the office of its administrative officer. A notice of the decision is to be published in the official newspaper of the municipality or in a newspaper of general circulation which publication is to be arranged by the applicant unless a particular municipal officer is designated to do so by ordinance. Id.
The requirements of N.J.S.A. 40:55D-10 must be read in conjunction with R. 4:69-6. Subsection b(3), provides that to review a determination of a planning board the right to review does not accrue until
after 45 days from the publication of a notice once in ... a newspaper of general circulation in the municipality .... The notice shall state the name of the applicant, the location of the property and in brief the nature of the application and the effect of the determination or resolution . . . and shall advise that the determination or resolution has been ...